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THE 

CODES  OF  CALIFORNIA 


AS   AMENDED    AND    IN   FORCE   AT  THE  CLOSE  OF  THE 

THIRTY-EIGHTH  SESSION  OF  THE  LEGISLATURE, 

1909 


IN  FOUR  VOLUMES 

POCKET    EDITION 

ANNOTATED  BY 

JAMES  M.  KEKR 


VOLUME  TWO 
CIVIL  (ODE 


BAN    I^^RANCJSCO 
BENDER  -  MOSIS  COMPA  \  ^' 

LAW   ITIU.r.SIIERS  AND  BOOKSELLEKS 

1909 


Copyright,  1909 
By  Bender-Moss  Company 


FOREWORD, 


In  putting  forth  this  edition  of  the  Civil  Code  the  editor 
desires  to  call  the  attention  of  the  younger  members  of  the 
profession,  and  of  those  who  are  about  to  enter  upon  the 
practice  of  the  law,  to  the  value  and  the  excellence  of  our 
Civil  Code.  It  comprises  the  body  of  substantive  law  in  all 
civil  matters,  the  same  as  the  Code  of  Civil  Procedure  con- 
tains the  law  regulating  the  procedure  and  practice  in  all  civil 
causes  and  proceedings  in  all  the  courts  of  the  state.  These 
two  codes  supplement  each  other;  one  embodies  the  body 
of  the  substantive,  the  other  the  adjective  law  of  the  state. 

The  Civil  Code  supersedes  and  supplants  all  Civil  Law  and 
all  Common  Law  doctrines  and  rules,  and,  where  it  speaks, 
is  supreme.  Hence  the  importance  of  a  close  study  of  and 
thorough  knowledge  of  its  provisions.  After  the  Code  itself 
are  the  application  of  and  interpretation  of  its  provisions  by 
our  state  courts  and  the  Federal  courts.  All  these  applica- 
tions and  interpretations  are  collected  in  Kerr's  Cyclopedic 
Codes — and  nowhere  else,  together  with  a  great  deal  of  perti- 
nent matter  drawn  from  all  the  courts  of  all  the  states  of  the 
Union,  to  fully  enforce  and  illustrate  a  principle  in  all  its 
various  applications,  or  to  show  that  a  doctrine  announced  is 
out  of  harmony  with  the  general  trend  of  authority,  or  con- 
trary to  the  weight  of  decision  in  this  country. 

The  annotations  sui)plied  to  the  Pocket  Edition  do  not 
duplicate,  but  merely  supplement,  the  annotations  found  in  the 
Cyclopedic  Codes — the  great  and  only  body  of  pertinent  and 
exhaustive  annotations  of  our  Codes. 

A  word  of  explanation  as  to  the  method  of  annotation  in  this 
volume  may  not  be  out  of  place.  It  is  sought  to  make  the 
volume  a  complete  index  to  valuable  collections  of  authori- 
ties. Of  course  the  Century  Digest  and  Decennial  Digest 
furnish  the  only  complete  collection — applicable  and   inappli- 

iii 


FOREWORD. 

cable  to  our  Codes — of  American  authorities  upon  any  subje* 
of  the  law;  but  there  are  many  valuable  collections — thoug 
incomplete — along  particular  lines,  elaborating  a  distinct  legai 
point,  with  a  thread  of  discussion  thrown  in,  and  sometimes 
showing  the  history  of  the  development  of  a  particular  doc- 
trine. All  these  are  more  or  less  valuable,  according  to  the 
ability  and  experience  and  sound  legal  judgment  of  the 
persons  who  prepare  them.  All  are  assistful  to  the  practi- 
tion'^1'  References  have  been  made  to  all  of  these  annota- 
tions or  monographic  notes,  as  well  as  numerous  specific 
references  to  the  Century  and  Decennial  Digests,  making  this 
volume  a  complete  index, — on  the  more  important  topics  of 
substantive  law, — to  all  valuable  collections  of  authorities  to 
be  found  in  the  various  series  of  selected  and  annotated  cases, 
supplemented  by  general  and  specific  references  to  the  great 
body  of  exhaustive  annotations  to  be  found  in  Kerr's  Cyclo- 
pedic Codes  of  California, — the  greatest  body  of  exhaustive 
and  pertinent  annotation  to  be  found  anywhere. 

Believing  that  a  complete  and  systematic  treatment  of  a 
topic  in  one  note  is  more  assistful  than  the  same  matter  dis- 
persed throughout  the  entire  subject  as  presented  in  the  Code, 
it  has  been  the  aim  to  keep  the  matter  on  a  particular  subject 
as  much  in  one  place  as  practicable.  Thus,  in  the  title  Corpo- 
rations, those  matters  common  to  all  corporations  will  be 
found  collected  under  §  283 ;  matters  peculiar  to  insurance 
companies  generally,  will  be  found  under  §414;  matters  pe- 
culiar to  railroads  and  street-railroads,  under  §  454  and  §  497 
respectively;  bridge,  ferry,  etc.,  corporations,  under  §  528; 
telegraph  and  telephone  companies,  under  §536;  water  com- 
panies, under  §  548,  and  so  on.  In  the  title  Carriers,  all  that 
pertains  to  carriers  generally,  and  affects  all  classes  of  car- 
riers, will  be  found  collected  under  §  2085  and  the  sections 
immediately  following;  matters  pertaining  to  carriers  of  per- 
sons, and  carriers  of  goods  and  livestock,  under  §  2100  and 
§  2114  respectively. 

This  method  of  annotation  is  new,  and  it  is  hoped  the  pro- 
fession will  find  it  to  be  as  assistful  and  convenient  as  the 
editor  believes  it  will  be. 

iv 


FOREWORD. 

The  index  is  prepared  on  the  same  general  plan  as  the  index 
to  Kerr's  Annotated  Pocket  Code  of  Civil  Procedure,  and  it  is 
expected  that  it  will  prove  to  be  as  highly  satisfactory  as  did 
the  one  to  the  Pocket  Procedure. 

In  the  preparation  of  this  volume  the  editor  has  received 
valuable  assistance  from  Mr.  W.  S.  Church,  of  the  San 
Francisco  Bar. 

JAMES  M.  KERR. 

San  Francisco,  August  12,  1909. 


I 


CONTKNTS. 


ERRORS  IN  CALIFORNIA   REPORTS   IN  CITATION 
ABBREVIATIONS    IN    POCKET    CODES 


TITLE   OF  THE   ACT    

PRELIMINARY   PROVISIONS 


Pap:es. 
xxi-xxx 


Sections. 

1 


1-21 


DIVISION    FIRST.      (Sees.   25-653zb.) 

PART     I.      PERSONS      2.i-lL' 

II.      PERSONAL    RIGHTS    4.'.-r.1 

III.     PERSONAL    RELATIONS     55-276 


Title  I.  Marriage    55-181 

Chapter  I.  The  Contract   of   Marriage 55-80 

Article  I.  Validity  of  MarriaRe 5.5-63 

II.  Authentication    of   Marrlapte 6S-79a 

11  r,  .Judicial   Determination  of  Void    Marriage  SO 

Chapter  II.  Divorce     82-148 

Article  I.  Nullity 82-86 

II.  Dissolution  of  Marriase 90-107 

III.  Causes  for  Denying  Divorce 111-1:12 

IV.  C.enoral   Provisions   136-118 

Chapter  111.  llnshand  and  Wifr 155-181 


Title  II.     Parent   and   Child. 

Chapter  1.     Hy   Hirth    

II.     Hy  .Vdoption    


193-2;'.0 

i;t:;-2i5 

L' 2 1-230 


Title  III.     Guardian  and  Ward J36-258 

IV.     Master  and  Apprentice 264-276 

vli 


CONTENTS. 

Sections. 

PART  IV.     CORPORATIONS   283-653zb 

Title  I.  General  Provisions  Applicable  to  All  Cor- 
porations          283-410 

Chapter  I.  Formation  of  Corporations 283-321b 

Article  I.  Corporations  Defined  and  How  Organized  283-300a 
II.  By-Laws,    Directors,   Electors,   and   Meet- 
ings    301-321b 

Chap+prll.  Corporate  Stock   322-349 

Article  I.  Stock  and  Stockholders 322-329 

II.  Assessment  of  Stock  331-349 

Chapter  III.  Corporate  Powers 354-393 

Article  I.  General  Powers 354-365 

II.  Records    377, 378 

III.  Examination  of  Corporations,  etc 382-384 

IV.  Judgment  Against  and  Sale  of  Corporate 

Property 388-393 

Chapter  IV.     Extension    and    Dissolution    of    Corpora- 
tions         399-403 

V.     General  Provisions  Affecting  Corporations 

^. ....    403[a],404 

VI.     Foreign   Corporations    405-410 

Title  II.     Insurance  Corporations 414-453p 

Chapter  I.     General  Provisions 414-421  [a] 

II.  Fire,  Marine,  and  Title  Insurance  Com- 
panies          424-432 

III.  Mutual  Life;  Health,  and  Accident  Insur- 

ance Corporations 437-452 

IV.  Mutual  Benefit  and  Life  Associations. . . .  452a,  453 
V.     Corporations  to   Discover  Fire   and   Save 

Property  and  Human  Life  from  Destruc- 
tion Thereby   453a-453c 

VI.  Life,  Health,  Accident,  and  Annuity  or 
Endowment  Insurance  on  the  Assess- 
ment Plan 453d-453p 

viii 


CONTENTS. 

Sections. 
Title  ill.     Railroad  Corporations 454-494 

Chapter  I.     Officers  and  Corporate  Stock 454-459 

II.     Enumeration  of  Powers 465-478 

III.     Business,  how  Conducted 479-494 

Title  IV.     Street-Railroad    Corporations 497-511 

V.     Wagon-Road  Corporations    512-524 

VI.  Bridges,    Ferry,    Wharf,    Chute,    and    Pier 

Corporations 528-531 

VII.  Telegraph  and  Telephone  Corporations..  536-540 

•VIII.     Water  and  Canal  Corporations 548-552 

IX.     Homestead  Corporations 557-566 

X.     Savings  and  Loan  Corporations 571-583b 

XI.     Mining  Corporations   586-590 

XIa.  Corporations  for  the  Formation  of  Cham- 
bers of  Commerce,  Boards  of  Trade, 
IVIechanics'  Institutes,  and  other  Kin- 
dred Associations   591-592e 

XII.  Religious,  Social,  and  Benevolent  Corpo- 
rations     ■ 593-605 

XI la.     Societies  for  the  Prevention  of  Cruelty  to 

Children  and  Animals 607-607g 

XIII.  Cemetery  Corporations   608-616 

XIV.  Agricultural    Fair   Corporations 620-622 

XV.     Corporations  to   Furnish   Light  for  Public 

Use    629-632 

XVI.     Building  and   Loan   Associations 633-648a 

XVII.     Colleges  and  Seminaries  of  Learning....      649-651 
XVIII.     Consolidation  of  Colleges  and  Institutions 

of  Higher   Education 652,653 

XIX.     Co-operative  Business  Corporations 653a 

XX.     Co-operative  Business  Associations 653b-653I 

XXI.     Non-Profit  Co-operative  Agricultural,  Viti- 

cultural  and  Horticultural  Associations  653m-653s 
XXII.     Non-Profit  Co-operative  Corporations. ..  .653t-653zb 
ix 


CONTENTS. 

Sections. 

DIVISION   SECOND.      (Sec.  654-1425.) 

PART    I.  PROPERTY   IN    GENERAL 654-749 

Title  I.  Nature  of   Property 654-663 

II.  Ownership 669-742 

Chapter  I.  Owners     669-672 

II.  Modifications   of  Ownership 678-726 

Article  I.  Interest  in  Property 678-703 

II.  Conditions  of  Ownership 707-711 

III.  Resraints  upon  Alienation 715-718 

IV.  Accumulations    722-726 

Chapter  III.  Rights  of  Owners 732,  733 

IV.  Termination  of  Ownership    739-742 

Title  III.  General    Definitions    748,749 

PART  II.  REAL   OR    IMMOVABLE    PROPERTY...  755-940 

Title  I.  General  Provisions 755 

II.  Estates  in    Real   Property 761-811 

Chapter  I.  Estates  in  General 761-781 

11.  Termination  of  Estates 789-793 

III.  Servitudes    801-811 

Title  III.  Rights  and  Obligations  of  Owners 818-843 

Chapter  I.  Rights  of  Owners 818-834 

Article  I.  Incidents  of  Ownership 818-827 

II.  Boundaries 829-834 

Chapter  II.  Obligations  of  Owners 840-843 

Title  IV.  Uses  and  Trusts 847-871 

V.  Powers   (repealed)    878-940 

PART  III.  PERSONAL  OR  MOVABLE  PROPERTY.  946-995 

Title  I.  Personal    Property   in    General 946,947 

11.  Particular  Kinds  of  Personal  Property...  953-995 
X 


CONTEXT>^. 

Sections. 

Chapter  1.     Things  in  Action   953,  954 

II.     Shipping    960-973 

Article  I.     General    Provisions    960-966 

II.     Rules  of  Navigation   970-973 

Chapter  III.     Products  of  the  Mind 980-985 

IV.     Other  Kinds  of  Personal   Property 991-995 

PART  IV.     ACQUISITION  OF  PROPERTY 1000-1426S 

Title  I.  Modes    in    Which    Property    May    Be    Ac- 
quired      1000,  1001 

II.     Occupancy    1006,  1007 

III.     Accession     1013-1033 

Chapter  I.     Accession  to  Real  Property 1013-1019 

II.     Accession  to  Personal  Property 1025-1033 

Title  IV.     Transfer     1039-1231 

Chapter  I.     Transfers  in  General   1039-1085 

Article  I.     Definition  of  Transfer   1039,  1040 

II.     What  May  Be  Transferred   1044-1047 

III.  Mode  of  Transfer 1052-1060 

IV.  Interpretation   of  Grants 1066-1072 

V.     p:ffect  of  Transfer   1083-1085 

Chapter  II.     Transfer  of  Real  Property 1091-1115 

Article  I.     Mode  of  Transfer  .' 1091-1096 

II.     Effect  of  Transfer   1104-1115 

Chapter  III.     Transfer  of  Personal  Property 1135-1153 

Article  I.     Mode  of  Transfer   1135,  1136 

II.     What  Operates  as  a  Transfer 1140-1142 

III.     Gifts    1146-1153 

Chapter  IV.     Recording  Transfers    1158-1218 

Article  I.     What  May  Be  Recorded   1158-1 165 

•  II.     Mode  of  Recording    1169-1173 

III.  Proof    and    Acknowledgment    of    Instru- 

ments     1180-1207 

IV.  Effect  of  Recording,  or  the  Want  Thereof  .1213-1218 
Chapter  V.    Unlawful  Transfers   1227-1231 

xi 


CONTENTS. 

Sections. 

Title  V.     Homesteads   1237-1269c 

Chapter  I.     General  Provisions 1237-1261 

II.  Homestead  of  the  Head  of  a  Family 1262-1265 

III.  Homestead  of  Other  Persons   1266-1269 

IV.  Alienation  of  Homesteads  of  Insane  Per- 

sons    1269a-1269c 

Title  VI.     Wills    1270-1377 

Chapter  I.     Execution  and  Revocation  of  Wills 1270-1313 

IT.     Interpretation  of  Wills,  and  Effect  of  Vari- 
ous Provisions  1317-1351 

III.     General  Provisions   1357-1377 

Title  VII.     Succession    1383-1409 

VIII.     Water-Rights    1410-1422 

IX.     Hydraulic    Mining    1424,1425 

X.     Locating    Mining    Claims,   Tunnel    Rights, 

Mill   Sites,   etc 1426-1426s 

DIVISION  THIRD.     (Sees.  1427-3268.) 

PARTI.     OBLIGATIONS    IN    GENERAL    1427-1543 

Title  I.  Definition  of  Obligations  1427,  1428 

II.  Interpretation  of  Obligations 1429-1451 

Chapter  I.  General  Rules  of  Interpretation 1429 

II.  Joint  or  Several  Obligations 1430-1432 

III.  Conditional   Obligations 1434-1442 

IV.  Alternative   Obligations    1448-1451 

Title  III.  Transfer  of  Obligations    1457-1468 

IV.  Extinction  of  Obligations 1473-1543 

Chapter  I.  Performance    1473-1479 

II.  Offer  of  Performance    1485-1505 

III.  Prevention  of  Performance  or  Offer 1511-1515 

IV.  Accord  and  Satisfaction  1521-1524 

V.  Novation    1530-1533 

VI.    Release   1541-1543 

xii 


CONTENTS. 

S.-ctions. 
PART  II.     CONTRACTS     1549-1701 

Title  I.     Nature   of  a   Contract 1549-1615 

Chapter  I.     Definition    1549, 1550 

II.     Parties   1556-1559 

III.  Consent    1565-1589 

IV.  Object  of  a  Contract 1595-1599 

V.     Consideration    1605-1615 

Title  II.     Manner  of  Creating  Contracts 1619-1629 

III.  Interpretation    of   Contracts    1635-1661 

IV.  Unlawful   Contracts    1667-1676 

V.     Extinction  of  Contracts    1682-1701 

Chapter  I.     Contracts,  How   Extinguished    1682 

II.     Rescission    16S8-1691 

III.  Alteration    and    Cancelation 1697-1701 

PART  III.     OBLIGATIONS   IMPOSED   BY   LAW 1708-1715 

IV.  OBLIGATIONS     ARISING     FROM      PAR- 

TICULAR  TRANSACTIONS    1721-3268 

Title  I.     Sale    1721-179S 

Chapter  I.     General  Provisions 1721-1741 

Article  I.     Sale    1721, 1722 

II.     Agreement  for  Sale   1726-1734 

III.     Form  of  the  Contract  1739-1741 

Chapter  II.     Rights  and  Obligations  of  the  Seller 1748-1778 

Article  I.     Rights  and  Duties  Before  Delivery 1748,  1749 

II.  Delivery    1753-1758 

III.  Warranty     1763-1778 

Chapter  III.     Rights  and  Obligations  of  the  Buyer 1784-1786 

IV.  Sale  by  Auction 1792-1798 

Title  II.     Exchange     1804-1807 

III.  Deposit    1813-1878 

Chapter  I.    Deposit  in  General  1813-1828 

Article  I.    Nature  and  Creation  of  Deposit 1813-1818 

II.    Obligations  of  the  Depof?|tary   ., 1822-1828 

xiii 


CONTENTS. 

Sections. 

Chapter  II.     Deposit  for  Keeping   1833-1872 

Article  I.     General    Provisions    1833-1840 

II.     Gratuitous    Deposit    1844-1847 

III.  Storage     1851-1857 

Ilia.    Warehousemen    1858-1858f 

IV.  Innkeepers   1859-1863 

V.     Finding    1864-1872 

Chapter  III.     Deposit  for  Exchange   1878 

Title  IV.     Loan    1884-1920 

Chapter  I.     Loan  for  Use   1884-1896 

II.     Loan  for  Exchange    1902-1906 

III.     Loan  of  Money    1912-1920 

Title  V.     Hiring    1925-1959 

Chapter  I.     Hiring  in  General  1925-1935 

II.     Hiring  of  Real  Property 1941-1950 

III.  Hiring  of  Personal  Property  1955-1959 

Title  VI.     Service    1965-2079 

Chapter  I.     Service  of  Employment  1965-2003 

Article  I.     Definition  of  Employment  1965 

II.     Obligations  of  the  Employer 1969-1971 

m.     Obligations  of  the  Employee 1975-1992 

IV.  Termination  of  Employment 1996-2003 

Chapter  II.     Particular  Employment    2009-2072 

Article  I.     Master  and  Servant .2009-2015 

II.     Agents    2019-2022 

III.  Factors    2026-2030 

IV.  Shipmasters    2034-2044 

V.     Mates  and  Seamen  2048-2066 

VI.     Ship's  Managers 2070-2072 

Chapter  III.     Service  Without  Employment  2078,  2079 

Title  VII.     Carriage 2085-2209 

Chapter  I.     Carriage  in  General 2085-2090 

II.     Carriage  of  Persons 2096-2104 

Article  I.     Gratuitous  Carriage  of  Persons  2096 

II.     Carriage  for  Reward   2100-2104 

xiv 


CONTENTS. 

Sections. 
Chapter  III.     Carriage  of  Property   2110-2155 

Article  I.     General  Definitions    2110 

II.     Obligations  of  the  Carrier  2114-2122 

III.  Bill  of  Lading   2126-2132 

IV.  Freightage    2136-2144 

V.     General  Average   2148-2155 

Chapter  IV.     Carriers  of  Messages   2161,  2162 

V.     Common  Carriers   2168-2209 

Article  I.     Common  Carriers  in  General   2168-2177 

II.     Common  Carriers  of  Persons   2180-2191 

III.  Common  Carriers  of  Property   2194-2204 

IV.  Common  Carriers  of  Messages 2207-2209 

Title  VIII.     Trusts    2215-2289 

Chapter  I.     Trusts  in  General   2215-2244 

Article  I.     Nature  and  Creation  of  a  Trust   2215-2224 

n.     Obligations  of  Trustees   2228-2239 

III.     Obligations  of  Third  Persons   2243,  2244 

Chapter  II.  Trusts  for  the  Benefit  of  Third  Persons.  .2250-2289 

Article  I.     Nature  and  Creation  of  the  Trust 2250-2254 

II.     Obligations  of  Trustees   2258-2263 

III,  Powers  of  Trustees   2267-2269 

IV.  Rights  of  Trustees   2273-2275 

V.     Termination  of  the  Trust 2279-2283 

VI.  Succession  or  Appointment  of  New  Trus- 
tees     2287-2289 

Title  IX.     Agency   2295-2389 

Chapter  I.     Agency  in  General   2295-2356 

Article  I.     Definition  of  Agency    2295-2300 

II.     Authority  of  Agents 2304-2326 

III.  Mutual     Obligations     of     Principals     and 

Third  Persons   2330-2339 

IV.  Obligations  of  Agents  to  Third  Persons.  .2342-2345 
V.     Delegation  of  Agency    2349-2351 

VI.     Termination  of  Agency   2355,  2356 

XV 


CONTENTS. 

Sections. 

Chapter  II.     Particular  Agencies   2362-2389 

Article  I.    Auctioneers   2362,  2363 

II.     Factors    2367-2369 

III.  Shipmasters  and  Pilots 2373-2385 

IV.  Ships'   Managers    2388,  2389 

Title  X.     Partnership    2395-2520 

Chapter  I.     Partnership  in  General 2395-2418 

Article  I.     What  Constitutes  a  Partnership 2395-2397 

II,     r-a  rtnership  Property    2401-2406 

III.  Mutual  Obligation  of  Partners 2410-2413 

IV.  Renunciation  of  Partnership 2417,  2418 

Chapter  II.     General  Partnership    2424-2472 

Aritcle  I.     What  is  a  General  Partnership 2424 

II.     Powers  and  Authority  of  Partners 2428-2431 

III.  Mutual  Obligations  of  Partners 2435-2438 

IV.  Liability   of   Partners 2442-2445 

V.     Termination  of  Partnership 2449-2454 

VI.     Liquidation   2458-2462 

VII.     Of  the  Use  of  Fictitious  Names 2466-2472 

Chapter  III.     Special  Partnership   2477-2510 

Article  I.     Formation  of  Partnership 2477-2485 

II.  Powers,  Rights,  and  Duties  of  the  Part- 
ners     2489-2496 

III.  Liability  of  Partners  2500-2503 

IV.  Alteration  and  Dissolution   2507-2510 

Chapter  IV.     Mining  Partnership   2511-2520 

Title  XI.     Insurance    2527-2766 

Chapter  I.    Insurance  in  General 2527-2649 

Article  I.     Definition  of  Insurance    2527 

II.     What  May  Be  Insured 2531-2534 

III.  Parties  to  the  Contract 2538-2542 

IV.  Insurable  Interest 2546-2558 

V.     Concealment  and  Representation 2561-2583 

VI.     The   Policy    2586-2599 

VII.     Warranties    2603-2612 

VIII.     Premium    2616-2622 

xvi 


CONTENTS. 
Article.  Sections. 

IX.  Loss   2626-2629 

X.  Notice  of  Loss  2633-2637 

XL  Double  Insurance 2641,  2642 

XIL  Reinsurance    2646-2649 

Chapter  IL  Marine  Insurance  2655-2746 

Article  I.  Definition  of  Marine  Insurance 2655 

II.  Insurable  Interest 2659-2665 

III.  Concealment    2669-2672 

IV.  Representations    2676,  2677 

V.  Implied  Warranties   2681-2688 

VI.  The  Voyage  and  Deviation 2692-2697 

VII.  Loss   2701-2712 

VIII.  Abandonment 2716-2732 

IX.  Measure  of  Indemnity 2736-2746 

Chapter  III.  Fire   Insurance 2752-2757 

IV.  Life  and  Health  Insurance 2762-27-66 

Title  XII.  Indemnity    2772-2781 

XIII.  Guaranty     2787-2866 

Chapter  I.  Guaranty  in  General   2787-2825 

Article  I.  Definition  of  Guaranty    2787,  2788 

II.  Creation  of  Guaranty    2792-2795 

III.  Interpretation  of  Guaranty    2799-2802 

IV.  Liability  of  Guarantors    2806-2810 

V.  Continuing  Guaranty    2814,  2815 

VI.  Exoneration  of  Guarantors   2819-2825 

Chapter  II.  Suretyship 2831-2866 

Article  I.  Who  Are  Sureties   2831,  2832 

II.  Liability  of  Sureties    2836-2840 

III.  Rights  of  Sureties   2844-2850 

IV.  Rights  of  Creditors  2854 

V.  Letter  of  Credit 2858-2866 

Title  XIV.  Lien    2872-3080 

Chapter  I.  Liens  in  General   2872-2913 

Article  I.  Definition  of  Lien 2872-2877 

TI.  Creation  of  Liens  2881-2884 

III.  Effect  of  Liens   2888-2892 

xvii 


Articlo. 

IV. 

V. 

VI. 

Chapter  II. 

Article  I. 

II. 

III. 

Chapter  III. 

TV. 

V. 

VI. 

VII. 

Title  XV. 

Chapter  I. 

Article  I. 

II. 

III. 

IV. 

V. 

VI. 

VII. 

Chapter  II. 

Article  I. 

II. 

HI. 

IV. 

V. 

VI. 

VII. 

VIII. 

Chapter  III. 

IV. 

V. 


Title  XVI. 


CONTENTS. 

Sections. 

Priority  of  Liens 2897-2899 

Redemption  from  Lien   2903-2905 

Extinction  of  Liens 2909-2913 

Mortgage   2920-2973 

Mortgages  in  General   2920-2942 

Mortgages  of  Real  Property   2947-2952 

Mortgage  of  Personal  Property 2955-2973 

Pledge   2986-3011 

Bottomry   3017-3029 

Respondentia    3036-3040 

Other  Liens    3046-3065 

Stoppage  in  Transit 3076-3080 

Negotiable    Instruments    3086-3262 

Negotiaijle  Instruments  in  General. ..... .3086-3165 

General  Definitions    3086-3095 

Interpretation  of  Negotiable  Instruments. 3099-3104 

Indorsement   3108-3125 

Presentment  for  Payment   3130-3137 

Dishonor  of  Negotiable  Instruments 3141-3151 

Excuse  of  Presentment  and  Notice 3155-3160 

Extinction  of  Negotiable  Instruments..  .  .3164,  3165 

Bills  of  Exchange   3171-3238 

Form  and  Interpretation  of  a  Bill 3171-3177 

Days  of  Grace   3181 

Presentment  for  Acceptance 3185-3189 

Acceptance    3193-3199 

Acceptance  or  Payment  for  Honor 3203-3207 

Presentment  for  Payment 3211-3214 

Excuse  of  Presentment  and  Notice 3218-3220 

Foreign  Bills    3224-3238 

Promissory  Notes 3244-3248 

Checks    3254,  3255 

Bonds,    Bank-Notes,    and    Certificates    of 

Deposit    3261,  3262 

General  Provisions 3268 


CONTENTvS. 

DIVISION    FOURTH.      (Sees.  3274-3543.) 

PART  I.      RELIEF   3274-3423 

Title  I.     Relief  in  General    3274,  3275 

II.     Compensatory   Relief   3281-3360 

Chapter  I.     Damages  in  General    3281-3294 

Article  I.     General  Principles   3281-3283 

II.     Interest  as  Damages   3287-3290 

III.     Exemplary  Damages    3294 

Chapter  II.     Measure  of  Damages  3300-3360 

Article  I.     Damages  for  Breach  of  Contract 3300-3319 

II.     Damages  for  Wrongs  3333-3341 

III.  Penal  Damages   3344-3348 

IV.  General    Provisions    3353-3360 

Title  III.  Specific  and  Preventive  Relief 3366-3423 

Chapter  I.  General  Principles    3366-3369 

II.  Specific  Relief   3375-3415 

Article  I.  Possession  of  Real  Property 3375 

II.  Possession  of  Personal  Property 3379,  3380 

III.  Specific  Performance  of  Obligations 3384-3395 

IV.  Revision  of  Contracts   3399-3402 

V.  Rescission  of  Contracts   3406-3408 

VI.     Cancelation  of  Instruments 3412-3415 

Chapter  III.     Preventive  Relief   3420-3423 

PART  II.     SPECIAL      RELATIONS      OF      DEBTOR 

AND    CREDITOR    3429-3473 

Title  I.     General    Principles    3429-3433 

II.      Fraudulent  Instruments  and  Transfers.  .  .3439-3442 
III.     Assignments  for  the  Benefit  of  Creditors. 3449-3473 

PART  III.  NUISANCE    3479-3503 

Title  I.  General    Principles    3479-3484 

II.  Public  Nuisances   3490-3495 

III.  Private    Nuisances    3501-350*3 

PART  IV.     MAXIMS  OF  JURISPRUDENCE 3509-3543 

xix 


TABLE  OF  ERRORS 

IN  CALIFORNIA  REPORTS  IN  CITATION 

OF  CODE  SECTIONS. 


CIVIL  CODE. 

§  14  erroneously  cited  as  §  172,  137  C.  354,  356,  correct  cita- 
tion, 70  P.  459. 

§  29  erroneously  cited  for  §  2910,  87  C.  15,  21,  correct  cita- 
tion, 25  P.  161,  162. 

§  43  erroneously  cited  for  §  46,  124  C.  193,  199,  correct  citation, 
56  P.  878,  880. 

§  46  erroneously  cited  as  §  43,  124  C.  193,  199,  correct  citation, 
56  P.  878,  880. 

§  82  erroneously  cited  for  §  852,  88  C.  560,  565,  correct  citation, 
26    P.    367,    368. 

§  132  erroneously  cited  for  §  137,  79  C.  336,  339,  correct  cita- 
tion, 21  P.  838,  839. 

§  137  erroneously  cited  as  §  132,  79  C.  336,  339,  correct  citation, 
21  P.  838,  839. 

§  137  erroneously  cited  as  §  137  C.  C.  P.,  98  C.  320,  321,  correct 
citation,  33  P.  114,  115. 

§  155  erroneously  cited  for  §  156,  92  C.  653,  655,  correct  cita- 
tion, 28  P.  787. 

§  156  erroneously  cited  as  §  155,  92  C.  653,  655,  correct  citation, 
28  P.  787. 

§  167  erroneously  cited  as  §  170,  137  C.  273,  276,  same  error, 
92  A.  S.  160,  correct  citation,  70  P.  21,  22,  and  58 
L.   941. 

§  170  erroneously  cited  for  §  167,  137  C.  273,  276,  same  error, 
92  A.  S.  160,  correct  citation,  70  P.  21,  22,  and  58 
L.   941. 

§  170  erroneously  cited  for  §  171,  70  C.  282,  285,  same  error, 
11  P.  719,  720,  721. 

xxi 


TABLE  OF   ERRORS. 

§  170  erroneously  cited  for  §  172,  71  C.  418,  422,  same  error, 
12  P.  347,  348. 

§  171  erroneously  cited  as  §  170,  70  C.  282,  285,  same  error,  11 
P.  719,  720,  721. 

§  171  erroneously  cited  as  §  172,  70  C.  282,  285,  same  error, 
11   P.   719,  720,   721. 

§  172  erroneously  cited  for  §  14,  137  C.  354,  356,  correct  cita- 
tion, 70  P.  459. 

§  172  erroneously  cited  as  §  170,  71  C.  418,  422,  same  error,  12 
P.  347,  348. 

§  172  erroneously  cited  for  §  171,  70  C.  282,  285,  same  error,  11 
P.  719,  720,  721. 

§  188  erroneously  cited  for  §  188  Pen.  C,  1"  C.  A.  246,  248,  cor- 
rect citation,  81  P.  1087.     (There  is  no  §  188  C.  C.) 

§  191  erroneously  cited  for  §  291,  53  C.  123,  128. 

§  257  erroneously  cited  as  §  257  C.  C.  P.,  121  C.  468,  475,  cor- 
rect citation,  53  P.  936,  939. 

§  291  erroneously  cited  as  §  191,  53  C.  123,  128. 

§  292  erroneously  cited  for  §  2927,  80  C.  348,  353,  correct  cita- 
tion, 22  P.  200,  201. 

§  305  erroneously  cited  as  §  305  C.  C.  P.,  127  C.  600,  637,  cor- 
rect citation,  60  P.  424,  426.  (There  is  no  §  305  C. 
C.  P.) 

§  308  erroneously  cited  as  §  308  C.  C.  P.,  127  C.  630,  631,  637, 
correct  citation,  60  P.  424,  426. 

§  312  erroneously  cited  as  C.  C.  P.,  54  C.  149,  150. 

§  322  erroneously  cited  as  C.  C.  P.,  5  F.  403,  410,  412. 

§  327  erroneously  cited  for  §  3275,  84  C.  420,  422,  correct  cita- 
tion, 24  P.  316,  317. 

§  331  erroneously  cited  as  §  537,  82  C.  600,  602,  correct  cita- 
tion, 23  P.  134,  135. 

§  338  erroneously  cited  as  §  388,  3  C.  A.  109,  110,  correct  cita- 
tion, 84  P.  432,  433. 

§  349  erroneously  cited  as  C.  C.  P.,  5  F.  403,  408,  409,  410,  429. 

§  353  erroneously  cited  for  §  355,  59  C.  22,  24. 

§  353  erroneously  cited  for  §  853,  15  P.  439,  442. 

§  355  erroneously  cited  as  §  353,  59  C.  22,  24. 

§  377  erroneously  cited  for  C.  C.  P.,  63  C.  483,  484. 

xxii 


TABLE  OF  ERRORS. 

§  388  erroneously  cited  for  §  338,  3  C.  A.  109,  110,  correct  cita- 
tion, 84  P.  432,  433. 

§  478  erroneously  referred  to  as  §  478  C.  C.  P.,  101  C.  333,  334, 
correct  citation,  35  P.  993. 

§  514  erroneously  cited  as  §  2799,  80  C.  338,  341,  correct  cita- 
tion, 22  P.  254,  255. 

§  537  erroneously  cited  for  §  331,  82  C.  600,  602,  correct  cita- 
tion, 23  P.  134,  135. 

§  593  erroneously  cited  as  §  595,  119  C.  477,  483,  same  error, 
51  P.  841,  843. 

§  595  erroneously  cited  as  §  593,  119  C.  477,  483,  same  error, 
51  P.  841,  843. 

§  648  erroneously  cited  for  §  648  C.  C.  P.,  127:  C.  37,  39,  cor- 
rect citation,  59  P.  206. 

§  648  erroneously  cited  in  dis.  op.  for  §  864,  64  P.  1000,  1007. 

§  656  erroneously  cited  for  §  656  C.  C.  P.,  108  C.  240,  244,  cor; 
rect  citation,  41  P.  299. 

§  700  erroneously  cited  for  §  700  C.  C.  P.,  70  C.  282,  286,  same 
error,  11  P.  719,  721. 

§  731  erroneously  cited  for  §  3479,  66  C.  171,  174,  same  error, 
4  P.  1162,  1164. 

§  779  erroneously  cited  for  §  779  C.  C.  P.,  70  C.  553,  559,  erro- 
neously cited  in  12  P.  45"1,  454  for  §  709  C.  C.  P. 

§  801  erroneously  cited  as  §  811,  4  C.  A.  18,  24,  same  error,  87 
P.  213. 

§  811  erroneously  cited  as  §  811  Pol.  C,  81  C.  122,  125,  correct 
citation,  22  P.  393,  394. 

§  811  erroneously  cited  for  §  801,  4   C.  A.   18,  24,  same  error, 
87  P.  213. 

§  830  erroneously  cited  as  §  880,  108  C.  179,  185,  same  error, 
49  A.  S.  76,  79,  correct  citation,  41  P.  289,  290. 

§  846  erroneously  cited  in  dis.  op.  for   §  864,   132  C.  523,  558. 
(There  is  no  §  846  C.  C.) 

§  852  erroneously  cited  as  §  853,  80  C.  514,  518,  correct  cita- 
tion, 22  P.  294,  295. 

§  852  erroneously  cited  as  §  82,  88  C.  560,  565,  correct  citation, 
26  P.  367,  368. 

§  853  erroneously  cited  as  §  353,  15  P.  439,  442. 

xxiii 


TABLE  OF   ERRORS. 

§  853  erroneously  cited  for  §  852,  80  C.  514,  518,  correct  cita- 
tion, 22  P.  294,  295. 

§  863  erroneously  cited  as  §  863  C.  C.  P.,  95  C.  63,  74,  correct 
citation,  30  P.  301,  303. 

§  863  erroneously  cited  as  §  863  C.  C.  P.,  144  C.  314,  321,  cor- 
rect citation,  77  P.  942,  944. 

§  864  erroneously  cited  in  dis.  op.  as  §  846,  132  C.  523,  558,  and 
in  64  P.  1000,  1007,  as  §  648.     (There  is  no  §  846  C.  C.) 

§  870  erroneously  cited  as  §  871,  133  C.  51,  52,  same  error,  65 
I',   130 

§  871  erroneously  cited  for   §  870,   133   C.   51,   52,   same   error, 
65  P.  130. 

§  880  erroneously  cited  for  §  830,  108  C.  179,  185,  same  error, 
49  A.  S.  76,  79,  correct  citation,  41  P.  289,  290. 

§  952  erroneously  cited  for  §  952  Pen.  C,  138  C.  145,  147,  same 
error,  70  P.  1089,  1090.     (There  is  no  §  952  C.  C.) 

§  1033  erroneously  cited  for  §  1053,  106  C.  203,  205,  same  error, 
39  P.  531,  532. 

§  1040  erroneously  cited  as  §  1040  C.  C.  P.,  95  C.  63,  74,  correct 
citation,  30  P.  301,  303.     (There  is  no  §  1040  C.  C.  P.) 

§  1052  erroneously  cited  for  §  1053,  128  C.  627,  633,  same  error, 
61  P.  371,  372. 

§  1053  erroneously  cited  as  ^  1033,  106  C.  203,  205,  same  error, 
39  P.  531,  532. 

§  1053  erroneously  cited  at  §  1052,  128  C.  627,  633,  same  error, 
61  P.  371,  372. 

§  1105  erroneously    cited    as    §  1105    C.    C.    P.,    88    C.    263,    267, 
same  error,  26  P.  106,  108. 

§  1114  erroneously   cited   for   §  1141,   106   C.   441,   446,   correct 
citation,  39  P.  853,  855. 

§  1141  erroneously  cited  as  §  1114,  106  C.  441,  446,  correct  cita- 
tion, 39  P.  853,  855. 

§  1167  erroneously    cited   for    §  1667,    81    C.    507,    509,    correct 
citation,  22  P.  883. 

§  1185  erroneously  cited  as  §  1189,  131  C.  504,  507,  feame  error, 
82  A.  S.  374,  377,  same  error,  63  P.  840,  841. 

§  1186  erroneously  cited  as  §  1186  C.  C.  P.,  80  C.  65,  67,  cor- 
rect citation,  22  P.  69,  70. 
xxiv 


TABLE   OF   ERRORS. 

§  1187  erroneously  cited  as  §  1189,  98  C.  465,  468,  same  error, 
35  A.  S.  192,  195,  correct  citation,  20  L.  702,  33  P. 
480,  481. 

§  1189  erroneously  cited  for  §  1185,  131  C.  504,  507,  same  error, 
82  A.  S.  374,  377,  same  error,  63  P.  840,  841. 

§  1189  erroneously  cited  for  §  1187,  98  C.  465,  468,  same  error, 
35  A.  S.  192,  195,  correct  citation,  20  L.  702,  33  P. 
480,  481. 

§  1191  erroneously  cited  as  §  1191  C.  C.  P.,  80  C.  65,  67,  cor- 
rect citation,  22  P.  69,  70. 

§  1196  erroneously  cited  for  §  1996,  89  C.  547,  550,  correct  cita- 
tion, 26  P.  1095,  1096. 

§  1197  erroneously  cited  for  §  1997,  89  C.  547,  550,  correct 
citation,   26  P.  1095,  1096. 

§  1223  erroneously  cited  for  §  1629,  101  C.  528,  same  error,  40 
A.  S.  73,  correct  citation,  36  P.  18. 

§  1223  erroneously  cited  for  §  1629,  32  P.  885,  887. 

§  1253  erroneously  cited  for  §  1263,  52  C.  629,  630. 

§  1263  erroneously  cited  as  §  1253,  52  C.  629,  630. 

§  1265  erroneously  cited  as  §  1365,  1  P.  479,  480. 

§  1265  erroneously  cited  as  1265  C.  C.  P.,  80  C.  208,  209,  same 
error,  13  A.  S.  116,  117,  correct  citation,  22  P.  141, 
142;  also  erroneously  cited  as  §1265  C.  C.  in  111  C. 
484,  487,  indefinitely  cited,  44  P.  167.  (There  is  no 
§  1265  C.  C.  P.) 

§  1273  erroneously  cited  for  §  1277,  70  C.  140,  142,  same  error, 
11  P.  587,  588. 

§  1277  erroneously  cited  as  §  1273,  70  C.  140,  142,  same  error, 
11  P.  587,  588. 

§  1307  erroneously  cited  for  §  1307  C.  C.  P.,  148  C.  233,  236, 
same  error,  82  P.  962,  same  error,  113  A.  S.  231,  233. 

§  1312  erroneously  cited  for  §  1312  C.  C.  P.,  148  C.  233,  236, 
same  error,  82  P.  962,  same  error,  113  A.  S.  231,  233. 

§  1313  erroneously  cited  for  §  1313  C.  C.  P.,  148  C.  233,  236, 
same  error,  82  P.  962,  same  error,  113  A.  S.  231,  233. 

§1314  erroneously  cited  for  §  1314  C.  C.  P.,  148  C.  233,  236, 
same  error,  82  P.  962,  same  error,  113  A.  S.  231,  233. 

§  1359  erroneously  cited  as  §  1360,  142  C.  453,  456,  correct  cita- 
tion, 76  P.  41,  42. 

XXV 


TABLE  OP   ERRORS. 

§  1360   erroneously   cited  for   §  1359,   142   C.   453,   456,   correct 
citation,  76  P.  41,  42. 

§  1365  erroneously  cited  for  §  1265,  1  P.  479,  480. 

§  1369  erroneously  cited  as  §  1569,  107  C.  303,  308,  correct  cita- 
tion, 40  P.  558,  560. 

§  1386  omitted  from   opinion,   132   C.   523,   563,   printed   in   60 
P.  442,  443. 

§  1386  erroneously   cited   as   §  1386  C.   C.   P.,   152   C.   201,   207, 
correct  citation,  92  P.  184,  186. 

§  1405  erroneously  cited  as  §  1445,  18  P.  409. 

§  1421  erroneously  cited  as  §  1721,  149  C.  496,  499,  correct  cita- 
tion, 86  P.  1081,  1082. 

§  1445  erroneously  cited  for  §  1405,  18  P.  409. 

§  1473  erroneously  cited  as  §  1473  C.  C.  P.,  86  C.  184,  187,  same 
error,  24  P.  1005. 

§  1487  erroneously  referred  to  in  dis.  op.,  63  C.  129,  139. 

§  1542  erroneously  cited  for  §  2617,  86  C.  248,  253,  same  error, 
21  A.  S.  33,  35,  36,  same  error,  24  P.  1018,  1019. 

§  1569  erroneously   cited   for    §  1369,    107    C.    303,    308,    correct 
citation,  40  P.  558,  560. 

§  1543  erroneously  cited  for  §  2618,  86  C.  248,  253,  same  error, 
21  A.  S.  33,  35,  36,  same  error,  24  P.  1018,  1019. 

§  1544  erroneously  cited  for  §  2619,  86  C.  248,  253,  same  error, 
21  A.  S.  33,  35,  36,  same  error,  24  P.  1018,  1019. 

§  1572  erroneously  cited  as  §  1752,  152  C.  148,  157,  correct  cita- 
tion, 92  P.  78,  82. 

§  1623  erroneously    cited   for    §  1624,    subd.    5,    88   C.   434,    436, 
correct  citation,  26  P.  360,  361. 

§  1624  erroneously  cited  as  §  1624  C.  C.  P.,  80  C.  90,  97,  same 
error,  13  A.  S.  101,  107,  correct  citation,  22  P.  57,  59. 

§  1624  erroneously  cited  as  §  1623,  88  C.  434,  436,  correct  cita- 
tion, 26  P.  360,  361. 

§  1624  erroneously   cited   as    §  1624   C.   C.   P.,   119   C.   239,   241, 
same  error,  51  P.  333,  334. 

§  1624  erroneously  cited  as  §  1624   C.  C.  P.,  4  C.  A.   109,   112, 
correct  citation,  87  P.  255. 

§  1629  erroneously  cited  as  §  1223,  32  P.  885,  887. 

§  1629  erroneously  cited  as  §  1223,  101  C.  522,  528,  same  error, 
40  A.  S.  73,  correct  citation,  36  P.  18. 
xxvi 


TABLE   OF    TOllP.OKS. 

§  1667  erroneously  cited  as  §  1167,  81  C.  507,  509,  correct  cita- 
tion, 22  P.  883. 

§  1697  erroneously  cited  as  §  1697  C.  C.  P.,  129  C.  301,  305, 
correct  citation,  61  P.  937. 

§  1721  erroneously  cited  for  §  1421,  149  C.  496,  499,  correct 
citation,  86  P.  1081,  1082. 

§  1752  erroneously  cited  for  §  1572,  152  C.  148,  157,  correct 
citation,  92  P.  78,  82. 

§  1828  erroneously  cited  as  "Civ.  Code  p.  779,"  1  C.  A.  488, 
491,  same  error,  82  P.  686. 

S  1858  erroneously  cited  as  "Civ.  Code  p.  779,"  1  C.  A.  488,  491, 
same  error,  82  P.  686. 

§  1913  erroneously  cited  for  §  1913  C.  C.  P.,  114  C.  258,  261, 
same  error,  55  A.  S.  66,  correct  citation,  46  P.  82,  83, 
35  L.  492. 

§  1942  erroneously  cited  as  §  1942  C.  C.  P.,  13  P.  866,  868. 

§  1957  erroneously  cited  for  §  2957,  106  C.  673,  680,  correct 
citation,  39  P.  1071.  1073. 

§  1996  erroneously  cited  as  §  1196,  89  C.  547,  550,  correct  cita- 
tion, 26  P.  1095,  1096. 

§  1997  erroneously  cited  as  §  1197,  89  C.  547,  550,  correct  cita- 
tion, 26  P.  1095,  1096. 

§  2101  erroneously  cited  for  §  2201,  118  C.  648,  653,  correct 
citation,  50  P.  775,  40  L.  78,  79. 

§  2117  erroneously  cited  for  §  3117,  125  C.  684,  685,  correct 
citation,  58  P.  297,  296. 

§  2201  erroneously  cited  as  §  2101,  118  C.  648,  653,  correct  cita- 
tion, 50  P.  775,  40  L.  78,  79. 

§  2216  erroneously  cited  as  §  2216  C.  C.  P.,  95  C.  63,  74,  cor- 
rect citation,  30  P.  301,  303.  (There  is  no  §  2216  C. 
C.   P.) 

§  2290  erroneously  cited  for  §  2219,  125  C.  227,  230.  correct 
citation,  57   P.   894. 

S  2219  erroneously  cited  as  §  2290,  125  C.  227,  230.  correct  cita- 
tion, 57   P.   894. 

§  2220  erroneously  cited  as  §  2320.  70  C.  449.  453,  correct  cita- 
tion, 11  P.  659.  661. 

§  2229  erroneously  cited  as  §  2239.  142  C.  638,  641,  same  error. 
76  P.  486,  487. 

XXV  ii 


TABLE  OF   ERRORS. 

§  2235  erroneously  cited  for  §  2395,  54  C.  439,  440. 

§  2237  erroneously  cited  as  §  2237  C.  C.  P.,  5  C.  A.  228,  235, 
correct  citation,  90  P.  39,  42.  (There  is  no  §  2237 
C.  C.  P.) 

§  2239  erroneously  cited  for  §  2229,  142  C.  638,  641,  same  error, 
76  P.  486,  487. 

§  2306  erroneously  cited  as  §  2306  C.  C.  P.,  87  C.  256,  262, 
same  error,  22  A.  S.  243,  246,  correct  citation,  25  P. 
407.  408. 

§  2320  erroneously  cited  for  §  2220,  70  C.  449,  453,  correct 
citation,  11  P.  659,  661. 

§  2358  erroneously  cited  for  §  2368,  61  C.  405,  429. 

§  2368  erroneously  cited  as  §  2358,  61  C.  405,  429. 

§  2395  erroneously  cited  as  §  2235,  54  C.  439,  440. 

§  2617  erroneously  cited  as  §  1542,  86  C.  248,  253,  same  error, 
21  A.  S.  33,  35,  36,  same  error,  24  P.  1018,  1019. 

§  2618  erroneously  cited  as  §  1543,  86  C.  248,  253,  same  error, 
21  A.  S.  33,  35,  36,  same  error,  24  P.  1018,  1019. 

§  2619  erroneously  cited  as  §  1544,  86  C.  248,  253,  same  error, 
21  A.  S.  33,  35,  36,  same  error,  24  P.  1018,  1019. 

§  2711  erroneously  cited  for  §  2911,  92  C.  382,  387,  correct  cita- 
tion, 28  P.  573,  575. 

§  2799  erroneously  cited  for  §  514,  80  C.  338,  341,  correct  cita- 
tion, 22  P.  254,  255. 

§  2809  erroneously  cited  for  §  2899,  61  C.  396,  399. 

§  2887  erroneously  cited  for  §  2997,  125  C.  596,  599,  correct 
citation,  58  P.  186,  187.     (There  is  no  §  2887  C.  C.) 

§  2899  erroneously  cited  as  §  2809,  61  C.  396,  399. 

§  2903  erroneously  cited  for  §  2993,  61  C.  405,  429. 

§  2910  erroneously  cited  as  §  29,  87  C.  15,  21,  correct  citation, 
25  P.  161,  162. 

§  2911  erroneously  cited  as  §  2711,  92  C.  382,  387,  correct  cita- 
tion, 28  P.  573,  575. 

§  2922  erroneously  referred  to,  58  C.  147,  152. 

§  2927  erroneously  cited  as  §  292,  80  C.  348,  353,  correct  cita- 
tion, 22  P.  200,  201. 

§  2941  erroneously  cited  as  §  2951,  64  C.  273,  274,  same  error, 
30  P.  818. 

xxviii 


TABLE  OF   ERRORS. 

§  2951  erroneously  cited  for  §  2941,  64  C.  273,  274,  same  error, 
30  P.  818. 

§  2957  erroneously  cited  as  §  1957,  106  C.  673,  679,  680,  correct 
citation,  39  P.  1071,  1073. 

§  2986  erroneously  cited  as  §  2986  C.  C.  P.,  123  C.  643,  648, 
correct  citation,  56  P.  468,  470.  (There  is  no  §  2986 
C.  C.  P.) 

§  2987  erroneously  cited  as  §  2987  C.  C.  P.,  123  C.  643,  648, 
correct  citation,  56  P.  468,  470.  (There  is  no  §  2987 
C.  C.  P.) 

§  2988  erroneously  cited  as  §  3988,  101  C.  445,  453,  correct  cita- 
tion, 35  P.  1035,  1038. 

§  2993  erroneously  cited  as  §  2903,  61  C.  405,  429. 

§  2997  erroneously  cited  as  §  2887,  125  C.  596,  599,  correct 
citation,  58  P.  186,  187. 

§  3117  erroneously  cited  as  §  2117,  125  C.  684,  685,  correct 
citation,  58  P.  297,  298. 

§  3124  erroneously  cited  as  §  3134,  68  C.  545,  548,  correct  cita- 
tion, 9  P.  942,  944. 

§  3134  erroneously  cited  for  §  3124,  68  C.  545,  548,  correct  cita- 
tion, 9  P.  942,  944. 

§  3275  erroneously  cited  as  §  327,  84  C.  420,  422,  correct  cita- 
tion, 24  P.  316,  317. 

§  3278  erroneously  cited  for  §  3287,  3  C.  A.  263,  266,  same 
error,  84  P.  159.     (There  is  no  §  3278  C.  C.) 

§  3287  erroneously  cited  as  §  3278,  3  C.  A.  263,  266,  same  error, 
84  P.  159. 

§  3300  erroneously  cited  as  §  3330,  130  C.  309,  314,  citation  of 
§  3300  omitted,  62  P.  562,  563. 

§  3330  erroneously  cited  for  §  3300,  130  C.  309,  314,  citation 
of  §  3300  omitted,  62  P.  562,  563. 

§  3340  erroneously  cited  for  §  3440,  93  C.  393,  394,  same  error, 
29  P.  70. 

§  3440  erroneously  cited  as  §  3340,  93  C.  393,  394,  same  error. 
29  P.  70. 

§3479  erroneously  cited  as  §731,  66  C.  171,  174,  same  error. 
4   P.  1162,  1164. 

§  3502  erroneously   cited   for   §  3532,   126   C.   413,   417,   correct 
citation,  58  P.  914,  915. 
xxix 


TABLE   OF   ERRORS. 

§  3532  erroneously  cited  as  §  3502,  126  C.  413,  417,  correct  cita- 
tion, 58  P.  914,  915. 

§  3543  erroneously  cited  as  §  3543  C.  C.  P.,  54  C.  140,  143. 
(There  is  no  §  3543  C.  C.  P.) 

§  3988  erroneously  cited  for  §  2988,  101  C.  445,  453,  correct 
citation,  35  P.  1035,  1038.     (There  is  no  §  3988  C.  C.) 

"Civ.  Code  p.  779"  erroneously  cited  for  §  1858,  1  C.  A.  488, 
491,  same  error,  82  P.  686. 


ABBREVIATIONS  IN  POCKET  CODE. 

(Other  than  the  usual.) 

A.  C. — American  and  English  Annotated  Cases. 

A.  D. — Americai.  Decisions. 

A.  R. — American  Reports. 

A.  S. — American  State  Reports. 

C. — California  Reports. 

C.  A. — California  Appellate  Reports. 

C.  A.  D. — California  Appellate  Decisions. 

C.  D. — California  Decisions. 

Cent.  Dig. — Century  Digest. 

Cyc. — Cyclopedia  of  Law  and  Procedure. 

Decn.  Dig'. — Decennial  Digest. 

Encyc.  L. — American  and  English  Encyclopedia  of  Law  (2nd  ed.). 

Encyc.  P. — Encyclopedia  of  Pleading  and  Practice. 

F.  S.  A.- — Federal  Statutes  Annotated. 

L. — Lawyers'  Reports  Annotated. 

L.  ed. — Lawyers'  edition  of  United  States  Reports. 

L.  N.  S. — Lawyers'  Reports  Annotated,  New  Series. 

Obiter  Dig. — Obiter  Digest  of  the  U.  S.  Supreme  Court  Reports. 

P. — Pacific  Reporter. 

W.   &  P. — Words  and  Phrases  Judicially  Defined. 


CIVIL  CODE. 

AN   ACT  TO   ESTABLISH  A  CIVIL   CODE. 
[Approved  March  21,  1872.] 

The  people  of  the  state  of  California,  represented  in  the  sen- 
ate and  assembly,  do  enact  as  follows: 

TITLE   OF   THE    ACT. 

§  1.     This  act  shall  be  known  as  the  Civil  Code  of  the  State 
of  California,  and  is  in  four  divisions,  as  follows: 

I.  The  first  relating  to  persons. 

II.  The  second  to  property. 

III.  The  third  to  obligations. 

IV.  The  fourth  contains  general  provisions  relating  to  the 
three  preceding  divisions. 

HlMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.   C.   for  7  pars,  annotation. 

Cited,   referred   to,   and   amended    how. — See   post,    §  21. 


Krrr's   C.   C. 


PRELIMINARY  PROVISIONS. 

§    2.  When  this  code  takes  effect. 

§    3.  Not  retroactive. 

§    4.  Rules   of  construction. 

§    5.  Provisions  similar  to  existing-  laws,  how  construed. 

§    6.  Actions,  etc.,  not  affected. 

§    7.  Holidays. 

§    8.  Same   [repealed]. 

§    9.  Business  days. 

§  10.  Computation   of  time. 

§  11.  Certain  acts  not  to  be  done  on  holidays. 

§  12.  Joint  autliority  construed. 

§  13.  Words  and  phrases,  how  construed. 

§  14.  Certain    terms    defined. 

§  15.  Good  faith,  what  constitutes   [repealed]. 

§  16.  Degrees  of  care  and  negligence  [repealed]. 

§  17.  Degrees  of  negligence   [repealed]. 

§  18.  Notice,  actual   and   constructive. 

§  19.  Constructive  notice   [wlien  deemed]. 

§  20.  Effect  of  repeal. 

§  21.  Tliis  act,  how  cited. 

§  2.  >VHE\  THIS  (ODE  TAKES  EFFECT.  This  code  takes 
effect  at  twelve  o'cloclc  noon  on  the  first  day  of  January, 
eighteen  hundred  and  seventy-three. 

HiNtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

Effect  of  codes  generally,  and  their  proper  construction — As 
to,   see  Kerr's  Cyc.  Pol.  C.   §§  4478  et  seq.  and  notes. 

Effect  of  Civil  Code — As  to,  see  Kerr's  Cyc.  C.  C.  §§3-19  and 
notes. 

See  Kerr's  Cyc.  Pol.  C.  §  4478  and  note  pars.  2-4,  and  §  1-179. 
and   note   par.    2. 

Same — Codes  considered  passed  on  first  day  of  session  of 
legislature  at  the  term  at  which  adopted. — See  Kerr's  Cyc.  Pol. 
C.  §  4478  and  note  pars.  2-4,  and  §  3891  and  note. 

Similar  provisions  in  the  otlier  codes — As  to,  see  §  2  of  the 
respective   codes. 

Publication  of  the  codes — As  to,  see  Kerr's  Cyc.  Pol.  C.  $  4  494 
and  note  pars.   1,   2. 

3 


§1  3,  4  CIVIL  CODE. 

§3.  NOT  RETROACTIYE.  No  part  of  it  is  retroactive, 
unless  expressly  so  declared. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

59  C.  288,  289  (applied);  63  C.  261,  263  (applied);  95  C.  184, 
201,  30  P.  213,  27  P.  30,  16  L.  646  (construed  in  dis.  op.);  106 
C.  673,  680,  39  P.  1071  (construed);  133  C.  524,  527,  65  P.  1034 
(applied). 

Discussion   of   constitutional    question. — See   16   L.    646. 

Impairing-  vf^ted  rights — As  to,  see  Kerr's  Cyc.  Pol.  C.  §  8 
and  note. 

Law  enlarging-  period  of  limitation  upon  existing  contracts, 
as  to  efEect  of,  see  16  L.  646;  also  Kerr's  Cyc.  C.  C.  P.  §  312  note 
pars.   126-130. 

When  code  is  silent  the  common  law  governs. — See  Kerr's 
Cyc.  C.  C.  §  4  note  pars.  19,  20. 

§  4.  EULES  OF  CONSTRUCTION.  The  rule  of  the  common 
law,  that  statutes  in  derogation  thereof  are  to  be  strictly 
construed,  has  no  application  to  this  code.  The  code  estab- 
lishes the  law  of  this  state  respecting  the  subjects  to  which  it 
relates,  and  its  provisions  are  to  be  liberally  construed  with 
a  view  to  effect  its  objects  and  to  promote  justice. 

History:  Enacted  March  21,  1872;  amended  by  the  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  332; 
amendment  declared  unconstitutional,  134  Cal.  291,  86  A.  S.  257, 
66  P.  478,  55  L.  833.  See  Code  Civ.  Proc,  Pt.  I,  introductory 
note.  , 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

51  C.  255,  257,  258  (applied);  54  C.  616,  619  (applied);  66  C. 
432,  434,  6  P.  7,  9  (cited  as  controlling);  67  C.  385,  386,  7  .P. 
766  (referred  to);  69  C.  255,  370,  10  P.  674  (applied);  74  C. 
586,  590,  16  P.  493  (applied);  75  C.  1,  56,  16  P.  345,  370  (cited 
in  dis.  op.  as  controlling);  96  C.  532,  576,  31  P.  915,  922,  19  L. 
40    (applied);    98    C.    531,    551,    33    P.    460,    21    L.    380    (construed); 

104  C.    298,    299,    302,    37    P.    1049,    1050    (applied   as    controlling); 

105  C.  526,  558,  38  P.  94,  722,  28  L.  773  (applied);  107  C.  1,  4, 
40  P.  15,  28  L.  414  (cited);  123  C.  198,  201,  55  P.  902  (cited); 
124  C.  389,  397,  57  P.  227,  45  L.  793  (cited);  125  C.  65,  68,  57 
P.  677  (cited  with  other  sections);  127  C.  122,  126,  59  P.  394, 
396  (applied);  136  C.  138,  142,  89  A.  S.  120,  68  P.  587  (cited  with 
other  sections);  145  C.  713,  715,  79  P.  425,  426  (applied);  146 
C.    245.    247,    79    P.    891,    106   A.    S.    23    (applied);    146    C.    455,    465, 

4 


EXISTING    LAWS— ACTIONS.  §§  5,  6 

80  P.  700,  106  A.  S.  53,  2  A.  C.  726  (applied);  54  F.  320,  331 
(applied  as  to  survival  of  action  for  injuries  to  estate  of  dece- 
dent). 

§5.  PKOVISIONS  SIMILAR  TO  EXISTING  LAWS,  IIOW 
CONSTRUED.  The  provisions  of  this  code,  so  far  as  they 
are  substantially  the  same  as  existing  statutes  or  the  com- 
mon law,  must  be  construed  as  continuatious  thereof,  and  not 
as  new  enactments. 

History:  Enacted  March  21,  1872;  amended  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  332;  unconstitutipnal,  see  history, 
§   4  ante. 

See   Kerr's  Cyc.   C.   C.  for   G   pars,  annotation. 

75  C.  1,  69,  16  P.  345  (erroneously  cited  for  §4);  87  C.  643, 
647,  25  P.  922,  923  (applied);  96  C.  490,  492,  493,  31  P.  560  (con- 
strued); 98  C.  30,  33,  32  P.  807  (applied);  104  C.  570,  584,  38 
P.  414,  32  L.  595  (referred  to  by  the  court  as  in  harmony  with 
construction  given);  120  C.  488,  491,  493,  494,  52  P.  843,  40  L. 
476  (construed,  contention  of  counsel  not  sustained);  121  C. 
244.  246,  53  P.  656  (cited);  130  C.  380,  382,  62  P.  613  (construed); 
136  C.  138,  142,  89  A.  S.  120,  68  P.  587  (cited  in  connection  with 
other  sections);   57  F.   845,  848    (construed). 

Repeal  does  not  revive  pre-existing  law. — See  Kerr's  Cyc. 
Pol.  C.  §18  and  note;  44  Cent.  Dig.  col.  2794,  §§246,  247;  26 
Encyc.  of  L.   744-758. 

Same — Effect  of  repeal  after  judgment. — 1  A.  C.  220;  26  Encyc. 
of  L,  748. 

§6.  ACTIONS,  ETC.,  NOT  AFFECTED.  No  action  or  pro- 
ceeding commenced  before  this  code  takes  effect,  and  no  right 
accrued,  is  affected  by  its  provisions. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

95  C.  184,  202,  30  P.  213,  216,  16  L.  646   (referred  to). 

Similar  provisions  in  other  codes — As  to,  see  Kerr's  Cyc.  Pol. 
C.  §  8  and  note;  Kerr's  Cyc.  C.  C  P.  §  8  and  note. 

Accrued  rights — Effect  of  codes  on. — See  Kerr's  Cyc.  Pol.  C. 
§  8   and  note. 

Claim  barred  by  statute  of  limitation,  legislature  cannot 
revive. — See  Kerr's  Cyc.  Pol.  C.  §  8  and  note;  also  Kerr's  Cyc. 
C.  C.   P.   §  8   and  note  par.   IS. 

Code  rules  applicable,  when,  as  to,  see  Kerr's  Cyc.  C.  C.  §  6 
and  note  par.   12. 

5 


§  7  CIVIL  CODE. 

Effect  of  codes  on  pending  actions  and  accrued  rights. — See 
Kerr's  Cyc.  Pol.  C.  §  8  and  note;  Kerr's  Cyc.  C.  C.  P.  §  8  note 
pars.   7-9. 

Legislature — Revival  of  claim  barred  by  statute  of  limita- 
tions is  not  permissible. — See  Kerr's  Cyc.  Pol.  C.  §  8  and  note; 
Kerr's  Cyc.  C.  C.  P.  §  8  and  note. 

Limitation  of  actions — Power  of  legislature  over, — as  to,  see 
Kerr's  Cyc.  Pol.  C.  §  9  and  note;  Kerr's  Cyc.  C.  C.  P.  §  8  and 
note  pars.   13-22. 

Remedial  rights,  as  to  change  or  modification  of  by  legisla- 
ture.— See  note  to  Kerr's  Cyc.  C.  C.  P.  §  8  pars.  12  et  seq. 

When  vested,  etc. — As  to,  see  Kerr's  Cyc.  Pol.  C.  §  8  and 
note;  Kerr's  Cyc,  C.  C.  P.  §  8  note  pars.  7-11. 

§  7.  HOLIDAYS.  Holidays,  within  the  meaning  of  this 
code,  are  every  Sunday,  the  first  day  of  January,  the  twenty- 
second  day  of  February,  the  thirtieth  day  of  May,  the  fourth 
day  of  July,  the  ninth  day  of  September,  the  first  Monday 
in  September,  the  twelfth  day  of  October  to  be  known  as 
"Discovery  Day,"  the  twenty-fifth  day  of  December,  every 
day  on  which  an  election  is  held  throughout  the  state,  and 
every  day  appointed  by  the  president  of  the  United  States 
or  by  the  governor  of  this  state  for  a  public  fast,  thanksgiv- 
ing or  holiday.  If  the  first  day  of  January,  the  twenty-second 
day  of  February,  the  thirtieth  day  of  May,  the  fourth  day 
of  July,  the  ninth  day  of  September,  the  twelfth  day  of  Octo- 
ber or  the  twenty-fifth  day  of  December  fall  upon  a  Sunday, 
the  Monday  following  Is  a  holiday. 

Every  Saturday  from  twelve  o'clock  noon  until  twelve 
o'clock  midnight  is  a  holiday  as  regards  the  transaction  of 
business  in  the  public  offices  of  this  state,  and  also  in  politi- 
cal divisions  thereof  where  laws,  ordinances  or  charters  pro- 
vide that  public  offices  may  be  closed  on  holidays;  provided, 
this  shall  not  be  construed  to  prevent  or  invalidate  the  issu- 
ance, filing,  service,  execution  or  recording  of  any  legal  pro- 
cess or  written  instrument  whatever  on  such  Saturday  after- 
noons. 

Hlstorr:  Enacted  March  21,  1872;  amended  1880,  Code  Amdts. 
1880  (C.  C.  pt.),  p.  9,  1899,  Stats,  and  Amdts.  1889,  p.  47;  1893, 
Stats,  and  Amdts.  1893,  p.  186;  1897,  Stats,  and  Amdts.  1897,  p. 
14;  March  18,  1907,  Stats,  and  Amdts.  1907.  p.  565;  February  19, 
1909.   Stats,   and  Amdts,   1909,   p.    23. 

6 


ni'SINESS   DAYS— COMPUTING  TIME.  §§  g-lQ 

Son  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

Holidays — Exclusion  and  Inclu.sion  In  computing  tinif. — Soo 
Kerr's  Cyc.  C.  C.  §  10  and  note;  Kerr's  Cyc.  Pol.  C.  SS  7.  8.  11  and 
notes;   Kerr's  Cyc.  C.  C.   P.   SS  10-13   and   notes. 

Same — PuMlcatlon  of  notice  on — As  to  validity  of,  see  Kerr's 
Cyc.  C.  C.  I  10  note  par.  11;  Kerr's  Cyc.  C.  C.  P.  15  10-13  and 
notes. 

Same — Service  of  legal  process  on — As  to  validity  of,  see 
Kerr's  Cyc.  C.  C.  {  10  note  par,  12;  Kerr's  Cyc.  C.  C.  P.  {S  10-13 
and    notes. 

Special  holidays  declared  by  governor  are  Invalid. — S<e  Kcrr'n 
IIUMinlnl   Siipitlenient    1]I0».   note   to   the  above   section. 

§S.     SA.MK    (repealed). 

IliNtory:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion amendment  of  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p. 
:!32;  lield  iinconstitntbmal,  see  hi.'^tory,  S  I  ante;  repealed,  Act 
Feb.  20.  1905.  Stats,  and  Amdts.   1905.  p.   11. 

§9.  BL'SINKSS  DAYS.  All  other  days  than  those  men- 
tioned in  .section  seven  are  to  be  deemed  business  days  for 
all  purposes. 

Hlntoryt  Enacted  Marcli  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  332;  held 
unconstitutional,  see  history,  {  4  unto;  amended  Feb.  20,  1905, 
.^tals.   and    Amdts.    1905.   p.    11. 

§  UK  (  OMriTATKLN  OF  TIMK.  The  time  in  which  any 
act  provided  by  law  is  to  be  done  is  computed  by  cxrliidini: 
the  tirst  day  and  including  the  last,  unless  the  last  day  is  a 
holiday,  and  then  it  is  also  excluded. 

IIU(<>r.>:      EruKteil   March    21.   1872. 

Kerr's  Cyc.  C.   C   V.   fur   r.  1    pars.   nnnotatl<m. 

107  C.  282,  284,  40  P.  430  (applied);  119  C.  87.  RK  SI  TV  ?4 
(applied);   131   C.  590.  r.94.   63   P.   1013   (applied). 

(''■imputation    nf   tim(> — As   («>   ffrnerally,   8«'e    Ken 
$  10  and   note;    K<rr'»  Cyc.   ('.   ('.    P.   i  1 J   and   ni>to. 

Sanie — Fractions  of  a  day  consldereil  when. — See  Kerr's  Cyc. 
C.  C.  I  10  n«tf  pars.  27.  28;  Kirr's  Cyc.  C.  C.  V.  I  12  note  par.   11. 

S.'inii — Inclusive  and  exclusive  method. — .See  Kerr's  Cyc.  C  C 
P.  S  12  and  note;   Kerr's  Cyc.  C.  C.  i  10  note  pars.  3-9. 

Same — Holidays  not  counted. — See  Kerr's  Cyc.  C.  C.  I  10  note 
pars.    13-20. 

7 


§§  11-13  CIVIL  CODE. 

Tear,  week,  and  day, — as  to,  see  Kerr's  Cyc.  Pol.  C.  §  3255 
and  note;  Kerr's  Cyc.  C.  C.  P.  §  17  and  note  pars.  18,  19,  21;  also 
2  W.   &  P.   1832;   8   W.   &   P.   7427,   7551. 

§  11.  CERTAIN  ACTS  HOT  TO  BE  DONE  ON  HOLIDAYS. 

Wherever  any  act  of  a  secular  nature,  other  than  a  work  of 
necessity  or  mercy,  is  appointed  by  law  or  contract  to  be 
perfc-T^ed  upon  a  particular  day,  which  day  falls  upon  a 
holiday,  it  may  be  performed  upon  the  next  business  day, 
with  the  same  effect  as  if  it  had  been  performed  upon  the 
day  appointed. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

110  C.  547,  551,  42  P.  1079  (applied);  136  C.  185,  193,  68  P. 
601   (applied);  136  C.  253,  256,  68  P.  707,  70S   (applied). 

§  12.  JOINT  AUTHORITY  CONSTRUED.  Words  giving  a 
joint  authority  to  three  or  more  public  officers  or  other  per- 
sons are  construed  as  giving  such  authority  to  a  majority  of 

them,  unless  it  is  otherwise  expressed  in  the  act  giving  the 
authority. 

History:     Enacted  March   21,  1872. 

See   Kerr's  Cyc.   C.   C.   for    11   pars,   annotation. 
100  C.  121,  132,  34  P.   630    (applied);  2  C.  A.  453,   459,  83  P.  580, 
582   (applied). 

§  13.  WORDS  AND  PHRASES,  HOW  CONSTRUED.  Words 
and  phrases  are  construed  accordiug  to  tlie  context  and  the 
approved  usage  of  the  language;  but  teclmical  words  and 
phrases,  and  such  others  as  may  have  acquired  a  peculiar 
and  appropriate  meaning  in  law,  or  are  defined  in  the  suc- 
ceeding section,  are  to  be  construed  according  to  sucli  pecul- 
iar and  appropriate  meaning  or  definition. 

History:     Enacted  March  21,  1872. 

See  Kerr's   Cyc.   C.  C.  for  25  pars,  annotation. 

75    C.    1,    73,    16   P.    345,    370,    378    (applied);    131    C.    433,    435,  65 

P.    729     (referred    to    in    discussion);    136    C.    460,    464,    69    P.  83 

(applied);   138  C.  364,  366,  71  P.  446    (applied);   145  C.   82,   84,  78 


DEFINITION     OF     TERMS.  §  14 

P.   340,  341,  104  A.  S.  17    (applied);  145  C.  407,  409,   78  P.   964,  965, 
104  A.  S.  58   (applied);  146  C.  728,  733,  81  P.  119,  121   (applied). 

Contracts,  as  to,  see  Kerr's  Cyc.  C.  C.  §§  1644,  1645  and  notes; 
Kerr's  Cyc.  C.  C.  P.  §  1861  and  note. 

§14.  CERTAIN  TERMS  DEFINED.  Words  used  in  this 
code  in  the  present  tense  include  the  future  as  well  as  the 
present;  Mords  used  in  the  masculine  gender  include  the 
feminine  and  neuter;  the  singular  number  includes  the  plu- 
ral, and  the  plural  the  singular;  the  word  person  includes  a 
corporation  as  well  as  a  natural  person;  county  includes 
city  and  county;  writing  includes  printing  and  typewriting; 
oath  includes  affirmation  or  declaration;  and  ["testify"]  eyery 
mode  of  oral  statement,  under  oath  or  affirmation,  is  embraced 
by  the  term  "testify,"  and  ["depose"]  every  written  one  in  the 
term  "depose";  signature  or  subscription  includes  mark,  when 
the  person  cannot  write,  [1]  his  name  being  written  near 
it,  [2]  by  a  person  who  writes  his  own  name  as  a  witness; 
provided,  that  when  a  signature  is  by  mark  it  must,  in  order 
that  the  same  may  be  acknowledged  or  may  serve  as  the 
signature  to  any  swoi'ii  statement,  [1]  be  witnessed  by  two 
persons,  [2]  who  must  subscribe  their  own  names  as  witnesses 
thereto.  The  following  words  have  in  this  code  the  signifi- 
cation attached  to  them  in  this  section,  unless  otherwise 
apparent  from  the  context: 

1.  The  word  "property"  includes  property,  real  and  per- 
sonal ; 

2.  The  words  "real  property"  are  coextensive  with  lands, 
tenements,  and  hereditaments; 

3.  The  words  "personal  proi)erty"  include  money,  goods, 
chattels,  things  in  action,  and  evidences  of  debt: 

4.  The  word  "month"  means  a  calendar  month,  unless  other- 
wise expressed; 

6.  The  word  "will"  includes  codicil; 

6.  The  word  "section,"  wherever  hereinafter  employed, 
refers  to  a  section  of  this  code,  unless  some  other  code  or 
statute  is  expressly  mentioned. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.    181;   Code   Commission   amendment,'  Act 

9 


§§  15-18  CIVIL  CODE. 

March  19,  1901,  Stats,  and  Anidts.  1900-1,  p.  332;  unconstitutional, 
see  history,  §  4,  ante;  amended  March  25,  1903,  Stats,  and  Amdts. 
1903,  p.   407. 

See  'Kerr's  Cyc.   C.   C.  for  78  pars,  annotation. 

54  C.  107,  109  (construction  of  subd.  28  of  feection  as  origi- 
nally passed, — repealed  by  amendments  1873-4);  58  C.  373,  375' 
(construction  of  subd.  5  as  originally  enacted;  substantially 
same  as  present  provision);  62  C.  182,  184  (applied);  72  C.  55, 
57,  12  P.  49,  50  (applied);  73  C.  320,  322,  14  P.  876,  877  (applied); 
91  C.  i!3«,  248,  27  P.  604,  606  (construed  and  applied);  96  C. 
598,  600,  31  P.  553,  22  L.  370  (applied);  110  C.  387,  396,  52  A.  S. 
104,  42  P.  815,  30  L.  460  (construed);  113  C.  345,  353  45  P.  680 
(construed  and  applied);  131  C.  590,  591,  594,  63  P.  1013  (con- 
strued and  applied);  133  C.  69,  71,  65  P.  142  (cited  with  other 
sections);  134  C.  287,  289,  66  P.  324  (referred  to);  135  C.  167, 
172,  67  P.  52  (referred  to);  137  C.  354,  356  (erroneously  cited 
as  §172),  70  P.  459  (correct  citation);  140  C.  406,  409,  73  P. 
1086  (applied);  141  C.  113,  115,  74  P.  773  (construed  and 
applied);  142  C.  529,  539,  76  P.  243   (applied). 

Boundaries — Words  used  in, — as  to,  see  Kerr's  Cyc.  Pol.  C. 
§§  3903-3907  and  notes. 

§  15.    GOOD  FAITH,  >VHAT  CONSTITUTES  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,   p.   182. 

§  16.    DEGREES  OF  CARE  AND  NEGLIGENCE  (repealed). 

History:  Enacted  March  21,  1872;  repealed'  March  30,  1874, 
Code  Amdts.   1873-4,   p.   182. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

§17.    DEGREES  OF  NEGLIGENCE  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,   p.   182. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

66  C.  579,  590,  5  P.  637,  645,  56  A.  R.  119  (repeal  of  section 
referred   to). 

§  18.    NOTICE,  ACTUAL  AND  CONSTRUCTIVE.    Notice  is: 

1.  Actual — which  consists  in  express  information  of  a  fact; 
or, 

2.  Constructive — which  is  imputed  by  law. 

History:     Enacted  March  21,  1872. 
10 


ACTUAL    NOTICE.  §  18 

See   Kerr's  Cyc.  C.   C.  for   11   pars,   annotation. 

97  C.  575,  584,  33  A.  S.  209,  32  P.  579,  581,  21  K  33  (referred 
to);  118  C.  258,  260,  50  P.  380  (applied):  119  C.  447,  451,  51  P. 
693   (applied);  131  C.  582,  587,  589,  63  P.  915   (applied). 

ACTUAL  NOTICE. 

As  to  generally.— See  21  Encyc.  of  L.  582;  37  Cent.  Dig. 
1465,    §  1. 

Acts  of  agents  of  government. — See  37  Cent.  Dig.  col.  1471,  §  8. 

Advertisements  and  publications  of  facts. — See  62  A.  D.  320; 
37  Cent.  Dig.  col.  1471,  §9;  see  also  "Publications  authorized  by 
law,"  this  note. 

Agent,  notice  to — Principal  charged  witli,  when. — See  3  A.  C. 
441;  39  A.  R.  322;  24  A.  S.  228;  2  Obiter  Dig.  352;  1  L.  217;  1 
L.  563;  2  L.  734;  10  L.  705;  21  L.  342;   32  L.  62. 

Same — Sub-agent,  notice  to — Effect  of. — See   21   L.   340. 

Attorney,  notice  to — Notice  to  client. — 3  A.  C.  441;  see  also 
"Agent,"    this    note. 

-    Cestui  que  trust,  charged  with  notice  to  trustee. — See  2  Obiter 
Dig.   352. 

Corporation — Charged  with  notice  to  director,  wlien. — See  39 
A.  R.   84. 

Same — Charged  with  notice  to  officer  or  agent,  when. — 6  A.  C. 
679;   36  A.   D.   188. 

Evidence — Competency  and  sufficiency  of. — See  21  Encyc.  of 
L,.  589;  37  Cent.  Dig.  col.  1490,  §§  39,  40. 

Same — Memory  of  facts  constituting  notice. — See  Moore  on 
Facts,    §§  795,    796,    831. 

Same — Of  unrecorded  deed,  degree  of  proof. — See  Moore  on 
Facts,  §  44. 

Same — Proof  under  averment  of  due  notice. — Sec  14  PL  &  Pr. 
1070. 

Same— Questions  for  jury. — Sec  21  Encyc.  of  L.  589;  37  Cent. 
Dig.    col.    1492,    §  41. 

Judicial  proceedings. — See  37  Cent.  Dig.  col.  1471,  §  10. 

Knowledge — Of  facts  and  circumstances. — See  tit.  "Facts  and 
circumstances,"  note  §  19,  post. 

Same — Of  unrecorded  deed. — See  13  A.  D.  705. 

Same — Or  express  notice. — See   37   Cent.   Dig.  col.    1466.   §  2. 

Necessity  of  notice — As  a  condition  of  due  process. — See  6  L. 
657;  11  L.   225. 

Same — As  to  generally. — See  37  Cent.  Dig.  col.  1472,  §  13. 

Same — Facts  within  knowledge  of  party. — See  37  Cent.  Dig. 
col.    1473,    i  14. 

Same — Waiver  of  notice. — See  37  Cent.  Dig.  col.   1473.  §  15. 

Pleading — Allegation  of  notice,  necessary  when. — See  14  PI. 
&  Pr.  1066-1069;  37  Cent.  Dig.  col.  1489,  §37. 

Same— Same— Alder  by  verdict.— See  37  Cent.  Dig.  col.  1490, 
§38. 

11 


§  19  CIVIL  CODE. 

Same — Averment  of  excuse  or  waiver. — See  14  PI.  &  Pr.  1069. 

Same — Manner  of  alleging-  notice. — See   14  PI.   &  Pr.    1071. 

Same — Answer  denying  notice. — See  14  PI.  &  Pr.  1072. 

Possession,  by  actual. — See  2  L.  201;  2  L.  734;  4  L.  222;  8  L. 
211;  11  L.  661;  37  Cent.  Dig.  col.  1472,  §11;  see  also  tit.  "Pos- 
session of  land,"  etc.,  note  §  19,  post. 

Principal  charged  with  notice  to  agent,  when. — See  "Agent," 
this  note. 

Public  statutes.— See  21  Encyc.  of  L.  588;  37  Cent.  Dig.  col. 
1472,    §  12. 

Publications  authorized  by  law. — See  62  A.  D.  320;  37  Cent. 
Dig.  col.  1471;  §  9;  see  also  "Advertisement,"  etc.,  this  note. 

Same — In   foreign   language. — See   14  L.   64. 

Question  of  fact  when,  question  of  law  when. — See  21  Encyc. 
of    L.    589. 

Requisites  and  sufficiency  of  formal  notice. — See  21  Encyc. 
of  L.  582-589;   37  Cent.  Dig.  col.   1474,   §§16-21. 

Service  of  formal  notice — Method  and  sufficiency  of. — See  37 
Cent.   Dig.   col.    1476,    §§  22-36. 

Signing  notice  by  proxy. — See   22   L.    298. 

Sub-agent — Notice  to,  effect  of. — See  21  L.  340;  see  also 
"Agent,"   this  note. 

Telephone — Notice  by,  insufficient  when. — See  37  Cent.  Dig. 
col.    1476,    §  21. 

Time  of — First  and  last  days  in  computing. — See  49  L.   221. 

"Trustee" — Word  in  written  instrument,  whether  imparts 
notice. — See    82   A.   S.    513. 

Waiver  of  notice. — See   37   Cent.   Dig.   col.   1473,   §  15. 

§  19.     CONSTRUCTIVE  NOTICE  [AVHEN  DEE3IED].  Every 

person  who  has  had  actual  notice  of  circumstances  sufficient 
to  put  a  prudent  man  upon  inquiry  as  to  a  particular  fact, 
has  constructive  notice  of  the  fact  itself  in  all  cases  in  which, 
by  prosecuting  such  inquiry,  he  might  have  learned  such 
fact. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.   1873-4,  p.   182. 

See  Kerr's  Cyc.   C.   C.  for  104  pars,  annotation. 

77  C.  449,  456,  19  P.  820,  823  (referred  to);  82  C.  621,  626,  23  P. 
193,  195  (applied);  97  C.  575,  584,  32  P.  579,  581,  33  A.  S.  209,  21 
L.  33  (referred  to);  118  C.  258,  260,  50  P.  380,  381  (quoted);  119 
C.  447,  451,  51  P.  693,  695  (applied);  120  C.  282,  284,  52  P.  585, 
586  (applied);  122  C.  98,  101,  54  P.  528,  529  (applied);  122  C. 
517,  521,  55  P.  401,  402  (applied);  123  C.  163,  166,  55  P.  759,  760 
(referred  to  as  an  equitable  rule) ;  128  C.  221,  224,  60  P.  679,  681 

12 


CONSTRUCTIVE    NOTICE.  §  20 

(quoted);    131   C.    582,    B8Z,    63    P.    915,   917    (referred    to);    139    C. 
246,   257,   72   P.   997,   1001    (applied   in   dis.   op.);    140   C.    34.  46,   73 
P.   803,   806    (applied);    150   C.    289,   318,   88   P.    356,   358,   8   L.   N.   S. 
692  (applied);  151  C.  242,  253,  90  P.  538,  543   (applied). 
CONSTRUCTIVE   NOTICE. 

As  to  what  is,  and  nature — Generally. — See  21  Encyc.  of  L. 
582;  45  A.  R.  184;  1  L.  192;  2  L.  734;  4  L.  717;  37  Cent.  Dig.  col. 
1466,  §  3. 

Same — Is  mere  evidence  of  notice. — See  2  Obiter  'Dig.  351. 

Corporate  by-law,  as. — See  25  L.  48. 

Facts  or  circumstances  putting  on  inquiry — As  to  generally. — 
Sec  23  A.  D.  47;  34  A.  S.  399;  21  Encyc.  of  L.  584-588;  37  Cent. 
Dig.  col.   1468,   §4;   2  Obiter  Dig.   351. 

Same — Failure  to  inquire,  effect  of. — See  37  Cent.  Dig.  col. 
1470,  §  6. 

Same — Presumption  of  notice. — See  37  Cent.  Dig.  col.  1470, 
§8. 

Same — Rumors. — See   37  Cent.  Dig.  col.   1470,  §  5. 

Facts  within  knowledge  of  party. — See  37  Cent.  Dig.  col.  1473,. 
§  14;   see  also   "Knowledge,"   note   §  18,   ante. 

Newspaper  articles  and  publications  authorized  by  law. — See 
62  A.  D.  320;  37  Cent.  Dig.  col.  1471,  §9;  see  also  tit.  "Publlca- 
'tions,"  etc.,  note  §  18,  ante. 

Paper  expressly  referring  to  another  paper — Gives  notice  of 
contents  of  latter,  when. — See  16  A.  D.  754;  2  Obiter  Dig.  351. 

Pleading — Necessity  for — Form  and  sufficiency  of. — See  tit. 
"Pleading,"  note  §  18,  ante. 

Possession  of  land,  as  notice. — See  Kerr's  Cyc.  C.  C.  §  19,  note 
pars.  53  et  seq.;  §  1217  and  note;  see  also  tit.  "Possession,"  etc., 
note  §  18,  ante. 

Recital  in  deed  or  other  writing. — See  16  A.  D.  754;  1  L.  191; 
7  L.  840;  2  Obiter  Dig.  351. 

Record — Unauthorized,  as  notice. — See  1  L.   192. 

Recordation — Notice  by. — See  Kerr's  Cyc.  C.  C.  §§  1158,  1213 
and  notes. 

Recorded  instrument — Recitals  in — Notice  to  parties. — See 
Kerr's  Cyc.  C.  C.  §  1217  and  note. 

Sufficiency   of.— See   2   Obiter   Dig.   351. 

Unrecorded  deed — Facts  sufficient  to  put  party  on  inquiry, 
when. — See  Kerr's  Cyc.  C.  C.   §  19,  note  par.   42. 


§20.  EFFECT  OF  KEPE.VL.  No  statute,  law,  or  rule  is 
continued  in  force  because  it  is  consistent  with  the  provisions 
of  this  code  on  the  same  subject;  but  in  all  cases  provided 
for  by  this  code,  all  statutes,  laws,  and  rules  heretofore  in 
force  in  this  state,  whether  consistent  or  not  with  the  pro- 

13 


§  21  CIVIL  CODE. 

visions  of  this  code,  unless  expressly  continued  in  force  by  it, 
are  repealed  or  abrogated. 
This  repeal  or  abrogation  does  not  revire  any  former  law 

heretofore  repealed,  nor  does  it  affect  any  right  already  exist- 
ing or  accrued,  or  any  action  or  proceeding  already  taken, 
except  as  in  this  code  provided. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  333,  held 
unconstitutional ;  see  history,  §  4,  ante. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

68  C.  294,  298,  303,  58  A.  R.  12,  9  P.  139,  144  (construed  and 
commented  on);  96  C.  490,  492,  493,  31  P.  560,  561  (not  applic- 
able); 109  C.  571,  580,  42  P.  225  (applied);  121  C.  362,  364,  53  P. 
842   (construed  and  applied). 

§  21.  THIS  ACT,  HOW  CITED.  This  act,  whenever  cited, 
enumerated,  referred  to,  or  amended,  may  be  designated 
simply  as  "The  Civil  Code,"  adding,  when  necessary,  the  num- 
ber of  the  section. 

History:     Enacted  March  21,  1872. 

31  P.  620,  622   (cited). 


14 


DIVISION  FIRST. 

Fart  I.  Persons,   §§  25-42. 

XL  Personal  Rights,  §§  43-54. 

III.  Personal  Relations.   §§  55-276. 

IV.  Corporations,  §§  283-653zb. 


15 


i 


PART    I. 

PERSONS. 

§  25.  Minors,  who  are. 

§  26.  Periods  of  minority,  how  calculated. 

§  27.  Adults,  who  are. 

§  28.  Status  of  minors,  how  changed   [repealed]. 

§  29.  Unborn  child. 

§  30.  Persons  made  adults  by  other  states,  considered  as  such 
in  this  state,  when  domiciled  herein   [repealed]. 

§  31.  Minors  by  the  law  of  other  state  or  country,  how  consid- 
ered in  this  state    [repealed]. 

§  32.  Custody  of  minors. 

§  33.  Minors  cannot  give  a  delegation  of  power. 

§  34.  Contracts  of  minors  made;  disaffirmance. 

§  35.  When  minor  may  disaffirm. 

§  36.  Cannot  disaffirm  contract  for  necessaries. 

§  37.  Nor  certain   obligations. 

§  38.  Contracts  of  persons  without  understanding. 

§  39.  By  persons  of  unsound  mind. 

§  40.  Power  of  persons  whose  incapacity  has  been  adjudged. 

§  41.  Minors  liable  for  wrongs,  but  not  liable  for  exemplary 
damages. 

§  42.  Minors  may  enforce  their  rights. 

§25.    MINORS^  ^VHO  ARE.    Minors  are: 

1.  Males  under  twenty-one  years  of  age; 

2.  Females  under  eigliteen  years  of  age. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

119  C.  599,  601,  51  P.  962  (applied);  5  P.  80  (applied  with 
§26). 

§26.    PERIODS     OF     MINORITY,     HOW     CALCULATED. 

The  periods  specified  in  ttie  preceding  section  must  be  calcu- 
lated from  the  first  minute  of  the  day  on  ivhich  persons  are 
born  to  the  same  minute  of  the  corresponding  day  completing 
the  period  of  minority. 

History:  Enacted  March  21,  1872;  amended  Code  Commission, 
Act  March  8,  1901,  Stats,  and  Amdts.  1900-1,  p.  333,  held  uncon- 
stitutional;  see  history,  §   4,  ante. 

17 


§§  27-31  CIVIL  CODE.  [Div.  I. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 
5  P.  80  (applied  with  §  25). 

§  27.    ADULTS,  WHO  ARE.    All  other  persons  are  adults. 

History:     Enacted  March   21,  1872. 

§28.    STATUS  OF  MINORS,  HOW  CHANGED   (repealed). 

Hi.story:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Anidts.   1873-4,  p.  182. 

Statutes  1858  (p.  108)  embraced  only  females;  the  original 
section  extended  the  privilege  to  males. 

§29.  UNBORN  CHILD.  A  child  conceived,  but  not  yet 
born,  is  to  be  deemed  an  existing  person,  so  far  as  may  be 
necessary  for  its  interests  in  the  event  of  its  subsequent 
birth. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  134  pars,  annotation. 

87  C.  15,  21,  25  P.  161  (erroneously  cited  for  §2913);  132  C. 
523,  580,  60  P.  442,  64  P.  1000  (applied);  139  C.  480,  483,  96  A.  S. 
154,  69  P.  297,  73  P.  244,  245  (unborn  child  not  protected  by  this 
section  where  mother,  etc.,  has  brought  suit  and  there  has  been 
a  compromise  or  recovery  without  its  existence  having  been 
known  to  defendant). 

As  to  unborn  children,  in  addition  to  the  very  full  annota- 
tion in  Kerr's  Cyclopedic  Civil  Code,  §  29,  see  29  Encyc.  of  L. 
93;  49  Cent.  Dig.  col.  1235,  §1086;  and  col.  2270,  §§1511-1513; 
2  A.  C.  866;  7  A.  C.  134;  11  L.  391;  44  L.  489. 

§30.  PERSONS  MADE  ADULTS  BY  OTHER  STATES, 
CONSIDERED  AS  SUCH  IN  THIS  STATE,  WHEN  DOMI- 
CILED HEREIN  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  182. 

§31.  MINORS  BY  THE  LAWS  OF  OTHER  STATE  OR 
COUNTRY,  HOW  CONSIDERED  IN  THIS  STATE  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.  182. 

18 


I     Pt.  I.]  CONTRACTS    BY   MINORS.  §§  32-35 

§  32.  CUSTODY  OF  MINORS.  The  custody  of  minors  and 
persons  of  unsound  mind  is  regulated  by  Part  III  of  this 
division. 

History:     Enacted  March   21,  1872. 

§33.  MINORS  CANNOT  GIVE  A  DELEGATION  OF 
POWER.  A  minor  cannot  [1]  give  a  delegation  of  power,  nor 
under  the  age  of  eighteen,  [2]  make  a  contract  relating  to  [a] 
real  property,  or  [b]  any  interest  therein,  or  [c]  relating  to 
any  personal  property  not  in  his  immediate  possession  or 
control. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  182. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

74  C.  52,  56,  15  P.  364,  367  (discussed;  not  applicable);  115  C. 
143,  151,  44  P.  336,  46  P.  922   (construed). 

§34.  CONTRACTS  BY  MINORS  MADE;  DISAFFIRM- 
ANCE. A  minor  may  make  any  other  contract  than  as  above 
specified,  in  the  same  manner  as  an  adult,  subject  only  [1] 
to  his  power  of  disaffirmance  under  the  provisions  of  this 
title,  and  subject  [2]  to  the  provisions  of  the  titles  on  [a] 
marriage,  and  on  [b]  master  and  servant. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  183;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  333,  unconstitutional; 
see  history,  §  4,  ante. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  contracts  of  infants — Avoidance,  confirmation,  etc.,  see 
16  Encyc.  of  L.  271-307;  27  Cent.  Dig.  col.  1108,  §§  98-160;  3  A.  C. 
593;  4  A.  C.  422;  5  A.  C.  131;  8  A.  C.  131. 

§35.  WHEN  MINORS  MAY  DISAFFIRM.  In  all  cases 
other  than  those  specified  in  sections  thirty-six  and  thirty- 
seven,  the  contract  of  a  minor,  if  made  whilst  he  is  under 
the  age  of  eighteen,  may  be  disaffirmed  [1]  by  the  minor  him- 
self, either  before  his  majority  or  within  a  reasonable  time 
afterwards;  or,  in  case  of  his  death  within  that  period,  [2] 
by  his  heirs  or  personal  representatives;  and  if  the  contract 

19 


§§36,37  CIVIL  CODE.  [Div.  I. 

be  made  by  the  minor  whilst  he  is  over  the  age  of  eighteen, 
it  may  be  disaffirmed  in  like  manner  upon  restoring  the  con- 
sideration to  the  party  from  whom  it  was  received,  or  paying 
its  equivalent. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.   183. 

See  Kerr's  Cyc.  C.  C.  for  48  pars,  annotation. 

66  C.  336,  337,  5  P.  515  (erroneously  cited  by  counsel);  (C. 
Nov.  19,  1885),  8  P.  597,  598  (construed);  89  C.  575,  581,  26  P. 
1108,  1109  (disaffirmance  under  this  section  not  necessary  wliere 
relation  of  trust  and  confidence  is  shown  and  conveyance  rests 
on  implied  trust);  123  C.  634,  639,  640,  641,  69  A.  S.  90,  97,  56  P. 
436    (construed  and  applied). 

As  to  disaffirmance  and  avoidance  of  contracts  by  minors,  in 
addition  to  annotations  in  Kerr's  Cyc.  C.  C.  §  35,  see  16  Encyc. 
of  L.   287-299;   27  Cent.  Dig.  col.   1160,   §§149-160. 

§36.  CANJVOT  DISAFFIRM  CONTRACT  FOR  NECESSA- 
RIES. A  minor  cannot  disaffirm  a  contract,  otherwise  valid, 
to  pay  the  reasonable  value  of  things  necessary  [1]  for  his 
support,  or  [2]  that  of  his  family,  entered  into  by  him  when 
not  under  the  care  of  a  parent  or  guardian  able  to  provide 
for  him  or  them. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   183. 

See  Kerr's  Cyc.  C.  C.  for  S3  pars,  annotation. 

123  C.  634,  640,  69  A.  S.  90,  56  P.  436  (referred  to  by  court  in 
discussion,  but  class  of  contract  not  involved  in  case). 

As  to  contracts  for  necessaries  being  binding  upon  infant, 
see  16  Encyc.  of  L.  275-281;  27  Cent.  Dig.  col.  1123,  §§  114-127. 

As  to  apprenticeship,  generally,  see  Kerr's  Cyc.  C.  C.  §§  264 
et  sea-  and  notes. 

Same — Contract  of,  binding  upon  infant. — See  16  Encyc.  of  L. 
275. 

§37.  NOR  CERTAIN  OBLIGATIONS.  A  minor  cannot 
disaffirm  an  obligation,  otherwise  valid,  entered  into  by  him 
under  the  express  authority  or  direction  of  a  statute. 

History:     Enacted  March   21,   1872. 

123  C.  634,  640,  56  P.  436,  439,  69  A.  S.  90   (applied  with  §  36). 

20 


I 


Pt.  I.]  CONTRACTS  OF   INCOMPETENTS.  §§38,39 

§38.  COIVTEACTS  OF  PEllSONS  IVITHOUT  UNDER- 
STANDIlVGr.  A  person  entirely  without  understanding  has  no 
power  to  make  a  contract  of  any  kind,  but  he  is  liable  for 
the  reasonable  value  of  things  furnished  to  him  necessary 
for  [1]  his  support  or  [2]  the  support  of  his  family. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  183. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

85  C.  177,  190,  29  A.  S.  128,  24  P.  729,  733  (construed  and  ap- 
plied); 110  C.  292,  296,  52  A.  S.  84,  42  P.  804  (construed  and 
applied);  134  C.  567,  568,  66  P.  729  (construed  and  applied);  139 
C.  507,  511,  73  P.  247  (construed  and  applied);  149  C.  667,  673, 
674,  87  P.  276,  279  (construed  and  applied  with  §39);  150  C. 
272,  273,  275,  88  P.  909,  910  (cited);  1  C.  A.  690,  693,  82  P.  1052, 
1053   (explained  with   §  39). 

Drunkenness — Complete  drunkenness  as  a  defense  to  action 
on  contract. — See  Kerr's  Cyc.  C.  C.  §  39  note  pars.  18-23;  11  Cent. 
Dig.  col.   370,  §§  412,   414. 

§39.  BY  PERSONS  OF  UNSOUND  MIND.  A  conveyance 
or  other  contract  of  person  of  unsound  mind  but  not  entirely 
without  understanding,  made  before  his  incapacity  has  been 
judicially  determined,  is  subject  to  rescission,  as  provided  in 
the  chapter  on  rescission  of  this  code. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  184. 

See  Kerr's  Cyc.  C.  C.  for  60  pars,  annotation. 

85  C.  177,  190,  29  A.  S.  128,  24  P.  729,  733  (applied);  110  C.  292, 
296,  52  A.  S.  84,  42  P.  80.4  (explained  and  applied);  140  C.  141, 
152,  73  P.  820  (applied);  149  C.  667,  673,  87  P.  276,  279  (construed 
and  applied);  150  C.  272,  274,  275,  276,  88  P.  909  (construed  and 
applied  with  §38);  1  C.  A.  690.  693,  694,  695,  82  P.  1052  (cited 
and  explained). 

As  to  recission  of  contracts  entered  into  by  persons  of  un- 
sound mind,  see  18  PI.  &  Pr.  765;  11  Cent.  Dig-,  col.  369,  §411; 
5  Decen.  Dig.  p.   103,   §92;  4  L.  637;   13  L.  797. 

As  to  validity  and  effect  of  negotiable  note  signed  or  indorsed 
by  an  insane  person,  see  4  A.  C.  539. 

Same — In  hands  of  bona  fide  holder. — See  13   L.  797. 

As  to  validity  of  deed  by  insane  person,  see  19  L.  490;  57  L. 
340. 

As  to  validity  of  judgment  against  an  insane  person,  see  39 
L.  775. 

21 


§  39  CIVIL  CODE.  [Div.  I. 

As  to  validity  of  will  by  believer  in  spiritualism  and  witch- 
craft, see  16  L.  677. 

Contracts  of  insane  persons. — See  71  A.  S.  425;  16  L.  610; 
4  L.  637;  13  L.  707;  34  L.  274;  35  L.  161;  35  L.  258;  49  L.  371; 
3    L.    N.    S.    174. 

Same — When  and  how  may  be  avoided.- — See  15  A.  D.  361. 

Same — When   void. — 21   A.   R.    29. 

As  to  who  deemed  to  be  insane,  see  29  A.  D.  38;  27  Cent.  Dig-, 
col.    2455,    §  1. 

Civi?  liability  of  insane  person  for  torts  and  negligence. — 
See  42  A.  S.   753;  26  L.  153;   27  Cent.  Dig-,   col.   2622,   §§  142,   143. 

Deed  of  insane  person — As  to  generally,  see  27  Cent.  Dig. 
col.    2573,    §§  94-99. 

Same — Belief  in  spiritualism,  witchcraft,  etc.,  as  affecting 
capacity  to   make. — See   16   L.    677. 

Same — In   partition. — See   57   L.   340. 

Same — Validity  of.— See   19   L.   489. 

Disabilities  of,  in  general.— See  27  Cent.  Dig.  col.   2455,  §§  1-14. 

Divorce   of   insane   person. — See   34   L.   161;    39   L.    264. 

Due  process  of  law,  as  applied  to  insane  persons,  what  is. — 
See   43   A.   S.    351. 

Effect  of  insanity  on  failure  to  pay  insurance  premiuna  when 
due.— See   12   L.   N.   S.    319. 

Effect  of  judgment  of  insanity  and  imprisonment  on  aban- 
donment of  homestead. — See  3  L.  N.  S.   515. 

Expert  evidence  to  establish  or  disprove. — See  note  §  40,  post; 
6   A.   D.    59;    66   A.    D.    238. 

Same — Conclusiveness  of.- — See   42   L.   767. 

Hereditary  insanity,  evidence  of. — See  6  A.  C.  29;  97  A.  D.  174. 

Hypnotism,  law  in  reference  to. — See  40  L.   269. 

Insane  delusions — What  are,  and  their  effect  on  competency. 
—See  63  A.  S.   80;  37  L.  261. 

Insanity  as  act  of  God.— See   4  L.  N.  S.   898. 

Insanity  of  husband  as  affecting  wife's  disability  of  covert- 
ure.—See    34  L.    223. 

Insanity  of  servant  executing  release  on  benefit  of  relief 
funds.— See   11  L.   N.   S.    201. 

Inquisition  of  insanity — Effect  of  as  evidence. — See  note  §  40, 
post. 

Lucid   intervals. — See   15   A.   D.    116. 

Marriage  of  insane  persons. — See  79  A.  S.   376;   40  L.   737. 

Morphine  habit  and  other  addictions  affecting  responsibility 
and    capacity. — 39   L.    262. 

Presumption — As  to  continuance  of  insanity. — See  Kerr's 
Pocket  C.  C.  P.  §  1823,  note;  4  A.  C.  491;  35  L.  117. 

Right  of  insane  person  to  remove  from  state. — See  58  L.   931. 

Statute  of  limitations  does  not  operate  against  when. — See  36 
A.   D.    71. 

22 


^ 


Pt.  I.]  LUNACY    PROCEEDINGS.  §  40 

Validity  of  judgment  against  insane  person. — See  39  L..  775. 
Validity   and    effect    of    negotiable    paper    signed    or    endorsed 
by  insane  person. — See   4  A.   C.   539. 

§  40.    POIVEBS  OF  PERSONS  WHOSE  IJfCAPACITY  HAS 

BEEN  ADJUDGrED.  After  his  incapacity  has  been  judicially 
determined,  a  person  of  insane  mind  can  make  no  conveyance 
or  other  contract,  nor  delegate  any  power  or  waive  any  right, 
until  his  restoration  to  capacity.  But  a  certificate  from  the 
medical  superintendent  or  resident  physician  of  the  insane 
asylum  to  which  such  person  may  have  been  committed, 
showing  that  such  person  had  been  discharged  therefrom, 
cured  and  restored  to  reason,  shall  establish  the  presumption 
of  legal  capacity  in  such  person  from  the  time  of  such  dis- 
charge. 

History:  Enacted  March  21,  1872;  amended  March  30,  1878, 
Code  Amdts.  1877-8,  p.  75;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  pp.  333-334,  held  uncon- 
stitutional;  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

57  C.  529,  531  (section  as  amended  1878  not  applicable);  87 
C.  192,  198,  25  P.  677,  679,  12  L.  104  (construed  and  applied); 
33  P.  920,  923  (cited);  110  C.  292,  296,  52  A.  S.  84,  86,  42  P. 
804    (applied). 

LUNACY  PROCEEDINGS. 

As  to  generally,  see  27  Cent.  Dig.  col.  2475,  §§  15-42. 

Claims  and  liabilities  after  lunacy  found,  as-  to  generally, 
see   27   Cent.  Dig.   col.   2583,    §§  106-109. 

Collateral  attack  on,  for  want  of  notice. — See  23  L.  737;  12 
L.  N.   S.   895. 

Conveyance  by  after  lunacy  adjudged — In  general. — See  27 
Cent.   Dig.   col.    2571,   §§  93-99. 

Same — "Affirmance  and  disaffirmance. — See  27  Cent.  Dig.  col. 
2580,    §§  100-105. 

Custody  and  support  after  lunacy  adjudged. — See  27  Cent. 
Dig.   col.    2551,   §§  73-90. 

Effect  of  as  evidence. — See   18  A.  D.   241. 

Effect  of  finding  and  imprisonment  as  abandonment  of 
homestead. — .See   3   L.  N.   S.   315. 

Equity  jurisdiction  over  estates  of  lunatics. — 1  L.   610. 

Evidence  of  insanity — Admissibility  of  evidence  of  insanity 
of  ancestor  or  kindred. — See  6  A.  C.  29;   97  A.  D.   124. 

Same — Burden  of  proof  and  presumptions. — See  Kerr's  Pocket 

23 


§§  41,  42  CIVIL  CODE.  [Div.  I. 

C.  C.  P.  §1823,  note;  10  L.  576;  17  L.  494;  36  L.  64,  721;  37  L. 
426;  38  L.  721;  39  L.  226,  305,  715;  40  L.  742;   42  L.  766. 

Same — Expert  evidence  to  establish  or  disprove,  conclusive- 
ness of. — See  note  §  39,  ante. 

Examination  and  confinement. — See  9  L.  193. 

Guardianship — As  to  generally,  see  1  Church's  New  Probate 
Law  and  Practice  230-260;  27  Cent.  Dig.  col.  2517,  §§  43-72. 

Incapacity  justifying  appointment  of  guardian. — See  13  L.  757. 

Notice  of  proceedings  necessary. — See   23  L.   737-744. 

Same — .Collateral  attack  for  want  of. — See  23  L.  737;  12  L. 
N.  S.  895. 

§  41.  MINORS  LIABLE  FOR  WRONGS,  BUT  NOT  LIABLE 
FOR     EXEMPLARY     DAMAGES.       A    minor,    or    person    of 

unsound  mind,  of  whatever  degree,  is  ciTilly  liable  for  a 
wrong-  done  by  him,  but  is  not  liable  in  exemplary  damages 

unless  at  the  time  of  the  act  he  was  capable  of  knowing  that 
it  was  wrongful. 

History:     Enacted  March  21,  1872. 

Liability  of  infants  for  torts,  etc. — See  33  A.  D.  197;  37  A.  R. 
413;   42  A.  S.   753;   57  L.   673-688;   27  Cent.  Dig.  col.   1200,   §183. 

§  42.  MINORS  MAY  ENFORCE  THEIR  RIGHTS.  A  minor 
may  enforce  his  rights  by  civil  action,  or  other  legal  pro- 
ceedings, in  the  same  manner  as  a  person  of  full  age,  except 
that  a  guardian  must  conduct  the  same. 

'History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

74  C.  52,   55,   15  P.   364,   366    (construed). 

Action  by  infants — As  to  generally,  see  27  Cent.  Dig.  col. 
1196,    §§  178-185. 

Same — Jurisdiction  and  powers  of  court. — See  27  Cent.  Dig. 
col.    1202,    §§  186,    187. 

Same — Parties. — See  27  Cent.  Dig.  col.  1204,  §§  188-191. 

Same — Representation  by  guardian  or  next  friend. — See  27 
Cent.   Dig.   col.   1211,   §§192-252. 

Admissions  of  infant. — See   10  Encyc.  P.   590. 

Appointment  of  attorney  for  in  probate  proceedings. — See  2 
Cliureli's  New  Pi-obate  Law  and  Practice  1802;   10  Encyc.  P.  597. 

Arbitration    of   infant's   cause   of  action.— See   70   L.    171-176. 

Avoidance  of  contract  by  infant. — See  "contract,"  this  note. 

Conduct  of  suits  by  infants. — See  10  Encyc.  P.  594. 

24 


Pt.  I.]  ACTIONS    BY    MINORS.  §  42 

Contracts  of  infants — As  to  generally,  see   18  A.  S.   573. 

Same — Avoidance   of. — See   13   A.   D.   131. 

Same — DisafHrmance  of,  when  must  be  accompanied  by 
restoration  of  consideration. — See  62  A.  D.  734;   46  A.  R.   317. 

Disabilities  of  infants. — See   10  Encyc.  P.  594. 

Election  of  infants. — See  10  Encyc.  P.   590. 

Employment  of  attorney  to  conduct  cause. — See  10  Encyc. 
P.   598. 

Estoppel — In  pais,  doctrine  does  not  apply  to  infants. — See 
4  A.  C.   532;   44   A.  D.   285. 

Same — ^By  misrepresentation  as  to  age. — See  4  A.  C.  535;  9 
L,.  N.  S.  1117;   16  Encyc.  L.  291,  292. 

Same — By  misrepresentation  or  concealment  of  facts. — See  11 
Encyc.   L.    440. 

Infants  en  ventre  sa  mere — Actions  by. — See  4  Encyc.  L.  719; 
11  Encyc.  L.  20;  16  Encyc.  L.  258. 

Judgment  in  favor  of  infant,  satisfaction  of  by  attorney. — 
See  3  L.  N.  S.  72. 

Laches  not  imputable  to  infant. — See  10  Encyc.  P.  590. 

Negligence  of  infant,  as  bar  to  recovery  for  personal  in- 
juries.— See  14  A.  S.  590;  compare  1  A.  C.  889;  4  A.  C.  248. 

Same — Imputing  another's  negligence  to. — 8  L.  N.  S.   664,   669. 

Statute  of  limitations  does  not  operate  against. — See  36  A. 
D.    68. 

Submission  by  infant  of  agreed  controversy  under  statute. — 
See   10   Encyc.   P.   591. 

Wlien  infant  real  party  in  interest,  by  whom  action  must 
be  brought. — See  64  L.   610. 


25 


§  43  CIVIL  CODE.  [Div.  I. 


PART  II. 
PERSONAL   RIGHTS. 

§  43.  CJeneral  personal  rights. 

§  44.  Defamation,  what. 

§  45.  Libel,  what. 

§  46.  Slander,  what. 

§  47.  Privileged  publication,  what  is. 

§  48.  Malice  not  inferred. 

§  49.  Protection   of  personal   relations. 

§  50.  Right  to  use  force. 

§  51.  Rights   of   citizens   in    places    of   public   accommodation    or 

amusement. 

§  52.  Damages  recoverable  for  violation  of  preceding  section. 

§  53.  Wrongful    refusal    to    admit    person    to    places    of    public 

amusement. 

§  54.  Damages  recoverable  for  such  refusal. 

§43.  GENERAL  PERSOIVAL  RIGHTS.  Besides  the  per- 
sonal rights  mentioned  or  recognized  in  the  Political  Code, 
every  person  has,  subject  to  the  qualifications  and  restric- 
tions provided  by  law,  the  right  of  protection  [1]  from  bodily 
restraint  or  harm,  [2]  from  personal  insult,  [3]  from  defama- 
tion, and  [4]  from  injury  to  his  personal  relations. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  209  pars,  annotation. 

Ill  C.  39,  45,  52  A.  S.  146,  43  P.  398,  31  L.  220  (cited  in  dis- 
cussion); 119  C.  599,  601,  51  P.  962  (applied  to  contract  in 
restraint  of  personal  liberty  of  daughter);  122  C.  253,  256,  54 
P.  847  (construed;  provisions  distinguished  from  those  in  §49 
post);  124  C.  193,  199  (cited  by  error  for  §46;  56  P.  878,  880 
correct   citation). 

As  to  implied  warranty  by  manufacturer,  see  Kerr's  Cyc. 
C.    C.    §  1769   and   note. 

As  to  implied  warranty  by  maker  or  manufacturer,  and 
extent  of  that  warranty,  see  Kerr's  Cyc.  C.  C.  §  1769  and  note. 

As  to  right  of  surviving  partner  to  recover  damages  for  the 
malicious  prosecution  of  a  civil  action  against  the  firm,  see 
Kerr's   Cyc.   C.   C.   §  2461   and   note. 

Unwholesome  food  for  stock,  as  to  liability  for  furnishing, 
see  Kerr's  Cyc.  C.  C.  §  1708  and  note. 

26 


pt   II  ]  DEFAMATION — ^LIBEL.  §§44,45 

§44.    DEFAMATION,  "WHAT.     Defamation  is  effected  by: 

1.  Libel; 

2.  Slander. 

Flistory:     Enacted  March   21,  1872. 

70   C.   135,   136,   11   P.   564    (applied). 

As  to  defamation,  generally,  see  2  W.   &  P.   1927. 

As  to  slander  of  title,  see  Kerr's  Cyc.  C.  C.  §  44,  note. 

§45.  LIBEL,  WHAT.  Libel  is  a  false  and  unprivileged 
publication  by  writing,  printing,  picture,  efflgy,  or  other  fixed 
representation  to  the  eye,  which  exposes  any  person  to 
hatred,  contempt,  ridicule,  or  obloquy,  or  which  causes  him  to 
be  shunned  or  avoided,  or  which  has  a  tendency  to  injure  him 
in  his  occupation. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  210  pars,  annotation. 

69  C.  527,  528,  529,  11  P.  179,  180  (construed  and  applied): 
70  C.  270,  274,  275,  11  P.  713,  716  (construed  and  applied);  70 
C.  135,  136,  11  P.  564  (applied);  114  C.  266,  271,  272,  46  P.  103 
(construed  and  applied);  132  C.  224,  227.  228,  229,  230,  64  P. 
290  (construed  and  applied);  146  C.  616,  620,  80  P.  1084  (applied). 

As  to  falsifying  admission  of  crime  charged  in  alleged  libel, 
see  Code  Civ.  Proc.   §  1962  and  note. 

As  to  impressions  of  witnesses  being  admissible  in  evidence, 
see  cases  pro  and  con  in  note*  to  4  A.  D.  352-354;  see  also 
Kerr's  Cyc.  C.  C.  §  45  note  par.  113. 

As  to  pleading  generally  in  actions  of  libel  and  slander,  see 
Code   Civ.   Proc.    §  461   and   note. 

Allegation  of  language  charging  libel, — as  to,  see  Code 
Civ.   Proc.    §  460   and   note. 

iAUVA.. 

As  criminal  offense,  see  5  A.  C.  109;  5  W.  &  P.  4121. 

As  personal    injury,   see   6  W.   &   P.   5343. 

Affecting  a  class  of  individuals. — See  70  A.  S.  754. 

Attorney — Utterances  of  in  conducting  prosecution,  how  far 
privileged. — See    "privileged    communication,"    this    note. 

Blacklisting  dealer  as. — See   8  L.  N.   S.   783. 

Business — Words  affecting. — See  "trade,  business  or  profes- 
sion,"   this   note. 

Candidate  for  office,  of. — See  86  A.  D.  88. 

Character  of  plaintiff — Evidence  of  admissible,  when. — See  13 
A.  D.   499. 

27 


§  45  CIVIL  CODE.  [Div.  I. 

Charging  immorality  or  crime. — See  2  L.  N.  S.  691;  4  L.  N. 
S.   560. 

Charging  official  with  graft  in  public  contract. — See  5  L.  N. 
S.    498. 

Charging  public  official  witli  accepting  bribe. — See  3  L.  N. 
S.   1139. 

Color. — See   "race   and   color,"    this   note. 

Comment  and  criticism — On  book. — See  "literary  criticism," 
this  note. 

Same — On    public    officer. — See    1    A.    C.    326,    330;    3    A.    C.    647; 

6  A.    C.    135. 

Complaint  should  set   out  exact  language. — See   9   A.   C   495. 

Concerning  property.- — See  16  L.  243;  16  L.  625;  also  "slander 
of   title,"   this  note. 

Construction  of  language. — See  5  W.  &  P.   4121. 

Corporation,  right  to  maintain  action  for  slander  of  prop- 
erty.—See  52  L.  526;  2  L.  N.  S.  741;  also  5  A.  C.  550. 

Credit,  words  affecting. — See  8  A.  C.  213;  8  A.  C.  841;  8  A. 
C.    844. 

Damages  as  an  element  of. — See  1  A.  C.  196;  2  A.  C.  561;  3 
A.  C.  482;  3  A.  C.  526;  3  A.  C.  546;  3  A.  C.  921;  6  A.  C.  765;  8  A. 
C.  212;  8  A.  C.  809;  8  A.  C.  841;  10  A.  C.  270;  72  A.  D.  421. 

Defamation  of  real  property. — See  9  A.  C.  818;  also  "slander 
of   title,"    this   note. 

Defense  defendant  did  not  originate  but  merely  repeated  the 
defamation   charged.- — See   55  A.   S.    611. 

Definition — General. — See   5  W.   &  P.   4116-4119. 

Same— Statutory.— See   5   W.   &  P.   4119. 

Disparagement  of  property  or  manufactured  article. — See  8 
A.    C.    810. 

Evidence — As  to  generally,  see  5  A.  C.  854;  6  A.  C.  135;  7  A. 
C.   1156. 

Same— Admissibility.— See  3  A.  C.  526;  3  A.  C.  546;  5  A.  C. 
854;    6   A.  C.   765;    7   A.   C.   610. 

Same — Burden  of  proof. — See  7  A.  C.  840,  844;  10  A.  C.  1148. 

Same — Of  pecuniary  circumstances  of  defendant. — See  33  A. 
R.   377. 

Same — Of  plaintiff's  character,  when. — See  13  A.  D.   499. 

Same — Of  plaintiff's  domestic  relations,  social  standing,  and 
pecuniary  condition. — See   6   A.   C.    768. 

Same — Of  provocation,  in  mitigation  of  damages, — See  4  A. 
C.  923. 

Same — Special  plea  as. — See  11  A.  D.  129. 

Same — Quantum  of,  to  establish  plea  of  justification. — See  7 
A.  C.  1158. 

Functions  of  court  and  jury  in. — See  3  A.  C.   647;   5  A.  C.   855; 

7  A.  C.   840;   10  A.  C.   152;   10  A.  C.   1148;   13  A.  S.   652. 
General  abuse — Terms  of. — See  5  W.  &  P.  4120. 

28 


pt.  II.]  LIBET.,— INTENT    AND    MALICE.  §  45 

Imputation — Applicable  to  a  class  of  individuals. —  1  "U'.  <Sr  1*. 
4128. 

Same — Of  being  diseased. — See  5  W.  &  P.   4122. 

Same — Of  crime. — See  5  A.  C.  855;   5  W.  &  P.   4122. 

Same — Of  former  corruption  in  office* — See  5  W.  &  P.  4122. 

Same — Of  fraud.— Sec   5   W.   &  P.    4122. 

Same — Of  incompetent,  to  physician  or  professional  man. — 
See   2G  L.   325. 

Same — Of  indcibtedness.— See  8  A.  C.  844;  5  W.  &  P.  4122. 

Same— Of  insolvency.— See  8  A.  C.  213;   5  W.  &  P.  4123. 

Same — Of  lasciviousness. — See  5  W.  &  P.  4123;  also  "moral- 
ity,"   tills    note. 

Same — ^Of  untruthfulness. — See  5  W.  &  P.   4123. 

In  foreign  language,  pleading  and  proof. — See  6  A.  C.  731. 

Injunction  against. — See  35  A.  S.  675. 

Injury  to  business  or  trade. — See  5  W.  &  P.  4120. 

Injury   to  feelings. — See  5   W.   &  P.    4122. 

In.sanity  as  a  defense. — See  4  A.  C.  569,  573. 

Instructions  to  Jury — As  to  generally,  see  3  A.  C.  546;  4  A.  C. 
569;   4   A.   C.   921;   10  A.   C.   1148. 

Same — Effect  of,  -where  jury  are  judges  of  law. — Soe  3  A. 
C.   552. 

Intent.— See    5   W.    &   P.    4124. 

Joint  act  and  joint  liability. — See  1  A.  C.  875;  3  A.  C.  312; 
5  W.  &   P.   4124. 

.Tudge,  utterances  of  privileged. — See  4  A.  C.  433;  also  "privi- 
leged   communication,"    this    note. 

.Tu.stiflcation   In  actions  of — As  to  generally,  see  91   A.   S.   285. 

Same^ — Quantum  of  evidence  to  establish  plea  of. — See  7  A.  C. 
1  \r,s. 

Same — Must  be  of  the  precise  cliarge. — See  3  A.  (\   7>'2s. 

Liability— Joint,  for,   1  A.  C.  875;  3  A.  C.   312. 

Same — Of  corporation   for. — See   9   A.  C.   443. 

Same — Of  editor  for. — See  7  A.  C.  457. 

Same — Of    manager. — See    7    A.    C.    457. 

Same — Of  telegraph  company  for  r<(iiviiig  and  sending  libil- 
Dus   message. — See    9    A.    C.    697. 

Literary  criticism,  in.— See  1  A.  C.  826,  330;  6  A.  C.  135;  28 
L.   667. 

Malice. — See  Kerr's  Cyc.  C.  C.  §  48.  note;  3  A.  C.  546.  547; 
9   A.  C.   693;   5  W.   &   P.   4126. 

Morality — Words  affecting  as  libel. — See  1  A.  C.  1"'  '  ^  '' 
S55;   7   A.  C.   110;   9  A.   C.   SG4;   10   A.  C.   1148. 

Newspaper  libel.— See  15   A.  S.   333;   101  A.  S.   7.-)3. 

Officers,  when   not  privileged. — 57   A.    R.   223. 

Pleading  as  libelous,  charge  of  commission  of  act  in  fini  ign 
jurisdiction. — See    1   A.   C.    199. 

I'resumptions  as   to. — See   3   A.   C.   482;    7   A.   C.    840. 

29 


§  45  CIVIL  CODE.  [Div.  I. 

Privileged  communication — Generally. — See  Kerr's  Cyc.  C.  C. 
§47,  note;  3  A.  C.  647;  7  A.  C.  192;  7  A.  C.  840,  841;  10  A.  C. 
270;  10  A.  C.  1148;  2  A.  D.  431;  104  A.  S.  110;  2  L.  131;  3  L. 
417;    6    L.    33. 

Same — Same — By  or  between  stockholders  of  corporations. — 
See  10  A.  C.   272. 

Same — Same — Criticism  of  public  person. — See  6  L.  680;  8 
L.  193;  13  L.  97. 

Same — Same — Falsity  of  charge  against  public  officer  as 
affecting   privilege. — See    3   A.    C.    649. 

Same — Same — Statement   to  mercantile  agency. — See   2   L.    405. 

Same — Same — Publication  in  discharge  of  private  duty. — See 
4   L.    280. 

Same — Same — Question   of  law  or  fact.— See  10  A.  C.   152. 

Same — In  respect  to  judicial  proceedings — Generally. — See  1 
A.    C.    697;    3   A.   C.    124;    4    A.    C.    431;    7   A.   C.    110;    7   A.   C.    528; 

7  A.   C.    601. 

Same — Same — Communication  to  peace  or  prosecuting  offi- 
cer concerning  commission  of  crime. — See  7  A.  C.  113. 

Same — Same — Pertinent  and  material  matter. — See  3   L.   417. 

Same — Same — Privilege  of  attorney — As  to  words  spoken  on 
trial. — See   17   A.   D.    194. 

Same — Same — Same — ^Utterances  of  in  conducting  trial  for 
libel.— See   7   A.   C.    603. 

Same — Same — Privilege  of  utterances  of  judge. — See  4  A. 
C.   433. 

Same — Same — Privilege  of  witness — As  to  detaining  testi- 
mony.— See   2   A.  C.   825;   22   L.   386. 

Same — Same — Same — As  to  utterances  made  before  or  after 
testifying.— See  3  A.  C.   127. 

Same — In  respect  to  legislative   proceedings. — See   6  A.   C.   802. 

Profession— Words  affecting  one  in  his. — See  "trade,  business 
or   profession,"    this   note. 

Property — Words  affecting. — See  9  A.  C.  916;  also  "slander 
of«  title,"   this   note. 

Province  of  court  and  jury. — See  "functions  of  court  and 
jury,"    this   note. 

Provocation — Evidence  of  in  naitigation  of  damages. — See  4 
A.  C.  923. 

Publication — ^By  addressing  letter  to  person  defamed. — See  1 
A.    C.    190. 

Same — By  dictation   to   stenographer. — See   1   A.   C.    103. 

Publication  of  person's  photograph  as  that  of  another. — See 
9  A.  C.  866. 

Race  and  color — Words  affecting. — See  4  A.  C.   685. 

Right  of  corporation  to  sue  for. — See  5  A.   C.   550. 

Right  of   one  of  a  class   of  persons  affected  to   sue   for. — See 

8  A.   C.   135. 

30 


pt.  II.]  LIBELr— SLANDER,    WHAT.  §  46 

Robbery — Charge  of  as  libel. — See   5   A.   C.   855. 

Slander,   distinguished. — 5   W.   &  P.   4124. 

Slander  of  title,  as  a. — See  13  L.  707, 

Same — Action   for  by  corporation. — See   52  L.   526. 

Same — Defamation   of  real   property. — See   9   A.   C.   818. 

Speaking  of  a  white  person  as  a   negro. — 4  A.   C.   689. 

Statement  non-trader  owes  debts  and  refuses  to  pay. — See 
8  A.  C.   844. 

Trade,  business  or  profession — Words  affecting. — See  5  A.  C. 
549;  8  A.  C.  213;  8  A.  C.  809;  8  A.  C.  841;  8  A.  C.  844;  5  L.  643; 
8  L.  193;  9  L.  621;  49  L.  612;  52  L.  526;  3  L.  N.  S.  339;  4  L.  N. 
S.  973,  977;  5  L.  N.  S.  480;  8  L.  N.  S.  783. 

Variance  in  action  for. — See  12  A.  D.   246. 

Venue   in   actions  for. — See   15   A.   D.    224. 

Veracity — ^Words  affecting. — See  2  A.  C.  561;  3  A.  C.  646,  647; 
8  A.  C.   481. 

What  words  are  per  so. — See  1  A.  C.  196;  9  A.  C.  864;  1  A.  D. 
448:   12  A.  D.  39;  41  A.  R.  590;  116  A.  S.  802. 

Witness — Statements  made  in  giving  testimony. — See  6  A.  S. 
825. 

Same — Utterances  before  and  after  testifying. — See  3  A.  C. 
127;    6  A.    C.    807. 

§46.  SLANDEH,  AVIIAT.  Slander  is  a  false  and  unprivi- 
leged publication  other  than  libel,  which: 

1.  Charges  any  person  with  crime,  or  with  having  been 
indicted,  convicted,  or  ])unished  for  crime; 

2.  Imputes  in  him  the  present  existence  of  an  infectious, 
contagious,  or  loathsome  disease; 

3.  Tends  directly  to  injure  him  in  respect  to  his  office,  pro- 
fession, trade,  or  business,  either  by  imputing  to  him  general 
disqualification  in  those  respects  which  the  office  or  other 
occupation  peculiarly  requires,  or  by  imputing  something  with 
reference  to  his  office,  profession,  trade,  or  business  that  has 
a  natural  tendency  to  lessen  its  profit; 

4.  Imputes  to  him  impotence  or  a  want  of  chastity:  or, 

5.  Which,  by  natural  consequence,  causes  actual  damage. 

HiNtory:     Enacted  March    21,  IS"'.'. 

See   Kerr's   Cyc.   C   C.   for   19   pars,   annotation. 

67  C.  79.  80,  7  P.  136,  137  (applied);  68  C.  192,  193.  8  P.  857 
(applied):  70  C.  135,  136,  11  P.  564  (applied);  70  C.  216,  218. 
219,  11  P.  641.  642  (applied):  82  C.  523,  526,  23  P.  48.  49  (applied); 
84  C.  177.  180.  24  P.  114  (applied):  91  C.  107.  110,  111.  112.  27 
P.    533.    534    (applied);    105   C.    314,   320    38   P.    899    (cited):    122   C. 

31 


§  47  CIVIL  CODE.  [Div.  I. 

58.  CI.  54  P.  3S9  (applied);  123  C.  157,  159,  55  P.  786  (construed 
and  applied);  124  C.  193,  199  (erroneously  cited  as  §43),  56 
P.  878,  880  (correct  citation);  137  C.  339,  343,  70  P.  216  (con- 
strued and  applied);  1  C.  A.  556,  557,  82  P.  571  (applied);  51 
F.  424,  425  (cited,  what  necessary  to  constitute  words  action- 
able  per   se). 

As  to  malice  generally,  see  Kerr's  Cyc.  C.  C.  §  48  and  note. 

As  to  slander  generally,  see  full  annotation  of  subject,  Kerr's 
Cyc.  C.  C.  §  45  and  note;  also  ante  §  45,  note. 

§47.  PKIVILEGED  PUBLICATIOIV,  IS  WHAT.  A  privi- 
leged publication  is  one  made — 

1.  In  the  proper  discharge  of  an  official  duty. 

2.  In  any  legislative  or  judicial  proceeding,  or  in  any  other 
official  proceeding  authorized  by  law. 

3.  In  a  communication,  without  malice,  to  a  person  inter- 
ested therein,  [1]  by  one  who  is  also  interested,  or  [2]  by 
one  who  stands  in  such  relation  to  the  person  interested  as  to 
afford  a  reasonable  ground  for  supposing  the  motive  for  the 
communication  innocent,  or  [3]  who  is  requested  by  the  per- 
son interested  to  give  the  information. 

4.  By  a  fair  and  true  report,  without  malice,  in  a  public 
journal,  of  a  judicial,  legislative,  or  other  public  official  pro- 
ceeding, or  of  anything  said  in  the  course  thereof,  or  of  a 
verified  charge  or  complaint  made  by  any  person  to  a  public 
official,  upon  which  complaint  a  warrant  shall  have  been 
issued. 

5.  By  a  fair  and  true  report,  without  malice,  of  the  pro- 
ceedings of  a  public  meeting,  if  such  meeting  was  lawfully 
convened  for  a  lawful  purpose  and  open  to  the  public,  or  the 
publication  of  the  matter  complained  of  was  for  the  public 
benefit. 

HlNtory:  En.-vcted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4.  p.  184;  March  26,  1895,  Stats,  and  Amdts. 
1895,  p.  167;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  334,  held  unconstitutional;  see  his- 
tory, §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  115  pars,  annotation. 

69  C.  527.  529,  530,  11  P.  179,  180  (applied  in  connection  with 
8  46):  69  C.  625,  627,  630,  58  A.  R.  574,  11  P.  248.  249,  250,  (con- 
strued and  applied);   (G.  Dec.   1888).  19  P.  686,  687    (applied);  70 

32 


pt.  II,]  MALICE    NOT    INFKUKED.  fiS -IS.  49 

C.  185.  186:  11  V.  564  (applied);  78  C.  486.  487.  488.  12  A.  S.  76. 
21  P.  185.  3  L.  653  (applied);  91  C.  107.  112.  27  P.  533,  534  (con- 
strued and  appllod);  93  C.  59,  70.  28  P.  845,  848  (appll.-d);  93  C. 
222,  236,  27  A.  S.  174,  28  P.  937,  941  (applied):  111  C.  606.  611, 
612.  44  P.  241  (applied):  132  C.  224.  229.  64  P.  290  (construed  and 
applied):  137  C.  339.  349.  350.  70  P.  216  (applh-d);  146  C.  616, 
620,  80  P.  1084  (applied);  148  C.  422,  423.  83  P.  444.  7  A.  C.  601 
(cited  concerning:  privileged  communications);  72  F.  808.  811 
(referred  to). 

As  to  complaint  without  probable  cause,  see  Kerr's  Cyc.  C.  C. 
I  47  and   note   pars.    13-15. 

As  to  defuinntiiry  slatcnu-nt.s  in  ans\v»r  not  lunstltutlnff 
defense,  see   51   I>.   930. 

As  to  law  of  newspaper  libel,  see   15   A.  S.  333:   16  A.  S.   544. 

Adultery  charRcd  In  cross-bill   for  divorce. — See  53  L.   445. 

Chairman  committee  of  political  party,  letter  of  uttaclcinK 
Kovernor's  appointment   to  particular  office. — See  55   !>.    732. 

Mode  of  proof. — See  Kerr's  Cyc.  C.  C.  S  48  and  note. 

Publications  of  r«'asons  for  discharge  of  employee,  by  rail- 
road.— See  60  I*   4  70. 

School  board,  in  requestlne:  revocation  of  teacher's  license. — 
See  52  L.  852. 

Unjust  derogatory  statements  as  to  character  in  answer  to 
inquiries  by  Inti-restod   party. — See  56  I.,.   296. 


5  48.  MALICE  >0T  INFKHKKI).  In  the  cases  provided 
for  In  8ul)divl.slons  three,  four,  and  Ave.  of  the  preceding  sec- 
tion, mall'"  \^  ""•  inferred  fr,,t.,  t»...  (■..•lununication  or  'xi'.h- 
ration. 

IliHloryi  I'ifinrted  Mnrili  Jl,  Ihi.;.  nm<-nded  March  2b.  ISI'5. 
Stats,  and  Atndts.  1893.  p.  168.     In  force  March  26.  1S9r<. 

See  Kerr's  Cyc.  C.  C.   for  36  pars,  annntntln- 

70  r.  135.  136,  11  P.  564  (referred  to);  19  P.  •  >..  ..>.  i-it.-.i.. 
93  C,  S9.  70.  28  P.  845.  S4S  (referred  to  In  application  of  |47); 
132  C.  224.  229.  1^4  P.  290  (construed  and  applied).  146  C.  616. 
620,   SO   P.    10K4    (appllod). 

As  to  evidence  of  gonfrnl  r<i>'>rt«  In  mltlKntl-n  of  .lim.T»«»». 
SDC  13  A.   I>.  499. 

As   to   insanity  as   a   ibf)  i.  '     Kerr's  Cy<  '<ot« 

pars.  52,  53;  also  ante  i  45.  note. 

549.  rROTK(  TION  OK  rKKS(»>\I  IJUMImvs.  The 
ripht.s  of  pcr.'^oii.'il  relations  forbid: 

1.  The  abduction  of  a  husband  from  his  wife,  or  of  a  parent 
from  his  child. 

Kerr's    C.    C— 2  33 


§§  50,  51  CIVIL  CODE.  Div.  I. 

2.  The  abduction  or  enticement  of  a  wife  from  her  hus- 
band, or  a  child  from  a  parent,  or  from  a  guardian  entitled 
to  its  custody. 

3.  The  seduction  of  a  wife,  daughter,  orphan  sister,  or 
servant. 

4.  Any  injury  to  a  servant  which  affects  his  ability  to  serve 
his  master. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  334,  held 
unconstitutional;  see  history,  §  4  ante;  amended  March  7,  1905, 
Stats,  and  Amdts.  1905,  p.   68. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

98  C.  578,  582,  33  P.  492,  21  L.  233  (applied);  122  C.  253,  256, 
257,  259,  54  P.   847    (construed  and  applied). 

As  a  criminal  offense,  see  Kerr's  Cyc.  Pen.  C.  §§  266,  268  and 
notes. 

Limitation  of  actions  for,  see  Kerr's  Cyc.  C.  C.  P.  §  340,  note 
par.  34  and  §  352  and  note. 

§  50.  RIGHT  TO  USE  FORCE.  Any  necessary  force  may 
be  used  to  protect  from  wrongful  injury  the  person  or  prop- 
erty of  oneself  [one's  self],  or  of  a  wife,  husband,  child,  par- 
ent, or  other  relative,  or  member  of  one's  family,  or  of  a 
ward,  servant,  master,  or  guest. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   184. 

§51.  RIGHTS  OF  CITIZENS  IN  PLACES  OF  PUBLIC 
ACCOMMODATION  OR  AMUSEMENT.  All  citizens  within  the 
jurisdiction  of  this  state  are  entitled  to  the  full  and  equal 
accommodations,  advantages,  facilities,  and  privileges  of  inns, 
restaurants,  hotels,  eating-houses,  barber-shops,  bath-houses, 
theaters,  skating-rinks,  and  all  other  places  of  public  accom- 
modation or  amusement,  subject  only  to  the  conditions  and 
limitations  established  by  law  and  applicable  alike  to  all 
citizens. 

Hi.stor>'s  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  334,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  553. 

34 


Pt.  II.]  DAMAGES    RECOVERABLE.  §§52,53 

74    C.    266,    267,    15    P.    831,    832    (erroneously    cited    for    §  24    of 
the  insolvent  act  of   1852),  5   A.   S.    440. 


§52.  DAMAGES  RECOVERABLE  FOR  VIOLATIOX  OF 
PRECEDING  SECTION.  Whoever  violates  any  of  the  provis- 
ions of  the  last  preceding  section,  [1]  by  denying  to  any  citi- 
zen, except  for  reasons  applicable  alike  to  every  race  or  color, 
the  full  accommodations,  advantages,  facilities,  and  privi- 
leges in  said  section  enumerated,  or  [2]  by  aiding  or  incit- 
ing such  denial,  or  whoever  [3]  makes  any  discrimination,  dis- 
tinction, or  restriction  on  account  of  color  or  race,  or  except 
for  good  cause,  applicable  alike  to  all  citizens  of  every  color 
or  race  whatever,  in  respect  to  the  admission  of  any  citizen 
to,  or  his  treatment  in,  any  inn,  hotel,  restaurant,  eating- 
house,  barber-shop,  bath-house,  theater,  skating-rink,  or  other 
public  place  of  amusement  or  accommodation,  whether  such 
place  is  licensed  or  not,  or  whoever  aids  or  ineites  sncli  dis- 
crimination, distinction,  or  restriction,  for  each  and  every 
such  offense  is  liable  in  damages  in  an  amount  not  less  than 
fifty  dollars,  which  may  be  recovered  in  an  action  at  law 
brought  for  that  purpose. 

IliNtory:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Anidts.  1900-1,  p.  334,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Anidts. 
1905,   pp.    553-554. 

§:>S.  AVHOXJFII,  iniFlSAI-  TO  ADMCr  FFHSON  TO 
PLA(  ES  (»F  rCHLU  A.>U  SEMEXT.  It  is  unlawful  for  any 
corporation,  person,  or  association,  or  the  proprietor,  lessee, 
or  the  agents  of  either,  of  any  opera  house,  theater,  melodeon, 
museum,  circus,  caravan,  race-coiuse,  fair,  or  other  place  of 
public  amusement  or  entertainment,  to  refuse  admittance  to 
any  person  over  the  age  of  twenty-one  years,  who  presents 
a  ticket  of  admission  acquired  by  purchase,  or  who  tenders 
the  price  thereof  for  such  ticket,  and  who  demands  admission 
to  such  place. 

[Who  may  he  exeliided.]  Any  person  under  the  influence 
of  liquor,  or  who  is  guilty  of  boisterous  conduct,  or  any  per- 

35 


§  54  CIVIL  CODE.  [Div.  I. 

son  of  lewd  or  immoral  character,  may  be  excluded  from  any 
such  place  of  amusement. 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  335,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    554. 

§51.    DAMAGES  EECOYERABLE   FOR  SUCH  REFUSAL. 

Any  person  who  is  refused  admission  to  any  place  of  amuse- 
ment contrary  to  the  provisions  of  the  last  preceding  section, 
is  entitled  to  recover  from  the  proprietor,  lessee,  or  their 
agents,  or  from  any  such  person,  corporation,  or  association, 
or  the  directors  thereof,  his  actual  damages,  and  one  hundred 
dollars  in  addition  thereto. 

History:  Added  by  Code  Comission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  335,  held  unconstitutional;  see  history, 
§  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    554. 


36 


PART  III. 

PERSONAL  RELATIONS. 

Title  I.  Marriage,  §§  55-181. 

II.  Parent  and  child,  §§  193-230. 

III.  Guardian  and  Ward,  §§  236-258. 

IV.  Master  and  Apprentice,  §§  264-276. 


Chapter  I. 

11. 

III. 


TITLE  I. 

MARRIAGE. 

The  Contract  of  Marriage,  §§  55-80. 

Divorce,  §§  82-148. 

Husband  and  Wife,  §§  155-181. 


CHAPTER  I. 

THE   CONTRACT   OF   MARRIAGE. 

Article  I.     Validity  of  Marriage,  §§  55-63. 

II.     Authentication  of  Marriage,  §§  68-79a. 
III.     Judicial  Determination  of  Void  Marriages,  §  80. 


ARTICLE  I. 
VALIDITY  OF  MARRIAGE. 

55.  What  constitutes  marriage. 

56.  Minors  capable  of  contracting  marriage. 

57.  Marriage,  liow  manifested  and  proved. 

58.  Voidable  marriages   [repealed]. 

59.  Incompetency  of  parties  to. 

60.  Of  white  and  negroes  or  mulattoes,  void. 

61.  Subsequent  marriage,   when   illegal  and  void. 

62.  Released  from  marriage  contract,  when. 

63.  Marriages  contracted  without  the  state. 

37 


§§55,56  CIVIL  CODE.  [Div.I.Pt.III. 

§55.  WHAT  CONSTITUTES  MARRIAGE.  Marriage  is  a 
personal  relation  arising  out  of  a  civil  contract,  to  which  the 
consent  of  parties  capable  of  making  the  contract  is  neces- 
sary. Consent  alone  will  not  constitute  marriage;  it  must  be 
followed  by  a  solemnization  authorized  by  this  code. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,   and   Amdts.   1895,  p.   121. 

See  Kerr's  Cyc.  C.  C.  for  84  pars,  annotation. 

67  C.  185,  212,  7  P.  456,  635,  8  P.  709  (dis.  op.,  construed  and 
applied);  75  C.  1  (construed  and  applied  on  pp.  8,  11,  12,  13,  15, 
16,  17,  29,  50,  51),  (construed  on  pp.  19,  21,  22,  23,  24,  25),  (in  dis. 
op.  construed  and  applied  on  pp.  57,  58,  59,  72,  73,  74,  76),  (re- 
ferred to  on  pp.  9,  14,  18),  16  P.  345,  348,  349,  350,  351,  352,  353, 
354,  355,  358,  371,  378,  379;  79  C.  633,  634  (applied  on  pp.  634, 
644,  651,  661,  667,  684,  686,  construed  and  applied  on  669),  22  P. 
26,  31,  41;  81  C.  182,  189,  22  P.  648  (construed  and  applied);  82 
C.  413,  416,  417,  22  P.  1140,  1141  (construed  and  applied);  89  C. 
46,  49,  50,  23  A.  S.  447,  26  P.  636  (construed  and  applied);  31  P. 
620,  622  (applied);  99  C.  286,  288,  289,  33  P.  844  (construed  and 
applied);  104  C.  260,  261,  37  P.  944  (applied);  104  C.  631,  633, 
634,  38  P.  422  (construed  and  applied);  105  C.  357,  360,  38  P. 
735',  736;  116  C.  304,  48  P.  127  (applied  without  citation);  121  C. 
620,  624,  628,  629,  66  A.  S.  74,  54  P.  143,  42  L.  343  (applied);  128 
C.  308,  310,  60  P.  932  (applied);  133  C.  524,  527,  65  P.  1034  (ap- 
plied);  137  C.   129,  146;    69  P.   900,  906. 

As  to  conditions  precedent  and  subsequent,  see  Kerr's  Cyc. 
C.   C.   §§  1436,   1438  and  notes. 

As  to  assumption  of  marital  rights,  duties,  and  obligations, 
see  Kerr's  Cyc.  C.  C.  §  55,  note  pars.  36,  39,  55  et  seq. 

As  to  by  whom  solemnized,  see  Kerr's  Cyc.  C.  C.  §  70  and 
note. 

As  to  form  of  solemnization,  see  Kerr's  Cyc.  C.  C.  §  71  and 
note. 

As  to  requirements  by  person  solemnizing  marriage,  see 
•Kerr's  Cyc.  C.  C.  §  72  and  note. 

As  to  solemnization,  see  Kerr's  Cyc.  C.  C.  §  55,  note  pars.  35 
et  seq. 

Mode  of  proof. — ^See  post  §  57  and  note. 

Prosecutions  for  bigamy. — See  Kerr's  Cyc.  Pen.  C.  §  1106  and 
note. 

game — Declaration  of  marriage  solemnization  of  which  is 
not  recorded. — See  Kerr's  Cyc.  C.  C.   §  76  and  note. 

§  56.    MINORS  CAPABLE  OF  CONTRACTING  MARRIAGE. 

Any  unmarried  male  of  the  age  of  eighteen  years  or  upwards, 

38 


Tit.I,ch.I,art.I.]  MARRIAGE.  §§  57-59 

and  any  unmarried  female  of  the  age  of  fifteen  years  or 
upwards,  and  not  otherwise  disqualified,  are  capable  of  con- 
senting to  and  consummating  marriage. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

75  C.  1,  14  (cited),  16  (construed),  59.  16  P.  345,  351,  79  C. 
633,  667,  22  P.  26,  131  (referred  to);  123  C.  224,  226,  69  A.  S.  52, 
55  P.  911    (construed  and  held  not  applicable). 

§57.    MARRIAGE,    HOW    MANIFESTED    AND    PROVED. 

Consent  to  marriage  and  solemnization  thereof  may  be  proved 
under  the  same  general  rules  of  evidence  as  facts  are  proved 
in  other  cases. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  1895,  p.   121. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

75  C.  1,  15  (cited),  16  (construed),  51,  52,  59,  63,  76  (construed 
and  applied),  67,  16  P.  345,  351,  368,  373,  379;  79  C.  633,  666,  667, 
686  (construed),  636,  694  (construed  and  applied),  22  P.  26, 
44,  131;  116  C.  304,  313,  48  P.  127  (construed  and  applied);  133 
C.  524,  527,  65  P.  1034   (applied). 

§58.    VOIDABLE  MARRIAGES  (repealed). 

HLstory:  Enacted  March  21,  1872;  anaended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  185;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  335,  held  unconsti- 
tutional; see  history,  §  4  ante;  re-repealed  March  21,  1905,  Stats, 
and  Amdts.  1905,  p.  554. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

(C.  Nov.  30,  1892),  31  P.  571,  573,  574  (construed  and  held  not 
applicable);  138  C.  546,  549,  71  P.  458  (erroneously  cited  for 
§158). 

§59.  INCOMPETENCY  OE  PARTIES  TO.  Marriages 
between  parents  and  children,  ancestors  and  descendants  of 
every  degree,  and  between  brothers  and  sisters  of  the  half  as 
well  as  the  whole  blood,  aiid  between  uncles  and  nieces  or 
aunts  and  nephews,  are  incestuous,  and  void  from  the  begin- 
ning, whether  the  relationship  is  legitimate  or  illegitimate. 

History:     Enacted  March  21,  1872. 
39 


§§  60,  61  CIVIL  CODE.  [Div.I,Pt.III. 

§60.  OF  WHITES  AND  NEGROES  OR  MULATTOES, 
VOID.  All  marriages  of  white  persons  with  negroes,  mongo- 
lians, or  mulattoes  are  illegal  and  void. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion (by  adding'  word  "mongolian"),  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  335,  held  unconstitutional;  see  history,  § 
4  ante;  amended  March  21,  1905,  p.  554. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 
137  C.  129,  135,  69  P.  900   (referred  to). 

§61.  SUBSEQUENT  MARRIAGE,  WHEN  ILLEGAL  AND 
VOID.  A  subsequent  marriage  contracted  by  any  person  dur- 
ing the  life  of  a  former  husband  or  wife  of  such  person,  with 
any  person  other  than  such  former  husband  or  wife,  is  illegal 
and  void  from  the  beginning,  unless: 

1.  The  former  marriage  has  been  annulled  or  dissolved.  In 
no  case  can  a  marriage  of  either  of  the  parties  during 
the  life  of  the  other,  be  valid  in  this  state,  if  contracted  within 
one  year  after  the  entry  of  an  interlocutory  decree  in  a  pro- 
ceeding for  divorce. 

2.  Unless  such  former  husband  or  wife  is  [1]  absent,  and 
not  known  to  such  person  to  be  living  for  the  space  of  five 
successive  years  immediately  preceding  such  subsequent  mar- 
riage, or  [2]  is  generally  reputed  or  believed  by  such  person 
to  be  dead  at  the  time  such  subsequent  marriage  was  con- 
tracted. In  either  of  which  cases  the  subsequent  marriage 
is  valid  until  its  nullity  is  adjudged  by  a  competent  tribunal. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  185;  Feb.  25,  1897,  Stats,  and  Amdts.  1897, 
p.  34;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  335,  unconstitutional;  see  history,  §  4  ante; 
amended  March  16,  1903,  Stats,  and  Amdts.  1903,  p.  176. 

See  Kerr's  Cyc.  C.  C.  for  66  pars,  annotation. 

94  C.  446,  459,  464,  29  P.  957,  960  (construed  and  applied);  133 
C.  524,  527,  65  P.  1034  (not  applicable);  137  C.  129,  131,  132,  133, 
134,  135,  137  (construed);  138  (amendment  of  1897  to  section 
not  applicable);  139  (construed  and  applied),  142,  144  (applied), 
69  P.  900,  139  C.  630,  632,  73  P.  466,  467  (construed  and  applied); 
140  C.  244,  247,  248,  249  (construed  and  applied);  73  P.  1000; 
140   C.    476,    485    (construed),    488    (applied),   74   P.   28;    146   C.    245, 

40 


Tlt.I,Ch.I,art.I.]      RELEASE    FROM    MARRIAGE.  §§  62,  63 

247,  249,  252,  79  P.  891,  106  A.  S.  23  (referred  to);  6  C.  A.  420, 
423,  92   P.   329    (referred   to). 

Presumption  of  death  from  absence. — See  Kerr's  Cyc.  C.  C.  P. 
§  1963  and  note. 

§62.    RELEASE   FROM  MARRIAGE   CONTRACT,   AVIIEX. 

Neither  party  to  a  contract  to  marry  is  bound  by  a  promise 
made  in  ignorance  of  the  other's  want  of  personal  chastity, 
and  either  is  released  therefrom  by  unchaste  conduct  on  the 
part  of  the  other,  unless  both  parties  participate  therein. 

Hi8tory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  185. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 
As  to  breach  of  promise,  see  63  A.  D.  532-548. 

§63.  MARRIAGES  (ONTUACTED  WITHOUT  THE 
STATE.  All  marriages  contracted  without  this  state,  which 
would  be  valid  by  the  laws  of  the  country  in  which  the  same 
were  contracted,  are  valid  in  this  state. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

(By  error  of  reporter  cited  in  headlines  of  official  volume 
Norman  vs.  Thompson),  121  C.  620,  624,  66  A.  S.  74,  54  P.  143,  42 
L.  343  (construed  and  held  not  applicable);  137  C.  129,  135,  136, 
137.  138,  139  (applied),  145  (comment),  147  (held  not  applicable), 
69  P.  900. 


41 


§§  68,  69  CIVIL  CODE.  [Div.I.Pt.III. 

ARTICLE  II. 

AUTHENTICATION   OF  MARRIAGE. 

§  68.  Procedure  required. 

§  69.  Marriage  license. 

§  69a  Oprtificate  of  registry  of  marriage. 

§  70.  By  whom  marriages  may  be  celebrated. 

§  71.  No  particular  form  of  solemnization. 

§  72.  Requirements  by  persons  solemnizing  marriage. 

§  73.  Certificates  of  marriage. 

§  74.  Certificate  to  parties  and  recorder. 

§  75.  Declaration  of  marriage,  how  made  [repealed]. 

§  76.  Declaration  where  there  is  no  record. 

§  77.  To  be  acknowledged  and  recorded. 

§  78.  Either  party  may  proceed  to  test  validity  of  marriage. 

§  79.  Marriage  without  license. 

§  79a.  Recording  declaration  of  marriage. 

§  68.  PEOCEDUEE  EEQUIEED.  Marriage  must  be  licensed, 
solemnized,  authenticated,  and  recorded  as  provided  in  this 
article;  but  non-compliance  with  its  provisions  by  others 
than  a  party  to  a  marriage  does  not  invalidate  it. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Slats,  and  Amdts.  1895,  p. -121;  March  21,  1905,  Stats,  and  Amdts. 
1905,    p.    554. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

104  C.  260,  261,  37  P.  944  (applied  with  other  sections);  116  C. 
304,  311,  48  P.  127  (cited  with  other  sections);  121  C.  620,  628, 
629,  66  A.  S.  74,  54  P.  143,  42  L.  343  (applied);  133  C.  524,  527, 
65   P.   1034    (amendment   of   1895   lield  not  applicable). 

§69.  MAEEIAGE  LICENSES.  All  persons  about  to  be 
joined  in  marriage  must  first  obtain  a  license  therefor,  from 
the  county  clerk  of  the  county  in  which  the  marriage  is  to  be 
celebrated,  which  license  must  show: 

1.  The  identity  of  the  parties. 

2.  Their  real  and  full  names,  and  places  of  residence. 

3.  Their  ages;  and 

4.  Whether  white,  mongolian,   negro  or  mulatto. 
[License  not  to  issue,  when.]     No  license  must  be  granted 

42 


1 


Tit.I,ch.F,ait.II.]  LICENSE— REGISTRY.  §  69a 

when  either  of  the  parties,  applicants  therefor,  is  an  imbe- 
cile, or  insane,  or  who  at  the  time  of  making  the  application, 
or  proofs  herein  required,  for  said  license,  is  under  the 
influence  of  any  intoxicating  liquor  or  naroctic  drug;  no 
license  must  be  issued  authorizing  the  marriage  of  a  white 
person  with  a  negro,  mulatto,  or  mongolian:  If  the  male  is 
under  the  age  of  twenty-one  years,  or  the  female  is  under 
the  age  of  eighteen  years,  and  such  person  has  not  been  pre- 
viously married,  no  license  must  be  issued  by  the  county 
clerk  unless  the  consent  in  writing  of  the  parents  of  the  per- 
son under  age,  or  one  of  such  parents,  or  of  his  or  her  guard- 
ian, is  presented  to  him,  duly  verified  by  such  parents,  or 
l)iirent.  or  guardian;  and  such  consent  must  be  filed  by  the 
clerk,  and  he  must  state  such  facts  in  the  license. 

[Kxnininalioii  on  ontli.]  For  the  purpose  of  ascertaining 
all  the  facts  mentioned  or  required  in  this  section,  the  clerk, 
at  the  time  the  license  is  api)lied  for,  may,  if  he  deems  it 
necessary  in  order  to  satisfy  himself  as  to  matters  in  this  sec- 
tion enumerated,  examine  the  male  applicant  for  a  license  on 
oath,  which  examination  shall  be  reduced  to  writing  by  the 
clerk,  and  subscribed  by  him. 

[In  clYecl,  hIu'H.]  Sec.  2.  This  act  shall  be  in  force  and 
take  effect  fioni  and  after  its  passage. 

HiNtoryi  Enacted  March  21,  1872;  amended  March  30,  1874, 
Codo  Anults.  1873-4,  p.  186;  April  6,  1880,  Code  Amdts.  1880  (C. 
C.  pt.),  p.  3;  amended  by  Code  CommLsslon,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  336.  lield  unconstitutional;  see  his- 
tory, S  4  ante;  amended  March  18.  1905,  Stats,  and  Amdts.  190R. 
p.  182;  amended  March  15.  1907.  Stats,  and  Amdts.  1907.  p.  305. 
Kerr's  Stats,  and  Amdts.  1906-7,  p.  399. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

.■^9  C.  372.  374,  379  (referred  to);  116  C.  304,  311,  48  P.  127 
Kited  with  other  sections);  121  C.  620,  629.  66  A.  S.  74,  54  P. 
143.  42  I..  343  (applied);  123  C.  224.  226.  69  A.  S.  52.  55  P.  911 
(not  applicable). 

Marriage  by  contract,  see  Kerr's  Cyc.  C.  C.  $§  55.  68  and  notes. 

§«S)a.    CEHTIFK  ATE  OF  REGISTRY  OF  MARRI.VGE.   .Ml 

persons  about  to  be  joined  in  marriage  must  obtain  from  the 

43 


§  70  CIVIL  CODE.  [Dlv.I,Pt.III. 

county  clerk  of  the  county  in  which  the  marriage  is  to  be 
celebrated,  in  addition  to  the  license  therefor  provided  for  in 
section  sixty-nine  of  the  Civil  Code,  a  certificate  of  registry 
as  provided  in  section  three  thousand  and  seventy-six  of 
the  Political  Code  which  shall  contain  among  other  matters 
as  near  as  can  be  ascertained,  the  race,  color,  age,  name  and 
surname,  birthplace,  residence  of  the  parties  to  be  married, 
number  of  marriage  and  condition  of  each,  whethe'r  single, 
widowed,  or  divorced,  the  occupation  of  the  parties,  maiden 
name  of  the  female,  if  previously  married,  the  names  and 
birthplaces  of  the  parents  of  each,  and  the  maiden  name  of 
the  mother  of  each,  which  said  certificate  of  registry  shall  be 
filled  out  as  herein  provided  in  the  presence  of  the  county 
clerk  issuing  the  marriage  license  and  shall  then  be  pre- 
sented to  the  person  performing  the  ceremony  and  shall  be 
filed  by  him  with  the  county  recorder  within  three  days  after 
the  ceremony. 

Hi.xtory:  Enacted  April  26,  1909,  Stats,  and  Amdts,  1909,  p. 
1093. 

§70.     BY    WHOM   MAKItlAGES   MAT   BE    CELEBRATED. 

Marriage  may  be  solemnized  by  either  a  justice  of  the 
supreme  court,  justice  of  the  district  courts  of  appeal,  judge 
of  the  superior  court,  justice  of  the  peace,  judge  of  any 
police  court,  city  recorder,  priest  or  minister  of  the  gospel 
of  any  denomination. 

[Repealing  clause.]  Sec.  2.  All  acts  and  parts  of  acts  in 
conflict  with  the  provisions  of  this  act  are  hereby  repealed. 

HI.-ftory:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  4;  ameaded  by  Code  Commission, 
Act  March  IC,  1901,  Stats,  and  Amdts.  1900-1,  p.  336,  held  uncon- 
stitutional; see  history,  §  4  ante;  amended  March  20,  1903,  Stats, 
and  Amdts.  1903,  p.  255;  amended  Marcli  1,  1907,  Stats,  and 
Amdts.  1907,  p.  80,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  400.  In 
effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

75  C.  1,  12,  16  P.  345,  350  (applied);  116  C.  304,  311,  48  P.  127 
(cited  in  connection  with  other  sections);  121  C.  620,  628,  629, 
66  A.  S.  74,  54  P.  143,  42  L.  343  (applied);  140  C.  213,  221,  73  P. 
1006   (referred  to);  26  F.  337,  339   (referred  to). 

44 


Tlt.I.ch.I.art.ir.]  SOLEMNIZATION.  5S  71-74 

Solomnizatlon  on  high  seas  by  captain  of  vessel, — as  to 
validity,  sec  Kerr's  Cyc.  C.  C.  8  68,  note  pars.   11,   12. 

§71.     NO    P.VKTKTLAR      ViUiM     OF    SOLEMNIZATION. 

No  particular  form  for  the  ceremony  of  marriage  Is  required, 
but  the  parties  must  declare,  in  the  presence  of  the  person 
solemnizing  the  marriage,  that  they  take  each  other  as  hus- 
band and  wife. 

IIlMtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

(Dla.  op,),  75  C.  1,  12,  60.  77  (applied).  66  (referred  to;,  !•; 
P.  345,  350:  79  C.  633,  651,  22  P.  26,  131  (applied);  104  C.  260, 
261,  37  P.  944  (applied):  116  C.  304,  311,  48  P.  127  (cited  with 
other  sections):  121  C.  620,  628,  66  A.  S.  74,  54  P.  143,  42  L.  343 
(applied);  133  C.  524.  527.  6.'.  P.  1034  (this,  and  «  55.  luld  not 
retroactive). 

§  72.      KKQl'IKEMEMS     BY     PKKSONS     SOLE.MNIZINfi 

MAUKIAdiE.  The  person  solemnizing  a  marriage  must  first 
require  the  presentation  of  the  marriage  license;  and  if  he 
has  any  reason  to  doubt  the  correctness  of  its  statement  of 
facts,  he  must  first  satisfy  himself  of  its  correctness,  and  for 
that  purpose  he  may  administer  oaths  and  examine  the  par- 
ties and  witnesses  In  like  manner  as  the  county  clerk  does 
before  issuing  the  license. 

HlNtoryi  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdt.'».  1S73-4.  p.   1S6. 

■  §  7:{.  (  EUTIFIC'ATLS  OF  MAKKIAGK.  The  person  solemn- 
izing a  marriage  must  make,  sign,  and  Indorse  upon,  or  attach 
to.  the  license,  a  certificate,  showing: 

1.  Ibe  fact,  time,  and  place  of  solemnization;  and. 

2.  The  names  and  places  of  residence  of  one  or  more  wit- 
nesses to  the  ceremony. 

Ilintnryi  Enacted  March  21,  1S72:  nnwndcd  March  30.  1S74. 
C.ide  Amdts.   1873-4.  p.   187. 

§74.  CERTIFHATE  TO  I'AHTIF.S  AND  RKfORDER,  He 

must,  at  the  request  of,  and  fnr  cithor  party,  make  a  certified 

45 


§§  75-77  CIVIL  CODE.  [Div.I,Pt.III. 

copy  of  the  license  and  certificate,  and  file  the  originals  with 
the  county  recorder  within  thirty  days  after  the  marriage. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  336,  held 
unconstitutional;  see  history,  §  4  ante. 

Recordation  provided  for  in  Kerr's  Pocket  Pol.  C.  §  4235, 
§  69a,    ante,   and   §  77,   post. 

§75.     DECLARATIOJf     OF     MARRIAGE,     HOW     MADE 

(repealed). 

History:  Enacted  March  21,  1872;  repealed  March  26,  1895, 
Stats,  and  Amdts.  1895,  p.   121. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

75  C.  1,  60  (applied),  66,  77  (referred  to  in  dis.  op.),  16  P.  345, 
372,  375,  380;  79  C.  633,  651,  22  P.  26,  131  (referred  to);  104  C. 
260,  261,  37  P.  .944  (construed);  116  C.  304,  311,  48  P.  127  (re- 
ferred to);  121  C.  620,  628,  54  P.  143,  66  A.  S.  74,  42  L.  343  (ap- 
plied); 133  C.  524,  526,  527,  65  P.  1034  (applied);  26  F.  337,  406 
(cited  as  to  necessity  of  acknowledgment,  and  applied). 

§76.    DECLARATION   WHERE   THERE   IS   NO   RECORD. 

If  no  record  of  the  solemnization  of  a  marriage  heretofore 
contracted,  be  known  to  exist,  the  parties  may  join  in  a  writ- 
ten declaration  of  such  marriage,  substantially  showing: 

1.  The  names,  ages,  and  residences  of  the  parties. 

2.  The  fact  of  marriage. 

3.  That  no  record  of  such  marriage  is  known  to  exist.  Such 
declaration  must  be  subscribed  by  the  parties  and  attested 
by  at  least  three  witnesses. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.    187. 

See   Kerr's  Cyc.   C.   C.   for   3   pars,   annotation.  * 

116  C.  304,  310,  311    (cited  with  other  sections),  312    (held  not 

applicable),   48  P.   127;   121  C.   620,   629,  66  A.  S.   74,  54  P.   143,  42 

L.   343    (applied). 

§  77.  TO  BE  ACKNOWLEDGED  AND  RECORDED.  Decla- 
rations of  marriage  must  be  acknowledged  and  recorded  In 
like  manner  as  grants  of  real  property. 

History:     Enacted  March  21,  1872. 
46 


Tit.I,ch.I,art.II.]      testing— recording.  §§  78-79a 

See  Kerr's  Cyc.  C.  C.  for  3   pars,  annotation. 

(Dis.  op.),  75  C.  1,  77,  16  P.  345,  380  (applied);  116  C.  304,  311 
(referred  to).  314  (held  not  applicable),  48  P.  127;  121  C.  620, 
629,  66  A.  S.  74,  54  P.  143,  42  L.  343  (referred  to);  26  F.  337,  406, 
409  (cited  to  point  that  declarations  of  marriage  must  he 
acknowledged  and  recorded). 

§  78.  EITHER  PARTY  MAY  PRO(  EED  TO  TEST  VALID- 
ITY OF  MARRIAGE.  If  either  party  to  any  marriage  denies 
the  same,  or  refuses  to  join  in  a  declaration  thereof,  the  other 
may  proceed,  ])y  action  in  the  superior  court,  to  have  the 
validity  of  the  marriage  determined  and  declared. 

History:  Enacted  March  21,  1872;  amended  to  make  it  con- 
form to  new  constitution,  Feb.  15,  1883,  Stats,  and  Amdts.  1883, 
p.  4. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation, 

67  C.  185,  194,  195,  7  P.  456,  635,  8  P.  709  (applied);  75  C.  1, 
12,  16  P.  345,  .350  (erroneously  cited  for  §68);  121  C.  620.  623. 
66  A.  S.   74.  75,   54  P.   143.   42  L.  343    (applied). 

§  79.  3IARRIA(;E  WITHOUT  LICEXSE.  When  unmarried 
persons,  not  minors,  have  been  living  together  as  man  and 
wife,  they  may,  without  a  license,  be  married  by  any  clergj- 
man.  A  certificate  of  such  marriage  must,  by  the  clergj'man, 
be  made  and  delivered  to  the  parties,  and  recorded  upon  the 
records  of  the  church  of  which  the  clergyman  is  a  repre- 
sentative.   No  other  record  need  be  made. 

HlDturyt     Enacted   Feb.    3,    1878,   Code   Amdts.    1S77-S,  p.    75-6. 

104  C.   260,  261,  37  P.  944    (applied). 

As  to  whether  signing  and  recording  declaration  constitutes 
solemnization,  see  Kerr's  Cyc.  C.  C.  S  79,   note. 

§  71>a.     RE((M{I)I\(i  DEILARATION   (H    .>IARRIA<iE.    The 

provisions  of  this  chapter,  so  far  as  they  relate  to  the  solemn- 
izing of  marriages,  are  not  applicable  to  members  of  any 
particular  religious  denomination  having,  as  such,  any  pecul- 
iar mode  of  entering  the  marriage  relation;  but  such  mar- 
riages must  be  declared,  as  i)rovided  in  section  seventy-six, 
and  be  acknowledged  and  recorded,  as  provided  in  section 
seventy-seven.     Where  a  marriage  is  declared  as  i)rovided  in 

47 


§  79a  CIVIL  CODE.  [Div.I.Pt.III. 

said  section  seventy-six,  the  husband  must  file  said  declara- 
tion with  the  county  recorder  within  thirty  days  after  such 
marriage,  and  upon  receiving  the  same  the  county  recorder 
must  record  the  same;  and  if  the  husband  fails  to  make  such 
declaration  and  file  the  same  for  record,  as  herein  provided, 
he  is  liable  to  the  same  penalties  as  any  person  authorized  to 
solemnize  marriages,  who  fails  to  make  the  return  of  such 
solemnization  as  provided  by  law. 

History:  Enacted  March  27,  1897,  Stats,  and  Amdts.  1897,  p. 
186;  amended  by  Code  Commission,  Act  Marcli  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  336,  held  unconstitutional;  see  history,  §  4 
ante;  amended  and  renumbered  79a  instead  of  791^,  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  555. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

121  C.  620,  629,  54  P.  143,  66  A.  S.  74,  42  L.  343  (construed  with 
§55). 

As  to  marriage  on  high  seas, — see  Kerr's  Cyc.  C.  C.  §  63,  note 
pars.  13,  14;  §  68,  note  pars  11,  12;  42  L.  343. 


48 


Tit.I,ch.I,art.Iir,ch.ir,art.T.]      nivoRCE.  §§80-82 

ARTICLE  III. 

JUDICIAL  DETERMINATION   OF  VOID  MARRIAGE. 

§  80.     Void  marriages. 

§80.  VOID  3IAUKIAGKS.  Either  party  to  an  incestuous 
or  void  marriage  may  proceed,  by  action  in  the  superior  court, 
to  have  the  same  so  declared. 

IlLstory:  Enacted  March  15,  1876,  Code  Anidts.  1875-C,  p.  09; 
amended  (clianging  from  former  district  to  .superior  court)  April 
6,  1880,  Code  Amdts.  (C.  C.  pt.),  p.  4. 

CHAPTER  IT. 

DIVORjCE. 

Article  I.  Nullity,  §§82-86. 

II.  Dissolution  of  marriage,  §§90-107. 

III.  Causes  for  denying  divorce,  §§  111-132. 

IV.  General  Provisions.  §§  1.36-148. 

ARTICLE  I. 

NULLITY. 

I  82.  Causes  for  annulling  marrlaRrf>s. 

I  83.  Actions   tlierefor,   wlien    commenced. 

I  84.  Children  of  annulled  marriage. 

f  85.  Custody  of  children. 

S  86.  Effect  of  Judgment  of  nullity. 

§82.  CAISKS  FOK  A>M M>I>G  MAKKIACJKS.  A  mar- 
riage may  lie  annulled  for  any  of  the  following  causes,  exist- 
ing at  the  time  of  the  marriage: 

1.  That  the  party  in  whose  behalf  it  is  sought  to  have  the 
marriage  annulled  was  under  the  age  of  legal  consent,  and 
such  marriage  was  contracted  without  the  consent  of  his  or 
her   parents   or   guardian,   or   person    having   charge   of   him 

49 


§  82  CIVIL  CODE.  [Div.I,Pt.III. 

or  her;  unless,  after  attaining  the  age  of  consent,  such  party 
for  any  time  freely  cohabited  with  the  other  as  husband  or 
wife. 

2.  That  the  former  husband  or  wife  of  either  party  was 
living,  and  the  marriage  with  such  former  husband  or  wife 
was  then  in  force. 

3.  That  either  party  was  of  unsound  mind,  unless  such 
party,  after  coming  to  reason,  freely  cohabit  with  the  other 
as  husband  or  wife. 

4.  That  the  consent  of  either  party  was  obtained  by  fraud, 
unless  such  party  afterwards,  with  full  knowledge  of  the 
facts  constituting  the  fraud,  freely  cohabited  with  the  other 
as  husband  or  wife. 

5.  That  the  consent  of  either  party  was  obtained  by  force, 
unless  such  party  afterwards  freely  cohabited  with  the  other 
as  husband  or  wife. 

6.  That  either  party  was,  at  the  time  of  marriage-,  physically 
incapable  of  entering  into  the  marriage  state,  and  such  inca- 
pacity continues,  and  appears  to  be  incurable. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  pp.    187-188. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

88  C.  557,  560,  564,  565  (erroneously  cited  for  §  852),  26  P.  366 
(correctly  cited);  94  C.  446,  464,  29  P.  957,  960  (applied);  (C. 
Nov.  30,  1892),  31  P.  571,  573,  574,  575  (applied) ;  99  C.  286,  287,  33 
P.  844  (applied  in  construction  relative  to  status  of  parties  in 
voidable  marriage);  137  C.  26,  27,  69  P.  616  (construed  and 
applied);  6  C.  A.  420,  421,  92  P.  329  (construed  with  §83, 
subd.  2). 

As  to  pregnancy  by  another,  see  Kerr's  Cyc.  C.  C.  §  58,  note 
pars.  11-16. 

As  to  who  are  to  be  deemed  non  compos  mentis, — -see  29  A.  D. 
38;   44  A.   D.   55. 

Below  age  of  consent — Ceremony  performed  by  ship's  captain 
on  high  seas, — as  to  validity,  see  Kerr's  Cyc.  C.  C.  §  79i/^  and 
note. 

Fraud — as  to  generally,  see  Kerr's  Cyc.  C.  C.  §  58,  note  pars. 
11-18. 

Pregnancy  physical  defect,  as  to  whether  is  within  meaning 
of  this  section. — See  Kerr's  Cyc.  C.   C.   §  58  and  note. 

50 


I 


Tit.I.ch.II.art.I.]       annulment— children.  §§  83,  84 

§83.    ACTIONS    THEREFOK.    WHEX    (O^HIENCED.     An 

action  to  obtain  a  decree  of  nullity  of  nuirria.^e,  for  causes 
mentioned  in  the  preceding  section,  must  be  commenced 
within  the  periods  and  by  the  parties,  as  follows: 

1.  For  causes  mentioned  in  subdivision  one:  by  the  party 
to  the  marriage  who  was  married  under  the  age  of  legal 
consent,  within  four  years  after  arriving  at  the  age  of  con- 
sent; or  by  a  parent,  guardian,  or  other  person  having  charge 
of  such  nonaged  male  or  female,  at  any  time  before  such 
married  minor  has  arrived  at  the  age  of  legal  consent. 

2.  For  causes  mentioned  in  subdivision  two:  by  either  party 
during  the  life  of  the  other,  or  by  such  former  husband  or 
wife. 

3.  For  causes  mentioned  in  subdivision  three:  by  the  party 
injured,  or  relative  or  guardian  of  the  party  of  unsound 
mind,  at  any  time  before  the  death  of  either  party. 

4.  For  causes  mentioned  in  subdivision  four:  by  the  party 
Injured,  within  four  years  after  the  discovery  of  the  facts 
constituting  the  fraud. 

5.  For  causes  mentioned  in  subdivision  five:  liy  the  injured 
party,  within  four  years  after  the  marriage. 

6.  For  causes  mentioned  in  subdivision  six:  by  the  injured 
party,  within  four  years  after  the  marriage. 

HiMtory:  Enacted  March  21,  1S72;  aiiK-ndrd  March  30,  1S74. 
Code  Amdts.   1873-4,  pp.   188-189. 

6  C.  A.   420,  422,   92  P.  329    (construod  witli    §  82). 


§84.  (  IIILDHKN  OF  ANNULLED  .MAHIMA(iE.  A  judg- 
ment of  nullity  of  marriage  does  not  affect  the  legitimacy  of 
children  begotten  before  the  judgment. 

IllNtory:  Enacted  March  21,  1872;  amended  by  Code  Coinniis- 
sion,  Act  March  16,  1901.  Stat.«».  and  Amdts.  1900-1.  p.  337.  held 
unconstitutional;  see  history,  $  4  ante;  amended  March  21,  1905, 
p.   555. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

57  C.  484,  491  (referred  to  on  question  of  legitimacy). 

61 


If 

§§  85,  86  CIVIL  CODE.  [Div.I,Pt.III. 

§85.  CUSTODY  OF  CHILDREN.  The  court  must  award 
the  custody  of'  the  children  of  a  marriage  annulled  on  the 
ground  of  fraud  or  force  to  the  innocent  parent,  and  may 
also  provide  for  their  education  and  maintenance  out  of  the 
property  of  the  guilty  party. 

History:     Enacted  March  21,  1872. 

§  86.  EFFECT  OF  JUDGMENT  OF  NULLITY.  A  judgment 
of  nullity  of  marriage  rendered  is  conclusive  only  as  against 
the  parties  to  the  action  and  those  claiming  under  them. 

History:     Enacted  March   21,  1872. 


52 


Tit.I,ch.II,art.II.]  DISSOLUTION.  §§90,91 

ARTICLE  II. 

DISSOLUTION  OF  MARRIAGE. 

§    90.  Marriage,  how  dissolved. 

§    91.  Effect  of  divorce. 

§    92.  Causes  for  divorce. 

§    93.  Adultery  defined. 

§    94.  Extreme  cruelty,   what. 

§    95.  Desertion,   what. 

§    96.  Desertion,   how   manifested. 

§    97.  In  case  of  stratagem  or  fraud,  who  commits  desertion. 

§    98.  In  case  of  cruelty,  where  one  party  leaves  the  other,  who 

commits  desertion. 

§    99.  Separation   by  consent,  not   desertion. 

§  100.  Absence  becomes  desertion,  when. 

§  101.  Consent  to  separate  revocable. 

§  102.  Desertion,  how  cured. 

§  103.  Wife  must  abide  by  husband's  selection  of  home,  or  it  is 

desertion  on  her  part. 

§10-}.  If  the  place   is  unfit,  and   wife   refuses   to  conform,   it   is 

desertion   by  the  husband. 

§  105.  Wilful   neglect,   what. 

§  106.  Habitual  intemperance,  what. 

§  107.  Habitual  intemperance  for  one  year. 

§90.  MARUIAGE,  HOW  DISSOLVED.  Marriage  is  dis- 
solved only: 

1.  By  death  of  one  of  the  parties;   or, 

2.  By  the  judgment  of  a  court  of  competent  jurisdiction 
decreeing  a  divorce  of  the  parties. 

HlMtory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   189. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

137  C.  26,  27,  69  P.  616  (referred  to);  137  C.  129,  134,  137,  138, 
139,  144,  69  P.  900   (applied). 

§91.  EFFECT  OF  DIVORCE.  The  effect  of  a  judgment 
decreeing  a  divorce,  is  to  restore  the  parties  to  tlie  state  of 
unmarried  persons. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   189. 

53 


§  92  CIVIL  CODE.  [Div.I,Pt.III. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

137  C.  129,  133,  134,  137,  138,  139,  144  (applied),  69  P.  900;  140 
C.  476,  488,  98  A.  S.  73,  74  P.  28    (referred  to). 

§  92.  CAUSES  FOR  DIYORCE.  Divorces  may  be  granted 
for  anj^  of  the  following  causes: 

1.  Adultery. 

2.  Extreme  cruelty. 

3.  Wilful  desertion. 

4.  Wilful  neglect. 

5.  Habitual  intemperance. 

6.  Conviction  of  felony. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   189. 

See  Kerr's  Cyc.  C.  C.  for  71  pars,  annotation. 

51  C.  543,  544  (applied);  74  C.  489,  492,  5  A.  S.  460,  16  P.  248, 
249  (applied);  85  C.  251,  255,  256,  24  P.  649,  650,  9  L.  487  (con- 
strued and  applied);  126  C.  123,  128,  58  P.  456  (referred  to);  135 
C.  397,  399,  87  A.  S.  118,  67  P.  506  (applied);  153  C.  56,  58,  94  P. 
244  (cited  as  to  wilful  neglect);  153  C.  254,  255,  256,  257,  258, 
259,  260,  94  P.  1044,  1045,  1046,  1047  (discussed,  with  other  sec- 
tions, concerning  non-resident  wife's  right  to  sue  for  main- 
tenance). 

As  to  recrimination,  see  Kerr's  Cyc.  C.  C.  §  122  and  note,  §  622 
and  note. 

Alimony, — as  to,  see  Kerr's  Cyc.  C.  C.  §§  136,  137  and  notes. 

Assigning  to  wife  on  divorce  for  extreme  cruelty. — See  Kerr's 
Cyc.  C.  C.  §§  94,  146  and  notes. 

Counsel  fees  and  costs, — as  to,  see  Kerr's  Cyc.  C.  C.  §  137  and 
note. 

Default — Judgment  on, — as  to,  see  Kerr's  Cyc.  C.  C.  §  130  and 
note. 

Disposition  after  divorce. — See  Kerr's  Cyc.  C.  C.  §§  146,  147 
and  notes. 

Evidence — Corroboration, — as  to  necessity  for,  see  Kerr's 
Cyc.  C.  C.  §  130  and  note. 

Insanity — As  defense  to  action  for  divorce  on  tlie  ground  of 
adultery,  see  Kerr's  Cyc.  C.  C.  §  93,  note  pars.  7-9. 

Residence — Allegation  and  proof  of  necessary — Complaint  and 
cross-complaint. — See  Kerr's  Cyc.  C.  C.  §  92,  note  pars.  53-55. 

Stipulation  as  to  division  of, — as  to  force  and  effect  of,  see 
Kerr's  Cyc.  C.  C.  §  146  and  note. 

Summons — Service  of. — as  to,  see  Kerr's  Cyc.  C.  C.  P.  §411  and 
note. 

54 


TIt.I,ch.II,art.II.]     adultery— cruelty.  §§  93.  94 

§93.  ADULTEUY  DKFINKU.  Adultery  is  the  voluntary 
sexual  intercourse  of  a  married  person  with  a  person  other 
than  the  offender's  liusbaud  or  wife. 

HlMtorr:     Enacted  Marcli   21,  1872. 

See   Korrs  Cyc.  C.  C.  for  34  pars,  annotation. 

51  C.  543,  544  (referred  to  witli  otlier  sections  and  held  not 
iipplioable). 

As  to  Insanity  in  divorce  casi-s,  see  Kerr's  Cyc.  C.  C.  §  92,  note 
pars.   41,   42. 

Admission  and  confessions  of  defendant — C<>mpet<'ncy — Siif- 
nclency.— See  Kerr's  Cyc.  C.  C.  §  130  and  note;  K.-rr's  Cyc.  C.  C. 
1'.   i  2079  and  note. 

Di.spositlon  of  coinnuinity  ijroperty  on  divorce  for  adultery. 
— See  post  I  146,  sub.   1  and  note. 

Recrimination, — as  to  generally,  see  Kerr's  Cyc.  C.  C.  J  122 
and   note. 

Second  marriage  pending  appeal — Bigamy. — See  Kerr's  Cyc. 
C.  C.  §  61  and  note. 

Second  marriage  before  llnal  decree — Bigamy. — See  Kerr's 
Cyc.  C.  C.  §  61   and  note. 


§94.  EXTHKMK  (  lU'ELTY,  >VH  AT.  Hxtreme  cruelty  is 
the  wronjiful  inlliction  of  grievous  [1]  luidily  Injury,  or  griev- 
ous [2]  mental  suffering,  upon  the  other  by  one  parly  to  the 
marriage. 

lllMtoryt  Knact<'d  Marcb  21,  1872:  amcMided  by  Code  Commi.s- 
slon.  Act  Marcb  16,  lOni.  Stats,  and  Amdts.  1900-1.  j).  337,  hold 
uiicon.stltutional ;  see  liistory.  i  4  aiiti-;  .■iniiiidetl  M.ircli  7.  190."). 
Slats,  and  Amdts.  1905,  p.  75. 

See   Kerr's  Cyc.  C.  C.   for  45   pars,  annotation. 

61  C.  643.  544  (referred  to  with  other  sections  ami  bold  not 
applicable):  85  C.  251,  265,  256  (construed  and  applied);  267,  268. 
269  (cited  and  construed,  dis.  op.),  24  V.  649,  650,  654,  858,  9  L. 
487;  86  C.  219,  224,  24  P.  996  (construed  and  appllod  with  other 
sections);  95  C.  171.  17fi,  177.  30  P.  298.  16  L.  660  (construed  and 
applied):  124  C.  651.  652.  57  P.  673  (construed  and  applied);  148 
('.  239,  244,  82  P.  967   (cited  as  to  extreme  cruelty). 

.\s  to  findings,  generally,  see  Kerr's  Cyc.  C  C.  S  92,  note  pars. 
1-36. 

Refusal  to  permit — as  amounting  to  desertion,  see  Kerrs 
Cyc.  C.  C.  S  95  and  note  pars.  10-12,  §96,  note  pars.  3-6. 

66 


§§  95-97  CIVIL  CODE.  [Div.I,Pt.III. 

§  95.  DESERTIOJf,  WHAT.  Wilful  desertion  is  the  volun- 
tary separation  of  one  of  the  married  parties  from  the  other 
with  intent  to  desert. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

51  C.  543,  544  (referred  to  with  other  sections);  65  C.  629,  632. 
4  P.  6-69,  670  (applied  with  §  103);  122  C.  253,  255,  256,  54  P.  847 
(applied  with  other  sections);  130  C.  574,  577,  62  P.  1064  (re- 
ferred to  witli  "wilful"  as  used  in  wilful  shooting  by  officer) ; 
134  C.  88,  89,  66  P.  73  (applied  with  other  sections);  142  C.  519, 
523,  77  P.  1106  (applied). 

As  to  refusal  of  marital  and  sexual  intercourse, — see  Kerr's 
Cyc.   C.  C.   §94,   note  pars.   43,  44;   post  §36,   note  pars.   4,  5. 

Condonation, — as  to,  see  Kerr's  Cyc.  C.  C.   §  117  and  note. 


§96.  DESERTION,  HOW  MANIEESTED.  Persistent 
refusal  [1]  to  have  reasonable  matrimonial  intercourse  as 
husband  and  wife,  when  health  or  physical  condition  does 
not  malce  such  refusal  reasonably  necessary,  or  [2]  the 
refusal  of  either  party  to  dwell  in  the  same  house  with  the 
other  party,  when  there  is  no  just  cause  for  such  refusal,  is 
desertion. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

51  C.  543,  544  (referred  to);  136  C,  195,  196,  68  P.  694  (ap- 
plied); 137  C.  559,  560,  70  P.  628  (construed  and  applied);  144  C. 
625,  627,  78  P.  19    (applied). 

§  97.  IN  CASE  OF  STRATAGEM  OR  FRAUD,  WHO  COM- 
MITS DESERTION.  When  one  party  is  induced,  by  the  strat- 
agem or  fraud  of  the  other  party,  to  leave  the  family  dwelling- 
place,  or  to  be  absent,  and  during  such  absence  the  offending 
party  departs  with  intent  to  desert  the  other,  it  is  desertion 
by  the  party  committing  the  stratagem  or  fraud,  and  not  by 
the  other. 

History:     Enacted  March  21,  1872. 

51  C.  543,  544  (referred  to);  74  C.  608,  613,  16  P.  518,  520  (ap- 
plied with  other  sections). 

56 


h 


Tit.I,ch.II,art.II.]       separation— DESERTION.  §§  98-100 

§98.  m  CASE  OF  CRUELTY,  WHERE  ONE  PARTY 
LEAVES     THE     OTHER,     >VHO     COMMITS     DESERTION. 

Departure  or  absence  of  one  party  from  the  family  dwelling- 
place,  caused  by  cruelty  or  by  threats  of  bodily  harm  from 
which  danger  would  be  reasonably  apprehended  from  the 
other,  is  not  desertion  by  the  absent  party,  but  it  is  deser- 
tion by  the  other  party. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

51  C.  543,  544  (section  sets^  forth  state  of  facts  which  may 
manifest  desertion);  74  C.  608,  613,  16  P.  518,  520  (applied  with 
other  sections);  86  C.  219,  224,  24  P.  996  (distinguished  from 
§94);  122  C.  395,  397,  398,  55  P.  152  (applied);  134  C.  205,  207, 
66  P.  208   (applied). 

§99.    SEPARATION    BY     CONSENT     NOT    DESERTION. 

Separation  by  consent,  with  or  without  the  understanding 
that  one  of  tlie  parties  will  apply  for  a  divorce,  is  not  deser- 
tion. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

74  C.  608,  613,  16  P.  518,  520  (applied  with  other  sections);  106 
C.  541,  544,  39  P.  931  (applied  with  other  sections);  140  C.  112, 
115,  73  P.  808  (applied  with  other  sections). 

Consent — Corrupt  connivance,  by, — as  to,  see  Kerr's  Cyc.  C.  C. 
§  113  and  notes. 

Husband  may  select  home — Duty  of  wife  to  abide. — See  Kerr's 
Cyc.  C.  C.  §  103  and  note. 

§  100.  ABSENCE  BECOMES  DESERTION,  WHEN.  Absence 
or  separalion,  proper  in  itself,  becomes  desertion  whenever 
the  intent  to  desert  is  fixed  during  such  absence  or  separa- 
tion. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   189. 

106  C.   541,   544,  39  P.   031    (referred  to). 

As  to  when  desertion  commences,  see  Kerr's  Cyc.  C.  C.  §  100, 
note. 

57 


§§  101-103  CIVIL  CODE.  [Div.I,Pt.III. 

§101.  CONSENT  TO  SEPAIUTE  REVOCABLE.  Consent 
to  a  separation  is  a  revocable  act,  and  if  one  of  the  parties 
afterwards,  in  good  faith,  seeks  a  reconciliation  and  restora- 
tion, but  the  other  refuses  it,  such  refusal  is  desertion. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

106  C.  541,  544,  39  P,  931  (construed  and  applied);  134  C.  346, 
347,  66  P.  367  (applied);  140  C.  112,  115,  117  (construed  and 
applied),  125  (applied),  71  P.  108,  110  (cited),  73  P.  808,  813 
(cited  in  dis.  op.);   147  C.   175,   177,   81  P.   413,  414    (applied). 

§  102.  DESERTION,  HOW  CURED.  If  one  party  deserts 
the  other,  and  before  the  expiration  of  the  statutory  period 
required  to  make  the  desertion  a  cause  of  divorce,  returns 
and  offers  in  good  faith  to  fulfil  the  marriage  contract,  and 
solicits  condonation,  the  desertion  is  cured.  If  the  other 
party  refuse  such  offer  and  condonation,  the  refusal  shall 
be  deemed  and  treated  as  desertion  by  such  party  from  the 
time  of  refusal. 

History:  Enacted  March' 21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  190. 

See  Kerr's  Cyc.   C.  C.  for   10  pars,   annotation. 

65  C.  629,  632,  4  P.  669  (construed  and  applied);  123  C.  653, 
654,  656,  56  P.  554  (applied  and  held  that  period  in  which  recon- 
ciliation may  be  made  does  not  apply  to  offer  during  pendency 
of  suit  for  maintenance);  126  C.  123,  128,  58  P.  456  (construed 
and  applied  with  other  sections);  71  P.  108,  110  (cited);  147  C. 
52,  54,  81  P.  297    (construed). 

S  103.  WIEE  MUST  ABIDE  BY  HUSBAND'S  SELECTION 
OF  HOME,  OR  IT  IS  DESERTION  ON  HER  PART.  'The  hus- 
band may  choose  any  reasonable  place  or  mode  of  living, 
and  if  the  wife  does  not  conform  thereto,  it  is  desertion. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

136  C.  195,  203,  68  P.  694  (applied);  6  C.  A.  657,  662,  92  P.  1037 
(referred  to). 

Difference  between  husband  and  wife  as  to  place  of  future 
abode, — as  to,  see  Kerr's  Cyc.  C.  C.  §  99,  note  par.  9. 

58 


I 
I 

J 


Tit.I.ch.II.art.H.]  wilful   NEGLECT.  §§104-107 

§10*.  II  TIIK  I'LA(K  IS  IMIT,  AM)  WIFi:  KKHSKS 
TO  tO>FOK.M,  IT  IS  DLStlMlO.N   UV   THE  JILSHAM).     If 

the  place  or  mode  of  living  selected  by  the  husband  is  unrea- 
sonable and  grossly  unfit,  and  the  wife  does  not  conform 
thereto,  it  is  desertion  on  the  part  of  the  husband  from  the 
time  her  reasonable  objections  are  made  known  to  him. 

HlNtor>-:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyo.  C.  C.  for  2  pars,  annotation. 

74  C.  608,  613,  16  P.  518,  520  (referred  to  witli  otlier  sections 
in    discussion). 

§  105.  WILFIL  >E(;LI:(  T,  »TIAT.  Wilful  neglect  is  [1] 
the  neglect  of  the  husband  to  provide  for  his  wife  the  com- 
mon necessaries  of  life,  he  having  the  ability  to  do  so;  or  it  is 
[2]  the  failure  to  do  so  by  reason  of  idleness,  profligacy,  or 
dissipation. 

lll.H<ory:      Enact. -d  Marcli    21.   1872. 

Sic    Ki-rr's  Cyc.  C.  C.   for   13   pars,  annotation. 

51  C.  543.  544  (applied):  104  C.  293.  290,  37  P.  035  (construed 
and  applied);  130  C.  574.  577,  62  P.  1064  (referred  to);  153  C. 
56,  5S,  94  P.  244    (api)li.-d). 

S  100.  IIAHITI  AL  INTKMPKKAX  K,  WHAT.  Habitual 
intemperance  is  that  degree  of  iiitemperunco  from  the  use 
of  intoxicating  drinks  which  [I]  disqualifies  the  person  a 
great  i)ortion  of  the  time  from  properly  attending  to  business, 
or  [2]  which  would  reasonably  infiict  a  course  of  great  men- 
tal anguish  upon  the  innocent  party. 

IllNtory!  Enacted  Marcli  21.  1872;  aniendcd  by  ('ode  Comniis- 
slon,  Act  March  16,  1901.  Stats,  and  Amdts.  1900-1.  p.  337,  held 
unconstitutional;  see  history,  i  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  11   pars,  annotation. 

62  C.  176.  178  (applied);  80  C.  528.  629.  22  P.  294  (applied);  96 
C.  4.  7.  30  P.  803.  S04  (applied  >;  130  C.  574,  577,  62  P.  1064  ("wil- 
ful   ni-plect"   in    section   ddini'dt. 

§  107.   HAurrr.VL   inthmtkhaxe   fok   one   yeak. 

[1]  Wilful  desertion,  [2]  wilful  neglect,  or  [51]  habitual  intem- 

59 


§  107  CIVIL  CODE.  [Div.I,Pt.III. 

perance  must  coutiuue  for  one  year  before  either  is  a  ground 
for  divorce. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

74  C.  608,  613,  16  P.  518,  520  (cited  with  other  sections);  122  C. 
253,  255,  256,  54  P.  847  (applied);  123  C.  653,  654,  56  P.  554  (sec- 
tion does  not  apply  to  offer  of  reconciliation  made  at  time  of 
suit  for  maintenance);  135  C.  397,  87  A.  S.  118,  67  P.  506  (ap- 
plied);  153  C.   56,  58,   94  P.  244    (cited). 


I 


GU 


Tit.I,ch.ir,art.III.]       DIVORCE  denied.  §111 

ARTICLE  III. 

CAUSES  FOR  DENYING  DIVORCE. 

§  111.  Divorces  denied,  on  showing  what. 

§  112.  Connivance,   wliat. 

S  113.  Corrupt  consent,  how  manifested. 

§  114.  Collusion,  what. 

§  115.  Condonation,   what. 

§  116.  Requisites  to  condonation. 

§  117.  Condonation  implies  what. 

I  118.  Evidence  of  condonation. 

§  119,  Can  only  be  made,  when. 

§  120.  Concealment  of  facts  in  certain  cases  makes  condonation 

void. 

§  121.  Condonation,  how  revoked. 

§  122.  Recrimination,  what. 

S  123.  Condonation,  when  to  bar  defense. 

§  124.  Divorce,  when  denied. 

§  125.  Lapse  of  time  establishes  certain  presumption. 

§  126.  Presumption  may  be  rebutted. 

§  127.  Limitation  of  time. 

§  128.  Actions  in  divorce  case. — [Plaintiff  must  be  resident.] 

§  129.  Proof  of  actual  residence  required — Presumptions  do  not 

apply. 

§  130.  Divorce  by  default,  etc. — [Not  granted.] 

§  131.  Interlocutory  judgment. 

§  132.  Final   judgment,   after   one   year. 

§111.      DIVORCES     DENIED,      ON      SHO^YING      WHAT. 

Divorces  must  be  denied  upon  showing: 

1.  Connivance;  or, 

2.  Collusion;  or, 

3.  Condonation;  or, 

4.  Recrimination;  or, 

5.  Limitation  and  lapse  of  time. 

History:     Enacted  March   21,  1872. 

74  C.  608,  612,  613,  16  P.  518,  519,  520  (cited  with  other  sec- 
tions). 

Wife  living  separate  from  husband. — Without  cause  or  just 
ground  for  divorce, — as  to  whether  a  wife,  under  such  circum- 
stances, is  entitled  to  maintenance  from  her  husband,  see  Kerr's 
Cyc.  C.  C.  §  136  and  note. 

61 


§§  112-115  CIVIL  CODE.  [Div.I.Pt.III. 

§112.  CONNIVANCE,  WHAT.  Connivance  is  the  corrupt 
consent  of  one  party  to  the  commission  of  the  acts  of  the 
other,  constituting  the  cause  of  divorce. 

History:     Enacted  March  21,  1872. 

121   C.   11,  12,   53   P.   403    (applied). 

Connivance  and  collusion  imply  consent. — See  Kerr's  Cyc.  C. 
C.  $112,  note. 

§113.  CORKUPT  CONSENT,  HOW  MANIFESTED.  Cor- 
rupt consent  is  manifested  by  passive  permission,  with  intent 
to  connive  at  or  actively  procure  the  commission  of  the  acts 
complained  of. 

History:     Enacted  March   21,  1872. 

§114.  COLLUSION,  WHAT.  Collusion  is  [1]  an  agreement 
between  husband  and  wife  that  one  of  them  sliall  commit,  or 
[2]  appear  to  have  committed,  or  to  [3]  be  represented  in 
court  as  having  committed,  acts  constituting  a  cause  of 
divorce,  for  the  purpose  of  enabling  the  other  to  obtain  a 
divorce. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

65  C.  354,  355,  4  P.  229  (construed  and  applied  with  other  sec- 
tions); 1-21  C.  11,  12,  53  P.  403  (construed  and  applied  with  other 
sections). 

§  115.  CONDONATION,  WHAT.  Condonation  is  the  condi- 
tional forgiveness  of  a  matrimonial  offense  constituting  a 
cause  of  divorce. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.   for   8   pars,  annotation. 

102  C.  433,  438,  36  P.  767,  1037  (applied);  123  C.  653,  656,  56  P. 
554  (applied);  147  C.  52,  54,  81  P.  297  (construed  with  other  sec- 
tions);  1  C.  A.  309,  310,  82  P.  90   (applied  with  §  116). 

As  to  condonation  of  recriminatory  defense,  see  Kerr's  Cyc. 
C.  C.  §  123  and  note. 

As  to  validity  of  contracts  for  separation,  see  Kerr's  Cyc. 
C.   C.   §  159  and  note  pars.   2-14,  particularly  par.   2. 

Revocation  of  condonation. — See  Kerr's  Cyc.  C.  C.  §  121  and 
note. 

62 


Tit.I,ch.II,art.III.]  CONDONATION.  §§116-119 

§  116.  REQUISITES  TO  CONDONATION.  The  following 
requirements  are  necessary  to  condonation: 

1.  A  knowledge  on  the   part  of  the   condoner  of  the   facts 
■  constituting  the  cause  of  divorce ; 

2.  Reconciliation  and  remission  of  the  offense  by  the 
injured  party; 

3.  Restoration  of  the  offending  party  to  all  marital  rights. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

95  C.  444,  446,  30  P.  590  (applied);  102  C.  433,  438,  36  P.  767. 
11137  (applied);  147  C.  52,  54,  81  P.  297  (construed  with  other 
.-.ctlons);   1  C.  A.  309,  310,  82  P.  90   (applied  with  §115). 

§  117.  ( ONDONATION  IMPLIES  WHAT.  Condonation 
implies  a  condition  subsequent;  that  the  forgiving  party 
must  be  treated  with  conjugal  kindness. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

(C.  Jan.  26,  1894),  35  P.  637,  638  (applied);  117  C.  443,  446.  49 
P.  557  (applied):  120  C.  184,  189,  52  P.  298  (applied);  147  C.  52, 
r>J,'81    p.    297    (construed    with   other  sections). 

§11S.  EVIDENCE  OF  CONDONATION.  Where  the  cause 
of  divorce  consists  [1]  of  a  course  of  offensive  conduct,  or  [2] 
arises,  in  cases  of  cruelty,  from  excessive  acts  of  ill-tr'^at- 
ment  which  may,  aggregately,  constitute  the  offense,  [a] 
cohabitation,  or  [b]  passive  endurance,  or  [c]  conjugal  kind- 
ness, shall  not  be  evidence  of  condonation  of  any  of  the  acts 
constituting  such  cause,  unless  accompanied  by  an  express 
agreement  to  condone. 

HlMtoryi  Enacted  Marcli  21,  1S72:  annnd.^d  March  3n,  1S7I, 
Code  Amdts.   1873-4,  p.   190. 

See  Kerr's  Cyc.  C.  C.  for  6  i>ars.  annotation. 

(C.  Jan.  26,  1894),  35  P.  637.  638  (applud):  117  C.  44:!.  447.  I'.) 
P.  557  (applied):  119  C.  183,  188.  192,  4S  P.  730,  51  P.  183  ^■.l\>■ 
plied);    132  C.   473.   476,  65  P.   772   (applied). 

§  119.  CAN  ONLY  HE  MADE,  AVIIKN.  In  cases  mentioned 
in  the  last  section,  condonation  can  be  made  only  after  the 

63 


§§  120-123  CIVIL  CODE.  [Div.I.Pt.III. 

cause  of  divorce  has  become  complete,  as  to  the  acts  com- 
plained of. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  190. 

§120.  CONCEALMENT  OF  FACTS  IN  CERTAIN  CASES 
MAKES  CONDONATION  VOID.  A  fraudulent  concealment 
by  the  condonee  of  facts  constituting  a  different  cause  of 
divorce  from  the  one  condoned,  and  existing  at  the  time  of 
condonation,  avoids  such  condonation. 

History:     Enacted  March  21,  1872. 

§  121.  CONDONATION,  HOW  REVOKED.  Condonation  is 
revoked  and  the  original  cause  of  divorce  revived: 

1.  When  the  condonee  commits  acts  constituting  a  like  or 
other  cause  of  divorce ;  or, 

2.  When  the  condonee  is  guilty  of  great  conjugal  unkind- 
ness,  not  amounting  to  a  cause  of  divorce,  but  sufficiently 
habitual  and  gross  to  show  that  the  conditions  of  condonation 
had  not  been  accepted  in  good  faith,  or  not  fulfilled. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

(C.  Oct.  20,  1892),  31  P.  258,  259  (applied);  120  C.  184,  189,  52 
P.  298   (applied);  121  C.  11,  12,  53  P.  403   (applied). 

§  122.     RECRIMINATION,     WHAT.       Recrimination    is    a 
showing  by  the   defendant  of  any   cause   of  divorce   against 
the  plaintiff,  in  bar  of  the  plaintiff's  cause  of  divorce. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

63  C.  352,  353  (applied);  74  C.  489,  492,  5  A.  S.  460,  16  P.  248, 
249  (applied);  119  C.  183,  189,  48  P.  730,  51  P.  183  (applied);  137 
C.  xix,  70  P.  304,  305  (applied);  148  C.  239,  245,  82  P.  967,  970 
(cited). 

§  123.  CONDONATION,  WHEN  TO  BAR  DEFENSE.  Con- 
donation of  a  cause  of  divorce,  shown  in  the  answer  as  a 
recriminatory  defense,  is  a  bar  to  such  defense,  unless  the 

64 


Tit.I.ch.II.art.TIL]         DIVORCE    DENIED.  §§124,125 

condonation  be  revoked,  as  provided  in  section  one  hundred 
and  twenty-one,  or  two  years  have  elapsed  after  the  condona- 
tion, and  before  the  accruing  or  completion  of  the  cause  of 
divorce  against  which  the  recrimination  is  shown. 

History:      Enacted   March    21,    1872;    amended   March    30,    1874, 
Code  Amdts.  1873-4,  pp.  190-191. 


§  124.  DIVOltCE,  WHEN  DENIED.  A  divorce  must  be 
denied: 

1.  When  the  cause  is  adultery  and  the  action  is  not  com- 
menced within  two  years  after  the  commission  of  the  act  of 
adultery,  or  after  its  discovery  by  the  injured  party;   or, 

2.  When  the  cause  is  conviction  of  felony,  and  the  action 
is  not  commenced  before  the  expiration  of  two  years  after  a 
pardon,  or  the  termination  of  the  period  of  sentence. 

3.  In  all  other  cases  when  there  is  an  unreasonable  lapse 
of  time  before  the  commencement  of  the  action. 

HiNtory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   191. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

74  C.  608,  613,  16  P.  518,  520  (cited  witli  other  sections);  104 
C.  293,  296,  37  P.  935  (applied);  121  C.  11,  12,  53  P.  403  (applied); 
140  C.  112,  117,  118,  73  P.  808  (applied);  153  C.  56,  58,  94  P.  244, 
245   (cited  with   S  125,  as  not  applicable). 

§  12.-).  LAPSE  OF  TIME  ESTAllEISHES  (  ERTAIX  PKE- 
SUMPTIONS.  Unreasonable  lapse  of  time  is  such  a  delay 
in  commencing  the  action  as  establishes  the  presumption  that 
there  has  been  connivance,  collusion,  or  condonation  of  the 
offense,  or  full  acquiescence  in  the  same,  with  intent  to  con- 
tinue the  marriage  relationsf.]  notwithstanding  the  commis- 
sion of  such  offense. 

IliMtory:      lOnactcd   Marcli    21.   1S72. 

See   Kerr's  Cjc.   C.  C.   for   3   pars,   annotation. 

121  C.  11,  12,  53  P.  403  (applied);  140  C.  112.  117.  118  (applii^dt; 
73  P.  808,  153  C.  56,  58,  94  P.  244,  245  (cited  with  §  124,  as  not 
applicable). 

Kerr's    C.    C. — 3  65 


§§  126-129  CIVIL,  CODE.  [Div.I,Pt.III. 

§  126.  PRESUMPTIONS  MAY  BE  REBUTTED.  The  pre- 
sumptions arising  from  lapse  of  time  may  be  rebutted  by- 
showing  reasonable  grounds  for  the  delay  in  commencing  the 
action. 

History:     Enacted  March   21.  1872. 

§127.     LIMITATION  OF   TIME,     There   are  no  limitations 
of  time  for  commencing  actions  for  divorce,  except  such  as 
are  contained  in  section  one  hundred  and  twenty-four. 
History:     Enacted  March   21,  1872. 

For  commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  127,  note. 

§128.  ACTIONS  IN  DIVORCE  CASES— [PLAINTIFF 
MUST  BE  RESIDENT].  A  divorce  must  not  be  granted 
unless  the  plaintiff  has  been  a  resident  of  the  state  for  one 
year,  and  of  the  county  in  which  the  action  is  brought  three 
months  next  preceding  the  commencement  of  the  action. 

History:  Enacted  March  21,  1872;  amended  March  10,  1891, 
Stats,  and  Amdts.   1891,  p.   52. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

74  C.  608,  613,  16  P.  518,  520  (cited  with  other  sections):  96  C. 
4,  6,  30  P.  803,  805  (cited):  100  C.  11,  13,  15,  17,  34  P.  523  (con- 
strued and  applied  with  other  sections);  128  C.  330,  332,  333,  60 
P.  854  (referred  to  in  determining  whether  sheriff's  return  upon 
subpoena  is  proof  of  residence);  140  C.  476,  483,  98  A.  S.  73, 
74  P.  28  (determining  constitutionality  of  this  and  other  sec- 
tions): 153  C.  254,  255,  256,  258,  259,  260,  94  P.  1044,  1045,  1046, 
1047  (discussed  with  otlier  sections  with  respect  to  non-resident 
wife's  right  to   sue  for  maintenance). 

Residence — Of  plaintiff  within  state  and  county  for  statutory 
period  essential  to  right  to  maintain  action. ^ — See  Kerr's  Cyc. 
C.  C.  §  92  and  note. 

§129.  PROOF  OF  ACTUAL  RESIDENCE  REQUIRED- 
PRESUMPTIONS  DO  NOT  APPLY.  In  actions  for  divorce 
the  presumption  of  law,  that  the  domicile  of  the  husband 
is  the  domicile  of  the  wife,  does  not  apply.  After  separation, 
each  may  have  a  separate  domicile,  depending  for  proof  upon 
actual  residence,  and  not  upon  legal  presumptions,    . 

History:     Enacted  March   21,  1872. 
66 


Tit.I.ch.II.art.III.]  NO  default.  §§  130, 131 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

G6  C.  309,  310,  5  P.  516  (erroneously  cited  for  §137);  128  C. 
L'TO,  274,  60  P.  867,  49  L.  138  (applied);  132  C.  85,  92.  84  A.  S. 
uu,   64  P.   103   (construed  and  applied). 

§  130.    DIVOIU  E  BY  DEFAULT,  ETC.— [>0T  GRANTED]. 

No  divorce  can  be  granted  upon  the  default  of  the  defendant, 
or  upon  the  uncorroborated  statement,  admission,  or  testi- 
mony of  the  parties,  or  upon  any  statement  or  finding  of  fact 
made  by  referee;  but  the  court  must,  in  addition  to  any  state- 
ment or  finding  of  the  referee,  require  proof  of  the  facts 
alleged,  and  such  proof,  if  not  taken  before  the  court,  must 
be  upon  written  questions  and  answers. 

HiMtory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  191. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

49  C.  94  (applied);  63  C.  578,  580  (construed  and  applied):  65 
C.  354,  355,  4  P.  229  (construed  and  applied);  (C.  May  28,  1887). 
14  P.  92,  95  (applied);  67  C.  24,  7  P.  3  (applied);  74  C.  608,  614. 
16  P.  518,  520  (applied);  86  C.  219,  221,  24  P.  996  (applied):  88 
C.  45,  48,  25  P.  1062  (con.'^trued  and  ajjplied);  94  C.  225,  227,  29 
P.  499  (construed  and  applied);  120  C.  33,  37,  65  A.  S.  147,  52 
P.  122  (construed  and  applied);  120  C.  184,  186,  52  P.  298  (con- 
strued and  applied);  124  C.  57,  58,  56  P.  629  (applied);  140  C. 
112,  119,  73  P.  808  (construed  and  applied);  140  C.  476,  483,  74 
P.  28  (referred  to  in  discussing  constitutionality  of  §§  131  and 
132);  145  C.  784.  787.  79  P.  531  (applied):  148  C.  239,  242,  243. 
82  P.  967  (cited  as  to  corroboration  and  purpose  of  section 
stated);  1  C.  A.  309.  310,  82  P.  90  (referred  to);  6  C.  A.  657,  659. 
92   P.   1037    (applied). 

§  i:n.  I>TEHI,(M  ITOHV  Jl  D(;.MK>T,  In  actions  for 
divorce,  the  court  must  file  its  decision  and  conclusions  of 
law  as  in  other  cases,  and  if  it  determines  that  no  divorce 
shall  be  granted,  final  judgment  must  thereupon  be  entered 
accordingly.  If  it  determines  that  the  divorce  ought  to  be 
granted,  an  interlocutory  judgment  must  be  entered,  declaring 
that  the  party  in  whose  favor  the  court  decides  is  entitled 
to  a  divorce,  and  from  such  interlocutory  judgment  an  appeal 
may  be  -taken  within  six  months  after  its  entry,  in  the 
same  manner  and  with  like  effect  as  if  the  judgment  were 
final.     After  the  entry  of  the  interlocutory  judgment,  neither 

67 


§  132  CIVIL  CODE.  [Div.I.Pt.III. 

party  shall  have  the  right  to  dismiss  the  action  without  the 
consent  of  the  other. 

HLstory:  Enacted  March  2,  1903,  Stats,  and  Amdts.  1903,  p. 
75,  amended  April  16,  1909,  Stats,  and  Amdts.  1909,  p.  941. 

See  Kerr's  Cyc.   C.   C.   for  6   pars,   annotation. 

140  C.  476,  479,  480  (applied),  488  (constitutionality  upheld), 
98  A,  S.  73,  74  P.  28;  143  C.  630,  631,  77  P.  647,  648  (referred  to): 
146  C.  245,  247,  249,  252,  79  P.  891,  106  A.  S.  23  (purpose  of  this 
section  and  §132  stated);  146  C.  257,  259,  79  P.  897  (cited  as  to 
duty  of  court  in  entering-  judgment);  147  C.  336,  337,  82  P.  79 
(construed  with  §132);  5  C.  A.  262,  263,  90  P.  53  (section  con- 
templates what). 

§  132.  FINAL  JUDGMENT,  AFTEK  ONE  TEAR.  When  one 
year  has  expired  after  the  entry  of  such  interlocutory  judg- 
ment, the  court  on  motion  of  either  party,  or  upon  its  own 
motion,  may  enter  the  final  judgment  granting  [1]  the  divorce, 
and  such  final  judgment  shall  [2]  restore  them  to  the  status 
of  single  persons,  and  [3]  permit  either  to  marry  after  the 
entry  thereof;  and  [4]  such  other  and  further  relief  as  may 
be  necessary  to  complete  disposition  of  the  action,  but 

If  any  appeal  is  taken  from  the  interlocutory  judgment  or 
motion  for  a  new  trial  made,  final  judgment  shall  not  be 
entered  until  such  motion  or  appeal  has  been  finally  disposed 
of,  nor  then,  if  the  motion  has  been  granted  or  judgment 
reversed. 

The  death  of  either  party  after  the  entry  of  the  interloc- 
utory judgment  does  not  impair  the  power  of  the  court  to 
enter  final  judgment  as  hereinbefore  provided;  but  such 
entry  shall  not  validate  any  marriage  contracted  by  either 
party  before  the  entry  of  such  final  judgment,  nor  constitute 
any  defense  of  any  criminal  prosecution  made  against  either. 

History:     Enacted  March  2,  1903,  Stats,  and  Amdts.  1903,  p.  76. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

79  C.  336,  339  (erroneously  cited  for  §  137),  21  P.  838,  839  (cor- 
rect citation);  140  C.  476,  480  (applied),  488  (bonstitutionality 
upheld),  98  A.  S.  73,  74  P.  28;  143  C.  630,  631,  77  P.  647,  648  (re- 
ferred to);  146  C.  245,  247,  249,  252,  79  P.  891,  106  A.  S.  23  (pur- 
pose of  this  section  and  §132  stated);  147  C.  336,  337,'  82  P.  79 
(construed  with  §131);  5  C.  A.  262,  264,  265,  90  P.  53  (cited,  as 
to  effect  of  plaintiff's  death). 

68 


Tit.I.ch.II.art.IV.]        RELIEF— EXPENSES.  §§136.137 

ARTICLE]  IV. 
GENEUAI.    PIK  J  VISIONS. 

S  13G.  Relief  may  bf  adjudsod  in  some  cases,  wlioro  si'paration 
is    denied. 

§  137.      Expenses  of  action  for  divorce-   [alimony]. 

$  138.     Orders  respecting  custody  of  children. 

S  139.  Support  of  wife  and  children  on  divorce  or  separation 
grapted  to  wife. 

§  140.     Security  for  maintenance  and  alimony. 

§  141.     Court  shall   resort  to  what,  in  executing  certain  sections. 

§142.  If  wife  has  sufficient  for  hor  support,  court  may  with- 
hold  allowance. 

§  143.  Community  and  sei)arate  property  may  be  sul)jected  to 
support  and  educate  children. 

5  144.     Legitimacy   of  issui — [Divorce   for  .ulull  ■•i\-   "il"   )iii>ii.:i  n.l  i. 

H  145.     Sanu — [I'"or  adultery  of  wife]. 

§  146.     Disposition  of  community  propt-rty. 

§  147.     Same — [Duty   of  court   to  dispose   of]. 

I  148.     Saint — [Subji-ct    to    rcvi.sion   on   appeal], 

§!:{(;.  KKIJKF  MAY  HK  AD.HIK;!- I)  IN  MKME  ( ASES, 
WIIKKK  SKrAHATM>N  IS  DEMKI).  Though  judgment  of 
divorce  is  denied,  the  court  may,  in  an  action  for  divorce,  pro- 
vide for  the  maintenance  l)y  the  husband,  of  the  wife  and 
children  of  the  niarriafjo,  or  any  of  them. 

IIlMt<-ry:  Enact»>d  March  L'l,  1S72;  amended  by  Code  Comml.s- 
sion.  Act  March  1 G,  1001.  Stats,  and  Amdts.  1900-1,  p,  337,  held 
unconstitutional;  see  history.  S  4  ante:  amnuli-d  March  21,  IDO.'i, 
Stats,  and  Amdts.   1905,  p.  f)34. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

68  C.  588.  589.  590,  9  P.  842  (construed  and  appli.d);  74  C. 
608,  611.  612.  614.  16  P.  518.  519.  520  (construed  and  applied): 
79  C.  336.  338.  339.  21  P.  838.  839  (construed  and  applied):  (C. 
Oct.  2.  1889),  22  P.  284  (applied):  124  C.  48.  53.  54.  55.  71  A.  S. 
17.  56  P.  630.  631.  57  P.  81  (construed  and  applied):  126  C.  123. 
126.  127.  129.  58  P.  456  (construed  and  applied  with  other  sec- 
tions):   147  C.    175.   176.   81   P.   413.  414    (referred  to). 

s  i:J7.    expenses  oi     V(TI(>\    I  ok    nivoiM  E.     [AM. 

M().\Y.]      When   an    action    for  divorce   is   pending,   tlie   court 

69 


§  137  CIVIL  CODE.  [Div.I,Pt.III. 

may,  in  its  discretion,  require  the  husband  to  pay  as  alimony 
any  money  necessary  to  enable  the  wife  to  support  herself 
and  her  children,  or  to  prosecute  or  defend  the  action. 

[Permanent  support.]  When  the  husband  wilfully  deserts 
the  wife  or  when  the  husband  wilfully  fails  to  provide  for 
the  wife  or  when  the  wife  has  any  cause  of  action  for  divorce 
as  provided  in  section  ninety-two  of  this  code,  she  may,  with- 
out applying  for  a  divorce,  maintain  in  the  superior  court  an 
action  against  him  for  permanent  support  and  maintenance 
of  herself  or  of  herself  and  children.  During  the  pendency 
of  such  action  the  court  may,  in  its  discretion,  require  the 
husband  to  pay  as  alimony  any  money  necessary  for  the 
prosecution  of  the  action  and  for  support  and  maintenance, 
and  execution  may  issue  therefor  in  the  discretion  of  the 
court.  The  final  judgment  in  such  action  may  be  enforced 
by  the  court  by  such  order  or  orders  as  in  its  discretion  it 
may  from  time  to  time  deem  necessary,  and  such  order  or 
orders  may  be  varied,  altered,  or  revoked  at  the  discretion 
of  the  court. 

[In  effect  when.]  Sec.  2.  This  act  shall  take  effect  and  be 
in  force  immediately  upon  its  passage  and  approval. 

History:  Enacted  March  21,  1872;  amended  March  20,  1878, 
Code  Amdts.  1877-8,  p.  76;  April  6,  1880,  Code  Amdts.  (C.  C.  pt.) 
p.  4;  March  18,  1905,  Stats,  and  Amdts.  1905,  c.  CCXVI,  p.  205; 
amended  March  1,  1907,  Stats,  and  Amdts.  1907,  p.  82,  Kerr's 
Stats,  and  Amdts.   1906-7,  p.   400. 

See  Kerr's  Cyc.  C.  C.  for  126  pars,  annotation. 

55  C.  316,  319,  320  (applied);  67  C.  176,  177,  178,  7  P.  480  (ap- 
plied); 67  C.  185,  201,  203,  7  P.  456,  635,  8  P.  709  (applied  and 
construed  with  other  sections);  75  C.  1,  38,  16  P.  345,  362  (con- 
strued and  applied);  79  C.  336,  339  (erroneously  cited  as  §132 
and  applied),  21  P.  838  (correct  citation);  80  C.  141,  144,  22  P. 
72  (construed  and  applied);  83  C.  460,  463,  17  A.  S.  266,  23  P.  395 
(construed  and  applied);  91  C.  428,  431,  27  P.  732,  31  P.  258,  259 
(construed,  power  to  grant  alimony  is  not  exhausted  upon 
rendition  of  judgment);  95  C.  339,  342,  30  P.  548  (scope  of  sec- 
tion stated);  97  C.  125,  126,  127,  31  P.  906  (construed,  showing' 
basis  of  action);  98  C.  320,  321  (construed  and  applied — er- 
roneously cited  as  §137  C.  C.  P.),  33  P.  114,  115  (correct  cita- 
tion); 99  C.  621,  34  P.  339  (construed  and  applied);  100  C.  493, 
494,  495,  35  P.  87   (construed  and  applied);   104  C.  45,  47,  43  A.  S. 

70 


Tlt.I,Ch.II,art.IV.]  CUSTODY   OF   children.  §  138 

70,  37  p.  770  (applied  with  other  sections);  104  C.  293,  297,  37  P. 
935  (referred  to);  108  C.  45,  46,  40  P.  1056  (construed  and  applied 
■Without  citing);  109  C.  544,  545,  42  P.  452  (construed  and  ap- 
,,  plied);  109  C.  643,  648,  649,  42  P.  428  (referred  to  in  discussion): 
J  113  C.  268,  271,  45  P.  332  (applied);  115  C.  266,  273,  275.  56  A.  S. 
97,  47  P.  37,  37  L.  626  (applied  with  other  sections);  117  C.  633, 
634,  49  P.  836,  38  L.  175  (referred  to  in  discussion);  122  C.  395. 
397,  398.  55  P.  152  (applied);  123^.  653,  654,  56  P.  554  (applied); 
124  C.  389,  395,  396,  397,  71  A.  S.  82,  57  P.  227,  45  L.  793  (con- 
strued and  applied);  126  C.  123,  125,  126,  127,  128,  129,  58  P. 
456  (construed  and  applied  with  other  sections);  135  C.  121, 
125,  67  P.  20  (applied);  136  C.  302,  304,  68  P.  971  (applied);  137 
C.  225,  226,  69  P.  1061  (construed  and  applied);  143  C.  630,  633, 
77  P.  647  (referred  to  with  other  sections);  144  C.  322, 
326,  78  P.  16,  17  (referred  to);  146  C.  237,  242,  79  P.  885,  887 
(cited  in  discussing  allowance  for  future  support);  147  C.  57, 
59,  60,  81  P.  295  (construed  witli  §  140);  147  C.  143.  147,  81  P.  411, 
413  (construed);  147  C.  175,  176.  81  P.  413,  414  (referred  to);  148 
C.  239.  240.  82  P.  967,  968  (referred  to);  150  C.  6,  7,  8,  87  P.  1020 
(construed  witli  §140  as  to  appointment  of  receiver);  153  C. 
254,  255,  256,  257.  258,  259.  260.  261.  94  P.  1044.  1045.  1046.  1047 
(construed  with  other  sections  as  to  right  of  non-resident  wife 
to  maintain  action  for  maintenance);  1  C.  A.  152.  155,  81  P.  1023, 
1024  (cited);  4  C.  A.  604,  609,  88  P.  734,  735  (object  of  section 
stated). 

Alimony  allowed — Cannot  be  attaclied  to  satisfy  previous 
debts  of  wife. — See  Kerr's  Cyc.  C.  C.  §  139,  note. 

Allowance  for  wife  and  children  in  grant  of  divorce  or  sep:i- 
ration  to  wife,  see  Kerr's  Cyc.  C  C.  §  139  and  note. 

Fund  out  of  which  alimony  or  maintenance  payable. — See 
Kerr's  Cyc.  C.  C.  §  139  and  note. 

§  13S.     OKDKKS  KESPKCTIXJ  (  I'STODY  OF  (  HII,I)HE>. 

In  actions  for  divorce  the  court  may,  [I]  (hnini;  the  pend- 
ency of  the  action,  or  [2]  at  the  final  hearing  or  [3]  at  any 
time  thereafter  during  the  minority  of  any  of  the  children 
of  the  marriage,  make  such  order  for  the  custody,  care,  edu- 
cation, maintenance  and  support  of  sucli  minor  children  as 
may  seem  necessary  or  proper,  and  may  at  any  time  modify 
or  vacate  the  same. 

Illnlory!  Fnacted  March  21,  1S72;  amended  March  3,  1905, 
Stilts,  and  Amdt's.  1905,  p.   43. 

See  Kerr's  Cyc.  C.  C.  for  71  pars,  annotation. 
95   C.   374,   377,   30   P.    561    (applied);    104   C.    45,   4S.    t:^    A.    S    Tf*. 

71 


§  139  CIVIL  CODE.  [Div.I,Pt.III. 

37  P.  770  (applied);  105  C.  258,  261,  38  P.  729  (construed  and 
applied);  106  C.  377,  380,  39  P.  779  (construed  and  applied  with 
other  sections);  114  C.  542,  545,  55  A.  S.  86,  46  P.  609  (construed 
and  applied);  118  C.  18,  21,  50  P.  9  (applied);  120  C.  143,  146,  147, 
52  P.  147,  40  L.  585  (construed  and  applied);  125  C.  65,  68,  69, 
70,  72,  57  P.  677  (construed  and  applied);  135  C.  192,  193,  67  P. 
45  (construed  and  applied);  137  C.  493,  495,  70  P.  473  (construed 
and  applied  with  other  sections);  149  C.  224,  226,  86  P.  505,  506 
(cited,  power  of  court  to  modify  decree);  4  C.  A.  264,  266,  87  P. 
561    (power  of  court  to  vacate  or  modify  decree). 

As  to  obligation  of  parents  for  support  and  education  of 
children,  see  Kerr's  Cyc.  C.  C.  §  196  and  note. 

§  139.  SUPPORT  OF  WIFE  AND  CHILDREN  ON  DIVORCE 
OR  SEPARATION  GRANTED  TO  WIFE.  Where  a  divorce  is 
granted  for  an  offense  of  the  husband,  the  court  may  compel 
him  [1]  to  provide  for  the  maintenance  of  the  children  of  the 
marriage,  and  [2]  to  make  such  suitable  allowance  to  the  wife 
for  her  support,  [a]  during  her  life,  or  [!)]  for  a  shorter 
period,  as  the  court  may  deem  just,  having  regard  to  the 
circumstances  of  the  parties  respectively;  and  the  court  may, 
from  time  to  time,  modify  its  orders  in  these  respects. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.   C.   for  83  pars,   annotation. 

52  C.  383,  384  (construed  and  applied);  59  C.  417,  418  (applied); 
75  C.  1,  46,  16  P.  345,  365  (referred  to  in  discussion);  79  C.  511, 
515,  21  P.  1095,  1096  (construed  and  applied);  79  C.  600,  602,  603,  21 
P.  954,  955  (applied  with  §1007  Code  Civ.  Proc);  82  C.  110,  112, 
113,  23  P.  37  (construed  and  applied  with  other  sections) ;  83  C. 
460,  463,  465,  17  A.  S.  266,  23  P.  395  (construed  and  applied);  94 
C.  254,  255,  29  P.  774  (applied);  95  C.  374,  377,  30  P.  561  (applied 
with  other  sections);  102  C.  433,  440,  36  P.  767,  1037  (applied); 
104  C.  45,  47,  43  A.  S.  70,  37  P.  770  (construed  and  held  not  ap- 
plicable);  105  C.  258,  261,  38  P.  729  (construed  and  applied);  114 
C.  542,  545,  547,  55  A.  S.  86,  46  P.  609  (construed  and  applied  with 
other  sections);  124  C.  583,  588,  57  P.  582  (construed  and  ap- 
plied); 125  C.  65,  68,  57  P.  677  (construed  with  other  sections); 
144  C.  322,  326,  78  P.  16,  17  (construed  with  §  140);  147  C.  57,  59, 
60,  81  P.  295,  296  (construed  with  §137);  150  C.  99,  103,  88  P. 
267,  268  (cited  as  to  power  of  court  to  modify  orders);  4  C.  A. 
97,  100,   102,  87  P.   205    (construed  and  applied). 

As  to  circumstances  of  defendant  being  taken  into  considera- 
tion in  fixing  allowance,  see  Kerr's  Cyc.  C.  C.  §  137  note  par.  83. 

As  to  suit  by  wife  for  maintenance  without  prayer  for  divorce, 
see  Kerr's  Cyc.  C.  C.  §  137,  note  pars.  74  et  seq. 

72 


Tit.T.ch.II.art.IV.]        MAINTENANCE.    ETC.  §§140.141 

§140.     SECriHTY    VOK    .H AIMENWCE    AM)    ALl.>r(»\Y. 

The  court  may  require  the  husband  to  give  reasonable  secur- 
,  ity  for  providing  [1]  maintenance  or  [2]  making  any  pay- 
I  ments  required  under  the  provisions  of  this  chapter,  and  may 
>  enforce  the  same  [a]  by  the  api)ointment  of  a  receiver,  or  [b] 

by  any  other  remedy  applicable  to  the  case. 

HiNtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  32  {lars.  annotation. 

67  C.  185,  202,  8  P.  709  (applied);  111  C.  488,  495.  44  P.  177  (con- 
strued and  applied);  114  C.  542,  546,  55  A.  S.  86.  46  P.  609  (con* 
strued  and  applied):  115  C.  266,  274,  275,  56  A.  S.  97,  47  P.  37. 
37  L.  626  (construed  and  applied);  116  C.  47,  51,  47  P.  869,  48  P. 
121  (construed  and  applied);  123  C.  196,  200.  55  P.  902  (applied 
and  held  to  be  the  only  statutory  power  giv-en  upon  subject  of 
enforcement  of  alimony);  124  C.  48.  55,  71  A.  S.  17,  56  P.  630.  57 
P.  81  (applied);  124  C.  583,  588,  589.  57  P.  582  (applied);  126  C. 
123,  129.  58  P.  456  (applied);  144  C.  322,  325.  326.  78  P.  16  (con- 
strued with  S139);  147  C.  57,  59,  61,  81  P.  295  (construed  with 
§  137);  150  C.  6,  8,  87  P.  1020  (construed  with  S  137  as  to  appoint- 
ment of  receiver). 

As  to  enforcement  by  contempt  proceedings,  see  Kerr's  C.\c. 
C.  C.  8  140  par.  2,  and  §137  note  par.  106  et  seq.;  S  139  note 
pars.  26-32. 

Wife  creditor  of  husband  to  extent  of  allowance  made. — See 
Kerr's  Cyc.  C.   C.   §  139   note. 


Sin.  (OIHT  SI1AI,I,  KKSOHT  TO  WHAT,  IN  EXEC  IT- 
1\<J  CEHTAIN  SECTION.S.  in  executing  tlie  live  i)receding 
sections  the  court  must  resort: 

1.  To  the  community  property;   then, 

2.  To  the  separate  property  of  the  husband. 

III.H4<:r.v:      Enacted   Marcb    21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

67  C.  185.  202,  8  P.  709  (applied);  83  C.  460,  Ififi,  17  A.  S.  266. 
23  P.  395.  397  (referred  to  in  discussion):  114  C.  542.  547,  55  A.  S. 
86,  46  P.  609  (absence  of  bolb  kinds  of  property  enumerated  in 
this  section  no  bar  to  award  of  allowance);  115  C.  266,  275.  56 
A.  S.  97,  47  P.  37,  37  L.  626   (applied  in  appointment  of  receiver). 

As  to  receiver  in  action  for  divorce  or  maintenance,  see  Kerr's 
Cyc.  C.  C.   $  140   note  par.   18  et  seq. 

73 


§§  141-146  CIVIL  CODE.  [Div.I.Pt.III. 

§  142.  IF  WIFE  HAS  SUFFICIENT  FOR  HER  SUPPORT, 
COURT  MAY  WITHHOLD  ALLOWANCE.  When  the  wife  has 
either  [1]  a  separate  estate,  or  [2]  there  Is  community  prop- 
erty sufficient  to  give  her  [a]  alimony  or  [b]  a  proper  sup- 
port, the  court,  in  its  discretion,  may  witlibold  any  allowance 
to  her  out  of  tlie  separate  property  of  the  husband. 

History:     Enacted  March   21,  1872. 

§143.  COMMUNITY  AND  SEPARATE  PROPERTY  MAY 
BE  SUBJECTED  TO  SUPPORT  AND  EDUCATE  CHILDREN. 

The  community  property  and  the  separate  property  may  be 
subjected  to  the  support  and  education  of  the  children  in 
such  pi-oportions  as  the  court  deems  just. 

History:     Enacted  March  21,  1872. 

§  144.  LEGITIMACY  OF  ISSUE— [DIVORCE  FOR  ADUL- 
TERY  OF  HUSBAND].  When  a  divorce  is  granted  for  the 
adultery  of  the  husband,  the  legitimacy  of  children  of  the 
marriage  begotten  of  the  wife  before  the  commencement  of 
the  action  is  not  affected. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  338,  held 
unconstitutional;  see  history,  §  4  ante. 

As  to  legitimacy  of  children,  generally,  see  Kerr's  Cyc  C.  C. 
§  193,  et  seq.,  and  notes. 

§145.    SAME— [DIVORCE    FOR    ADULTERY    OF    ^\1FE]. 

When  a  divorce  is  granted  for  the  adultery  of  the  wife,  the 
legitimacy  of  children  begotten  of  her  before  the  commission 
of  the  adultery  is  not  affected;  but  the  legitimacy  of  other 
children  of  the  wife  may  be  determined  by  the  court,  upon 
the  evidence  in  the  case. 

History:     Enacted  March   21,  1872. 

Legitimacy  of  child  born  in  wedlock — Presumption  as  to,  see 
Kerr's  Cyc.  C.  C.   §§  193,  194  and  notes. 

§146.     DISPOSITION    OF    COMMUNITY    PROPERTY.      In 

case  of  the  dissolution  of  the  marriage  by  the  decree  of  a 

74 


Tit.I,ch.II,art.IV.]  community  property.  §  146 

court  of  competent  jui'isdiction,  the  community  property,  and 
the  homestead,  shall  be  assigned  as  follows: 

1.  If  the  decree  be  rendered  on  the  ground  of  adultery,  or 
extreme  cruelty,  the  community  pi-operty  shall  be  assigned  to 
the  respective  parties  in  such  proportions  as  the  court,  from 
all  the  facts  of  the  case,  and  the  condition  of  the  parties,  may 
deem  just. 

2.  If  the  decree  be  rendered  on  any  other  ground  than  that 
of  adultery  or  extreme  cruelty,  the  community  property  shall 
be  equally  divided  between  the  parties. 

3.  If  a  homestead  has  been  selected  from  the  community 
property,  it  may  be  assigned  to  the  innocent  party,  either  abso- 
lutely or  for  a  limited  period,  subject,  in  the  latter  case,  to 
the  future  disposition  of  the  court,  or  it  may,  in  the  discre- 
tion of  the  court,  be  divided,  or  be  sold  and  the  proceeds 
divided. 

4.  If  a  homestead  has  been  selected  from  the  separate  prop- 
erty of  either,  it  shall  be  assigned  to  the  former  owner  of 
such  property,  subject  to  the  power  of  the  court  to  assign  it 
for  a  limited  period  to  the  innocent  party. 

History:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code  Amdts.  1873-4,  pp.  191,  192;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  338,  held  uncon- 
stitutional; see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  104  pars,  annotation. 

47  C.  62,  63,  64  (construed  and  applied);  63  C.  77  (applied);  73 
C.  425.  429.  1.5  P.  51  (applied);  75  C.  1.  46.  16  P.  345.  365  (referred 
to  in  discussion);  75  C.  434.  439.  17  P.  442.  444  (construed  and 
applied);  78  C.  310.  316.  12  A.  S.  58,  20  P.  715.  718,  3  I..  781  (ap- 
plied); 80  C.  237,  239,  22  P.  167  (construed  and  applied);  83  C. 
460,  465,  17  A.  S.  266,  23  P.  395  (applied  with  other  sections); 
31  P.  1108,  1109  (applied);  97  C.  189.  191,  31  P.  1130  (applied); 
102  C.  338.  340,  36  P.  655  (construed  and  applied);  106  C.  509, 
513,  39  P.  801  (applied):  106  C.  509,  513,  39  P.  801 
(applied);  106  C.  60S,  613,  614,  39  P.  939  (applied); 
112  C.  274,  277,  44  P.  564  (applied);  114  C.  542,  546,  55  A.  S.  86. 
46  P.  609  (construed  and  applied);  117  C.  407.  409.  49  P.  574.  575 
(construed  and  applied);  121  C.  92,  95,  53  P.  362  (referred  to  in 
discussion);  124  C.  583,  588.  57  P.  582  (applied  with  other  sec- 
tions); 124  C.  651.  653,  57  P.  573  (applied);  129  C.  283.  292.  61  P. 
907,  50  L.  548  (applied);  134  C.  378,  379,  380,  66  P.  313   (construed 

75 


§§  147,  148  CIVIL  CODE.  [Div.I.Pt.III. 

and  applied);    1   C.   A.   114,    115,    81    P.    715    (referred   to);    4    C.    A. 
604,  607,  88  P.  734  (referred  to);  5  C.  A.  262,  263,  90  P.  53   (applied 
with  other  sections);   6  C.  A.   697,  705,  92  P.  1050,   1051   (applied); 
7  C.  A.  76,  78,  93  P.  399,  400   (construed  with   §§  147,   148). 
For  full   discussion   of  this  subject  see   68   A.   S.   375,   379. 

§  147.  SAME— [DUTY  OF  COURT  TO  DISPOSE  OF].  The 
court,  in  rendering  a  decree  of  divorce,  must  make  sucli 
order  for  tlie  disposition  of  the  community  property,  and  of 
the  liomestead,  as  in  this  chapter  provided,  and,  whenever 
necessary  for  that  purpose,  may  order  a  partition  or  sale  of 
the  property  and  a  division  or  other  disposition  of  the  pro- 
ceeds. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    192. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

47  C.  62,  64  (applied  with  preceding  section);  75  C.  413,  414, 
415,  17  P.  546  (applied  with  preceding-  section);  83  C.  460,  465,  17 
A-  S.  266,  23  P.  395  (applied  with  other  sections);  106  C.  509,  513, 
39  P.  801  (applied  with  preceding  section);  112  C.  274,  278,  44 
P.  564  (applied);  5  C.  A.  262,  263,  90  P.  53  (applied  with  other 
sections);  7  C.  A.  76,  78,  93  P.  399,  400  (construed  with  §§146, 
148). 

§148.    SAME— [SUBJECT    TO    REVISION    ON    APPEAL]. 

The  disposition  of  the  community  property,  and  of  the  home- 
stead, as  above  provided,  is  subject  to  revision  on  appeal  in 
all  particulars,  including  those  which  are  stated  to  be  in  the 
discretion  of  the  court. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,   p.    192. 

See   Kerr's  Cyc.   C.   C.   for    15   pars,   annotation. 

60  C.  579,  580  (applied);  67  C.  185,  212,  7  P.  456.  8  P.  709  (ap- 
plied); 75  C.  413,  415,  17  P.  546  (applied);  97  C.  189,  191,  192,  31  P. 
1130  (construed  and  applied);  112  C.  274,  278,  44  P.  564  (applied); 
134  C.  378,  379,  66  P.  313  (applied);  7  C-  A.  76,  78,  93  P.  399  (con- 
strued with  §§  146,  147). 


76 


Tit.I.Ch.III.]  OBLIGATIONS   OF   SPOUSES. 


§155 


CHAPTER  ni. 
HUSBAND  AND  WIFE. 

§  1.5.').  Mutual    obligations   of   hu.sband   and    wifo. 

§  156.  Rif?hts    of    husband,    as    head    of    family. 

§  157.  In  other  respi-cts  their  interests  separate. 

§158.  Husband  and    wife  may   make   contracts. 

§  159.  How   far  may   alter  their  legal    obligations. 

§  160.  Consideration  for  agreement  of  separation. 

§  161.  May   be  joint   tenants,   etc. 

§  162.  Separate    property    of    the    wife. 

§  163.  Separate   property   of  the   husband. 

§  164.  Community  property — Conveyances — Married  women. 

§  165.  Inventory   of   separate   property   of   wife. 

166.  Filing  inventory  notice  of  wife's  title,  etc. 

167.  Community  property,   contracts  by  wife. 

16S.     Earnings  of  wife  not  liable  for  debts  of   husband. 

§  16!).  Earnings  of  wife,  when  living  separate,  separate  prop- 
erty. 

S  170.     Liability    for   debts   of   wife   contracted   before   marriage. 

§  171.  Wife's  property  not  liable  for  debts  of  the  husband,  but 
liable    for   her   own    debts. 

§  172.  Management,  control,  and  disposition  of  coiniminity 
property. 

§  173.     Courtesy   and   dower   not  allowed. 

§  174.     Support  of  wife. 

§  175.     Same — When   separate  from   liusband. 

§176.      Wife   to   support   husband,   wlien. 

§  177.     Rights   of   husband   and    wife   governed    by    what. 

§  178.     Marriage   settlement   contracts,   how   executed. 

§  179.      To   be   acknowledged   and   recorded. 

§  180.     Effect  of  recording. 

§181.      Minors   may    make    marriagi-    settlements. 


§  loo.     MUTUAL  OBLKJATIOXS  OF  HUSBAND  AND  WIFE. 

Husband  and  wife  contract  towards  each  other  obligations  of 
mutual  respect,  fidelity,  and  support. 

Hl.story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

75  C.  1,  36,  16  P.  345,  361  (construed  and  applied):  82  C.  413, 
417,  22  P.  1140  (construed):  92  C.  653,  655  (referring  by  error  to 
this  section  Instead  of  §  156),  2S  P.  787  (correct  citation);  117  C 

77 


§§156,157  CIVIL  CODE.  [Div.I,Pt.III. 

633,  635,  49  P.  836,  38  L.  175  (applied);  (C.  Jan.  10,  1898),  51  P. 
859  (construed);  130  C.  285,  286,  62  P.  515;  2  C.  A.  509,  512,  83 
P.  257,  258   (construed  with  otlier  sections). 

As  to  alimony,  see  Kerr's  Cyc.  C.  C.  §§  136,  137,  139,  140-142  and 
notes. 

As  to  liability  of  husband  for  wife's  necessaries,  see  Kerr's 
Cyc.  C.  C.  §§  174,  175  and  notes. 

As  to  support  of  wife  after  abandonment  of  husband,  see 
Kerr's  Cyc.  C.  C.   §  175  and  note. 

Failure  to  support  ground  for  divorce. — See  Kerr's  Cyc.  C.  C. 
§  105  and  note. 

Mother  must  aid  in  support  of  children,  when.— See  Kerr's 
Cyc.  C.  C.  §  196  and  note. 


§  156.  RIGHTS  OF  HUSBAND,  AS  HEAD  OF  FAMILY. 

The  husband  is  the  head  of  the  family.  He  may  choose  any 
reasonable  place  or  mode  of  living,  and  the  wife  must  con- 
form thereto. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

67  C.  387,  391,  7  P.  804  (applied);  92  C.  653,  655  (applied,  but 
erroneously  cited  as  §155),  28  P.  787  (correct  citation);  123  C. 
653,  655,  56  P.  554  (applied);  137  C.  273,  275,  92  A.  S.  160,  70  P. 
21,  58  L.  941  (cited);  2  C.  A.  509,  512,  83  P.  257  (construed  with 
other  sections). 

As  to  husband's  liability  for  care  of  insane  wife,  see  Kerr's 
Cyc.  C.  C.  §  174  and  note  pars.   8,  9. 

For  fixing  residence  of  child. — See  Kerr's  Cyc.  C.  C.  §  213  and 
note. 

For  selecting  dwelling-place  of  wife,  and  her  refusal  to  con- 
form thereto  constitutes  desertion,  and  ground  for  divorce.— 
See  Kerr's  Cyc.  C.  C.  §§  103,  104  and  notes. 

Husband  head  of  family — For  homestead  purposes. — See 
Kerr's  Cyc.  C.  C.  §  1261  and  note. 

§  157.  IN  OTHER  RESPECTS  THEIR  INTERESTS  SEP- 
ARATE. Neither  husband  nor  wife  has  any  interest  in  the 
property  of  the  other,  but  neither  can  be  excluded  from  the 
other's  dwelling. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cye.  C  C  for  2  pars,  annotation. 
115  C.  366,  272,  56  A,  S.  97,  47  P.  37,  37  L.  626  (applied);  135  C. 

78 


Tit.I.Ch.III.]       CONTRACTS  BETWEEN  SPOUSES.  §  158 

121,  125,  67  P.  20  (applied);  2  C.  A.  509,  513,  83  P.  257  (construed 
with  other  sections). 

As  to  action  for  alimony  witliout  divorce,  see  Kerr's  Cyc.  C.  C. 
§  137  and  note. 

As  to  action  to  set  aside  conveyance  in  fraud  of  marital 
rights,  see  Kerr's  Cyc.  C.  C.   §§  3439-3442  and    notes. 


§158.    HUSBA>D  AND    WIFE  MAY  MAKE   ((»TRACTS. 

Either  husband  or  wife  may  enter  into  any  engagement  or 
transaction  with  the  other,  or  with  any  other  person,  respect- 
ing property,  which  either  might  if  unmarried;  subject,  in 
transactions  between  themselves,  to  the  general  rules  which 
control  the  actions  of  persons  occupying  confidential  relations 
with  each  other,  as  defined  by  the  title  on  trusts. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  137  pars,  annotation. 

52  C.  334.  335  (construed  and  applied);  53  C.  456,  459,  460,  461 
(construed  and  applied) ;  54  C.  178,  179  (construed) ;  55  C.  52,  58,  59 
(referred  to);  59  C.  507,  513,  516  (referred  to);  64  C.  397,  398,  399, 
1  P.  479  (construed  and  applied);  67  C-  293,  294,  7  P.  705  (con- 
strued and  applied);  67  C.  536,  540,  8  P.  63  (construed  and  ap- 
plied); 70  C.  250,  252,  11  P.  643  (construed  and  applied);  70  C. 
282,  285,  11  P.  719,  720,  721  (construed  and  applied);  73  C.  583, 
585,  2  A.  S.  829,  15  P.  287  (construed  and  applied);  74  C.  345, 
348,  349,  16  P.  189  (construed  and  applied);  75  C.  525,  528,  7  A. 
S.  189,  17  P.  689  (construed  and  applied);  78  C.  310,  312,  12  A.  S. 
58,  20  P.  715,  3  L.  781  (construed  and  applied);  83  C.  274,  278, 
23  P.  348  (construed  and  applied);  87  C.  643,  649,  650.  25  P.  922 
(cited);  94  C.  446,  461,  29  P.  957  (construed  and  applied);  96  C. 
433,  439,  31  P.  358  (construed  and  applied);  96  C.  609,  610,  611.  31 
P.  618  (construed  and  applied);  97  C.  131,  134,  31  P.  908  (construed 
and  applied);  97  C.  259,  262,  32  P.  171  (cited);  98  C.  454,  460.  33 
P.  335  (construed  and  applied);  100  C.  276.  279,  280,  38  A.  S.  287. 
34  P.  775  (construed  and  applied);  103  C.  97,  100,  101,  37  P.  189 
(construed  and  applied);  106  C.  453,  455,  39  P.  756  (applied);  114 
C.  566,  568,  55  A.  S.  90,  46  P.  667  (construed  and  applied);  115  C. 
663,  672,  47  P.  691  (construed  and  applied);  49  P.  129,  130  (dis- 
cussed with  other  sections);  120  C.  322,  323,  324  (applied  witii 
other  sections),  326  (referred  to  in  dis.  op.  as  difficult  of  con- 
struction), 52  P.  723,  725;  121  C.  92,  94,  95,  53  P.  362  (construed 
and  applied);  122  C.  364,  366,  55  P.  9  (referred  to  with  §  159);  123 
C.  491,  496,  56  P.  254  (referred  to  with  other  sections);  126  C. 
30,  33,  58  P.  324  (construed  and  applied);  129  C.  283,  289,  61  P. 
907,  50  L.  548  (construed);  130  C.  392,  393,  80  A.  S.  138,  62  P.  615 

79 


§  158  CIVIL  CODE.  [Div.I.Pt.III. 

(construed);  134  C.  170,  172,  173,  174,  175,  66  P.  231  (construed 
and  applied);  134  C.  603,  606,  65  P.  321,  66  P.  860  (construed  and 
applied);  134  C.  170,  172,  173,  175,  66  P.  231  (cited) ;  135  C.  316, 
317,  318,  67  P.  778  (construed);  137  C.  685,  693,  695,  697,  70  P.  771 
(construed  and  applied);  139  C.  246,  253,  72  P.  997  (construed 
and  applied);  142  C.  119,  124,  75  P.  670  (cited);  143  C.  646,  649, 
77  P.  657  (cited  as  to  vesting  of  title  under  deed  from  husband 
to  wife);  145  C.  596,  599,  79  P.  272  (construed  with  §  159);  2  C.  A. 
479,  483,  84  P.  326   (applied);  28  F.  599,  602   (applied). 

As  to  acknowledgment  by  married  woman,  see  Kerr's  Cyc. 
C.  C.  §  178  and  note. 

As  to  adoption  by  husband  of  wife's  void  acts  in  her  own 
behalf,  see  Kerr's  Cyc.  C.  C.   §  158  note  par.  67. 

As  to  adoption  by  husband  of  wife's  void  contract,  see  Kerr's 
Cyc.  C.  C.   §  158  note  par.   67. 

As  to  agency  of  husband,  see  Kerr's  Cyc.  C.  C.  §  158  note  pars. 
111-122. 

As  to  capacity  of  all  persons  to  contract,  except  ininors, 
insane  persons,  and  persons  deprived  of  civil  rights,  see  Kerr's 
Cyc.  C.  C.  §§  33-40  and  notes,  and  Kerr's  Cyc.  C.  C.  §§  1556,  1557 
and  notes. 

As  to  champertous  contract  by  wife  with  stranger,  see  Kerr's 
Cyc.  C.  C,  §  158,  note  par.   74. 

As  to  conflict  of  laws  concerning  power  of  wife  to  convey 
separate  property,   see   Kerr's  Cyc.   C.   C.    §  162  and  note   par.    70. 

As  to  contract  abandoning  homestead,  see  Kerr's  Cyc.  C.  C. 
§§  159,    1243    and   notes. 

As  to  contracts  concerning  separate  property  of  husband 
and  wife  and  community  property,  see  Kerr's  Cyc.  C.  C.  §  162 
and  note  pars.  40-65,  §  163  and  note  pars.  16-37;  and  §  172 
and   note   pars.    41-85. 

As  to  contracts  of  separation  and  for  support,  see  Kerr's 
Cyc.  C.  C.   §§  159,   160  and  notes. 

As  to  conveyance  of  separate  property  by  wife,  see  Kerr's 
Cyc.  C.  C.   §  162  and  note  pars.   42-65. 

As  to  conveyance  and  encumbrance  of  separate  property  by 
wife,   see  Kerr's  Cyc.  C.  C.   §  162  and   note  pars.   42-65. 

As  to  conveyance  by  husband  of  homestead  after  divorce, 
see   Kerr's  Cyc.  C.   C.    §  172   and   note  par.    60. 

As  to  delivery  of  chattels  sold,  see  Kerr's  Cyc.  C.  C.  §§  1753, 
1754,    1756,    1758   and   notes. 

As  to  delivery  of  deed  in  escrow,  see  Kerr's  Cyc.  C.  C,  §  158, 
note   pars.    25-27. 

As  to  duress  exerted  by  one  spouse  upon  other,  see  Kerr's 
Cyc.  C.   C.   §  158,  note  pars.   54,   55. 

As  to  effect  of  conveyance  of  commvinity  property  to  wife, 
see  Kerr's  Cyc.  C.  C.  §  164  and  note  par.  156. 

80 


Tit.I.Ch.III.]       CONTRACTS   HRTWKICN   SPOUSES.  §  158 

As  to  effect  of  conveyance   of  liusbawd's  separate   property   to 
wife,   see   Kerr's   Cyc.   C.  C.    S164   and   note   par.    157. 

As   to   gift    by    husband    to    wife    of    her   earnings,    see    Kerr's 
Cyc.  C.   C.   S  164   and   note  par.   164. 

As  to  husband's  liability  for  necessaries  when  abandoned  liy 
wife,  see  Kerr's  Cyc.  C.  C.  §  175  and  note. 

As  to  husband's  liability  for  wife's  necessaries  upon  neglect 
to  provide,  see  Kerr's  Cyc.  C.  C.  §  174  and  note. 

As  to  married  women  becoming  sole  traders,  rights,  liaV)ili- 
ties,  etc.,  see  Kerr's  Cyc.  C.  C.  P.  §§  811-821  and  notes. 

As  to  mortgage  and  note  by  wife,  see  Kerr's  Cyc.  C.  C.  §  162 
pars.   79-89.. 

As  to  mortgages  executed  bj-  hu.sband.  see  Kerr's  Cyc.  C.  C. 
S  163   and   note   par.    20. 

As  to  mortgages  execuli'd  by  wife,  see  Kerr's  Cyc.  C.  C.  §  162 
and  note  pars.  79-101. 

As  to  mortgages  given  by  wife  as  surety,  see  Kerr's  Cyc. 
C.    C.    §  162    and    note    par.    79. 

As  to  mortgages  on  community  property,  see  Kerr's  Cyc.  C 
C.   Ji  172  and   note  par.   62. 

As  to  necessity  for  delivery  as  against  creditors,  see  Kerr's 
Cyc.   C.   C.    §  3440   and   note. 

As  to  reformation,  see  Kerr'.s  Cyc.  C.  C.  S  162  and  note  pars. 
145,   146. 

As  to  reformation  of  unacknowledged  deed,  see  Kerr's  Cyc. 
C.  C.   SS  1202-1204    and    notes. 

As  to  rescission  of  contracts  of  si-paration,  see  Ki-rr's  Cyc. 
C.  C.   $  159  and   note   pars.   42-.'.5. 

As  to  sales  by  husband  to  wif^^  see  Kirr's  Cye.  C.  C.  §  158, 
note    pars.    44-46   this    note. 

As  to  specific  performance  of  unacknowledged  deeds  and  con- 
tracts,  see   Kerr's  Cyc.   C.   C.   88  1093,   1187   and   nott-s. 

As  to  statute  of  frauds,  see  Kerr's  Cyc.  C.  C.  S  1624  and  note. 
and    Kerr's  Cyc.   C.   C.    8  15S,   note   par.   93. 

As  to  undue  inlluence,  s<-e  Kerr's  Cyc.  C.  C.  8  1">S.  note  pars. 
60-66. 

As  to  validity  of  oral  promise  to  answer  for  debt,  default. 
or  miscarriage  of  another,  see  Kerr's  Cyc.  C.  C.  8  1624  subd. 
2    and    note. 

Alimony — Validity  ni"  agr.'rnuiit  a.'^  to. — Si'c  K<'rrs  Cyc.  C.  C. 
$  146   and    note. 

Alterations  of  legal  relations  as  to  property. — See  Kerr's 
Cyc.   C.   C.    8  159   and   note    pars.    15-22. 

Antenuptial  contracts  and  marriage  settlements. — See  Kerrs 
Cyc.   C.   C.   §  178  and   note. 

Common  and  joint  property — contracts  concerning. — See 
Kerr's  Cvc.  C.  C.  §  161  and  note  par.  3. 

81 


§  159  -  CIVIL  CODE.  [Dlv.I,Pt.III. 

Conveyance  from  one  spouse  to  other — Community  prop- 
erty.— See    Kerr's   Cyc.   C.    C.    §  172   and   note   pars.    59-61. 

Description  of  property  in  contract  between  husband  and 
wife.- — See  Kerr's  Cyc.   C.   C.   §  159   and   note  par.    16. 

Husband's  separate  property. — See  Kerr's  Cyc.  C.  C.  §  163  and 
note   pars.    21-37. 

Wife's  separate  property. — See  Kerr's  Cyc.  C.  C.  §  162  and 
note   par.    64. 


§159.  HOW  FAR  MAY  ALTER  THEIR  LEGAL  RELA- 
TIONS. A  husband  and  wife  cannot,  by  any  contract  with 
each  other,  alter  their  legal  relations,  except  [1]  as  to  prop- 
erty, and  except  that  [2]  they  may  agree,  in  writing,  to  an 
immediate  separation,  and  may  [3]  make  provision  for  the 
support  of  [a]  either  of  them  and  of  [b]  their  children  during 
such  separation. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   193. 

See  Kerr's  Cyc.  C.  C.  for  55  pars,  annotation. 

53  C.  456,  459  (construed) ;  54  C.  178  (referred  to  with  other  sec- 
tions);  64  C.  397,  399,  1  P.  479  (referred  to);  73  C.  583,  585,  2  A.  S. 
829,  15  P.  287  (construed  and  applied);  96  C.  433.  439,  31  P.  358 
(construed  and  applied);  100  C.  276,  379,  38  A.  S.  287,  34  P.  775 
(referred  to  with  §158);  106  C.  453,  455,  39  P.  756  (construed 
and  applied);  106  C.  541,  545,  39  P.  931  (construed  and  applied); 
118  C.  499,  501,  62  A.  S.  251,  50  P.  766  (construed  and  applied); 
121  C.  92,  94,  53  P.  362  (construed  and  applied);  ]22  C.  364,  366, 
55  P.  9  (referred  to);  126  C.  30,  33,  58  P.  324  (construed  and 
applied);  145  C.  596,  599,  79  P.  272  (construed  with  §158);  149 
C.   224,  225,   86  P.   505,  506    (referred  to). 

As  to  acknowledgment  of  grant  by  married  woman,  see 
Kerr's  Cyc.   C.   C.    §§  1093,    1191   and   notes. 

As  to  capacity  of  husband  and  wife  to  contract  inter  se,  see 
Kerr's  Cyc.  C.  C.   §  158  and  note  pars.   16-43. 

As  to  community  property,  see  Kerr's  Cyc.  C.  C.  §164  and  note 
par.    156. 

As  to  contracts  between  husband  and  wife,  see  Kerr's  Cyc. 
C.   C.   §  158  and  note   pars.   16-43; 

As  to  contracts  generally  between  husband  and  wife,  see 
Kerr's   Cyc.   C.   C.    §  158   and   note   pars.    16-43. 

As  to  enforceability  of  provision  for  separation,  see  Kerr's 
Cyc.    C.   C.    §  159,   note   par.    39. 

As  to  necessity  of  recording  conveyances  of  real  property, 
see  Kerr's  Cyc.  C.  C.  §§  1214,  1215  and  notes. 

82 


I 


Tit.I,Ch.III.]  SEPARATION— TEN-ANCY.  §§  160,  161 

As  to  reasonableness  of  antenuptial  contracts,  see  Kerr's 
Cyc.  C.   C.   §  178  and  note. 

As  to  right  to  custody  of  children,  see  Kerr's  Cyc.  C.  C.  §§  197- 
200  and   notes. 

§160.  COXSIDERATIOX  FOR  AGREEMENT  OF  SEPA- 
RATION. The  mutual  consent  of  the  parties  is  a  sufficient 
consideration  for  such  an  agreement  as  is  mentioned  in  the 
last  section. 

Hi-story:     Enacted  March   21,  1872. 

§161.  MAY  BE  JOINT  TENANTS,  ETC.  A  husband  and 
wife  may  hold  property  as  joint  tenants,  tenants  in  common, 
or  as  community  property. 

History:  Enacted  March  21,  1872:  amended  by  Code  Commis- 
sioners, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  338; 
held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

53  C.  456,  459,  460  (referred  to  in  discussion);  70  C.  282,  285,  11 
P.  719,  720,  721  (construed  and  applied);  116  C.  339,  341,  342,  343. 
58  A.  S.  170,  48  P.  228,  36  L.  497  (construed);  131  C.  64,  67,  63  P. 
133  (construed  and  applied);  139  C.  559,  560,  562,  73  P.  433 
(applied);  145  C.  477,  480,  78  P.  1045  (applied  with  §384,  C. 
C.    P.). 

As  to  abatement  and  survival  of  actions,  see  Kerr's  Cyc.  C. 
C.    P.    §  385    and    note. 

As  to  actions  for  partition,  generally,  see  Kerr's  Cyc.  C.  C.  P. 
ch.   IV,   pt.  II,  tit.  X. 

As  to  disposal  of  community  property  by  decree  of  divorce, 
see  Kerr's  Cyc.  C.  C.  §§  146-148  and  notes. 

As  to  effect  of  partitioning  land  in  which  husband  and  wife 
have  community   interest,   see  post   §164  and  note  par.    14. 

As  to  effect  of  purchasing  land  with  separate  and  community 
funds,  see  Kerr's  Cyc.  C.  C.  §  164  and  note  pars.  135,  137,  184- 
187. 

As  to  husband  being  agent  of  wife,  see  Kerr's  Cyc.  C.  C. 
§158   and   note   pars.    111-122. 

As  to  husband  being  wife's  agent,  see  Kerr's  Cyc.  C.  C.  §  158 
and   note   pars.    111-122. 

As  to  ownership  of,  and  title  to,  community  property,  see 
Kerr's  Cyc.   C.   C.    §  172   and   note   pars.   5-24. 

As  to  procedure,  generally,  in  an  action  for  partition,  see 
15    Encyc.    P.    769. 

As  to  what  constitutes  joint  tenancy  and  tenancy  in  com- 
mon, see,  respectively,  Kerr's  Cyc.  C.  C.  §§  683,  685  and  notes. 

83 


§  162  CIVIL  CODE.  [Div.I,Pt.III. 

§  162.  SEPARATE  PKOPERTY  OF  THE  WIFE.  All  prop- 
erty of  the  wife,  [1]  owned  by  her  before  marriage,  and  that 
[2]  acquired  afterwards  by  gift,  bequest,  devise,  or  descent, 
with  [3]  the  rents,  issues,  and  profits  thereof,  is  her  separate 
property.  The  wife  may,  without  the  consent  of  her  hus- 
band, convey  her  separate  property. 

History:     Enacted  March   21,  1872. 

See   Kerr's   Cyc.   C.    C.   for   149   pars,   annotation. 

49  C.  189,  192  (referred  to);  53  C.  456,  459  (referred  to);  54 
C.  178  (applying  §  167  of  original  code,  forbidding  a  wife  to 
make  a  contract  to  pay  money);  55  C.  52,  56,  58  (construed 
and  applied);  70  C.  282,  284,  11  P.  719  (applied);  70  C.  424,  426, 
427,  12  P.  392,  393  (construed  with  reference  to  §169);  80  C. 
65,  67,  22  P.  69  (referred  to  and  held  inapplicable);  87  C.  464, 
468,  25  P.  681,  11  L.  252  (referred  to);  94  C.  425,  429,  29  P.  954 
(referred  to);  95  C.  343,  352,  28  P.  265  (applied);  105  C.  680, 
691,  39  P.  56  (referred  to);  106  C.  608,  612  39  P.  939  (referred 
to);  109  C.  53,  59,  41  P.  819  (construed  and  applied);  110  C. 
423,  425,  42  P.  908  (applied);  132  C.  320,  323,  64  P.  410  (applied); 
134  C.  603,  604,  606.  65  P.  321  (applied);  143  C.  292,  295,  76 
P.  1108  (cited);  147  C.  514,  515,  522,  82  P.  39,  40  (cited  in  dis. 
op.  and  applied  in  department  opinion,  affirmed  by  court  in 
bank);  5  C.  A.  690,  692,  91  P.  173  (construed  with  §§163,  164): 
111   F.   134,   135    (cited). 

As  to  acknowledgment  by  married  woman,  see  Kerr's  Cyc. 
C.   C.   §§  1093,    1185  and  notes. 

As  to  acknowledgments  by  married  woman,  see  Kerr's  Cyc. 
C.   C.   §  1187  and  note. 

As  to  conflict  of  laws  concerning  wliat  constitutes  separate 
or  community  property,  see  Kerr's  Cyc.  C.  C.  §  164  and  note  pars. 
26-35. 

As  to  deed  to  husband  procured  by  wife,  see  Kerr's  Cyc.  C. 
C.   §  164  and  note  pars.   146,    147. 

As  to  effect  of  commingling  funds  generally,  see  Kerr's  Cyc. 
C.  C.  §  164  and  note  pars.  181-191. 

As  to  effect  of  gift  by  wife  to  husband,  see  Kerr's  Cyc.  C.  C. 
§  164    and    note    par.    158. 

As  to  effect  of  wife's  deed,  see  Kerr's  Cyc.  C.  C.  §  1187  and 
note. 

As  to  evidence  to  overcome  presumption  that  property  is 
community  property,  see  Kerr's  Cyc.  C.  C.  §  164  and  note  pars. 
84-107. 

As  to  insurance  policy  assigned  to  wife  by  stranger,  see 
Kerr's  Cyc.  C.  C.  §  164  and  note  par.  12. 

84 


Tit.I.ch.III.]  PROPERTY     OF     HUSRANM).  §163 

As  to  necessity  for  delivery  upon  gift  or  sale  by  husband 
to   wife,  see  Kerr's  Cyc.   C.  C.   §  158   and   note   pars.    36-40. 

As  to  property  purchased  with  separate  funds,  see  Kerr's 
Cyc.  C.  C.   §  164  and  note  pars.   206,   208-211. 

As  to  reformation  of  unacknowledged  deeds,  see  Kerr's  Cyc. 
C.    C.    §§  1202-1204   and    note. 

As  to  remedies  by  and  against  wife  on  contracts,  see  Kerr's 
Cyc.  C.  C.   §  158  and  note  pars.   41-43,  54-56,  86-106. 

As  to  rights  of  action  growing  out  of  contracts  lietween 
husband  and  wife,  see  Kerrs  Cyc.  C.  C.  §  158  and  note  jjars. 
42,    43,   54-56,    60-66. 

As  to  specific  performance  of  unacknowledged  deeds  and 
contracts,   see   Kerr's  Cyc.   C.   C.   §§  1093,    1187   and   notes. 

As  to  validity  of  wife's  deed  where  statute  is  not  complied 
with,  see  Kerr's  Cyc.  C.  C.  S  162,  note  pars.  43-53,  65,  66-68.  70. 
75,   76. 

As  to  wife  as  party  plaintiff  in  action  agaijist  her  husband, 
see   Kerr's  Cyc.  C.   C.   §  370   subd.    2  and   note. 

Conflict  of  laws  as  to  what  constitutes  separate  or  com- 
munity property. — See  Kerr's  Cyc.  C.  C.  §164  and  note  pars. 
26-35. 

Improvements  on  separate  property  of  wife. — See  Kerr's  Cyc. 
C.  C.   §164  and   note   pars.    192-195. 

§  1«3.     SKTAIJATK    rHOTKHTY   OF  TIIK    HISBWD.     All 

property  [1]  owned  by  the  luusband  before  marriage,  and 
that  [2]  acquired  afterwards  by  gift,  bequest,  devise,  or 
descent,  with  [3]  the  rents,  issues,  and  profits  thereof,  is  Iiis 
separate  proijertj. 

lllNlory:      Enacted   Marcli    21,   1872. 

See  Kerr's  Cyc.  C.   C.   for  45   pars,  annotation. 

70  C.  282,  284,  11  P.  719,  720  (referred  to);  79  C.  304,  310,  21 
P.  759  (referred  to);  87  C.  464,  468,  25  P.  681.  682.  11  L.  252 
(referred  to);  94  C.  425,  429,  29  P.  954  (referred  to):  106  C. 
608,  612.  3^  P.  939  (referred  to);  109  C.- 53.  59,  41  P.  819  (referred 
to);  132  C.  320,  323,  64  P.  410  (referred  to);  134  C.  603,  604.  65 
P.  321.  66  P.  860  (referred  to);  142  C.  1,  5.  6.  75  P.  324  (cited): 
147  C.  514,  515.  82  P.  39,  41  (<iti-d  in  dis.  op.);  5  C.  A.  690.  692, 
91  P.  173  (construed  with  S§162,  104);  111  F.  134.  135  (cited): 
128  U.  S.   63,   54.   32   I.,   ed.   415.    418    (cited). 

As  to  abandonment  and  conveyance  of  liomcstead,  see  Kerr's 
Cyc.   C.   C.    §S  1242,    1243   and    notes. 

As  to  contracts  between  husband  and  wifi-  concerning  home- 
stead, see  Kerr's  Cyc.  C.  C.  §  158  and  note  par.  31. 

As  to  description  of  property,  see  Kerr's  Cyc.  C.  C.  {  159  and 
note   par.    16. 

85 


§  164  CIVIL  CODE.  [Div.I.Pt.III. 

As  to  mortgage  by  husband  to  wife,  see  Kerr's  Cj'c.  C.  C.  §  163, 
note  pars.  28,  29  this  note. 

As  to  public  land  grants,  see  Kerr's  Cyc.  C.  C.  §  164  and  note 
pars.    108-125. 

As  to  separate  property  of  husband  given  to  wife  becoming 
wife's  separate  property,  see  Kerr's  Cyc.  C.  C.  §  164  and  note 
par.    157. 

As  to  what  property  may  be  disposed  of  by  will,  see  Kerr's 
Cyc.  C.   C.   §1274   and  note. 

Burden  of  proving  that  property  is  separate  property. — See 
Kerr's  Cyc.  C.  C.   §  164  and  note  pars.   3,  75. 

Commingled  property. — See  Kerr's  Cyc.  C.  C.  §  164  and  n'ote 
pars.    181-191. 

Conflict  of  laws  as  to  what  constitutes  separate  or  com- 
munity property. — See  Kerr's  Cyc.  C.  C.  §  164  and  note  pars. 
26-35. 

Earnings  of  husband. — See  Kerr's  Cyc.  C.  C.  §  164  and  note 
pars.    161,   165-167. 

Improvements  on  separate  property. — See  Kerr's  Cyc.  C.  C. 
§  164   and   note    pars.    192-195. 

May  invest  separate  property  of  husband  in  business,  to  an 
amount  not  exceeding  $500. — See  Kerr's  Cyc.  C.  C.  P.  §  1416 
and    note. 

Money  borrowed. — See  Kerr's  Cyc.  C.  C.  §  164  and  note  pars. 
127-129. 

Personal  injuries — Right  of  action  for,  see  Kerr's  Cyc.  C.  C. 
§  164    and    note   par.    178. 

Property  purchased  during  coverture. — See  Kerr's  Cyc.  C.  C. 
§  164   and   note   pars.    36-107,    126,    139. 

Rents,  issues  and  proflta  of  separate  property. — See  Kerr's 
Cyc.  C.  C.  §  164  and  note  pars.  168-177. 

Title — Immaterial  in  name  of  which  spouse  taken. — See 
Kerr's  Cyc.  C.  C.  §  164  and  note  pars.   212-214. 

Transmutation  of  property. — See  Kerr's  Cyc.  C.  C.  §  164  and 
note  pars.  196-215. 


§164.  COMMUNITY  PROPEBTY— CONVEYANCES  OF 
REAL  ESTATE  [TO  AND]  BY  MARRIED  WOMEN— TIME 
LIMIT  FOR  BRINGING  ACTION.  All  other  property  acquired 
after  marriage  by  either  husband  or  wife,  or  both,  is  com- 
munity property;  but  whenever  any  property  is  conveyed  to 
a  married  woman  by  an  instrument  in  writing,  the  presump- 
tion is  that  the  title  is  thereby  vested  in  her  as  her  separate 
property.  And  in  case  the  conveyance  be  to  such  married 
woman  and  to  her  husband,  or  to  her  and  any  other  person, 

86 


Tit.I,ch.III.]  COMMUNITY    PROPERTY.  §  164 

the  presumption  is  that  the  married  woman  takes  the  part 
conveyed  to  her,  as  tenant  in  common,  unless  a  different 
intention  is  expressed  in  the  instrument,  and  the  presump- 
tion in  this  section  mentioned  is  conclusive  in  favor  of  a 
purchaser  or  encumbrancer  in  good  faith  and  for  a  valuable 
consideration.     And  in  cases 

>Vbere  married  women  have  convejed,  or  shall  hereafter 
convey,  real  property  which  they  acquired  prior  to  May  nine- 
teenth, eighteen  hundred  and  eighty-nine,  the  husbands,  or 
their  heirs  or  assigns,  of  such  married  women,  shall  be  barred 
from  commencing  or  maintaining  any  action  to  show  that  said 
real  property  was  community  property,  or  to  recover  said 
real  property,,  as  follows:  [1]  As  to  conveyances  heretofore 
made,  from  and  after  one  year  from  the  date  of  the  taking 
effect  of  this  act;  and  [2]  as  to  conveyances  hereafter  made, 
from  and  after  one  year  from  the  filing  for  record  in  the 
recorder's  office  of  such  conveyances,  respectively. 

Hi.«*torr:  Enacted  March  21,  1872;  amended  March  19,  1889, 
Stats,  and  Amdts.  1889,  p.  328;  March  3.  1893,  Stats,  and  Amdts. 
1893,  p.  71;  March  4,  1897,  Stats,  and  Amdts.  1897,  p.  63;  by  Code 
Commissioners,  Act  March  16,  1900-1,  p.  193;  held  unconstitu- 
tional, see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  215  pars,  annotation. 

70  C.  282,  284,  11  P.  719,  720  (referred  to);  70  C.  424,  426.  12 
P.  392,  393  (construed  and  applied);  80  C.  46,  48,  13  A.  S.  96,  22 
P.  67  (applied);  83  C.  521,  529,  23  P.  695  (construed);  87  C. 
464,  468,  25  P.  681.  11  L.  252  (construed  and  applied);  94  C. 
425,  429,  29  P.  954  (construed  and  applied);  98  C.  264,  267,  33 
P.  95  (applied);  101  C.  563,  565,  36  P.  103  (construed  and 
applied);  105  C.  680,  691,  39  P.  56  (construed  and  applied); 
106  C.  355,  361,  39  P.  793  (construed  and  applied);  106  C.  608. 
612.  39  P.  939  (cited);  109  C.  53.  59.  60.  41  P.  819  (construed 
and  applied);  (C.  Jan.  31,  1896).  43  P.  599,  601,  602  (construed); 
122  C.  358,  360,  361,  55  P.  132  <construed  and  applied);  124  C. 
216.  218,  71  A.  S.  50.  56  P.  1028  (construed  and  applied);  125 
C.  9,  13.  14,  57  P.  690  (construed  and  applied);  126  C.  30.  32,  58 
P.  324  (construed  and  applied);  132  C.  320,  322,  323,  64  P.  410 
(referred  to);  134  C.  403,  405.  406,  66  P.  569  (held  not  affected 
by  §575);  134  C.  603,  604,  606.  65  P.  321.  66  P.  860  (construed 
and  applied);  136  C.  31.  33.  68  P.  327  (construed  and  applied); 
71  P.  802.  803.  804  (construed  as  laying  down  a  limitation  of 
time  for  commencing  or  maintaining  actions);    138   C.    570,   571, 

87 


§  164  CIVIL  CODE.  [Div.I.Pt.TII. 

572,  72  P.  165  (construed);  142  C.  119,  121,  75  P.  670  (applied); 
143  C.  292,  295,  76  P.  1108  (cited  and  commented  upon);  143  C. 
646,  647,  77  P.  657  ("presumption"  in  section  defined);  147  C. 
514,  515,  522,  82  P.  39,  40  (cited  in  dis.  op.  and  applied  in 
department  opinion  affirmed  by  court  in  bank) ;  3  C.  A.  651, 
655,  86  P.  978,  979  (construed  with  §  172);  4  C.  A.  671,  675,  88  P. 
994  (applied);  5  C.  A.  690,  692,  91  P.  173  (construed  with  §§162, 
163,  and  presumption,  under  section  prior  to  amendment  of 
1889,  defined);  111  F.  134,  135  (cited);  128  U.  S.  53,  54,  32  L.  ed. 
415,    418    (cited). 

COMMUNITY    PROPERTY. 

As  to  allowance  to  wife  after  divorce  out  of  husband's  future 
earning-s,   see   Kerr's   Cyc.   C.   C.    §  139   and   note. 

As  to  conveyance  by  husband  and  wife  and  doctrine  of 
caveat  emptor,   see  Kerr's  Cyc.   C.  C.    §  172,   note  pars.   65-69. 

As  to  cotenancy  of  spouse  and  community,  see  Kerr's  Cyc. 
C.  C.  §  161   and  note  par.   11. 

As  to  declarations  which  are  part  of  res  gestae,  see  Kerr's 
Cyc.  C.  C.  P.  §  1850  and  note. 

As  to  earnings  and  accumulations  of  wife  while  living  sepa- 
rate from  husband,  see  Kerr's  Cyc.  C.  C.   §  169  and  note. 

As  to  husband's  management  and  control  of  community  prop- 
erty,   see  Kerr's   Cyc.   C.   C.    §  172   and  note. 

As  to  power  of  husband  to  give  to  wife,  see  Kerr's  Cyc.  C.  C. 
§  172   and   note  par.   59. 

As  to  right  of  action  for  wife's  personal  injuries  being  in 
husband,   see   Kerr's   Cyc.   C.   C.    §  172   and   note   pars.    34,    35. 

Actions  respecting  community  property — Capacity  to  sue  and 
be   sued,    etc. — See   26   Cent.   Dig.    col.   2714,   §§  968-988. 

Administration  and  settlement  of  community  estates. — See 
6   Encyc.   L.   346;   26  Cent.   Dig.   col.   2808,   §§1032-1045. 

Adverse  possession  of  community  property. — See  1  Cent.  Dig', 
col.  2241,  §283[s];  col.  2281,  §331;  col.  2355,  §416[r,  s];  col. 
2407,    §  484. 

Antenuptial  and  post-nuptial  debts  of  wife. — See   19   L.    235. 

Character  of  interest  and  right  of  each  spouse  during  the 
continuance   of   the  community. — See    6   Encyc.   L.    331. 

Community  and  separate  debts. — See  26  Cent.  Dig.  col.  2698, 
§§953-967. 

Community  property,  consists  of  what. — See  86  A.  D.  628; 
6   Encyc.   L.    307-325;    26   Cent.   Dig.   col.   2604,   §§886-916. 

Community,  the,  how  formed. — See  6  Encyc.  L.  297. 

Conflict  of  laws  as  affecting  community  property. — See  6 
Encyc.  L.   351-356. 

Contract  between  husband  and  wife  concerning  community. 
— See   Kerr's   Cyc.   C.   C.    §  159   and   note   par.    17. 

Contracts,  conveyances,  and  gifts  between  spouses  during 
continuance  of  community. — See  26  Cent.  Dig.  col.  2664,  §§  925- 
928. 


I 


Tit.I.Ch.III.]  COMMUNITY    PROPERTY.  §  164 

Conveyance  of  community  property. — See  Kerr's  Cyc.  C.  C. 
§  172   and   note   pars.    41-85. 

Damages  becoming  community  property,  liusband  and  wife 
must  be  joined  in  action. — See  10  Encyc.  P.  209. 

Damages  for  injuries,  as  community  property. — See  6  Encyc. 
L.    309;    26   Cent.   Dig.   col.    2639,    §§911,    912. 

Same — Husband  and  wife  must  be  joined  in  action  to  recover. 
— See   10  Encyc.  P.   254. 

Debts  of  husband. — See   19   L.   235. 

Disposition  of  community  property  by  will. — See  6  Encyc. 
L.    346. 

Dissolution  of  the  community,  and  the  effect  thereof. — See 
6    Encyc.    L.    341;    26   Cent.    Dig.    col.    2764,    §§1003-1007. 

Divorce  of  spouses,  effect  on  community  rights,  interests, 
and    lia))ilities. — See   26   Cent.    Dig.    col.    2754,    §§  9S9-1002. 

Earnings  of  spouses  as  community  property. — See  6  Encyc. 
L.   311;   26  Cent.   Dig.   col.   2639,   §§911,   912. 

Effect  of  conveyance  of  community  property  by  husband  and 
wife. — See    69    L.    378. 

Effect  of  divorce  on  community  property  in  absence  of  adju- 
dication.—See  11  L.  N.  S.  103. 

Estoppel  to  deny  nature  of  property. — See  26  Cent.  Dig.  col. 
2618,    §  896. 

Evidence  as  to  character  of  property — Presumption,  burden 
of  proof,   etc. — See   26  Cent.   Dig.  col.   2640,   §§  913-916. 

Existence  of  community. — See  26  Cent.   Dig.  col.   2596.   §  880. 

Grants  of  public  lands,  donations,  etc.,  as  community  prop- 
erty.— See    6    Encyc.    L.    313-315. 

Husband  generally  sues  alone  concerning  community  prop- 
erty.—See    10   Encyc.   P.    222,   254. 

Improvements  made  by  community  on  separate  property. — 
See   6    Encyc.    L.    324. 

Inchoate   titles  as   community   property. — See   6    Encyc.   L.    317. 

I^iability  of  conmiunit>-  property  for  debts. — See  19  Encyc.  L. 
233. 

Marriage  settlements  as  affecting  community  property. — See 
26    Cent.    Dig.   col.    2597,    §§  881-885. 

Nature  and  existence  of  community  property,  laws  govern- 
ing, etc. — See  26  Cent.  Dig.  col.  2591,  §§878-880;  6  Encyc.  L. 
296. 

Ordinary  commercial  partnership  between  the  spouses. — See 
6    Encyc.    L.    349. 

Parties  in  actions  against  community  jiroperty. — See  10 
Encyc.    P.    254. 

Partition  of  homestead  in  community  property. — See  4  L.  N. 
S.    797. 

Pensions  paid  by  the  government,  not  community  property. — 
See    26    Cent.    Dig.    col.    2610,    §  891. 

89 


§  164  CIVIL  CODE.  [Div.I.Pt.III. 

Presumption  that  debt  is  common  debt. — See  19  L.   235. 

Presumptions  in  relation  to  community  property. — See  6 
Encyc.  L.   325;   2j6  Cent.  Dig.  col.   2640. 

Proceeds  of  insurance  as  community  property. — See  26  Cent. 
Dig.  col.  2609,  §  890. 

Property  acquired  by  spouse  through  devised  bequest  or  in- 
heritance, not  community  property. — See  26  Cent.  Dig.  col.  2610, 
§  893,  2612,   §  894. 

Property  acquired  during-  marriage. — See  26  Cent.  Dig.  col. 
2607,    §§  889-892. 

Property  held  at  time  of  marriage. — See  26  Cent.  Dig.  col. 
2606,    §  888. 

Property  purchased — Separate  and  community  funds. — See 
26  Cent.  Dig.   col.   2619,  §§  897-903. 

Property  which  is  community  property. — See  86  A.  D.  628; 
6  Encyc.  L.   307-325;   26  Cent.  Dig.  col.   2604,   §§886-916. 

Public  lands  acquired  by  grant  or  entry,  as  to  whether  com- 
munity property. — See   26  Cent.   Dig.   col.   2613,   §  895. 

Purchase  on  credit,  as  asset  of  community. — See  6  Encyc. 
L.    312. 

Registry  laws,  as  affecting  community  property. — See  6 
Encyc.    L.    348. 

Rents,  profits,  products,  improvements  and  proceeds  of  sa*le 
of  separate  property. — See  6  Encyc.  L.  320;  26  Cent.  Dig.  col. 
2634,    §§  904-910. 

Right  of  husband  to  become  creditor  of  the  community. — 
See    19   L.    235. 

Right  of  wife  to  hold  separate  property. — See  26  Cent.  Dig. 
col.    2605,    §  887. 

Rights  and  liabilities  of  survivor  of  spouses  and  heirs. — See 
26   Cent.   Dig.   col.    2768,    §§  1008-1031. 

Rights  and  powers  of  the  surviving  spouse. — See  6  Encyc. 
L.     341-345. 

Same — Rule  in  California. — See  6  Encyc.  L.   345. 

Rights  and  remedies  of  creditors  during  the  community. — 
See    6    Encyc.    L.    338. 

Rights  of   heirs   in   community  property. — See   6   L.   347. 

Rights  of  spouses  during  existence  of  the  community. — See 
26   Cent.   Dig.   col.   2651,    §§  917-924. 

Sales,  conveyances  and  incumbrances — Community  and  sepa- 
rate property.— See   26   Cent.  Dig.   col.   2673,   §§  929-952. 

Separate  estate  of  members  of  the  community. — See  6  Encyc. 
L.    300-304. 

Specific  performance,  in  relation  to  community  property. — 
See    6   Encyc.   L.   349. 

Taxation  of  community  property. — See  Kerr's  Cyc.  C.  C.  §  172 
and   note   par.    10. 

90 


1 


Tit.I,ch.III.]  INVENTORY— NOTICE.  §§165,166 

Testamentary  capacity  of  liusband  as  to  community  property. 
—See  Kerr's  Cyc.  C.  C.   §  172  and  note. 

Wliat  is,  and  whether  presumptions  tliat  property  is  com- 
munity property  may  be  rebutted. — See   86  A.   D.   628. 

Widow's  election  between  right  to  community  property  and 
benefits   of  a   will. — See  92   A.   S.    695. 

Wife  having  separate  interest  should  be  joined  in  suit  con- 
cerning community  property. — See   10  Encyc.  P.   254. 

Wife  may  sue  concerning  community  property  where  aban- 
doned by  husband. — See   10   Encyc.   P.   222. 

Wife's  funds  disposed  with  or  collected  by  husband,  not  com- 
munity  property. — See   26   Cent.    Dig.   col.    2610,    §  892. 

§  165.    INVENTORY  OF  SEPARATE  PROPERTY  OF  WIFE. 

A  full  and  complete  inventory  of  the  separate  personal  prop- 
erty of  the  wife  may  be  made  out  and  signed  by  her,  acknowl- 
edged or  proved  in  the  manner  required  by  law  for  the 
acknowledgment  or  proof  of  a  grant  of  real  property  by  an 
unmarried  woman,  and  recorded  in  the  office  of  the  recorder 
of  the  county  in  which  the  parties  reside. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.   for  14   pars,  annotation. 

67   C.   458,    459,   8   P.    12    (construed  and  applied);    81   C.    93,    95, 

.96,    15   A.   S.    34,    22   P.   331,   5    L.    579    (construed);    83    C.    274,    278, 

23  P.  348  (construed  and  applied);  102  C.  547,  551,  552,  41  A.  S. 

200,  ^6  P.  857  (construed);  124  C.  200,  202,  203,  204,  71  A.  S. 

42,  56  P.  880  (cited). 

As  to  admissibility  of  parol  evidence  to  identify  properly, 
see  Kerr's  Cyc.  C.  C.   §  166   note  par.   5. 

As  to  community  property,  generally,  see  note  §  164,  ante. 

As  to  constitutional  origin  of  wife's  separate  property,  see 
Kerr's  Cyc.  C.  C.  §  162  and  note  pars.   6-10. 

As  to  effect  of  recording  inventory,  see  Kerr's  Cyc.  C.  C.  §  166 
and  note  par.   2. 

§  166.  FILING  INVENTORY  NOTICE  OF  WIFE'S  TITLE, 
ETC.  The  filing  of  the  inventory  in  the  recorder's  office  is 
notice  and  prima  facie  evidence  of  the  title  of  the  wife. 

Hi.story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.    193. 

See  Kerr's   Cyc.  C.   C.   for  6  pars,  annotation. 
67   C.   458,   459,   8   P.   12    (referred  to);   81   C.   93,  95,   96,   15   A.   S. 

91 


§§167,168  CIVIL  CODE.  [Div.I,Pt.III. 

34,  22  P.  331,  5  L.  579  (cited  with  §166);  83  C.  274,  278,  23  P. 
348    (cited);   124  C.   200,   202,   71  A.   S.   42,   56  P.   880    (referred  to). 

As   to   community   property   generally,    see  note   §  164,   ante. 

As  to  requisites  and  svifficiency  of  delivery  and  change  of 
possession,  see  Kerr's  Cyc.  C.  C.  §158  and  note  pars.  36-40; 
§  3440   and   note. 

§  167.  COMMLMTl  PROPERTY,  COXTRACTS  BY  WIFE. 

The  property  of  the  community  is  not  liable  for  the  contracts 
of  the  wife,  made  after  marriage,  unless  secured  by  a  pledge 
or  mortgage  thereof  executed  by  the  husband. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    193. 

See  Kerr's  Cyc.   C.   C.   for   14  pars,  annotation. 

53  C.  456,  459  (orig-inally,  a  wife  could  not  contract  for  the 
payment  of  money);  54  C.  178,  179  (before  this  section  was 
amended,  a  wife  could  not  make  a  contract  in  reference  to 
money);  54  C.  620,  623  (referred  to);  58  C.  115,  119  (cited);  62 
C.  623,  639  (chang-e  of  section  referred  to);  96  C.  609,  611,  31 
P.  618  (construed  and  applied);  112  C.  387,  398,  44  P.  734  (con- 
strued); 116  C.  339,  342,  58  A.  S.  170,  48  P.  228,  36  L.  497  (re- 
ferred to);   111  F.   134,  135    (cited). 

As  to  capacity  of  married  woinen  to  luake  contracts,  see 
Kerr's  Cyc.  C.  C.   §  158  and  note. 

As  to  community  property  generally,   see  note  §  164,  ante. 

Debts — What  are. — See  Kerr's  Cyc.  C.  C.   §  168  and  note  par.  2. 

For  cases  applying,  construing,  and  referring  to  section  167 
of  the  original  code,  forbidding  married  women  from  making 
contracts,  which  was  repealed  by  Act  March  30,  1874,  §  38,  see 
53  C.  456,  459  (referred  to);  54  C.  178,  179  (construed  and 
applied);    62    C.    623,    639    (applied). 

Payment  of  community  debts  after  death  of  spouse  out  of 
community   property. — See   Kerr's   Cyc.   C.   C.   P.    §  1643   and   note. 

§  16S.  EARMXGS  OF  WIFE  NOT  LIABLE  FOR  DEBTS 
OF  HUSBAXD.  The  earnings  of  the  wife  are  not  liable  for 
the  debts  of  the  husband. 

HLstory:  Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

53  C.  456,  459  (referred  to);  63  C.  390,  391  (applied);  70  C. 
424,  426,  12  P.  392,  393  (referred  to);  116  C.  339,  342,  58  A.  S. 
170,  48  P.  228,  36  L.  497  (referred  to);  121  C.  16,  25,  53  P.  416 
(referred  to  in  construing  "debt"). 

92 


1 


lb 


Tit.I.ch.TII.]  EARNINGS   OF   WIFE.  §§169,170 

As  to  community  property  generally,  see  note  §  164,  anti-. 

As  to  earnings  of  wife  being  separate  or  community  i)rop- 
erty,    see    Kerr's   Cyc.   C.   C.    §  1G4,    pars.    162-164. 

As  to  sole  traders,  see  Kerr's  Cyc.  C.  C.  P.  SS  1811-1821  and 
notes. 


§!()}).  EAHMXilS  i)V  ^VIFE,  >VHE>  LIVING  SEPAK.VTE, 
SEl'AUATE  rUOFEUTV.  The  [1]  earnings  and  accunuila- 
tions  of  the  wife  and  [2]  of  her  minor  children  living  with 
her  or  in"  her  custody,  while  she  is  living  separate  frnni  hpr 
husband,  are  the  separate  property  of  the  wife. 

History:     Enacted  March   21,   1872. 

See    Kerr's   Cyc.   C.   C.   for   5   pars,   annotation. 

53  C.  456,  459  (referred  to);  70  C.  424,  426,  12  P.  392,  393  (re- 
ferred to  in  construing  S  164);  71  C.  418,  426,  12  P.  347,  349  (re- 
ferred to);  79  C.  200,  202,  21  P.  651,  652  (construed  and  applied); 
87  C.  464,  468,  25  P.  681,  682,  11  L.  252  (referred  to  with  other 
sections);  94  C.  425,  429,  29  P.  954  (referred  to  with  other  sec- 
tions); 116  C.  339,  342,  58  A.  S.  170,  48  P.  228,  36  L.  497  (re- 
ferred  to). 

As  to  character  of  wife's  earnings  wiiile  living  with  hus- 
band, see  Kerr's  Cyc.  C.  C.  §164  pars.  162-164,  also  ante  §164, 
note. 

As  to  community   prupi'rty  generally,  see   note   §  164,  ante. 

§170.  IJAHILITV  FOR  OEKTS  (»K  WIFE  ( ONTH A(  TED 
BEFORE  .)IAKK1A(«E.  The  separate  property  of  the  husband 
is  not  liable  for  the  debts  of  the  wife  contracted  before  the 
marriage. 

HiNtory:  lOiiaeted  March  21,  1872:  amended  by  Code  Commis- 
sioners, Act  MarcJi  16,  1901.  Stats,  and  Aindls.  1900-1.  p.  193:  held 
unconstitutional,  see  liistory,  §  4  ante. 

See   Kerr's  Cyc.  C.   C.   for   0   pars,  annotation. 

53  C.  456,  460  (referred  to);  70  C.  282,  285.  11  P.  719,  720,  721 
(erroneously  cited  for  §171):  71  C.  418.  422,  12  P.  347.  34S 
(erroneously  cited  for  §172):  121  C.  16.  25,  53  P.  416  (referred 
to  with  other  sections):  137  C.  273.  276.  92  A.  S.  160  (erroneously 
reciting  provision  of  8  170).  70  P.  21.  22.  58  L.  941  (erroneously 
stating   provision    of   §  167    cited   for   §  170). 

"Debts" — Wli.it  ;ir.-. — Se..  K.Tr's  (-xc  < '.  «".  §1''^  .in.l  n.'t.- 
par.    2. 

93 


§§  171, 172  CIVIL  CODE.  [Div.I.Pt.III. 

§  171.  WIFE'S  PROPERTY  NOT  LIABLE  FOR  DEBTS  OF 
THE  HUSBAND,  BUT  LIABLE  FOR  HER  OWIV  DEBTS.   The 

separate  property  of  the  wife  is  liable  for  her  own  debts  con- 
tracted before  or  after  her  marriage,  but  is  not  liable  for  heu 
husband's  debts;  provided,  that  such  property  is  liable  for 
the  payment  of  debts  contracted  by  the  husband  or  wife  for 
the  necessaries  of  life  furnished  to  them  or  either  of  them 
while  they  are  living  together.  Provided,  that  the  provisions 
of  this  act  shall  not  apply  to  the  separate  property  of  the  wife 
held  by  her  at  the  time  of  her  marriage  or  acquired  by  her 
by  devise  or  succession  after  marriage. 

History:  Enacted  March  21,  1872;  amended  March  18,  1905, 
Stats,  and  Amdts.  1905,  p.  206. 

See   Kerr's   Cyc.   C.   C.   for    18   pars,   annotation. 

53  C.  456,  460,  461  (applied);  54  C.  178  (construed  and  held  in- 
applicable); 121  C.  16,  25,  53  P.  416  (referred  to  and  "debts" 
construed);  3  C.  A.  651,  656,  86  P.  978,  979  (cited,  wife's  sepa- 
rate property  is  not  subject  to  attachment  for  husband's 
debts);    111   F.   134,   135    (cited). 

As  to  duty  of  depositary  to  give  notice  of  adverse  proceed- 
ings, see  'Kerr's  Cyc.  C.  C.  §§  1822,  1825  and  notes. 

As  to  liability  of  wife's  separate  property  in  equity  under 
Act  1850,  see  Kerr's  Cyc.  C.   C.    §  158  and  note. 

As  to  liability  when  wife's  separate  property  is  put  into 
business  of  husband  and  wife,  see  Kerr's  Cyc.  C.  C.  §  158  and 
note. 

As  to  rents,  issues,  profits,  etc.,  of  separate  property,  see 
Kerr's  Cyc.   C.  C.   §  162  and  note  par.   9. 

"Debts" — What  are. — See  Kerr's  Cyc.  C.  C.  §  168  and  note 
par.    2. 

§  172.  MANAGEMENT,  CONTROL,  AND  DISPOSITION  OF 
COMMUNITY  PROPERTY.  The  husband  has  the  manage- 
ment and  control  of  the  community  property,  with  the  like 
absolute  power  of  disposition,  other  than  testamentary,  as  he 
has  of  his  separate  estate;  provided,  however,  that  he  cannot 
make  a  gift  of  such  community  property,  or  convey  the  same 
without  a  -valuable  consideration,  unless  the  wife,  in  writing, 
consent  thereto;  and  provided  also,  that  no  sale,  conveyance 
or  encumbrance  of  the  furniture,  furnishings  and  fittings  of 

94 


1 


1 


Tit.T,ch.III.]  MANAGEMENT,    ETC.  §  172 

the  home,  or  of  the  clothing  and  wearing  apparel  of  the  wife 
or  minor  children,  which  is  community  property  shall  be  made 
without  the  written  consent  of  the  wife. 

History:  Enacted  March  21,  1872;  amended  March  31,  1891, 
Stats,  and  Amdts.  1891,  p.  425;  March  23,  1901,  Stats,  and  Amdts. 
1900-1,  p.  598. 

See  Kerr's  Cyc.  C.  C.  for  85  pars,  annotation. 

58  C.  115,  119,  120  (construed  and  applied);  70  C.  282,  285, 
11  P.  119,  720,  721  (erroneously  cited  for  §  171);  70  C.  242,  245, 
11  P.  648  (construed  and  applied);  71  C.  418,  422,  12  P.  347,  348 
(erroneously  cited  as  §170);  81  C.  240,  242,  22  P.  655  (construed 
and  applied);  85  C.  280,  283,  24  P.  743,  744  (applied);  25  P.  415, 
416,  417  (construed  and  applied);  87  C.  464,  468,  25  P.  681,  11 
L.  252  (referred  to  in  discussion);  112  C.  387,  397,  44  P.  734 
(construed  and  applied):  116  C.  339,  340,  342,  344,  345,  350,  58 
A.  S.  170,  48  P.  228,  36  L.  497  (construed  and  applied):  135  C. 
121,  125,  67  P.  20  (referred  to  in  discussion);  137  C.  354,  356 
(erroneously  cited  for  §14),  70  P.  459  (correct  citation):  139 
C.  559,  563,  73  P.  433  (construed);  142  C.  519,  522,  77  P.  1106 
(construed);  145  C.  596,  599,  79  P.  272,  273  (purpose  of  section 
stated);  3  C.  A.  651.  655,  86  P.  978  (applied);  6  C.  A.  404,  405,  92 
P.    310    (effect   of  amendment   to   section). 

As  to  community  property  generally,  see  note  §  164,  ante. 

As  to  community  property  given  to  wife  becoming  her  sepa- 
rate property,  see  Kerr's  Cyc.  C.  C.   §  164  and  note  par.    156. 

As  to  competency  of  wife  as  witness  in  an  action  by  husband 
to  recover  for  her  services,  see  Kerr's  Cyc.  C.  C.  P.  §  1880  and 
note. 

As  to  disposition  of  community  property  upon  divorce,  see 
Kerr's   Cyc.   C.   C.    §§146-148    and    notes. 

As  to  division  of  community  property  by  contract  of  sepa- 
ration, see  Kerr's  Cyc.  C.  C.   §  159  and  note. 

As  to  nature  of  wife's  interest,  see  Kerr's  Cyc.  C.  C.  §  172. 
notes-  13-24. 

As  to  presentation  of  claims  against  decedent,  see  Kerr's 
Cyc.  C.  C.  P.  §§  1490  et  seq.  and  notes. 

As  to  presumption  that  land  conveyed  to  spouse  during 
coverture  is  community  property,  see  Kerr's  Cyc.  C.  C.  §  164 
pars.  46-66. 

As  to  proper  party  plaintiff  in  action  involving  commiinitj- 
property,    see   Kerr's   Cyc.   C.   C.    P.    §  370    and    note. 

As  to  wife's  earnings  being  community  property,  see  Kerr's 
Cyc.  C.  C.   §  164  and  note  pars.   162-164. 

Contract  between  husband  and  wife  concerning. — See  Kerr's 
Cyc.  C.  C.  §159  and  note  pars.   15-22. 

95 


§§  173-175  CIVIL  CODE.  [Div.I.Pt.III. 

Descent  and  distribution  of  community  property. — See  Kerr's 
Cyc.  C.  C.   §§  1401,   1402  and  notes. 

Divorce — Disposition  of  community  property  upon. — See  Kerr's 
Cyc.   C.   C.   §§  146-148  and  notes. 

Sole  trader — Wife  as,  may  invest  community  property  in 
business. — See  Kerr's  Cyc.   C.  C.  P.   §  1814  and  note. 

Wife  has  not  management  and  control. — See  Kerr's  Cyc.  C.  C. 
§  172,    note   pars.    25-38. 

§  173.     I'OIRTEST    A>D    DO  AVER    NOT    ALLOWED.  No 

estate  is  allowed  the  husband  as  tenant  by  courtesy  upon  the 

death  of  his  wife,  nor  is  any  estate  in  dower  allotted  to  the 
wife  upon  the  death  of  her  husband. 

Hi-story:  Enacted  March  21,  1872.  The  Act  of  April  17,  1850, 
§  10  (Stats.  1850,  ch.  103,  p.  254),  contained  the  same  provision. — 
See  6  C.  252,  756,  63  A.  D.  125;   1  C.  488,  513. 

See   Kerr's  Cyc.   C.    C.   for   5   pars,   annotation. 

74   C.    98,    103,   15   P.    445,   447    (referred   to). 

As   to   cominunity   property   generally,   see   note    §  164,  ante. 

§  174.  SUPPORT  OF  WIFE.  If  the  husband  neglect  to 
make  adequate  provision  for  the  support  of  his  wife,  except 
in  the  cases  mentioned  in  the  next  section,  any  other  person 
may,  in  good  faith,  supply  her  with  articles  necessary  for  her 
support,  and  recover  the  reasonable  value  thereof  from  the 
husband. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   193. 

See   Kerr's  Cyc.   C.  C.   for  15  pars,   annotation. 

69  C.  521,  522,  523,  11  P.  29,  30  (construed  and  applied);  100 
C.  345,  346,  34  P.  825  (construed  and  applied);  129  C.  17,  20,  61 
P.  476  (construed  and  applied);  129  C.  20,  23,  61  P.  477  (con- 
strued and  applied);  2  C.  A.  120,  121,  122,  83  P.  85  (necessaries 
furnished  to  wife);  2  C.  A.  684,  686,  84  P.  260,  261  (goods  not 
necessaries   when). 

As  to  community   property   generally,  see   note   §  164,   ante. 

As  to  estoppel  by  judgment,  see  Kerr's  Cyc.  C.  C.  P.  §§  1908- 
1915   and   notes. 

As  to  agency  of  wife  to  purchase  necessaries,  see  Kerr's  Cyc. 
C.   C.    §  158  and  note  pars.   91-93. 

§  175.     SAME— AVHEX    SEPARATE    FROM   HUSBAND.     A 

husband  abandoned  by  his  wife  is  not  liable  for  her  support 

96 


Tit.I,ch.III.]         INTER-IilGHTS    OF    SPOUSES.  §§  176-178 

until  she  offers  to  return,  unless  she  was  justified,  by  his  mis- 
conduct, in  abandoning  him;  nor  is  he  liable  for  her  support 
when  she  is  living  separate  from  him,  by  agreement,  unless 
such  support  is  stipulated  in  the  agreement. 

Histor}-:  Enacted  March  21,  1S72;  amended  March  30,  1S74, 
Code  Amdts.  1873-4,  p.  193. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

54  C.  396,  397  (construed  and  applied);  2  C.  A.  509,  512,  S3 
P.  257,  258  (construed  with  other  sections);  2  C.  A.  684,  686,  84 
P.  260   (necessaries,  what  are  not). 

As  to  community  property  generally,  see  note  §  164,  ante. 

§  176.  WIFE  TO  SUPPORT  HUSBAND,  >VHE\.  The  wife 
must  support  the  husband,  when  he  has  not  deserted  her, 
out  of  her  separate  propertj',  when  he  has  no  separate  prop- 
erty, and  there  is  no  community  property,  and  he  is  unable, 
from  infirmity,  to  support  himself. 

Hifitury:  Enacted  March  21,  1872;  amended  Marcli  30,  1874, 
Code  Amdts.  1873-4,  p.  194. 

See  Kerr's  Cyc.  C.  C.  for  5   pars,  annotation. 

117  C.  633,  634,  635,  636.  49  P.  836,  38  L.  175  (construed  and 
applied);  51  P.  859;  150  C.  667.  671,  89  P.  1083,  1084  (construed 
with  §  206,  as  to  equitable  action). 

As  to  community  property,  etc.,  generally,  see  note  §  164, 
ante. 

As  to  obligation  of  husband  to  support  wife,  see  Kerr's  Cyc. 
C.  C.  §  155  and  note. 

S  177.     KKJHTS    iiV    IIISHAM)    AND    WIFE    «OVEK>KD 

KY  \\  HAT.  The  property  rights  of  husband  and  wife  are  gov- 
oriuMl  hy  this  chai)ter,  unless  there  is  a  marriage  settlement 
rf)ntaiiiing  stipulations  contrary  thereto. 

HiMtory:     Enacted  March   21.   1872. 

ST  CJ.  (;43,  647,  25  V.  922.  923  (referred  to  in  discu.-.-.u^  .  ...u^,.; 
of  "marriage  contracts"   to  "marriage  settlements"). 

S  I7S.     MAKHIAGE     SETTLE.MENT     CONTK.CCTS.     MOW 

EXKCIITED.    All  contracts  for  marriage  settlements  must  be 
in  writing,  and  executed  and  acknowledged  or  proved  in  like 
Kerr's    C.    C— 4  97 


§§  179-181  CIVIL  CODE.  [Div.I.Pt.III. 

manner  as  a  grant  of  land  is  required  to  be  executed  and 
acknowledged   or   proved. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  39  pars,  annotation. 

75  C.  298,  300,  17  P.  213  (referred  to);  87  C.  643,  647,  25  P.  922 
(referred  to). 

As  to  community  property,  etc.,   see  note   §  164,  ante. 

As  to  gifts  from  husband  to  wife,  see  Kerr's  Cyc.  C.  C.  §  163 
and  note;  and   §  172   note  par.   21. 

As  to  intervention  generally,  see  Kerr's  Cyc.  C.  C.  P.  §§  386, 
387   and   notes. 

As  to  reasonableness  of  marriage  settlements,  see  Kerr's  Cyc. 
C.   C.    §  178,   note  pars.    16-19   this   note. 

As  to  revocation  of  will  by  subsequent  marriage  unless  mar- 
riage contract  is  made,  see  Kerr's  Cyc.  C.  C.  §  1299  and  note. 

§  179.  TO  BE  ACKNOWLEDGED  AND  RECORDED.  When 
such  contract  is  acknowledged  or  proved,  it  must  be  recorded 
in  the  office  of  the  recorder  of  every  county  in  which  any 
real  estate  may  be  situated  which  is  granted  or  affected  by 
such  contract. 

History:     Enacted  March  21,  1872. 

87  C.  643,  647,  25  P.  922,  923  (referred  to  in  discussing  change 
of  "marriage   contracts"   to   "marriage  settlements"). 

§  180.  EFFECT  OF  RECORDING.  The  recording  or  non- 
recording  of  such  contract  has  a  like  effect  as  the  recording 
or  non-recording  of  a  grant  of  real  property. 

History:     Enacted  March  21,  1872. 

87  C.  643,  647,  25  P.  922,  923  (referred  to  in  discussing  change 
of   "marriage   contracts"   to   "marriage   settlements"). 

§  181.    MINORS  MAT  MAKE  MARRIAGE  SETTLEMENTS. 

A  minor  capable  of  contracting  marriage  may  make  a  valid 
marriage  settlement. 

History:     Enacted  March  21,  1872. 

87  C.  643,  647,  25  P.  922,  923  (referred  to  in  discussing  change 
of   "marriage   contracts"   to   "marriage   settlements"). 

98 


Tit.II.Ch.I.]  CHILDREN    BY    BIRTH.  §193 

TITLE    II. 

PARENT  AND  CHILD. 

Chapter  I.     Children  by  Birth,  §§  193-215. 
IL     By   Adoption,    §§  221-230. 


CHAPTER  I. 
CHILDREN  BY  BIRTH. 

§  193.     Legitimacy  of  cliildren  born  in  wedlock. 

§  194.     Cliildren  after  dissolution   of  marriage. 

§  195.     Who  may  dispute  the  legitimacy  of  a  child. 

§  196.      Obligation    of   parents   for   the   support   and   education    of 
their  children. 

§  197.     Custody  of  legitimate  child. 

§  198.     Husband     and     wife     living     separate,     neither    to     have 
superior  right  to  custody  of  children. 

§  199.     When  husband  or  wife  may  bring  action  for  the  exclu- 
sive control  of  children — Decree  in  such  cases. 

§  200.     Custody  of  an  illegitimate  child. 

§  201.     Allowance  to  parent. 

§  202.     Parent  cannot  control  the  property  of  child. 

§  203.     Remedy   for  parental  abuse. 

§  204.     When    parental   authority   ceases. 

§  205.     Remedy    when   a   parent   dies   without   providing   for   the 
support  of  his  child. 

§206.      Reciprocal  duties  of  parents  and  children   in  maintaining 
each   other. 

§  207.     When    a    parent    is    liable    for    necessaries    supplied    to    a 
child. 

§  208.      When    a    parent    is    not    liable    for    support    furnished    his 
child. 

S  209.      Husband  not  bound  for  the  support  of  his  wife's  children 
by  a  former  marriage. 

§  210.     Compensation  and  support  of  adult  cliild. 

§  211.     Parent  may  relituiuish  services  and  custody  of  cliild. 

§  212.     Wages  of  minors. 

S  213.     Right  of  parent  to  determine  the  residence  of  cliild. 

§  214.      Wife  in  certain  cases  may  obtain  custody  of  minor  chil- 
dren. 

§  215.     When  child  becomes  legitimate. 

99 


§  193  CIVIL.  CODE.  [Div.I.Pt.III. 

§  193.    LEGITIMACY  OF  CHILDREN  BOKX  IN  WEDLOCK. 

All  children  born  in  wedlock  are  presumed  to  be  legitimate. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  26,  1901,  Stats,  and  Amdts.  1900-1,  p.  339,  held 
unconstitutional;  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for   2  pars,  annotation. 

75  e.  379,  381,  17  P.  434  (applied);  137  C.  298,  300,  70  P.  91,  92 
A.  S.  175  (referred  to);  145  C.  713,  715,  79  P.  425,  426  (referred 
to  in  connection   with   other  sections). 

Acknowledgment  by  father — ^Legitimizing-  effect, — as  to,  see 
Kerr's   Cyc.   C.  C.    §  230  and  note;   also   §  1387   and  note. 

Adultery — Legitimacy  of  children, — as  to,  see  Kerr's  Cyc.  C. 
C.   §§  144,   145  and  notes. 

Born  in  wedlock,  legitimacy  of. — See  2  Chiirch's  New  Probate 
Law  and   Practice,   1799. 

"Children,"  as  a  word  of  purchase  or  of  limitation. — See  5 
Encyc.  L.  1092,  1093;  30  Encyc.  L.  754;   2  L.  457;  12  L.  N.  S.  283. 

Descent  on  death  of  unmarried  minors. — See  1  Church's  New 
Probate  Law  and  Practice,  48. 

Illegitimate  child — Acknowledgment  by  the  father — As  to 
effect  of,  see  Kerr's  Cyc.  C.  C.  §§  230,   1387  and  notes. 

Same=— Custody  of,  mother  entitled  to. — See  Kerr's  Cyc.  C.  C. 
§  200   and   note. 

Same — Earnings  of — As  to,  see  Kerr's  Cyc.  C.  C.  §  200  and 
note. 

Same— Heir  of— As  to,  see  Kerr's  Cyc.  C.  C.  §§  1387,  1388  and 
notes. 

Marriage  of  parents — Effect  on  legitimacy  of  illegitimate 
children — As  to,  see   Kerr's   Cyc.   C.   C.   §  215  and   note. 

Nullified  marriage — Effect  on  legitimacy  of  children,  born  or 
conceived  during  status — As  to,  see  Kerr's  Cyc.  C.  C.  §  84  and 
note. 

Posthumous  children. — See  2  Church's  New  Probate  Law  and 
Practice,    1800. 

Presumption  as  to  legitimacy  of  children. — See  1  Church's 
New  Probate  Law  and  Practice,  56;  56  A.  D.  210-223;  72  A.  D. 
649-654. 

Same — R&butting — As  to,  see  Kerr's  Cyc.  C.  C.  §§  194,  195  and 
notes. 

Right  of  inheritance  of. — See  1  Church's  New  Probate  Law 
and  Practice,    46-48. 

Stepchildren.— See   5  Ency.  L.   1098,  1099. 

Succession  by  children  to  community  property. — See  2  Church's 
New  Probate  Law  and  Practice,  1735;  see  note  §  164  ante.    ' 

100 


II 


Tit.II,ch.I.]  DISPUTING  LEGITIMACY.  §§  194,  195 

§  194.     CHILDREN  AFTER  DISSOLUTION  OF  MARRIAGE. 

All  children  of  a  woman  who  has  been  married,  born  witliin 
ten  moutlis  after  the  dissolution  of  the  marriage,  are  pre- 
sumed to  be  tegitimate  children  of  that  marriage. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  194. 

See   Kerr's  Cyc.   C.   C.   for  4  pars,   annotation. 

75  C.  379,  381,  17  P.  434  (cited  with  other  sections);  137  C. 
129,  133,  134,  69  P.  900   (construed  and  applied). 

Born  after  dissolution  of  marriage. — See  2  Church's  New  Pro- 
bate Law  and  Practice,   1800. 

Children  of  annulled  marriage. — See  2  Church's  New  Probate 
Law  and  Practice,   1801.  . 

Custody  and  maintenance  of  children  on  divorce. — See  7 
Encyc.    P.    84,    129. 

Maintenance   of  children   on   divorce. — See   7   Ency.   P.    84,   129. 

Same — Amount  allowed  for. — See  7  Encyc.  P.   131. 

Same — Appeals  from   orders  as  to. — See   7   Encyc.  P.   136. 

Same- — Decrees  containing  no  provision  for. — See  7  Encyc. 
P.    131. 

Same — During  suit  for  divorce. — See   7  Encyc.   P.   130. 

Same — Order  for  maintenance. — See   7  Encyc.   P.   130,    131. 

Same — Party  about  to  leave  state. — See  7  Encyc.  P.   130. 

Same — Selection   of  custodian. — See   7  Encyc.   P.    130. 

Same — Where  divorce  is  refused. — See  7  Encyc.  P.   130. 

§195.  WHO  MAY  DISPUTE  THE  LEGITIMACY  OF  A 
CHILD.  The  presumption  of  legitimacy  can  be  disputed  only 
by  the  [1]  husband  or  [2]  wife,  or  the  [3]  descendant  of  one 
or  both  of  them.    Illegitimacy,  in  such  case,  may  be  proved 

like  any  other  fact. 

Hi-story:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

75  C.  379,  381,  17  P.  434  (cited  with  other  sections);  137  C. 
298,   303,  92  A.  S.   175,  70  P.   91    (applied). 

As  to  method  of  proof  of  illegitimacy  and  sufficiency  of  evi- 
dence,— see  notes  60  A.  D.   687;   72  A.  D.   649. 

Birth  in  lawful  wedlock,  legitimacy  presumed. — See  1  Church's 
New  Probate  Law  and  Practice,  56;  56  A.  D.  210-223;  72  A.  D. 
649-654;  also  note  §  193,  ante. 

Who  may  dispute  legitimacy  of  child. — See  2  Church's  New 
Probate   Law   and   Practice,    1800. 

101 


§§  196, 197  CIVIL  CODE.  [Div.I.Pt.III. 

§196.  OBLIGATION  OF  PARENTS  FOR  THE  SUPPORT 
AND  EDUCATION  OF  THEIR  CHILDREN.  The  parent  enti- 
tled to  the  custody  of  a  child  must  give  him  support  and 
education  suitable  to  his  circumstances.  If  the  support  and 
education  which  the  father  of  a  legitimate  child  is  able  to 
givt'  are  iandequate,  the  mother  must  assist  him  to  the  extent 
of  her  ability. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.   C.  for  20  pars,  annotation. 

71  C.  495,  497,  12  P.  508,  509  (applied);  95  C.  374,  377,  378,  30  P. 
561  (applied);  109  C.  643,  648,  42  P.  428  (construed  and  applied); 
130  C.  380,  382  (construed  and  applied);  62  P.  613;  134  C.  114, 
116,  66  P.  18*7  (applied);  145  C.  713,  716,  79  P.  425  (construed  with 
other  sections);  4  C.  A.  264,  267,  87  P.  561,  562  (when  parent  is 
no  longer  liable   for  support). 

Care  and  custody  of  child — Right  of  parent  to. — See  Kerr's 
Cyc.   C.   C.    §  197   note   pars.    2-5. 

Children  entitled  to  family  allowance. — See  1  Church's  New 
Probate    Law    and    Practice,    574. 

Desertion  of  child  by  parent — Felony. — See  Kerr's  Cyc.  Pen. 
C.  §  271  and  note. 

Disposing  of  child  for  mendicity — Misdemeanor. — See  Kerr's 
Cyc.  Pen.  C.  §  272  and  note. 

Injury  to  child — Action  for. — See  Kerr's  Cyc.  C.  C.  P.  §  376 
and  note. 

Necessaries  for  children — Supplied  by  third  person,- — as  to,  see 
Kerr's   Cyc.    C.    C.    §§  207,    208   and   notes. 

Paternal  authority — Abuse  of, — as  to  control  by  court,  see 
Kerr's  Cyc.  C.  C.   §  203  and  note. 

Poor  relative — Duty  to  support.- — See  Kerr's  Cyc.  C.  C.  §  206 
and  note. 

§  197.  CUSTODY  OF  LEGITIMATE  CHILD.  The  father  of 
a  legitimate  unmarried  minor  child  is  entitled  to  its  custody, 

services,  and  earnings;  but  he  cannot  transfer  such  custody 
or  services  to  any  other  person,  except  the  mother,  without 
her  written  consent,  unless  she  has  deserted  him,  or  is  living 
separate  from  him  by  agreement. 

If  the  father  [1]  be  dead,  or  [2]  be  unable,  or  [3]  refuse 
to  take  the  custody,  or  [4]  has  abandoned  his  family,  the 
mother  is  entitled  thereto. 

102 


Tit.II.ch.I.]  PARENTS    SEPARATED.  §  igg 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  194. 

See  Kerr's  Cyc.  C.  C.  for   16  pars,  annotation. 

95  C.  3.74,  377,  378,  30  P.  561  (cited  with  other  sections);  130 
C.  380,  382,  62  P.  613  (construed  and  applied);  134  C.  114,  116, 
66  P.  187  (cited  in  discussion);  137  C.  273,  276,  92  A.  S.  160,  70 
P.  21,  58  L.  941  (applied);  142  C.  423,  426,  76  P.  37  (applied);  3 
C.  A.   286,  290,   85   P.   130    (cited). 

Appointment  of  general  guardian  for. — See  1  Church's  New 
Probate  Law  and  Practice,   78. 

Emancipation — Relinquishment  of  earnings — As  to,  see  Kerr's 
Cyc.   C.   C.    §  211   and  note. 

Commitment  of  infants. — See  1  Church's  New  Probate  Law 
and   Practice,    88. 

Custody  of — Awarding. — See  1  Churcli's  New  Probate  Law 
and   Practice,    78. 

Same — Habeas  corpus  for. — See  1  Church's  New  Probate 
Law   and    Practice,    92-98. 

Guardian  for  minor — Appointment  of — As  to,  see  Kerr's  Cyc. 
C.   C.    §  421    and   note. 

Minors  and  their  custody,  guardian,  commitment,  and  habeas 
corpus. — See   1   Church's  New  Probate  Law  and  Practice,  85-98. 

Property  of  child — Parent's  control  over — As  to,  see  Kerr's 
Cyc.  C.  C.   §  202  and  note. 

Petition  for  writ  of  habeas  corpus  for  detention  of  child. — 
See  1  Cliurch's  New  Probate  Law  and  Practice,   79. 

Relinquishment  of  riglit  to  earnings — As  to,  see  Kerr's  Cyc. 
C.  C.  §  214  and  note. 


§198.  IIISBAXD  AM)  WIFE  LIVING  SEPARATE, 
NEITHER  TO  HAVE  SUPERIOR  RIGHT  TO  CUSTODY  OF 
CHILDREN.  The  husband  and  father,  as  such,  has  no  right 
superior  to  those  of  the  wife  and  mother,  in  regard  to  the 
care,  custody,  education,  and  control  of  the  children  of  tlie 
marriage,  while  such  huHl)and  and  wife  live  separate  and 
apart  from  each  other. 

History:     Enacted  March   21,   1872. 

See    Kerr's    Cyc.    C.    C.    for    2    pars,   annotation. 

137  C.  273,  276,  92  A.  S.  160,  70  P.  21,  58  L.  941  (applied);  142 
C.   423,  426,   76   P.   37    (applied). 

As  to  custody  of  child  in  divorce,  see  Kerr's  Cyc.  C.  C.  §  138 
and   note. 

103 


§§  199-201  CIVIL  CODE.  [Div.I.Pt.III. 

§  199.  WHEN  HUSBAND  OR  WIFE  MAT  BRING  ACTION 
FOR  THE  EXCLUSIVE  CONTROL  OF  CHILDREN— DECREE 
IN  SUCH  CASES.  Without  application  for  a  divorce,  the 
husband  or  the  wife  may  bring  an  action  for  the  exclusive 
control  of  the  children  of  the  marriage;  and  the  court  may, 
[1]  during  the  pendency  of  such  action,  or  [2]  at  the  final 
hearing  thereof,  or  [3]  afterwards,  make  such  order  or  decree 
in  regard  to  the  support,  care,  custody,  education,  and  con- 
trol of  the  children  of  the  marriage,  as  may  be  just,  and  in 
accordance  with  the  natural  rights  of  the  parents  and  the 
best  interests  of  the  children,  and  may  [4]  at  any  time  there- 
after amend,  vary,  or  modify  such  order  or  decree,  as  the 
natural  rights  and  the  interests  of  the  parties,  including  the 
children,  may  require. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

109   C.    643,    649,   42  P.    428,   429    (referred   to). 

As  to  when  wife  is  entitled  to  custody  of  child,  see  Kerr's 
Cyc.  C.   C.   §  214  and  note. 

Awarding  custody — Considerations  governing  court  in, — as 
to,  see  Kerr's  Cyc.  C.  C.   §  200   note  par.   4;  also   §246  and  note. 

Depriving  parent  of  custody  pending  action — Court  has  au- 
thority to.      109   C.    643,   649,   42   P.   428. 

§200.    CUSTODY    OF   AN   ILLEGITIMATE    CHILD.     The 

mother  of  an  illegitimate  unmarried  minor  is  entitled  to  its 
custody,  services,  and  earnings. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.   C.   for   6  pars,   annotation. 

Estate  of  illegitimate  child,  dying  intestate,  goes  to  mother. — 
See  Kerr's  Cyc.   C.   C.   §  1387   and  note. 

Mother's  duty  to  support. — See  Kerr's  Cyc.  C.  C.  §  196  and 
note. 


§  201.  ALLOWANCE  TO  PARENT.  The  proper  court  may 
direct  an  allowance  to  be  made  to  the  parent  of  a  child,  out 
of  its  property,  for  its  past  or  future  support  and  education, 

104 


II 


Tit.ir.ch.I.]  PARENTAL    ABUSE.  §§202-204 

on  such  conditions  as  may  be  proper,  whenever  such  direc- 
tion is  for  its  benefit. 

History:     Enacted  March  21,  1872. 
See  Kerr's  Cyc.   C.   C.   for   7   pars,   annotation. 

§202.  PATIENT  CANNOT  CONTROL  PROPERTY  OF 
CHILD.  The  parent,  as  such,  has  no  control  over  the  prop- 
erty of  the  child. 

History:     Enacted  March  21,  1872. 

As  to  appointment  of  guardian  by  parent,  see  Kerr's  Cyc.  C. 
C.  §  241  and  note. 

Guardian  alone  can  control  infant's  property. — See  Kerr's  Cyc. 
C.   C.    §  242  and  note. 

§203.  REMEDY  FOR  PARENTAL  ABUSE.  The  abuse  of 
parental  authority  is  the  subject  of  judicial  coariiizaiice  in  a 
civil  action  brought  [1]  by  the  child,  or  [2]  by  its  relative 
within  the  third  degree,  or  [3]  by  the  supervisors  of  the 
county  where  the  child  resides;  and  when  the  abuse  is  estab- 
lished, the  child  may  be  freed  from  the  dominion  of  the 
parent,  and  the  duty  of  support  and  education  enforced. 

History:     Enacted  Marcli  21,  1872. 

See  Kerr's  Cyc.  C.   C.   for   10   pars,  annotation. 

103  C.  355,  356,  357,  37  P.  206  (applied):  109  C.  643,  647,  648. 
649  (construed  and  applied);  650,  651,  653,  654.  656,  657,  659 
(cited  in  dis.  op.),  653,  654  (held  not  applicable  irt  dls.  op.), 
G55,  660,  661  (construed  in  dis.  op.),  42  P.  428;  124  C.  677,  678,  57 
P.  674  (applied);  143  C.  402,  404,  405,  77  P.  156  (construed,  applied, 
and  object  stated;  also  what  was  said  of  section  in  103  C.  355, 
356,   37   P.   206,   considered  not  to  be   law). 

Desertion  of  child  by  parent — Felony. — See  Kerr's  Cyc.  Pen.  C. 
§  271    and    note. 

Failure  to  supply  child  witli  necessaries — Misdemeanor,  where 
wilful.^ — See  Kerr's  Cyc.  Pen.  C.   §  270  and  note.  iil 

Parental  duty — ^As  to,  see  Kerr's  Cyc.  C.  C.  §  196  and  note. 

§204.     WHEN    PARENTAL    ATTHORITY    CEASES.     The 

authority  of  a  parent  ceases: 

1.  Upon  the  appointment,  by  a  court,  of  a  guardian  of  the 
person  of  a  child; 

105 


§§  205, 206  CIVIL  CODE.  [Div.I,Pt.III. 

2.  Upon  the  marriage  of  the  child;  or, 

3.  Upon  its  attaining  majority. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

109  C.  643,  649,  42  P.  428  (referred  to);  119  C.  599,  601,  51  P. 
962  (applied);  142  C.  423,  426,  76  P.  37;  143  C.  402,  403,  77  P.  156 
(cited). 

§205.  REMEDY  WHEN  A  PARENT  DIES  WITHOUT 
PROVIDING   FOR   THE    SUPPORT   OF   HIS    CHILD.     If   a 

parent  chargeable  with  the  support  of  a  child  dies,  [1]  leav- 
ing it  chargeable  to  the  county,  and  [2]  leaving  an  estate 
sufficient  for  its  support,  the  supervisors  of  the  county  may 
claim  provision  for  its  support  from  the  parent's  estate  by 
civil  action,  and  for  this  purpose  may  have  the  same  remedies 
as  any  creditors  against  that  estate,  and  against  the  heirs, 
devisees,  and  next  of  kin  of  the  parent. 

History:     Enacted  March  21,  1872. 

109   C.   643,   649,    42   P.   428    (referred  to). 

Maintenance  of  minors  out  of  income  of  his  own  property. — - 
See  1  Church's  New  Probate  Law  and  Practice,  115. 

Property  set  apart  for  support  of  family,  how  apportioned 
between  widow  and  children. — See  1  Church's  New  Probate  Law 
and   Practice,   557. 

Right  and  title  of  children  to  antemortem  homestead. — See  1 
Church's  New  Probate  Law  and  Practice,  608. 

Right  of  cliildren  in  estate  less  than  $1500  in  value. — See  1 
Church's  New  Probate  Law  and  Practice,   585. 

Right  of  minor  child  to  probate  homestead. — See  1  Church's 
New  Probate  Law  and  Practice,   633. 

When  all  property  other  than  homestead  goes  to  children. — 
See   1   Church's  New   Probate   Law  and  Practice,    563. 

§206.  RECIPROCAL  DUTIES  OF  PARENTS  AND  CHIL- 
DREN  IN  MAINTAINING  EACH  OTHER.  It  is  the  duty  of 
the  [1]  father,  the  [2]  mother,  and  the  [8]  children  of  any 
poor  person  who  is  unable  to  maintain  himself  by  work,  to 

maintain  such  person  to  the  extent  of  their  ability.  The 
promise  of  an  adult  child  to  pay  for  necessaries  previously 
furnished  to  such  parent  is  binding. 

History:     Enacted  March  21,  1872. 
106 


Tit.II,ch.I.]         nf:cessaries  and  support.  §§  207-209 

See  Kerr's  Cyc.  C.  C.  for  3   pars,  annotation. 

124  C.  48,  54,  55,  71  A.  S.  17,  56  P.  630,  631,  57  P.  81  (construed 
and  applied);  149  C.  140,  142,  84  P.  838,  117  A.  S.  125,  4  L.  N.  S. 
1159,  9  A.  C.  1018  (referred  to  as  a  meager  provision);  150  C.  667, 
669,  670  (inadequacy  of  section  in  providing  procedure  or  ma- 
chinery for  enforcing  its  provisions  alluded  to)  671,  672,  673, 
89  P.  1083  (construed  and  applied,  holding  that  duty  and  right 
established  by  section  may  be  enforced  by  an  action  in  equity). 

To  mother — Out  of  allowance  of  child's  estate — Past  sup- 
port.— See  Kerr's  Cyc.  C.  C.  §  201  and  notes. 

§  207.  ^VHEN  A  PARE>T  IS  LIABLE  FOR  NECESSARIES 
SUPPLIED  TO  A  CHILD.  If  a  parent  neglects  to  provide 
articles  necessary  for  his  child  who  is  under  his  charge, 
according  to  his  circumstances,  a  third  person  maj'  in  good 
faith  supply  such  necessaries,  and  recover  the  reasonable 
value  thereof  from  the  parent. 

HiMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

109  C.  643,  649.  42  P.  428  (referred  to);  145  C.  713,  716,  717, 
79  P.   425    (construed  with   otlier  sections). 

Liability  of  infant  for  necessaries  furnished,  when. — See 
Kerr's  Cyc.  C.  C.  §  36  and  note. 

Same — Furnished  for  purpose  of  business. — See  Kerr's  Cyc. 
C.  C.   §  36   note   pars.   32,    3C. 

§208.  >VHE\  A  PA  HEM"  LS  NOT  LIABLE  FOR  SUPPORT 
FURMSIIED  HIS  CHIl-D.  A  parent  is  not  bound  to  com- 
pensate [1]  the  other  parent,  or  [2]  a  relative,  for  the  volun- 
tary supi)ort  of  his  child,  without  an  agreement  for  com- 
pensation, nor  [3]  (d  compensate  a  stranger  for  the  support 
of  a  child  who  has  abandoned  the  parent  without  just  cause. 
HlNtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.   C.  C.   for   2   jiars.   annnt.ition. 

125  C.  65,   72,  57  P.   677    (applied). 

§209.  HUSBAND  NOT  BOT  >D  FOI{  THE  SUPP4HJT  OF 
HIS    >VIFi:'S    (  HII.DBKN    BY    A    FORMER    MAHHUV^K.      A 

husband   is   not   l)OUud   to  maintain   his  wife's   children   by    a 
former  husband;  but  if  he  receives  them  into  his  family  and 

107 


§§  210-213  CIVIL  CODE.  [Div.I,Pt.III. 

supports  them,  it  is  presumed  that  he  does  so  as  a  parent, 
and,  where  such  is  the  case,  they  are  not  liable  to  him  for 
their  support,  nor  he  to  them  for  their  services. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

74  C.  320,  321,  322,  16  P.  5,  6  (applied);  125  C.  65,  70,  57  P. 
677    (applied). 

§210.  COMPENSATION  AND  SUPPORT  OF  ADULT 
CHILD.  Where  a  child,  after  attaining  majority,  continues 
to  serve  and  to  be  supported  by  the  parent,  neither  party  is 
entitled  to  compensation,  in  the  absence  of  an  agreement 
therefor. 

History:     Enacted  March  21,   1872. 

§21L  PARENT  MAY  RELINQUISH  SERVICES  AND 
CUSTODY  OF  CHILD.  The  parent,  whether  solvent  or  insol- 
vent, may  relinquish  to  the  child  the  right  of  controlling 
him  and  receiving  his  earnings.     Abandonment  by  the  parent 

is  presumptive  evidence  of  such  relinquishment. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
115  C.  143,  151,  44  P.  336,  46  P.  922   (referred  to). 

§  212.  WAGES  OF  MINOR.  The  wages  of  a  minor  employed 
in  service  may  be  paid  to  him,  until  the  parent  or  guardian 
entitled  thereto  gives  the  employer  notice  that  he  claims 
such  wages. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   194. 

3  C.  A.   286,   290,  85  P.   130,  132    (applied). 

§  213.  RIGHT  OF  PARENT  TO  DETERMINE  THE  RESI- 
DENCE OF  CHILD.  A  parent  entitled  to  the  custody  of  a 
child  has  a  right  to  change  his  residence,  subject  to  the 
power  of  the  proper  court  to  restrain  a  removal  which  would 
prejudice  the  rights  or  welfare  of  the  child. 

History:     Enacted  March  21,  1872. 
108 


Tit.II,ch.I.]  CUSTODY  BY  WIFE.  §§  214,  215 

Residence  of  children — Fatlier  may  determine  what  shall  be. — 
92  C.  653,  655,  28  P.  787.  See  also  Kerr's  Cyc.  C.  C.  §156  and 
note. 

§214.  WIFE  m  CERTAIN  CASES  MAY  OBTAIN  CUS- 
TODY  OF  MINOR  CHILDREN.  When  a  husband  and  wife 
live  in  a  state  of  separation,  without  being  divorced,  any 
court  of  competent  jurisdiction,  upon  application  of  either, 
if  an  inhabitant  of  this  state,  may  inquire  into  the  custody 
of  any  unmarried  minor  child  of  the  marriage,  and  may  award 
the  custody  of  such  child  to  either,  for  such  time  and  under 
such  regulations  as  the  case  may  require.  The  decision  of 
the  court  must  be  guided  by  the  rules  prescribed  in  section 
two  hundred  and  forty-six. 

HLstory:     Enacted  March  21,  1872. 

Action  for  control  without  prayer  for  divorce. — See  Kerr's 
Cyc.  C.  C.  §  199  and  note. 

Custody  pending  divorce  proceedings. — See  Kerr's  Cyc.  C.  C. 
§§  138,  139  and  notes. 

§2ir,.  WHEN  CHILI)  BEC03IES  LEGITIMATE.  A  child 
born  before  wedlock  becomes  legitimate  by  the  subsequent 
marriage  of  its  parents. 

History:     Enacted  March  30,  1874,  Code  Amdts.  1873-4,  p.   195. 

See  Kerr's  Cyc.   C.  C.   for  4  pars,  annotation. 
57  C.  484,  491    (construed  and  applied);  96  C.  532,  563,  570,  572, 
31   P.   915,  917,   919,   920,  921,  19   L.   40    (applied). 
Acknowledgment  of  child. — See   27   Encyc.  L.   350. 


109 


§§  221,  222  CIVIL  CODE.  [Div.I,Pt.III. 

CHAPTER   II. 

ADOPTION. 

§  221.  Child  may  be  adopted. 

§  222.  Who  may  adopt. 

§  223.  Consent  to  adoption   [by  wife]. 

§  224.  Adoption    of    cliildren;    consent    necessary.      Orphans    and 

abandoned  children. 

§  225.  Consent  of  child. 

§  226.  Proceedings  on  adoption. 

§  227.  Judge's  order  in  adoption  proceedings. 

§  228.  Effect    of    adoption. 

§  229.  Effect  on  former  relations  of  child. 

§  230.  Adoption  of  illegitimate  child. 

§  221.  CHILD  MAT  BE  ADOPTED.  Any  minor  child  may 
be  adopted  by  any  adult  person,  in  the  cases  and  subject  to 
the  rules  prescribed  in  this  chapter. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

75  C.  379,  381,  17  P.  434,  436  (applied);  81  C.  408,  441,  446,  21 
P.  976,  979,  980,  22  P.  742,  1028,  6  L.  594  (cited  and  applied — 
compared  with  statutes  of  1869-70),  446  (construed);  102  C. 
70,    79,   41   A.   S.    163,    36   P.    407    (construed). 

Adoption  of  children — As  to  generally,  see  1  Cent.  Dig.  col. 
1952,  §1-6;  1  Church's  New  Probate  Law  and  Practice,  21;  10 
Encyc.  P.   845-850. 

Same — By  deed  or  agreement. — See  1  Cent.  Dig.  col.  1956, 
§§  11-14;   1  Decen.  Dig.  p.  402,  §  8. 

Same — By  judicial  proceedings. — See  1  Cent.  Dig.  col.  1959, 
§§15-26. 

Same — Persons  who  may  be  adopted. — See  1  Decen.  Dig.  p. 
399,   §  5. 

Same — Review  and  revocation  of. — See  1  Decen.  Dig.  p.  1963, 
■§§  27,    28. 

Agreement   to   adopt. — See    1    Decen.    Dig.    p.    400,    §  6. 

§  222.  WHO  MAY  ADOPT.  The  person  adopting  the  child 
must  be  at  least  ten  years  older  than  the  person  adopted. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  195. 

110 


J 


h 


Tit.II.Ch.II.]  ADOPTION— CONSENT.  §§  223,  224 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

81  C.  408,  441,  446,  21  P.  976,  22  P.  742,  1028,  6  L.  594  (cited 
and  applied);  98  C.  531,  537,  33  P.  460,  21  L.  380  (referred  to 
with   other   sections). 

Persons  who  may  adopt. — See  1  Decen.  Dig.  p.  399,  §  4. 

§  223.  CONSENT  TO  ADOPTION  [BY  WIFE].  A  married 
man,  not  lawfully  separated  from  his  wife,  cannot  adopt  a 
child  without  the  consent  of  his  wife,  nor  can  a  married 
woman,  not  thus  separated  from  her  husband,  without  his 
consent,  provided  the  husband  or  wife,  not  consenting,  is 
capable  of  giving  such  consent. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  195. 

81  C.  408,  441,  446,  21  P.  976,  22  P.  742,  1028,  6  L.  594  (cited 
and  applied);  98  C.  531,  536-537,  33  P.  460,  21  L.  380  (construed); 
102  C.   70,   79,   41  A.  S.   163,  36   P.   407    (construed). 

Consent  of  parties. — See  1  Cent.  Dig.  col.  1954,  §§  7-10;  1 
Decen.  Dig.  p.   401,   §  7. 

§224.  ADOPTION  OF  CIIILDKEN;  CONSENT  NECES- 
SAKY.  OKPHANS  AND  ABANDONED  CHILDREN.  A  legiti- 
mate child  cannot  be  adopted  without  the  consent  of  its 
parents,  if  living;  nor  an  illegitimate  child  without  the  con- 
sent of  its  mother,  if  living;  except,  that  consent  is  not  neces- 
sary from  a  father  or  mother  [1]  deprived  of  civil  rights,  or 
[2]  adjudged  guilty  of  adultery,  or  [3]  cruelty,  and  for  either 
cause  divorced,  or  [4]  adjudged  to  be  habitually  intemperate 
in  the  use  of  intoxicants,  or  [5]  who  has  been  judicially 
deprived  of  the  custody  of  the  child  on  account  of  [a]  cruelty 
or  [b]   neglect. 

[Abandoned  children,  consent  not  necessary.]  Neither  is 
consent  of  any  parent  necessary  in  case  of  any  abandoned 
child;  provided,  however,  that  any  such  child,  being  a  half- 
orphan,  and  kept  and  maintained  in  any  orphan  asylum  in 
this  state  for  more  than  two  years,  may  be  adopted,  with  the 
consent  of  the  manager  of  such  orphan's  home  without  the 
consent  of  the  parent  unless  such  parent  has  paid  toward 
the  expenses  of  maintenance  of  such  half-orphan  at  least  a 
reasonable  sum  during  the  said  time,  if  able  to  do  so. 

Ill 


§§  225, 226  CIVIL  CODE.  [Div.I.Pt.ITI. 

[Deserted  child.]  Any  child  [1]  deserted  by  both  parents 
or  [2]  left  in  the  care  and  custody  of  another  by  its  parent 
or  parents,  [a]  without  any  agreement  or  provision  for  its 
support,  [b]  for  the  period  of  one  year,  is  deemed  to  be  an 
abandoned  child  within  the  meaning  of  this  section  and 
where  the  parent  is  a  non-resident  of  this  state  such  child 
may  be  adopted  with  the  consent  of  the  managers  of  such 
home  whenever  it  has  been  left  in  such  home  for  more  than 
one  year;  or  any  abandoned  child,  within  the  meaning  of  this 
section,  if  left  in  the  care  and  custody  of  another  person 
for  one  year  or  more,  may,  with  the  consent  of  the  district 
attorney  of  the  county  wherein  the  person  applying  to  adopt 
such  child  is  a  resident,  be  adopted  by  such  person. 

History:  Enacted  March  21,  1872;  amended  March  2,  1891, 
Stats,  and  Amdts.  1891,  p.  24;  March  9,  1893,  Stats,  and  Amdts. 
1893,  p.  112;  March  9,  1895,  Stats,  and  Amdts.  1895,  p.  39; 
amended  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  339,  held  unconstitutional;  see  history,  §  4 
ante;  amended  March  10,  1903,  Stats,  and  Amdts.  1903,  p.  114; 
amended  March  16,  1907,  Stats,  and  Amdts.  1907,  p.  331,  Kerr's 
Stats,  aftd  Amdts.    1906-7,  p.   400. 

See    Kerr's   Cyc.   C.    C.    for   3    pars,    annotation. 

57  C.  484,  491  (construed);  81  C.  408,  441,  446,  21  P.  976,  22 
P.  742,  1028,  6  L.  594  (cited  and  applied);  98  C.  531,  536-537,  33 
P.  460,  21  L.  380  (referred  to  with  other  sections);  102  C.  70,  8l, 
41  A.  S.  163,  36  P.  407  (construed);  106  C.  377  (applied),  379 
(referred    to    with    §381),    39    P.    779. 

§225.     CONSENT  OF  CHILD.     The   consent  of  a  child,   if 
over  the  age  of  twelve  years,  is  necessary  to  its  adoption. 
History:     Enacted  March  21,  1872. 

81  C.  408,  441,  446,  21  P.  976,  22  P.  742,  1028,  6  L.  594  (cited 
and  applied);  98  C.  531,  537,  33  P.  460,  21  L.  380  (referred  to 
witli  other  sections). 

§  226.  PROCEEDINGS  ON  ADOPTION.  Any  person  desir- 
ing to  adopt  a  child  may,  for  that  purpose,  petition  the  supe- 
rior court  of  the  county  in  which  the  petitioner  resides.  The 
[1]  person  adopting  a  child,  and  [2]  the  child  adopted,  and 
[3]   the  other  persons,  if  within  or  residents  of  said  county, 

112 


Illf    Tit.TT.ch.TT.]  PROCEEDINGS — ORDER.  §227 

whose  consent  is  necessary,  must  appear  before  the  eonrt, 
and  [4]  the  necessary  consent  must  thereupon  be  signed  and 
[5]  an  agreement  executed  by  the  person  adopting,  to  the 
effect  that  the  child  shall  be  adopted  and  treated  in  all 
respects  as  his  own  lawful  child  should  be  treated.  If  the 
persons  whose  consent  is  necessary  are  not  within  or  are 
not  residents  of  said  county,  then  [6]  their  written  consent, 
duly  proved  or  acknowledged,  according  to  sections  eleven 
hundred  and  eighty-two  and  eleven  hundred  and  eightj'-three 
[7]  must  be  filed  in  said  superior  court  at  the  time  of  the 
application  for  adoption. 

History:  Enacted  March  21,  1S72;  amended  Feb.  9,  1876,  Code 
Anidts.  1875-6,  p.  70;  April  6,  1880,  Code  Amdts.  1880  (C.  C.  pt.),  p. 
4;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  339,  held  unconstitutional;  see  history,  §  4  ante; 
re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  555; 
amended  March  16,  1907,  Stats,  and  Amdts.  1907,  p.  329,  Kerr's 
Stats,  and  Amdts.   1906-7,   p.   401.      In  effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

81  C.  408.  441,  446,  21  P.  976,  22  P.  742,  1028,  6  L.  594  (cited 
and  applied);  87  C.  638,  640,  25  P.  967  (construed);  96  C.  532, 
567,  31  P.  915,  19  L.  40  (referred  to  in  discussion);  98  C.  531 
(cited),  537  (referred  to  with  other  sections  dis.  op.),  547  (con- 
strued dis.  op.),  552,  33  P.  460,  21  L.  380;  102  C.  70,  77,  41  A. 
S.   163,  36  P.  407    (construed). 

Collateral  attack   on  proceedings  of. — See   10  Eilcyc.   P.   850. 

Evidence  on   adoption. — See   1   Decen.   Dig.  p.   406,   §  17. 

Hearing  and  determination  of  application. — See  10  Encyc.  P. 
848;     1    Decen.    Dig.    p.     403,    §  13. 

Jurisdiction — Proceedings  to  conform  to  statute. — See  10 
Encyc.  P,  846;  1  Decen.  Dig.  p.  402,  §  10. 

Nature  of  proceedings. — See  1  Decen.  Dig.  p.  398,  §  1. 

Notice  of  proceedings. — See  10  Encyc.  P.  S48;  1  Decen.  Dig.  p. 
403,  §  12. 

Order  or  decree  on. — See  1  Decen.  Dig.  p.  404,  §  14. 

Petition  for. — See  10  Encyc.  P.  487;   1  Decen.  Dig.  p.   403,   §  11. 

Review  and  revocation. — See  10  Encyc.  P.  SI9;  1  Decen.  Dig. 
p.    405,   §§  15,   16. 

§227.    JUDGE'S   OKDER   I>    .VDOPTION    rUOCEEDIXGS. 

The  court  must  [1]  examine  all  persons  appearing  before  it 
pursuant  to  the  last  section,  each  separately,  and  if  satisfied 
that  the  interests  of  the  child  will  be  promoted  by  the  adop- 

113 


§  228  CIVIL  CODE.  [Div.I,Pt.III. 

tion,  it  must  [2]  make  an  order  declaring  that  tlie  child  shall 
thenceforth  be  regarded  and  treated  in  all  respects  as  the 
child  of  the  person  adopting.  The  petition,  agreement,  con- 
sent, and  order  must  be  filed  and  registered  in  the  office  of 
the  county  clerk  in  the  same  manner  as  papers  in  other 
special  proceedings. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held 
unconstitutional;  see  history,  §  4  ante;  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  556. 

See   Kerr's   Cyc.   C.   C.   for   19   pars,   annotation. 

57  C.  484,  491  (cited  and  discussed);  75  C.  213,  218-219,  7  A. 
S.  146,  16  P.  887,  888  (construed);  81  C.  408,  441,  446,  21  P.  976, 
22  P.  742,  1028,  6  L.  594  (cited  and  applied);  98  C.  531,  536  (con- 
strued with  other  sections),  537,  538,  547  (construed  dis.  op.), 
33  P.  460,  21  L.  380  (construed);  102  C.  70,  77,  80,  41  A.  S.  163, 
36  P.  407  (construed  and  applied);  106  C.  562,  564,  565,  566, 
39  P.  860  (construed);  131  C.  469,  470,  471,  82  A.  S.  371,  63  P.  736 
(construed  and  applied);  140  C.  468,  469,  74  P.  10  (referred  to); 
141   C.   403,   406,   99   A.   S.   80,   74   P.   1039    (construed  and  applied). 

'  §  228.  EFFECT  OF  ADOPTION.  A  child,  when  adopted, 
may  take  the  family  name  of  the  person  adopting.  After 
adoption,  the  two  shall  sustain  towards  each  other  the  legal 
relation  of  parent  and  child,  and  have  all  the  rights  and  be 
subject  to  all  the  duties  of  that  relation. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    195. 

See   Kerr's   Cyc.   C.   C.   for   8   pars,   annotation. 

57  C.  484,  491  (construed);  75  C.  213,  219,  7  A.  S.  146,  16  P. 
887,  888  (construed);  81  C.  408,  441,  446,  21  P.  976,  22  P.  742, 
1028,  6  L.  594  (cited  and  applied);  106  C.  377,  379,  380,  39  P.  779 
(construed);  131  C.  180,  182,  63  P.  345  (construed);  140  C.  468, 
469,   74   P.    10    (referred   to). 

As  to  effect  of  adoption,  see  Kerr's  Cyc.  C.  C.  §  193  and  note. 

Adopted   children,    right   to    inherit. — See    118    A.    S.    684. 

Adoption  of  children,  effect  on  kindred  of  tlie  person  adopt- 
ing-.— See   109  A.  S.   674. 

Effect  of  adoption  of  children  on  property  rights  of  sur- 
viving spouse. — See  1  Cent.  Dig.  col.  1974,  §§43,  44;  1  Decen. 
Dig.   p.    409,    §  24. 

Inheritance  by  adopted  children. — See  1  Decen.  Dig.  col.  1966, 
§§35-40;    1   Decen.   Dig.   p.   407,   §21. 

114 


mi    Titll.ch.II.]  ILLEGITIMATE    CHILD.  §§229,230 

Inheritance  from  or  through  adopted  children. — See  1  Cent. 
Dig.  col.   1972,  §§41,  42;   1   Decen.  Dig.  p.   409,  §22. 

Rights,  duties  and  liabilities  created  by  adoption. — See  1 
Cent.    Dig.    col.    1964,    §§  29-44. 

Status   after  adoption. — See    1    Decen.    Dig.    p.    406,    §  18. 

§229.    EFFECT    ON    FORMER    RELATIONS    OF    CHILD. 

The  parents  of  an  adopted  child  are,  from  the  time  of  the 
adoption,  relieved  of  all  parental  duties  towards,  and  all 
responsibility  for,  the  child  so  adopted,  and  have  no  right 
over  it. 

History:     Enacted  March  21,   1872. 

81  C.  408,  441,  446,  21  P.  976,  22  P.  742,  1028,  6  L.  594  (cited 
and  applied);  106  C.  377,  378,  379,  39  P.  779  (quoted  in  discussion 
declaring  status  changed  by  adoption   proceedings). 

§  230.  ADOPTION  OF  ILLEGITIMATE  CHILD.  The  father 
of  an  illegitimate  child,  by  [1]  publicly  acknowledging  it  as 
his  own,  [2]  receiving  its  as  such,  [3]  with  the  consent  of  his 
wife,  if  he  is  married,  [4]  into  his  family,  and  [5]  otherwise 
treating  it  as  if  it  were  a  legitimate  child,  thereby  adopts  it 
as  siicli;  and  such  child  is  thereupon  deemed  for  all  purposes 
legitimate  from  the  time  of  its  birth.  The  foregoing  provi- 
sions of  this  chapter  do  not  apply  to  such  an  adoption. 
HlNtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  37  pars,   annotation. 

52  C.  84,  85,  86,  87  (construed);  56  C.  413,  416,  419  (referred 
to);  57  C.  484,  491.  492  (construed);  75  C.  379.  381,  382,  17  P. 
434.  436  (applied);  81  C.  408,  421.  422.  432,  434.  441.  442.  443, 
444,  445.  446,  447.  457.  458,  21  P.  976.  22  P.  742,  6  L.  594  (con- 
strued and  applied);  96  C.  532,  557,  558,  559,  560.  572.  573,  576. 
582.  591.  592.  594.  595.  31  P.  915.  19  L.  40  (construed  and  applied); 
64  P.  1076  (construed);  102  C.  254.  262,  36  P.  522  (referred  to); 
127  C.  431,  434,  59  P.  787  same  case  on  writ  of  error,  ISO  U.  S. 
333.  335.  336.  45  L.  ed.  557.  558.  559  (referred  to  with  other  sec- 
tions); 64  P.  1076  (applied);  135  C.  385.  386  (cited  in  discussion), 
388  (admissible  to  prove  legitimation),  67  P.  321;  136  C.  394. 
395.  396.  68  P.  1026  (defining  family);  137  C.  298,  299.  300.  92 
A.  S.  175.  70  P.  91  (referred  to  with  other  sections);  73  P.  186 
(construed  and  applied);  142  C.  158.  160  (cited),  168,  169  (con- 
strued, and  former  decisions  reviewed  and  reconciled).  170.  171. 
172  (dis.  op.),  75  P.  790;  180  U.  S.  333.  335.  336.  45  L.  ed.  557. 
558.  559,  same  case  below,  127  C.  431,  434.  59  P.  787  (referred 
to  with  other  sections). 

115 


§  236  CIVIL  CODE.  [Div.I,Pt.III. 

TITLE   III. 

GUARDIAN  AND  WARD. 

[Under  this  head  the  Code  Commissioners  placed  not  only  the 
provisions  relating  to  the  guardianship  of  the  person  and  estate 
of  minors,   but  also   those   relating  to   the  custody  and   care   of 
the   person   and   property   of   persons    of   unsound    mind.      "Com- 
mittee" of  a  lunatic  is  termed  "guardian."] 
§  236.     Guardian,  what. 
§  237.     Ward,  what. 
§  238.     Kinds  of  guardians. 
§  239.     General  guardian,  what. 
§  240.     Special  guardian,  what. 
§  241.      Guardian  appointment  by  will,  etc. 
§  242.     No     person     guardian     of     estate     without     appointment 

[repealed]. 
§  243.     Appointment  of  guardian  by  court  [repealed]. 
§  244.     Rules  for  awarding  custody   [repealed]. 
§  245.     Jurisdiction   [repealed]. 
§  246.     Rules  for  awarding  the  custody,  or  appointing  a  general 

guardian   of  minors. 
§  247.     Powers  of  guardian  appointed  by  court   [repealed]. 
§  248.      Duties  of  guardians  of  the  person   [repealed]. 
§  249.     Duties  of  guardian  of  estate   [repealed]. 
§  250.     Relation  confidential. 
§  251.     Guardian  under  direction  of  court. 
§  252.     Death  of  a  joint  guardian. 
§  253.     Removal  of  guardian. 

§  254.     Guardian  appointed  by  parent,  how  superseded. 
§  255.     Suspension  of  power  of  guardian-. 
§  256.     Release  by  ward. 
§  257.     Guardian's  discharge. 
§  258.     Insane  persons   [repealed]. 

§236.    GUAEDIAIV,    WHAT.      A    guardian    is    a    person 
appointed  to  take  care  of  the  person  or  property  of  another. 

History:     Enacted  March  21,  1872. 

117  C.   640,  644,   49  P.   983,  59  A.   S.    220    (applied). 
GUARDIAN  AND  WARD. 

Accounting  and  settlement  of  guardians, — See  1  Church's  New 
Probate  Law  and  Practice  198-213. 

116 


« 


I 


Tit.III.]  GUARDIAN  AND  WARD.  |  236 

Alienation  of  affections  by  guardian,  liability. — See  8  A.  C. 
812,   813. 

Appointment  of  guardian. — See  1  Cburch's  New  Probate  Law 
and  Practice   164-169. 

Authority  of  guardian,  as  to  control   over  person   of  married 
•    ward.— See   3   A.   C.    1050. 
r&t^>        Bond    of    guardian — Liability    thereon. — See    1    Church's    New 
Probate  Law  and  Practice   221-226;   45  L.   339:    48   L.    589;    52   L. 
187;   55  L.   392;   58  L.   86. 

Same — Necessity   of  to  make  acts  valid. — See   33  L.   759-764. 

Deceased  guardian,  method  of  compelling  settlement  of  ac- 
counts by. — See  8  A.   S.   684. 

Duty  of  guardian  as  to  control  of  property,  support,  main- 
tenance and  custody  of  ward. — See  1  Church's  Now  Probate 
Law  and  Practice   170-172. 

Duties  and  powers  of  guardians. — See  1  Church's  New  Pro- 
bate Law  and  Practice  172-174. 

Embezzlement  by  guardian. — See  8  A.  C.  19-0;  1  Church's  New 
Probate  Law  and   Practice    216. 

Expenditure  in  excess  of  income  of  ward  authorized  when. — 
See   49    A.    D.    657. 

Garnishment  of  guardian  for  debt  of  ward. — See  11  L.  N.  S. 
706. 

Guardian  as  interested  witness  in  suit  involving  ward's 
estate.— See  4  A.  C.  1064,  1068. 

Guardians  by  nature. — See   11   L.   440. 

Guardianship  of  Indians. — See  1  Church's  New  Proliato  Law 
and   Practice    169. 

Guardianship  of  natural   child. — See  6  L.   705. 

Investments  by  guardians. — See  1  Church's  New  Probate  Law 
and   Practice   178-180. 

Lease  and  demise  of  ward's  property. — See  1  Cliurch's  New 
Probate   Law   and   Practice    193. 

Lease  executed  by  guardian  to  ward,  when  voidable. — See  25 
A.  R.  728. 

Liability  of  guardian. — See  1  Church's  New  Probate  Law  and 
Practice    214-216. 

Same — For  misappropriation  of  ward's  funds  by  attorney. — 
See  5  L.  N.  S.  575. 

Liability  of  sureties  on  bond  of  guardian. — See  4  A.  C.  314, 
345. 

Limitation  of  actions  against  guardians. — See  1  Church's 
New  Probate  Law  and  Practice  226. 

Maintenance   of  ward. — See   1  L.   304. 

Mortgage  of  ward's  property. — See  1  Church's  New  Probate 
Law  and   Practice   194-196. 

Non-resident  guardians  and  wards. ^-See  1  Church's  NeK  Pro- 
bate Law  and  Practice  196-198. 

117 


§§  237-239  CIVIL.  CODE.  [Div.I.Pt.III. 

Non-resident  minors,  proceedings  to  transmit  their  property 
to  foreign   guardians.- — See   95   A.   D.   666. 

Personal   liability   of  guardians. — See   75   A.   D.   447. 

Powers  of  guardians — As  to  generally,  see  1  Church's  New 
Probate  Law  and  Practice,  174-178;  1  L.  270;  1  L.  304;  16  L. 
254,   507;   17  L.   297;   18  L.   789;   32  L.   671,  683;   58  L.   931. 

Same — Common  law  powers. — See   89  A.   S.   257. 

Same — In  chancery  and  at  common  law. — See  18  A.  D.   689. 

Same — Transfer  of  personal  property  to  ward. — See  5  A.  C. 
581. 

Process — ^Waiver  by  guardian  of  service  on  minor. — See  95 
A.    D.    461. 

Removal  of  guardians. — See  1  Church's  New  Probate  Law 
and  Practice   217. 

Rights  and  liabilities  of  ward. — See  1  Church's  New  Probate 
Law  and   Practice,   218-221. 

Rights  and  powers  of  guardians. — See  1  Church's  New  Pro- 
bate Law  and  Practice,  174-178;  also  "Powers  of  Guardians,"  this 
note. 

Sale  of  lands  by  guardians. — See  1  Church's  New  Probate  Law 
and  Practice   180-193. 

Same — Notice  of  application  for,  as  affecting  validity  of. — 
See   120  A.   D.   148;   8  L.  N.  S.    1215. 

State  guardianship   of  child. — See   15  L.   593. 

Testamentary  guardians  and  their  powers. — See   29   A.   D.   712. 

§  237.  WARD,  "WHAT.  The  person  over  whom  or  over 
whose  property  a  guardian  is  appointed,  is  called  his  ward. 

History:     Enacted  March  21,  1872. 

§238.-  KINDS  OF  GUARDIANS.    Guardians  are  either: 

1.  General;  or, 

2.  Special. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

117  C.  640,  643,  59  A.  S.  220,  49  P.  983. 

As  to  many  miscellaneous  matters  in  guardianship,  see  note 
§  236,   ante. 

Testamentary  guardian, — as  to,  see  Kerr's  Cyc.  C.  C.  §  241 
and  note  pars.  3-8;   29  A.  D.  712. 

§  239.  GENERAL  GUARDIAN,  WHAT.  A  general  guardian 
is  a  guardian  of  the  person  or  of  all  the  property  of  the 
ward  within  this  state,  or  of  both. 

History:     Enacted  March  21,  1872. 
118 


lb 


Tit.III.]  APPOINTMENT  BY  WII.L.  §§  240-243 

§240.  SPECIAL  GUARDIAN,  >VHAT.  Every  other  is  a 
special  guardian. 

History:     Enacted  Marcli   21,  1872. 

§241.     GUARDIAN    APrOINTMENT    BY    WILL,    ETC.      A 

guardian  of  the  person  or  estate,  or  of  both,  of  a  child  born, 
or  likely  to  be  born,  may  be  appointed  by  will  or  by  deed, 
to  take  effect  upon  the  death  of  the  parent  appointing: 

1.  If  the  child  be  legitimate,  by  the  father,  with  the  written 
consent  of  the  mother;  or  by  either  parent,  if  the  other  be 
dead  or  incapable  of  consent. 

2.  If  the  cliild  he  illegitimate,  by  the  mother. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  195,  196. 

See  Kerr's  Cyc.   C.  C.   for   13  pars,  annotation. 

84  C.  592,  596,  597,  24  P.  310  (construed);  109  C.  643.  646.  647 
(referred  to  with  other  sections);  128  C.  214,  218,  79  A.  S.  43, 
60  P.  762  (referred  to  witli  other  sections);  130  C.  380,  383  (con- 
strued),  62  P.   613. 

As  to  many  miscellaneous  matters  in  guardianship,  see  note 
§  236,  ante. 

As  to  testamentary  guardians  and  their  powers,  see  1  Clnirch's 
New   Probate   Law   and   Practice   90,   2   Id.    1446;   29   A.   D.    712. 

§242.  X)  PERSON  GUARDIAN  OE  ESTATE  WITIKKIT 
APPOINTMENT   (repealed). 

History:  Enacted  Marcli  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  340.  held 
unconstitutional;  see  history,  §  4  ante;  re-repealed  March  21, 
1905.  Stats,  and  Amdts.,  p.  728. 

Control  of  estate  without  guardianship, — as  to,  see  Kerr's 
Cyc.   C.   C.    §  202   and   note. 

Power  of  guardian  appointed  by  court. — as  to.  see  Kerr's  Cyc. 
C.  C.  §  247  and  note. 

§24:i.  APPOINTMENT  OF  (iUARDlW  HV  ((HIM  (re- 
pealed). 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.  1873-4,  p.  196;  April  6,  1880,  Code  Amdts.  1880  (C. 
C.  pt.),  p.  4;  repealed  by  Code  Commission,  Act  March   16.  1901, 

119 


§§  244-246  CIVIL  CODE.  [Div.I,Pt.III 

Stats,  and  Amdts.  1900-1,  p.  340,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-repealed  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   728. 

See  Kerr's  Cj'c.   C.  C.  for   12  pars,  annotation. 

84  C.  592,  596,  24  P.  310  (construed);  109  C.  646,  647,  649,  42 
P.  428  (referred  to  with  other  sections);  128  C.  214,  218,  79  A. 
S.  43,  60  P.  762  (referred  to  with  other  sections);  130  C.  381, 
383, .62  P.   C13    (referred   to   in   discussion). 

§244.    RULES  FOR  AWARDING  CUSTODY   (repealed). 

History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  4;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held  unconstitu- 
tional; see  history,  §  4  ante;  re-repealed  March  21,  1905,  Stats, 
and  Amdts.  1905,  p.  728. 

Non-resident — Appointment  of  guardian  over  property  situ- 
ated in  this  state  of  non-resident  infant.  See  Kerr's  Cyc.  C.  C. 
§§  1793  et  seq.  and  notes. 

§245.    JURISDICTION  (repealed). 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held 
unconstitutional;  see  history,  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  728. 

Maintenance^Failure,  neglect,  or  refusal  of  guardian  to  sup- 
ply ward  with  suitable  and  necessary  maintenance,  etc.,  court 
may   compel.     See  Kerr's  Cyc.   C.   C.  P.    §  1771   and   note. 

§246.  RULES  FOR  AWARDING  THE  CUSTODY,  OR 
APPOINTING   A   GENERAL    GUARDIAN   OF   MINORS.     In 

awarding  the  custody  of  a  minor,  or  in  appointing  a  general 
guardian,  the  court  or  officer  is  to  be  guided  by  the  following 
considerations : 

1.  By  what  appears  to  be  for  the  best  interest  of  the  child 
in  respect  to  its  temporal  and  its  mental  and  moral  welfare; 
and  if  the  child  is  of  a  sufficient  age  to  form  an  intelligent 
preference,  the  court  may  consider  that  preference  in  deter- 
mining the  question; 

2.  As  between  parents  adversely  claiming  the  custody  or 
guardianship,  neither  parent  is  entitled  to  it  as  of  right;  but 

120 


•J 


lb 


Tit.III.]  AWARDING   CUSTODY.  §  246 

other  things  being  equal,  if  the  child  is  of  tender  shears,  it 
should  be  given  to  the  mother;  if  it  is  of  an  age  to  require 
education  and  preparation  for  labor  and  business,  then  to 
the  father; 

3.  Of  two  persons  equally  entitled  to  the  custody  in  other 
respects,  preference  is  to  be  given  as  follows: 

(1)  To  a  parent; 

(2)  To  one  who  was  indicated  by  the  wishes  of  a  deceased 
parent; 

(3)  To  one  who  already  stands  in  the  position  of  a  trustee 
of  a  fund  to  be  applied  to  the  child's  support; 

(4)  To  a  relative. 

4.  Any  parent  who  [1]  knowingly  or  wilfully  al)andons,  or 
[2]  having  the  ability  so  to  do,  [3]  fails  to  maintain  his  minor 
child  under  the  age  of  fourteen  years,  forfeits  the  truanlian- 
ship  of  such  child;  and  any  parent  or  guardian  who  [1]  know- 
ingly permits  his  child  or  ward  to  remain  for  the  space  of 
one  year  in  any  orphan  asylum  of  this  state,  wherein  such 
child  is  supported  by  charity,  and  who,  [2]  during  such  period, 
fails  to  give  notice  in  writing  to  the  managers  or  officers 
of  such  asylum  that  he  is  such  parent  or  guardian,  .abandons 
and  forever  forfeits  all  rifyht  to  the  i;nardiansliip,  care,  cus- 
tody, and  control  of  such  child.  The  officers  and  managers 
of  any  orphan  asylum  having  any  such  abandoned  child  in  its 
care  have  the  preferred  right  to  the  guardianship  of  such 
child. 

HlMtory:  Enacted  March  21,  1872;  amended  Marcli  30,  1874, 
Code  Anidts.  1873-4,  p.  196;  amended  bj'  Code  Commission,  Act 
March  Ifi,  1901,  Stats,  and  Amdts.  1900-1,  p.  340,  held  unconstitu- 
tional; see  history,  §  4  ante;  amendment  re-enacted  ^arch  21, 
1905.  Stats,  and  Amdts.,  pp.  728-729. 

See   Kerr's  Cyc.  C.  C.   for  7   pars,  annotation. 

109  C.  643,  661,  42  P.  428  (referred  to  in  discussion);  130  C. 
380,  381,  382,  62  P.  013  (construed);  142  C.  423,  426,  76  P.  37 
(construed);  1  C.  A.  529,  531,  82  P.  558   (applied). 

As  to  custody,  etc.,  of  minors,  see  note  §  197.  ante. 

As  to   guardianship   of  minors,   see   note    §  236.  ante. 

As  to  many  miscellaneous  matters  of  guardianship,  see  note 
§  236.   ante. 

121 


§§  247-249  CIVIL  CODE.  [Div.I.Pt.III. 

§  247.    POWERS  OF  GUARDIA?f  APPOINTED  BY  COURT 

(repealed). 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  729. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

117  C.  640,  644,  49  P.  983,  59  A.  S.  220,  49  P.  983  (applied); 
143  C.  402,  403,  77  P.  156  (guardian's  authority  superior  to  that 
of  parent). 

Right  of  testamentary  guardian  to  custody  of  ward's  person, 
— as  to,  see  Kerr's  Cyc.  C.  C.  §  241  note  par.  13.  _j 

§248.    DUTIES     OF     GUARDIANS     OF     THE     PERSON 

(repealed). 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  729. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

128  C.  214,  218,  79  A.  S.  43,  60  P.  762  (referred  to  with  other 
sections);  142  C.  423,  426,  76  P.  37  (referred  to  with  other  sec- 
tions); 143  C.  402,  403,  77  P.  156  (guardian's  authority  superior 
to  that  of  parent);  2  C.  A.  70,  87,  83  P.  89  (reference  to  decision 
resting  upon  express  prohibition   of  section). 

Custody  of  ward's  person — As  to,  see  Kerr's  Cyc.  C.  C.  §  197 
and  note,   §  247  note  pars.   3,   4;   also  note   §  697,  ante. 

§249.     DUTY  OF  GUARDIAN  OF  ESTATE   (repealed). 

Hi.story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  197;  April  6,  1880,  Code  Amdts.  1880  (C. 
C.  pt.),  p.  5;  repealed  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and'  Amdts.  1900-1,  p.  341,  held  unconstitutional;  see  his- 
tory, §  4  ante;  re-repealed  March  21,-  1905,  Stats,  and  Amdts. 
1905,  p.  729. 

See   Kerr's  Cyc.   C.  C.  for  8  pars,  annotation. 

116  C.  386,  388,  47  P.  320;  116  C.  386,  388,  48  P.  326;  117  C.  640, 
644,  59  A.  S.  220,  49  P.  983  (applied  with  other  sections);  121  C. 
468,  472,  53  P.  936  (referred  to  in  discussion);  124  C.  154,  157, 
56  P.  896  (quoted  in  opinion);  134  C.  114,  116,  66  P.  187  (con- 
strued). 

As  to  many  miscellaneous  matters  of  guardianship,  see  note 
§  236,  ante. 

122 


Tit.III.]  DEATH,    ETC.,   OF   GUARDIAN.  §§  250-253 

§250.  RELATION  CONFIDENTIAL.  The  relation  of  guard- 
ian and  ward  is  confidential,  and  is  subject  to  the'  provisions 
of  the  title  on  Trust. 

Ili.slory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.   for  4   pars,   annotation. 
116  C.   386,  391,  48  P.   326. 

As  to  trusts,  generally,  see  Kerr's  Cyc.  C.  C.  §§  2215-2250  and 
notes. 


§251.    GUARDIAN   UNDER  DIRECTION   OF   COURT.     In 

the  management  and  disposition  of  the  person  or  property 
committed  to  him,  a  guardian  may  be  regulated  and  controlled 
by  the  court. 

History:     Enacted  March   21,  1872. 
6  C.  A.   597,   599,  92  P.   671    (cited). 

§252.  DEATH  OF  A  JOINT  GUARDIAN.  On  the  death  of 
one  of  two  or  more  joint  guardians,  the  power  continues  to 
the  survivor  until  a  further  appointment  is  made  by  the 
court. 

IliNtory:     Enacted  March   21,  1872. 

Supervisorship  between  cotrustees, — as  to,  see  Kerr's  Cyc.  C. 
C.  §  2288  and  note. 

§253.  REMOVAL  OF  GUARDIAN.  A  guardian  may  bo 
removed  by  the  superior  court  for  any  of  the  following 
causes: 

1.  For  abuse  of  his  trust; 

2.  For  continued  failure  to  perform  its  [his]  duties; 

3.  For  incapacity  to  perform  its   [his]   duties; 

4.  For  gross  immorality; 

5.  For  having  an  interest  adverse  to  the  faithful  perform- 
ance of  his  duties; 

6.  For  removal  from  the  state; 

7.  In  the  case  of  a  guardian  of  the  property,  for  insol- 
vency; or, 

123 


§§  254,  255  CIVIL  CODE.  [Div.I.Pt.III. 

8.  When  it  is  no  longer  proper  that  the  ward  should  be 
under  guardianship. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880   (C.  C.  pt.),  p.  5. 

See  Kerr's  Cyc.  C.   C.  for   7  pars,  annotation. 

143    C.    402,    409,    77   P.    156    (cited). 

As  to  many  miscellaneous  matters  of  guardianship,  see  note 
§  236,  ante. 

Removal  and  resignation  of  guardian, — as  to,  see  Kerr's  Cyc. 
C.  C.  P.  §  1801  and  note;  1  Church's  New  Probate  Law  and 
Practice  217. 

§254.  GUARDIAN  APPOINTED  BY  PARENT,  HOW 
SUPERSEDED.  The  power  of  a  guardian  appointed  by  a 
parent  is  superseded: 

1.  By  his  removal,  as  provided  by  section  two  hundred  and 
fifty-three; 

2.  By  the  solemnized  marriage  of  the  ward;  or, 

3.  By  the  ward's  attaining  majority. 

Hi.story:     Enacted  March   21,  1872. 

121  C.  468,  474,  53  P.  936  (miscited  for  §  255  in  connection 
with  Code  Civ.  Proc.  §  1753). 

As  to  many  miscellaneous  matters  of  guardiansliip,  see  note 
§  236,    ante. 

§255.    SUSPENSION   OF    POWER    OF    GUARDIAN.     The 

power  of  a  guardian  appointed  by  a  court,  is  suspended  only: 

1.  By   order  of  the  court;    or, 

2.  If  the  appointment  was  made  solely  because  of  the  ward's 
minority,  by  his  attaining  majority;  or, 

.     3.  The  guardianship  over  the   person  of  the  ward,  by  the 
marriage  of  the  ward. 

Hi.story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  197;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held  unconstitu- 
tional;  see  history,  §   4  ante. 

143  C.  221,  230,  234,  77  P.  65   (cited,  effect  of  ward's  marriage). 
As  to  many  miscellaneous  matters  of  guardianship,   see  note 
§  236,  ante. 

124 


II 


Tit.ITL]  RELEASE,  DISCHARGE.  §§.256-258 

§256.  RELEASE  BY  ^VAKD.  After  a  ward  has  come  to 
his  majority,  he  may  settle  accounts  with  his  guardian,  and 
give  him  a"  release,  which  is  valid  if  obtained  fairly  and 
without  undue  influence. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
143  C.   221,  229,   77  P.   65    (construed  with   §  257). 
As  to  many  miscellaneous  matters  of  guardiansliip,   see   note 
§  236,  ante. 

§257.  GUARDIA>''S  DISCHARGE.  A  guardian  appointed 
by  a  court  is  not  entitled  to  his  discharge  until  one  year  after 
the  ward's  majority. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

121  C.  468,  475  (applied,  but  erroneously  cited  as  C.  C.  P.),  53 
P.  936,  939  (correct  citation);  143  C.  221,  229,  234,  77  P.  65 
(construed   with    §  256). 

Discharge  of  guardian  of  insane  person  on  sliowing,  on  appli- 
cation of  ward  or  otlierwise,  that  guardiansliip  is  no  longer 
necessary. — See  Kerr's  Cyc.  C.  C.  P.   §  1802  and  note. 

Marriage  of  minor  ward  terminates  guardianship. — See  Kerr's 
Cyc.  C.  C.  P.  §  1802  and  note. 

§258.    IJfSANE  PERSONS   (repealed). 

History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  5;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held  unconsti- 
tutional; see  history,  §  4  ante;  re-repealed  March  21,  1905,  Stats, 
and  Amdts.   1905,  p.   729. 

Guardianship  of  insane  person  and  incompetent  person,  when 
and  how  made,  hearing.and  examination,  etc., — as  to,  see  Kerr's 
Cyc.  C.   C.   P.   §§  1763-1767   and   notes. 


125 


§  264  CIVIL  CODE.  [Div.I,Pt.III. 

TITLE  IV. 

MASTER  AND   APPRENTICE. 

§  264.  Minors,  when  and  to  whom  may  be  bound  as  appren- 
tices. 

§  265.     Persons  who  may  bind  minor  with  liis  consent. 

§  266.  Indenture  of  apprenticeship,  liow  to  be  executed  and 
what  to  contain. 

§  267.     Jury  trial  as  to  facts  of  incapacity,  etc.,  of  parent. 

§  268.     Apprenticing  of  poor  and  liomeless  minors. 

§  269.  Master  to  keep  apprentice  within  the  state,  to  deliver 
him  money  and  other  property  therein. 

§  270.  Duty  to  inquire  into  the  treatment  of  minor  appren- 
tices. 

§  271.     Hearing  of  complaints  of  apprentices. 

§  272.  Power  of  court  to  discharge  apprentice  from  appren- 
ticeship. 

§  273.     Liability  of  master  for  breach  of  his  covenant. 

§  274.  Liability  of,  and  proceedings  against,  apprentices  guilty 
of   gross   misbehavior. 

§  275.     Enticing  away  apprentices  and  liability  for. 

§  276.  Release  of  master  moving  out  of  state  or  quitting 
business. 

§  264.  MIIVOKS,  WHEN  AND  TO  WHOM  MAY  BE  BOUND 
AS  APPRENTICES.  Every  minor  of  the  age  of  fourteen  years 
or  upwards  may  be  bound  by  indenture  as  an  apprentice  to 
any  mechanical  trade  or  art  or  tlie  occupation  of  farming 
to  the  age  of  eighteen,  if  a  female,  or  to  the  age  of  twenty- 
one  years,  if  a  male. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Anidts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  560. 

See   Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

As  to  assignments  of  contracts  of  apprenticeship,  see  25  A. 
D.   180. 

As  to  contract  of  apprenticeship  and  the  power  of  an  infant 
to  bind  himself  thereby,  see  23  A.  D.  659,  34  A.  D.  588,  32  A.  R. 
155,   18  A.   S.    619-627. 

126 


I 


Tit.  TV.]  WHO    MAY    BIND    MINOR.  §§  265,  266 

As  to  the  effect  of  part  performance  of  contract  for  services 
by  infants,  see  24  L.  231-235. 

As  to  right  of  an  infant  to  repudiate  contract  for  services 
and  sue  on  quantum  meruit,   see  15  L.  211. 

As  to  right  of  infant  to  disaffirm  or  rescind  contract,  see 
Kerr's  Cyc.  C.  C.   §  235  and  note. 

§265.  PERSONS  >VIIO  MAI  BIND  MINOR  WITH  HIS 
CONSENT.  A  minor,  with  his  consent,  may  be  bound  by  [1] 
his  father,  or,  in  case  of  his  [a]  death  or  [b]  incompetency, 
or  where  he  has  [c]  wilfully  abandoned  his  family  for  one 
year  without  making  suitable  provision  for  their  support,  or 
[d]  is  habitually  intemperate  in  the  use  of  intoxicants,  or 
[c]  is  a  vagrant,  then  by  [2]  his  mother  or  [3]  legal  guardian. 
An  [4]  executor  who,  by  the  will  of  the  father,  is  directed  to 
bring  up  a  child  to  a  trade  or  calling,  has  power  to  bind 
by  indenture  in  like  manner  as  the  father  might  have  done, 
if  living.  If  a  child  is  iilotfitiinate,  the  mother  alone  has 
power  to  bind  him.  If  a  minor  has  no  parent  or  guardian 
competent  to  act  for  him,  he  may  bind  himself,  with  the 
api)roval  of  the  superior  court  of  the  county  wherein  he 
resides.  [Mother  marrying!:.]  If  the  mother  of  a  minor, 
whether  legitimate  or  illegitimate,  marries  after  his  birth,  she 
cannot  bind  him  without  the  approval  of  such  superior  court. 

IliMtorys  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  C.  pt.),  p.  5;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held  unconsti- 
tutional; see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905.  Stats,  and  Amdts.  1905,  p.  561. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 
As   to   indorsement   of   consent    on    indentur<\    sio    Korr's   Cyc. 
C.  C.   §  266  and  note. 

§2«(5.  INDENTrRE  OF  Vri'REXTK  ESUir,  HO>V  TO  BE 
EXE(  UTEI)  AND  WHAT  'n>  (  ONTAIX.  Every  indenture  of 
apprenticeship  [1]  must  be  executed  in  dui)licate,  [2]  must 
state  the  age  of  the  minor,  and,  except  as  hereinafter  pro- 
vided, [3]  must  show  that  he  consented  thereto,  [4]  must  be 
signed  by  him  and  the  person  binding  and  the  master,  and 
when  made  with   the   approval    of   the   snperior  court,  [5]  a 

127 


§  267  CIVIL  CODE.  [Div.I,Pt.III. 

certified  copy  of  the  order  of  approval  must  be  attached  to 
the  indenture.  One  copy  of  the  indenture  [6]  must  be  deliv- 
ered to  the  master  and  [7]  the  other  kept  for  the  use  of 
the  minor  by  his  parent  or  guardian  w^hen  executed  by  him, 
or,  when  made  w^ith  the  approval  of  the  court,  [8]  it  must  be 
filed  and  deposited  with  the  clerk  for  safekeeping  for  the 
use  of  the  minor.  No  indenture  binds  the  minor  after  tlie 
deatli  of  the  master,  but  thereafter  the  minor  may  be  bound 
anew.  Every  indenture  entered  into  otherwise  than  as  herein 
provided  is,  as  against  the  apprentice,  absolutely  void. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  561. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

As  to  conseTit  in  general,  see  Kerr's  Cyc.  C.  C.  §  265  and  note. 

As  to  evidence  of  consent,  see   2  Encyc.  L.   492;   3   Cyc.   548. 

As  to  form  and  validity  of  indenture  of  apprenticeship,  see  3 
Cyc.  543. 

As  to  necessity  of  inserting-  age  of  minor  in  deed,  see  2  Encyc. 
L.   496;  3  Cyc.   550. 

As  to  signature,  see  Kerr's  Cyc.  C.  C.  §  265  note  par.   23. 

As  to  validity  of  instrument  not  fully  complying  with  statute, 
see   2  Encyc.  L.   497. 

§267.  JURY  TRIAL  AS  TO  FACTS  OF  INCAPACITY, 
ETC.,  OF  PARENT.  Facts  of  incapacity,  desertion,  habitual 
intemperance,  and  vagrancy  must  be  decided  in  said  court 
by  a  jury,  before  the  indenture  can  take  effect,  and  an  indorse- 
ment on  the  indenture,  under  seal  of  the  court,  that  the 
charge  or  charges  are  proved,  is  sufficient  evidence  of  the 
mother's  power  to  give  such  consent;  but  if  the  jury  does 
not  find  the  charge  or  charges  to  be  true,  the  person  at  whose 
instance  such  proceedings  may  have  been  had  must  pay  all 
costs  attending  the  same. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  341,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,  1905,  Stats,  and  Amdts.  1905,  p.  561. 

As  to  power  of  mother  to  consent  to  bind  minor,  see  Kerr's 
Cyc.   C.   C.    §  365   note  pars.    10-14. 

128 


r 

lllli  Tit.IV.]  APPRENTICING  HOMELESS.  §§268,269 

§268.  APPBEXTICIIfG  OF  POOR  A>D  HOMELESS 
MINOE.  When  a  minor  is  poor,  homeless,  chargeable  to  the 
county  or  state,  or  an  outcast,  who  has  no  visible  means  of 
'obtaining  an  honest  livelihood,  the  superior  court  may,  with 
his  consent,  bind  him  as  an  apprentice  during  his  minority. 
Proceedings  therefor  may  he  instituted  by  any  citizen,  and 
no  fee  must  be  charged  by  any  officer  for  any  act  in  con- 
nection therewith.  In  all  indentures  by  the  court  for  binding 
out  an  orphan  or  homeless  minor  as  an  apprentice  there 
must  be  inserted  among  other  things,  [1]  a  clause  to  the 
following  effect:  that  the  master  to  whom  such  minor  is 
bound  must  cause  him  to  be  taught  to  read  and  write  and 
the  ground  rules  of  arithmetic,  ratio  and  proportion,  and 
must  give  him  the  requisite  instruction  in  the  different 
branches  of  his  trade  or  calling,  and,  [2]  at  the  expiration 
of  his  term  of  service,  must  give  him  or  her  fifty  dollars  in 
gold,  and  [3]  two  whole  new  suits  of  clothes,  to  be  worth  in 
the  aggregate  at  least  sixty  dollars  gold. 

History:  Enacted  March  21,  1872;  amended  by  Code  Comniis- 
sion,  Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,  Stats,  and  Amdts.  1905,  pp.   561,   562. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

As  to  binding  by  overseers  of  poor,  etc.,  see  2   Encyc.  L.   492. 

As  to  consent,  execution,  and  approval  of  apprenticeship  deed, 
see   3   Cyc.    548. 

As  to  duty  to  furnish  medical  aid  to  apprentice,  see  28  L. 
546.   555. 

As  to  necessity  of  providing  for  education  of  child,  see  2 
Encyc.  L.  496,  513. 

As  to  necessity  of  providing  for  instruction  in  some  trade  or 
business,   see   3  Cyc.   549. 

As  to  necessity  of  signature  of  master,  see  11   Encyc.  L.   495. 

As  to  notification,  see  3  Cyc.  546. 

As  to  presence  of  Infant  in  court,  see  3  Cyc.  546. 

As  to  proceedings  for  apprenticing,  see  3  Cyc.   546. 

As  to  tJie  mode  of  binding  apprentices,  see  2  Encyc.  L.  489. 

§2<JJ).     MASTER   TO    KEEP   APPHENTK  E    WITHIN   THE 
STATE,   TO   DELIVER    HIM   MONEY    AND    OTHER    PROP- 
ERTY THEREIN.    A  master  must  not  remove  his  apprentice 
Kerr's    C.    C— 5  129 


§§  270,  271  CIVIL  CODE.  [Div.I.Pt.IlI. 

out  of  the  state,  and  must  pay  and  deliver  to  him  the  money, 
clothes,  and  other  property  to  which  he  is  entitled  under 
the  indenture  of  apprenticeship,  to  be  held  by  him  as  his  sole 
property. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1901,  p.  562. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  removal  of  master  from  state  or  jurisdiction,  see  3 
Cyc.  562,  2  Encyc.  L.  502.     See  also  Kerr's  Cyc.  C.  C.  §  276,  note. 

§270.  DUTY  TO  INQUIRE  INTO  THE  TREAT.ITENT  OF 
MINOR  APPRENTICES.  Parents  and  guardians  and  such 
court  must,  from  time  to  time,  inquire  into  the  treatment  of 
children  bound  by  them  respectively,  or  with  their  approval, 
and  the  judges  of  such  courts  are  responsible  for  the  charge 
of  apprentices  bound  by  a  court  or  with  its  approval,  and 
must  defend  them  from  all  cruelty,  neglect,  breach  of  con- 
tract, or  misconduct  on  the  part  of  their  masters. 

HlMtory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Aipdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,  Stats,  and  Amdts.   1905,  p.   5fi2. 

§271.    HEARING   OF    COMPLAINTS    OF    APPRENTICES. 

The  superior  court  must  hear  the  complaints  of  apprentices 
who  reside  within  the  county  against  their  masters,  alleging 
[1]  undeserved  or  immoderate  correction,  [2]  insufficient 
allowance  of  food,  raiment,  or  lodging,  [3]  want  of  instruction 
in  the  different  branches  of  their  trade  or  calling,  or  [4]  that 
they  are  in  danger  of  being  removed  out  of  the  state,  or  [5] 
any  violation  of  the  indenture  of  apprenticeship,  and  the  court 
must  hear  and  determine  such  case  and  make  such  order 
therein  as  will  remove  the  party  in  the  future. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  342,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  562. 

See   Kerr's  Cyc.   C.   C.   §  273   and   note. 

130 


Tit.IV.]  MASTER'S  BREACH.  §§  272,  273 

§  272.  POWER  OF  COURT  TO  DISCHARGE  APPRENTICE 
FROM  APPRENTICESHIP.  The  superior  court  has  power, 
where  circumstances  require  it,  [1]  to  discharge  an  appren- 
tice from  his  apprenticeship,  and,  in  case  any  money  or  other 
thing  has  been  paid  or  contracted  to  be  paid  by  either  party 
in  relation  to  tlie  apprenticeship,  the  court  must  [2]  make 
such  order  concerning  the  same  as  seems  just  and  reason- 
able. If  the  apprentice  so  discharged  was  originally  bound 
by  the  superior  court,  it  must,  if  found  necessary,  again  bind 
such  minor,  if  under  age. 

HLstory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  343,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  562. 

See   Kerr's  Cyc.   C.   C.   §  273   and  note. 

§273.  LIABILITY  OF  MASTER  FOR  BREACH  OF  HIS 
COVENANT.  Every  master  is  liable  to  an  action  on  the 
indenture  for  a  breach  of  any  covenant  thereof  on  his  part. 
All  damages  recovered  in  such  action,  after  deducting  neces- 
sary charges  in  its  prosecution,  belong  to  the  minor,  and  must 
be  applied  and  appropriated  to  his  use  by  the  person  recov- 
ering it  in  his  behalf,  and  ninst  be  paid  to  the  minor,  if  a 
male,  at  the  age  of  twenty-one  years,  and  if  a  female,  at  the 
age  of  eighteen  years.  If  no  action  is  brought  during  the 
minority  of  the  apprentice,  it  may  be  commenced  by  him 
in  his  own  name  at  any  time  within  two  years  after  his 
coming  of  age. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.  1880  (C.  G.  pt.),  p.  6;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  343,  held  unconstitu- 
tional; see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.   562. 

See  Kerr's  Cyc.   C.   C.   for   20   pars,  annotation. 

As  to  actions  for  breach  of  contract,  see  3  Cyc.   558. 

As  to  dissolution  of  the  contract  of  apprenticeship,  see  2 
Encyc.   L.   500. 

As  to  effect  of  death  on  contract  of  apprenticeship,  see  23 
L.    707-713. 

131 


§  274  CIVIL  CODE.  [Div.I.Pt.III. 

As  to  termination  of  contract  by  reason  of  acts  of  parties, 
see  3  Cyc.  561. 

As  to  termination  of  the  contract  and  grounds  for  relief,  see 
3  Cyc.  563. 

§274.  LIABILITY  OF,  AND  PRO(  EEDIIVGS  AGAINST, 
APPKENTICES    GUILTY    OF    GROSS    mSBEHAVIOR.      An 

apprentice  who  is  guilty  of  [1]  any  gross  misbehavior,  or  [2] 
refusal  to  do  his  duty,  or  [3]  wilful  neglect  thereof,  is  liable 
to  the  complaint  of  his  master  in  the  superior  court  of  the 
county  wherein  the  apprentice  resides.  Sneh  coiuplniiit  must 
[4]  set  forth  the  circumstances  of  the  case,  and  [5]  have 
attached  thereto  a  citation,  signed  by  the  clerk  of  the  court, 
requiring  him  and  all  persons  who  have  covenanted  in  his 
behalf  to  appear  and  answer  the  complaint  within  ten  days 
after  the  service  thereof.  The  conii>I<iiiit  and  citation  must  be 
served  in  the  manner  required  for  serving  civil  process.  When 
the  parties  have  answered,  or  when,  though  they  have  not 
answered,  the  time  therefor  allowed  after  the  service  of  the 
complaint  has  expired,  the  court  must  proceed  to  hear  and 
determine  the  cause,  and,  if  the  evidence  warrants  it,  may 
render  judgment  that  the  master  be  discharged  from  the 
contract  of  apprenticeship  and  for  costs  of  suit.  Such  costs 
may  be  recovered  from  the  parent  or  guardian  of  the  minor, 
if  there  is  any  who  signed  the  indenture,  and  execution  there- 
for may  issue  accordingly.  If  there  is  no  parent  or  guardian 
liable  for  such  cost,  execution  may  be  issued  therefor  against 
the  minor,  or  the  amount  thereof  may  be  recovered  in  an 
action  against  him  after  he  arrives  at  full  age.  He  is  also 
liable  to  the  master  in  an  action  on  the  indenture  for  the 
breach  of  any  covenant  on  the  part  of  the  -apprentice  con- 
tained therein,  committed  before  the  master  was  discharged 
from  the  indenture. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  343,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  pp.  562-563. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 
As  to  acts  of  apprentice  sufficient  to  cause  release  of  master, 
see  3  Cyc.   563,  2   Encyc.   L.   502. 

132 


^j^.jy-]  RELEASE    OF    MASTER.  §§  .     §283 

§  275.  ENTICING  AWAY  APPRENTICES  AND  LIABILITx 
FOR.  It  is  unlawful  for  any  person  [1]  to  entice,  counsel,  or 
persuade  to  run  away  any  apprentice,  or  [2]  to  harbor  or 
conceal  him,  knowing  him  to  be  a  runaway.  Any  party  so 
ofteuding  is  guilty  of  a  misdenieauor,  and  may  be  fined  not 
more  than  one  hundred  dollars,  to  be  recovered  by  the  master 
in  any  court  having  jurisdiction. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion Act  March  16,  1901.  Stats,  and  Amdts.  1900-1,  p.  343,  l^eld 
unconttUuUonal;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  563. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  enticing  away  and  harboring  apprentices,  see  3  Cyc. 
556,   2  Encyc.  L.   507. 

§276.     RELEASE   OF  MASTER  MOVING  OUT  OF  STATE 

OR  QUITTING  BUSINESS.  Whenever  any  master  wishes  [IJ 
to  remove  out  of  the  state,  or  [2]  to  quit  his  trade  or  busi- 
ness, he  must  appear  with  his  apprentice  before  the  superior 
court  of  the  county  in  which  the  latter  resides,  and  if  the 
court  is  satisfied  that  the  njaster  has  done  justice  to  the 
apprentice  for  the  time  he  has  had  charge  of  him,  the  court 
has  power  to  discharge  the  master  from  the  indenture  and 
to  again  bind  the  apprentice,  if  necessary. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion Acf  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  344,  held 
unconttHuUonal;  s^e  history,  §  4  ante;  amendment  re-enacted 
March   21,  1905,  Stats,  and  Amdts.  1905,  p.  563. 

See  Kerr's  Cyc.  C.  C.  §  269  and  note. 


133 


§274 


CIVIL  CODE. 


[Div.I,Pt.IV. 


PART   IV. 

CORPORATIONS. 

Till  General   Provisions  Applicable   to   All   Corporations, 

§§  283-403. 
II.     Insurance  Corporations,  §§  414-453p. 
III.     Railroad  Corporations,  §§  454-494. 
IV.     Street  Railroad  Corporations,  §§  497-511. 
V.     Wagon  Road  Corporations,  §§  512-524. 
VI.     Bridge,  Ferry,  Wharf,  Chute,  and  Pier  Corporations, 

§§528-531. 
VII.     Telegraph  and  Telephone  Corporations,  §§  536-540. 
VIII.     Water  and  Canal  Corporations,  §§  548-552. 
IX.     Homestead  Corporations,  §§  557-5§6. 
X.     Savings  and  Loan  Corporations,  §§  571-583b. 
XI.     Mining  Corporations,  §§  586-590. 
XIa.     Corporations  for  the  Formation  of  Chambers  of  Com- 
merce, Boards  of  Trade,  Mechanics'  Institutes,  and 
Other  Kindred  Associations,   §§  591-592e. 
XII.     Religious,     Social,     and     Benevolent     Corporations, 
§§  593-605. 
Xlla.     Societies  for  the  Prevention  of  Cruelty  to  Children 

and  Animals,  §§  607-607g. 
XIII.     Cemetery  Corporations,  §§  608-616. 
XIV.     Agricultural  Fair  Corporations,  §§  620-622. 
XV.     Corporations     to    Furnish    Light    for     Public     Use, 
§§629-632. 
XVI.     Building  and  Loan  Associations,   §§  633-648a. 
XVII.     Colleges  and  Seminaries  of  Learning,  §§  649-651. 
XVIII.     Consolidation  of  Colleges  and  Institutions  of  Higher 
Education,   §§652,   653. 
XIX.     Co-operative  Business  Corporations,  §  653a. 
XX.     Co-operative  Business  Associations,  §§  653b-6531. 
XXI.     Non-profit  Co-operative  Agriculture,  Viticulture  and 
Horticultural   Associations,   653m-653s. 
XXII.     Non-profit  Co-operative  Corporations,   §§  653t-653zb. 

134 


Tit.I,ch.I,art.I.] 


CORPORATIONS. 


§283 


TITLE   I. 

GENERAL  PROVISIONS  APPLICABLE  TO  ALL  CORPORA- 
TIONS. 

Chapter  I.     Formation  of  Corporations,   §§  2S3-321b. 
IL     Corporate   Stock,    §§  322-349. 
TIL     Corporate    Powers,    §§  354-393. 
IV.     Extension      and      Dissolution      of      Corporations, 

§§  399-403. 
V.     General       Provisions       Affecting       Corporations, 
§§403[a],  404. 
VI.     Foreign   Corporations,    §§  405-410. 


CHAPTER  I. 

FORMATION  OF   CORPORATIONS. 

Article  I.     Corporations  Defined  and  How  Organized,   §§  283- 
300a. 
II.     By-Laws,      Directors,      Electors,      and      Meetings, 
§§  301-321b. 


ARTICLE  I. 
CORPORATIONS  DEFINED  AND  HOW  ORGANIZED. 

§  283.      Corporation  defined. 

§  284.      [Kinds  of] — Wliat  are  public  and  what  private  corpora- 
tions. 

§  285.      Private,  liow  formed. 

§  286.      [Same] — -For  what  purpose. 

§  287.      Existence,   how  continued    [under  code]. 

§  288.      Existing    corporations    not    affected. 

§  289.     Name  of  instrument  creating-  corporation. 

§  290.      Articles   of  incorporation.      What    they    must    set    forth. 
Number  of  directors  may  be  increased  or  diminished. 

§  290a.   Minimum  capital  required  to  be  put  in. 

§  2901/^.     "Trust"  and  "trustee,"  when  may  be  part  of  corporate 
name. 

135 


§  283  CIVIL  CODE.  [Div.I.PtlV. 

§  291.     Certain  corporations  to  state  further  facts  in  articles. 

§  292.     How  executed — [Subscription  and  acknowledgment]. 

§  293.  Prerequisite  to  filing  articles — Amounts  to  be  subscribed 
to  be  affixed. 

§  294.  Prerequisites  to  filing  articles  of  incorporations  for 
profit. 

§  295.  Oath  of  officer  to  subscription  of  stock  and  payment  of 
ten  per  cent. 

§  296.  Articles  of  incorporation — Corporate  name  must  not  be 
duplicated  nor  closely  imitated. 

§  297.     Copy  of  articles  prima  facie  evidence. 

§  297a.  Restoration  of  lost  original  articles  of  incorporation. 

§  298.  Who  are  members  and  who  stockholders  of  a  corpora- 
tion. 

§  299.     When   members  die   successors   to   be   elected    [repealed]. 

§  299[a].  Copies  of  articles  must  be  filed  in  every  county  wherein 
the  corporation  acquired  property,  etc. 

§  300.     Capital    stock    of    banking   corporations — dividends. 

§  300a.     Copy  of  decree  to  be  filed  with  secretary  of  state. 

§  283.  CORPORATION  DEFINED.  A  corporation  is  a  crea- 
ture of  the  law,  having  certain  powers  and  duties  of  a  natural 
person.  Being  created  by  the  law,  it  may  continue  for  any 
length  of  time  which  the  law  prescribes. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.  for  27  pars,  annotation. 
51   C.    406,    410    (applied  to  levy  districts);   117   C.    168,    177,    48 
P.    1075    (quoted  in   opinion). 

CORPOllATIONS — GENERALLY. 

As  to  how  formed  in  California,  see  Kerr's  Cyc.  C.  C.  §  285 
pars.  19,  20. 

Acceptance  by  of  legislative  amendments  to  their  charters, 
what  constitutes. — See   53   A.   D.   460. 

Acts  ultra  vires. — See  2  L.   420;   6  L..   290. 

Same — Estoppel  to  set  up  plea  of. — See  1  L.  285;  11  L.  847; 
12    L.    168;    20    L.    765. 

Annual  corporation  tax  is  constitutional. — See  Kaiser  L.  &  F. 
Co.  V.  Curry,  decided  by  supreme  court  June  15,  1909. 

As   distinguished   from    stockholders. — See    2    W.      P.    1612. 

As  individual  or  person. — See  4  W.  &  P.  3560;  6  W.  &  P.  5327. 

Assessment   of   stock,    right  of  to  make. — See   76   A.   S.    126. 

Association  of  brokers. — See  2  W.  &  P.  1617. 

Bank.— See   2   W.    &   P.   1617. 

Books  of,  stockholder's  right  to  inspect,  and  remedies  for  its 
enforcement. — See    107   A.   S.    674. 

136 


Tit.I,Cll.I,art.I.]    CORPORATIONS,  GENERALLY.        §  283 

Burdens  imposed  by  state  as  conditions  of  grant. — See  1 
Obiter    Dig-.    451,    452. 

By-laws  of  corporation — As  to  generally  and  effect  of. — See 
1  L.   482;  5  L.  96;   18  L.  582;  25  L.  48;   27  L.  271;  32  L.  575. 

Same — Conflict  between  and  certificate  or  bond  of  mutual 
benefit  society  or  insurance  company. — See   47  L.   681. 

Same — Limitations  on  power  of  to  enact. — See  43  A.  S.   152. 

Same — What  may  adopt. — See  85  A.  D.  617. 

Capital,  stock  and  stockholders — In  g-eneral. — See  2  L.  798; 
3  L.  265;  6  L.  677;  12  L.  781;  13  L.  605;  18  L.  255;  24  L.  687;  55 
L.  796;  1  L.  N.  S.  258;  1  L.  N.  S.  571;  1  L.  N.  S.  605-615;  2  L.  N.  S. 
121;  2  L.  N.  S.  493;  8  L.  N.  S.  788;  9  L.  N.  S.  885;  10  L.  N.  S.  725. 

Same — Same — Bonus  stock,  false  or  fraudulent  issue. — See  19 
L.   331;   38  L.   490. 

Same — Same — Holders  of  stock,  who  may  be  stockholders. — 
See  18  L.  252;   19  L.   684;   24  L.  252;   46  L.  618;   61  L.   621-633. 

Same — Same — Increase  of  capital  stock. — See  9  L.  631;  16  L. ' 
461;   38  L.   616. 

Same — Same — Forfeiture  of  corporate  stock. — See  27  L.  305- 
321. 

Same — Same — Preferred,  guaranteed  and  interest-bearing 
stock. — See  27  L.  136-153. 

Same — Subscription  to — generally. — See  3  L.  37;  3  L.  796;  3  L. 
798;  4  L.  508;  7  L.  661;  7  L.  706;  22  L.  81. 

Same — Same — Rescission  for  fraud  or  misrepresentation. — 
See    33    L.    721-729. 

Same — Same — Withdrawal  of  subscription. — See  32  L.   593-597. 

Same — Sale  and  transfer — Generally,  see  3  L.  784;  7  L.  391; 
12  L.  781;  19  L.  331;  50  L.  501;  53  L.  153. 

Same — Same — Duty  of  corporation  with  respect  to  transfer 
of  stock  held  in  trust. — See   15   L.   643-646. 

Same — Same — Pledge  of  stock. — See  12  L.  781;  43  L.  739-742; 
45    L.    394;    67    L.    656-683. 

Same — Same — Restrictions  on  right  to  sell. — See  27  L.  271- 
276. 

Same — Rights  of  share-holders — Generally,  see  4  L.  746;  64 
L.    609. 

Same — Same — Right  of  stockholders  to  inspect  books. — See 
45    L.    446-471. 

Same — Same — Dividends, — See  2  L.  1S3;  12  L.  783;  16  L.  461; 
45  L.   392-397. 

Same — Liability  of  share-holders — Generally,  3  L.  797;  7  L. 
705;  16  L.  285;  26  L.  781;   38  L.  108;  55  L.  47. 

Same — Same — Calls  and  assessments. — See  4  L.  232;  39  L. 
694;   58  L.   85;    66   L.   791. 

Same — Same — Same — Assessments  on  paid  up  stock. — See  45 
L.    648-653. 

137 


§  283  CIVIL  CODE.  [Div.T,Pt.IV. 

Same — Same — Effect  of  transfer  of  shares  upon  liability  for 
unpaid  subscription. — See  47  L.   246-264. 

Same — Same — Liability  of  pledgee  of  stock  as  a  share- 
holder.— See   36  L.   139. 

Same — Same — Partnership  liability  of  stockholders  in  case  of 
defective  or  illegal  corporation. — See  17  L.  550-554. 

Same — Same — Payment  for  stock  by  transfer  of  property  as 
protection  against  liability  of  creditors  of  corporation. — See  42 
L.    593-620. 

Same — Same — Who  may  enforce  and  the  remedy. — See  2  L. 
270;  6  L.  67-6;  23  L.  316;  48  L.  637;  50  L.  273;  54  L.  825;  58  L.  85. 

Same — Same — Riglit  to  enforce  outside  of  state  of  incorpora- 
tion.—See   34   L.    737-763. 

Same — Dividends,  stock  and  rights. — See  3  L.  N.  S.  1034;  12 
L.  N.  S.  768;  12  L.  N.  S.  810;  12  L.  N.  S.  969. 

Same— Liability  of  stockholders. — See  1  L.  N.  S.  901;  1  L.  N.  S. 
1171;  3  L.  N.  S.  954;  6  L.  N.  S.  1003;  8  L.  N.  S.  263;  8  L.  N.  S.  271; 
10  L.   N.  S.   472;    10  L.  N.  S.   897;   11  L.  N.  S.   230;    11   L.  N.   S.   818. 

Same — Transfer. — See  2  L.  N.  S.  804;  3  L.  N.  S.  551;  3  L.  N.  S. 
1199;  8  L.  N.  S.  314. 

Change  in  membership  does  not  destroy  identity. — See  1 
Obiter    Dig.    447. 

Characteristics  and  kinds  of. — See  2  W.  &  P.   1610. 

Charters  and  franchises — As  to,  generally,  2  L.  199;  2  L.  257; 
3  L.  175;  8  L.  498;  9  L.  34;  10  L.  406;  27  L.  737;  62  L.  76. 

Same — Forfeiture,  restraining  exercise  of  corporate  fran- 
chise.—See  2  L.  256;  3  L.  510;  7  L.  319;  8  L.  498;  9  L.  35;  9  L.  37; 
9  L,  273;  24  L.  462;  63  L.  761. 

Same — What  within  power  to  fill  lateral  railroad. — See  12 
L.  N.  S.   326. 

Classification  of  corporations. — See  1  A.  C.  368;  8  A.  C.  558. 

Common  law  and  statutory  corporations,  distinction  be- 
tween.— See  1  Obiter  Dig.  450. 

Company — Distinguished  from. — See  2  W.  &  P.  1611. 

Same — Synonymous   with. — See    2   W.   &   P.    1611. 

Concentration  of  stock  in  hands  of  one  person,  as  affecting 
dissolution   of  corporation. — See   8   A.  C.   1076. 

Consolidation  of  corporations — As  to,  generally. — 79  A.  D. 
421;  2  L.  564;  2  L.  594;  3  L.  435;  4  L.  365;  6  L.  222;  13  L.  781; 
15  L.   82. 

Same — Effect   of. — See   89   A.   S.    604. 

Same — Same — On    pre-existing    indebtedness,    59    A.    S.    550. 

Same — Right  to  consolidate. — See  5  L.  726;  45  L.  271;  52  L. 
369-390. 

Same — Rights  and  liabilities  of  consolidated  corporation. — 
See  2  L.  565;  3  L.  747;  5  L.  726;  23  L.  231-234. 

Constitutionality — Of  annual  corporation  tax. — See  "Annual 
Corporation    Tax,"    this   note. 

138 


Tit.I,ch.I,art.I.]  corporations,  generally.       §  283 

Same — Of    special    or   local    laws    annexing    and    consolidating 
corporations. — See   3   A.   C.    499. 

Construction    of    grants    to    corporations. — See    1    Obiter    Dig. 
452-454. 

Contracts — By  agents.- — See   12   L.    715. 

Same — Not  to  engage  in  certain  business — Effect  of  incorpo- 
ration of  business  by  covenantees. — See  17  L.  N.   S.   979. 

Same — Of,  forbidden  by  their  charters  or  other  statutes. — See 
51    A.    D.    341. 

Same — Of  promoters  or  members,  when  must  carry  out. — See 
13   A.   S.    28. 

Control  of  corporation  by  legislature  and  courts. — See  7  A. 
C.  400;  8  A.  C.  614;  9  A.  C.  819. 

Conveyances  by,  how  and  by  whom  may  be  executed. — See  23 
A.    D.    743. 

Corporate  seal,  adoption  of  and  effect  and  necessity  for  its 
use.— See   50   A.   S.   150. 

Creation  of. — See  2  W.  &  P.  1611. 

Same — And   organization  of. — See   1   Obiter  Dig.   447,   448. 

Damages,   exemplary,    liability    of   for. — See    59   A.    S.    589. 

De  facto — Personal  liability  of  members  of. — See  29  A.  S.   600. 

Same — What  constitutes. — See   118   A.   S.   253. 

Defective  formation  of  and  its  consequences. — See  33  A.  S.' 
176. 

Definition  and  nature  of. — See  1  Obiter  Dig.  445;  2  W.  &  P. 
1608-1610. 

Devises  and  bequests  to,  heirs  of  testator,  whether  may  as- 
sail.— See  60  A.  S.  318. 

Directors — Transactions  between  and  corporations. — See  17 
A.   S.   298. 

Same — Liability   of. — See    53   A.    D.    637. 

Same — Same — For  misrepresenting  solvency  of. — See  8  A.  S. 
604. 

Same — Same — For  negligence. — See  17  A.  S.   95. 

Dissolution  and  winding  up — As  to  generally,  see  1  L.  781;  2 
L.  256;  2  L.  549;  2  L.  550;  8  L.  498;  8  L.  858;  9  L.  32;  9  L.  33; 
9  L.  273;  9  L.  274;  9  L.  651;  20  L.  210;  see  also  "Insolvency  or 
dissolution,"    this    note. 

Same — Same — Period  of  existence  of  private  corporation. — 
See    33   L.    576-579. 

Same — Consolidation  and  merger. — See  2  L.  N.  S.  493;  5  L.  N. 
S.  326;  11  L.  N.  S.  863;  11  L.  N.  S.  1119. 

Same— Effect  of.— See  12  A.  D.  239;  7  A.  S.  717. 
Same — Same — Upon   debts  and  pending  actions.— See   40  A.   D. 
737. 

Same — Power  of  the  courts  to  decree. — See  96  A.  D.  756. 
Distinction    between    public    and   private    porporation, — See    I 
A.    C.    371. 

139 


§  283  CIVIL  CODE.  [Div.I.Pt.IV. 

Dividends — And  riglits  and  remedies  of  stockholders  with 
respect  thereto. — See   99  A.  D.   761. 

Same— On  stock,  life  tenant,  when  entitled  to. — See  24  A.  R. 
169;   54  A.  R.   264;   118  A.  S.   162. 

Same — Stock  and  cash,  difference  between. — See  118  A.  S.   162. 

"Doing  business  within  prohibition  of  statute,"  a  single  or 
isolated  transaction  by  a  foreign  corporation  is  not. — See  10 
L.   N.   S.    693. 

Elections,  voting  by  proxy. — See  27  A.  D.  60. 

Eminent  domain,  condemnation  of  property  of  in  proceedings 
in  exercise   of  right  of. — See   9  A.  S.    137. 

Extra  territorial  rights  of. — See  2  W.  &  P.  1613. 

Fiction   of  incorporation   to  evade  law. — See   1   L.  N.   S.   176. 

Foreign  corporations — Generally,  see  8  L.  236;  9  L.  601;  12 
L.  366;  13  L.  584;  18  L.  524;  24  L.  289-297;  70  L.  691;  1  L.  N.  S. 
558:  1  L.  N.  S.  1019;  1  L.  N.  S.  1041;  2  L.  N.  S.  127;  3  L.  N.  S. 
551  :  4  L.  N.  S.  688;  8  L.  N.  S.  538;  9  L.  N.  S.  417;  9  L.  N.  S.  1214; 
10   L.   N.   S.    693. 

Same — Exclusion  of  as  interference  with  interstate  com- 
merce.—See  24  L.   311-314. 

Same — Effect   of  non-compliance   with    statutory   conditions. — 
See  24  L.  315-320;  25  L.  569. 
•     Same — Same — Right  to  own  real  estate. — See   24  L.   322-329. 

Same — Included. — See   2  W.   &  P.   1614. 

Same — Jurisdiction   over. — See   85  A.   S.   905. 

Same — Power  of  the  states  to  discriminate  against. — See  95 
A.    D.    536. 

Same — Removal  of  cause  by. — See  1  L.  65;  3  L.  572;  11  L. 
568;    24    L.    294. 

Same — Right  of  nonresident  to  sue. — See   70   L.    513-550. 

Same — Service  of  process  upon  and  garnishment  of. — See  23 
L.   490,   499;   50  L.   589;   67  L.   214. 

Same — Statute  of  limitations,  application  of  to. — See  52  A.  D. 
256. 

Same — Taxation  of  by  the  states. — See  96  A.  D.  338. 

Fourteenth   amendment  protects. — See    25   A.   S.    873. 

Garnishment   of  foreign   corporations. — See   67   L.    214. 

Governmental  control  and  regulation  of. — See  1  L.  N.  S.  176; 
7  L.  N.  S.  1086;  8  L.  N.  S.  529;  10  L.  N.  S.   251;  11  L.  N.  S.  973. 

Implied   powers   of. — See   1   Obiter   Dig.    450,   451. 

Incorporation  distinguished. — See   2  W.  &  P.  1614. 

Indebtedness,  power  to  give  evidence  of  and  security  there- 
for.— See   111   A.  S.   309. 

Insolvency  or  dissolution. — See  15  L.  627;  51  L.  146;  69  L. 
124-155;  see  also  "Dissolution  and  Winding  Up,"  this  note. 

Same — Disposition  of  property  and  preferences — Generally. — 
See  5  L.  378;  5  L.  649;  5  L.  650;  7  L.  707;  9  L.  273;  18  L.  306;  22 
L.   802-810;   30  L.   240;   38  L.   97. 

140 


Tit.I,ch.I,art.I.]  CORPORATIONS,  GENERALLY.         §  283 

Same — Power  of  courts  to  compel  payment  by  subscriptions 
and  the  levy  and  payment  of  assessnrients  at  the  instance  of 
creditors. — See    100   A.    D.    552. 

Same — Preferences  by,   42  A.  S.  767;   45  A.  S.   826.  " 

Is  an  entity  distinguished  from  its  stockholders. — See  1 
Obiter    Dig.    447. 

Joint-stock  company.— See   2  W.   &  P.   1617. 

Joint  tort  feasors,  promoters  and  conspirators  are  when. — See 
97  P.   10,  16;   18  L.  N.  S.  1106. 

Judgment  against,  effect  of  on  stockholders. — See  97  A.  S. 
463. 

Jurisdiction  and  control  over — Generally. — See  1  L.  65;  1  L. 
332;  2  L.  551;  9  L.  651;  12  L.  180;'  32  L.  575;   45  L.  457;  50  L.   58S. 

Legislative  power  to  repeal  franchise  of  under  a  conditional 
reservation. — See   43   A.   D.    118. 

Liability — For  acts  of  agents — Generally. — See  1  Obiter  Dig. 
457. 

Same — Contracts. — See  1  Obiter  Dig.  458-460. 

Same — Torts. — See    1    Obiter   Dig.    460,    461. 

Same — For  debts  of  pre-existing  corporation  or  partnership. — 
See    59   A.    S.    547. 

Same — For  torts. — See  5  A.  D.  42;   13  A.  D.  596. 

Same — Holders  of  stock  of  as  collateral,  for  corporate  debts. — 
See  1  A.  S.  783. 

Same — Officers  dependent  on  the  manner  of  signing  contracts. 
—39    A.    R.    299. 

Same — Subscribers  to  stock  to  creditors  in  suits  to  enforce. — 
See  3  A.  S.   808. 

Libel  and  slander — Liability  of  for. — See  115  A.  S.  721. 

Same — Of   corporation. — See    52   L.    525. 

Same — Right  to  sue  for. — See  2  L.  N.  S.  741. 

Lien  of  on   corporate  stock. — See  11  A.  D.  581. 

Malicious  prosecution,  liability  to  actions  for. — See  34  A.  R. 
495. 

Mandamus  to  compel  performance  of  duties  by. — See  3  A.  S. 
807,    37    A.    S.    317. 

Matters  affecting  corporate  existence. — See  1  A.  C.  88;  4  A.  C. 
1057;    7  A.   C.    400;    8  A.  C.   1073. 

Meetings — Agreements  to  control  future  voting  of  stock  at. — 
See    56   A.   S.    138. 

Same — ^Not  properly  called,  validity  of  acts  done  at. — See  18 
A.    D.    102. 

Same — Special,  notice  to  attend,  when  maj'  be  omitted. — See 
3   A.   S.    69. 

Members,   right  of  to  expel. — See  114  A.  S.   24. 

Municipal  or  quasi  public  corporations. — See  2  W.  &  P.  1618- 
1620. 

Must  act  by  its  agents  or  servants. — See  1  Obiter  Dig.   454. 

Name  of. — See   1   Obiter  Dig.   448. 

141 


§  283  CIVIL  CODE.  [Div.I.Pt.IV. 

Natural  person  distinguished  from. — See  2  W.  &  P.  1615. 

Nature,  creation,  jurisdiction  and  control  of — As  to  f?ener- 
ally,  see  1  L.  757;  4  L.  36;  7  L.  591;  9  L.  33:  12  L.  366:  13  L.  370; 
13  L.  770;  14  L.  184;  14  L.  410;  24  L.  293;  29  I..  378. 

Notice  to  officer — Or  agent,  effect  of. — See  36  A.   D.   188. 

Same — Does  not  affect  corporation  when. — See  39  A.  R.  322. 

Officers  and  promoters  of. — See  1  L.  N.  S.  258;  2  L.  N.  S.  993: 
4  L.  N.  S.  58;  6  L.  N.  S.  324;  6  L.  N.  S.  872;  7  L.  N.  S.  373;  S 
L.  N.  S.  739;  9  L.  N.  S.  979. 

Same — Personal  liability  of  to  tliird  persons. — See  48  A.  S. 
913. 

Same — Resignation   of. — See  95   A.   S.   578. 

Personal  liability  of  persons  acting  as  witliout  autliority. — 
See  29  A.  S.  600. 

Pleading,  corporate  existence,  necessity  of  averring. — Sec  35 
A.   S.    289. 

Power  of — Congress  as  to  corporation. — See  1  Obiter  Dig.  449. 

Same-^Courts  to  fix  or  regulate  rates  of  public  service  cor- 
porations.— See   9   A.   C.    823. 

Same — State  or  court  to  regulate  and  control. — See  1  Obiter 
Dig.    448,    449. 

Same — To  borrow  money. — See  111   A.  S.  309. 

Same — To  deal  in  shares  of  other  corporations. — See  28  A.  R. 
15;  36  A.  S.  134. 

Same — To  hold  franchise  and  real  property. — See  1  Obiter 
Dig.   454-457. 

Same — To  purcliase  their  own  capital  stock. — See  33  A.  S. 
339. 

Powers  and  liabilities  of — Rights  and  powers  generally,  see 
1  L.  285;  1  L.  458;  2  L.  387;  2  L.  418;  2  L.  420;  3  L.  174;  5  L. 
100;  6  L.  290;  6  L.  565;  6  L.  661;  7  I..  605;  8  L.  500;  9  L.  35;  9  L. 
37;  11  L.  715;  11  L.  845,  846,  847;  12  L.  168;  20  L.  765:  32  L. 
293-297;  48  L.  587;  62  L.  79;  2  L.  N.  S.  130;  2  L.  N.  S.  144;  2 
L.  N.  S.  741;  4  L.  N.  S.  1001;  4  L.  N.  S.  1091;  7  L.  N.  S.  816;  8 
L.  N.  S.  966;  9  L.  N.  S.  193;  9  L.  N.  S.  689;  12  L.  N.  S.  757;  2  W. 
&    P.    1615,    1616. 

Same — Contracts  of. — See  7  L.  N.  S.  467;  9  L.  N.  S.  606;  11  L. 
N.  S.  598;  12  L.  N.  S.  825. 

Same — Officers  and  agents  of — Generally. — See  1  L.  607;  2  L. 
192;   12  L.   784;   15  L.   418;   29  L.   384. 

Same — Same — Rights  and  powers  of. — See  3  L.  378:  6  L.  678; 
12  L.  715;  25  L.  48;   27  L.  401;  49  L.  471;  50  L.  273. 

Same — Same — Same — President  and  vice-president,  of. — See  14 
L.    356-360. 

Same — Same — Duties  and  personal  liabilities  of. — See  19  L. 
676;  26  L.  781;  28  L.  421;  28  L.  427;  29  L.  385;  36  L.   361. 

Same — Same — Same — Of  directors. — See  2  L.  534;  3  L.  397;  4 
L.  746,  747;  9  L.  653;  15  L.  305;  55  L.  751-774. 

142 


Tit.I,ch.I,art.I.]  CORPORATIONS,  GENERALLY.         §  283 

Preferences,  right  of  to  make  in  favor  of  a  creditor. — See  42 
A.   S.    767;    45    A.    S.    826. 

Process,  service  of  upon. — See  66  A.  D.   119. 

Promoters  of  corporations — As  to  generally,  see  11  L.  515;  12 
L.  366;  17  L.  550;  25  L.  90-102;  26  L.  544-551;  40  L.  216;  18  L. 
N.  S.  1106-1134;  as  to  liability  of  promoters,  and  those  conspir- 
ing with  them,  to  purchase  property,  for  secret  profits  as  joint 
tort  feasors. — See  97  P.  10,  16;  18  L.  N.  S.  1106. 

Same — And  their  relation  thereto. — See  17  A.  S.  161;  18  L. 
N.  k  1106. 

Same — Same — Nature  of  the  relation. — See  4  A.  C.  667;  108  A. 
S.  479;  49  L.  725;  119  A.  S.  564;  5  L.  N.  S.  1036;  18  L.  N.  S.  1106; 
44  L.    ed.   423. 

Same — Defenses  of — Action  by  corporation. — See  44  A.  S.  939; 
107  A.  S.  1017;  108  A.  S.  479;  49  L.  725;  18  L.  N.  S.  1132;  34  L. 
ed.   876;   50  L.  ed.  458. 

Same- — Same — Action  by  stockholder. — See  44  A.  S.  939;  119 
A.   S.  564;   18   L.  N.  S.   1134. 

Same — Duty  to  make  disclosures. — See  5  L.  N.  S.  1036;  18  L. 
N.    S.    1107. 

Same — Same — To  whom  and  how  made. — See  108  A.  S.  479; 
49  L.  725;  52  L.  724;  18  L.  N.  S.  1108. 

Same — False  representations  by — What  constitute. — See  119  A. 
S.  564;  5  L.  N.  S.  1036;  18  L.  N.  S.  1109;  47  L.  ed.  802. 

Same — Same — Meaning  of  representation. — See  40  L.  837; 
18  L.  N.  S.  1110. 

Same — P"'raudulent  misrepresentation  by — Measure  of  damages 
for. — See  49  L.  725;  18  L.  1131. 

Same — Liability  of — For  damages. — See  16  L.  N.  S.  348;  18  L. 
N.   S.    1119. 

Same — Same — For  secret  profits. — See  79  P.  1;  4  A.  C.  667;  52 
L.   724;   18  L.  N.  S.   1110-1112;   44  L.   ed.   423. 

Same — Same — On  sale  of  property  to  corporation — Owned  by 
promoter.— See  40  L.  837;  18  L.  N.  S.  1112. 

Same — Same — Same — On  which  promoter  holds  option. — See  79 
P.  1;   52  L.  724;   18  L.  N.  S.   1114. 

Same — Same — Same — For  sale  of  which  promoter  is  agent. — 
See  49  L.   725;   18  L.  N.  S.   1115. 

Same — Same — To  bonus  given. — See   18  L.  N.  S.   1119. 

Same — Misrepresentations  by. — See  85  A.  S.  385. 

Same — Remedies  of  corporation — Affected  by  rights  of  third 
parties.— See  18  L.  N.  S.  1124;  44  L.  ed.  423. 

Same— Same — At  law. — See  18  L.  N.   S.   1122. 

Same — Same — In  equity. — See  74  A.  S.  845;  49  L.  725;  52  L. 
724;   5  L.  N.  S.   1036;   18  L.  N.   S.   1123. 

Same — Remedies  of  stockholders. — See  79  P.  1;  119  A.  S.  564; 
18  L.  N.  S.  1125. 

Same — Same — In  equity. — See  79  P.  1;  119  A.  S  .564;  18  L.  N.  S. 
1127-1131. 

143 


§  283  CIVIL  CODE.  [Div.I.Pt.IV. 

Same — Rights  and  liabilities  of  inter  se. — See  108  A.  S.  479: 
18  L.  N.  S.  1121. 

Proxies,  irrevocable. — See  56  A.  S.  138. 

Public  duties  of,  bills  to  compel  performance  of. — See  38  A.  D. 
537. 

Quasi,   what  are. — See  13  A.  D.   523. 

Real  property,  capacity  of  to  take  title  to. — See  94  A.  D.   381. 

Receivers  for — When  and  at  whose  instance  may  be  ap- 
pointed.—See  72  A.  S.  49,  70;  79  A.  D.  49,  70;  118  A.  S.  198.      , 

Records  of — Conclusiveness  of,  and  the  power  to  amend. — See 
13  A.   S.   550. 

Same — Effect  of  failure  to  enter  resolutions  and  acts  in.— See 
74    A.    D.    309. 

Repeal,  alteration  and  amendment  of  charters — Charter  as  a 
contract. — See   1   Obiter   Dig.   463-465. 

Same — Assent  of  corporation  to  alteration  or  amendment. — 
See   1   Obiter  Dig.   471. 

Same — Impairment  of  contracts  and  interference  with  vested 
rights. — See    1   Obiter  Dig.    465-468. 

Same — Power  of  majority  stockholders  to  bind  minority  by 
amendment. — See    1    Obiter    Dig.    471,    472. 

Same — Reservation  of  right  to  repeal,  alter  or  amend. — See  1 
Obiter  Dig.    468-471. 

Residence  of  for  jurisdictional  purposes. — See  33  A.  D.  399; 
see   "Citizenship  and  Residence,"   this  note. 

Resignation  of  officers  of. — See  95  A.  S.  578. 

Rights  and  powers  of — 'As  to  generally,  see  8  A.   C.   1047. 

Same — Same — Power  of  corporation  to  act  as  trustee  of  char- 
itable trust. — See   8  A.   C.   1181. 

Same — Same — Power  of  corporation  to  offer  reward. — See  3 
A.    C.    157. 

Same — Same — Rights  inter  se  of  corporation  and  bona  fide 
purchaser  of  forged  or  spurious  stock  certificate. — See  5  A.  C. 
251. 

Same — As  to  acquisition  of  stock  of  rival  corporation. — See 
8   A.  C.    57,   64. 

Same — Same — Acquisition  by  corporation  of  stock  in  another 
coi-poration  for  purpose  of  controlling  same  and  preventing 
competition. — See  8  A.  C  64. 

Same — As  to  conveyance  of  property. — See  4  A.  C.   1057,  1061; 

6  A.    C.    253. 

Same — Same — Power  of  private  corporation  to  lease  its  real 
property. — See  4  A.  C.  1061. 

Same— As  to  liens. — See  3  A.  C.  187,  188. 

Same — Same — Right    of    corporation    to    mechanics'    lien. — See 

7  A.    C.    430. 

Same — Actions — Bill  in  equity  to  determine  title  to  officer  of 
private   corporation. — See    4    A.    C.    707. 

Same — Same — Competency  of  officer,   stockholder,   or  agent  of 

144 


Tit.I,cli.I,art.I.]  corporations,  generally.       §  283 

corporation    to    testify    as    to    transactions    or    communications 
with  decedent. — See  9  A.  C.  181. 

Same — Same — Equitable  jurisdiction  of  sureties  by  corpora- 
tion or  receivers  against  directors  or  officers  for  negligence  or 
wrongful    act. — See    11    A.    C.    721. 

Same — Same — Evidence.— See  3  A.  C.  731;  6  A.  C.  675;  7  A.  C. 
287;   8  A.  C.   173. 

Same — Same — Instruction. — See    3    A.    C.    731. 

Same — Same — Jurisdiction   of   courts. — See   7   A.   C.    1114. 

Same — Same — Mandamus  as  remedy  to  compel  private  corpo- 
ration to  perform  duties  arising  out  of  contracts. — See  8  A.  C. 
410. 

Same — Same — Pleadings.^See   3    A.   C.    472. 

Same — Same — Power  to  sue  and  be  sued,  and  limitations. — 
See  2  A.  C.  127;  2  A.  C.  639;  4  A.  C.  704;  7  A.  C.  41;  8  A.  C.  407; 
9  A.  C.   819. 

Same — Same — Process. — See  1  A.  C.  225. 

Same — Same — Questions  submitted  to  jury. — See  3  A.  C.  731. 

Same — Same — Rights  of  corporation  to  sue  for  libel  or  slan- 
der.—See  5  A.  C.  550. 

Same — Charter  is  measure  of  power. — See  1  Obiter  Dig.  449. 

Same — Distinction  between  common  law  and  statutory  cor- 
porations.— See   1   Obiter  Dig.   450. 

Same- — Duties  and  liabilities  of — As  to  generally,  see  2  A.  C. 
859;  5  A.  C.  411;  5  A.  C.  558;   6  A.  C.   675;   9  A.  C.   677. 

Same — Same — Liability  of  corporations  for  debts  of  prede- 
cessor.— See   4  A.   C.    260. 

Same — Same — Liability  of  corporation  to  indictment  for  non- 
feasance.— See  5  A.  C.  413. 

Same — Same — Liability  of  corporation  for  libel  or  slander. — 
See  9  A.  C.  433. 

Saine — Same — Property  or  franchise  of  quasi-public  corpora- 
tion as  subject  to   sale  under  execution. — See   5  A.   C.   512. 

Same — Same — Rights  inter  se  of"  corporation  and  bona  fide 
purchaser  of  forged  or  spurious  stock  certificate. — See  5  A.  C. 
251. 

Same — Officers   and  agents — who   are. — See    5.    A.    C.    221. 

Same — Same — Agent  of  private  corporation  is  "officer." — See 
5  A.  C.  223. 

Same— Same — Appropriation  of  corporate  funds  for  political 
purpose  by  officer  of  corporation  as  criminal  offense. — See  10 
A.     C.     320. 

Same — Same — Criminal  rights  of  officer  of  corporation  for 
its  acts  of  non-feasance  or  misfeasance. — See   8  A.  C.  383. 

Same — Same — -Imputability  to  corporation  of  notice  to  its 
officers  where  latter  are  engaged  in  independent  acts  in  their 
own  interest. — See  6  A.  C.  679. 

Same — Same— Liability.— See  2  A.  C.  873;  7  A.  C.  287;  7  A.  C. 
1114;  8  A.  C.   380. 

145 


§  283  CIVIL  CODE.  [Div.I.Pt.IV. 

Same — Same — Liability  of  person  signing  negotiable  paper 
as  officer  of  corporation. — See  6  A.  C.  1000. 

Same — Same — Notice  to. — See  6  A.  C.   675,   679. 

Same — Same — Power  of  president  and  secretary  to  execute 
commercial  paper  for  corporation. — See  2  A.   C.   520. 

Same — Same — Purchase  of  stock  by  director  as  affected  by 
fiduciary  relation  to  stockholder. — See   2  A.  C.  877. 

Same — Same — Rights  and  powers  of. — See  2  A.  C.  519;  2  A.  C. 
873;  3  A.  C.  731;  7  A.  C.  287;  7  A.  C.  667. 

Same^—Possible   rights. — See   1   Obiter   Dig.   449. 

Same — Promoters,  their  rights  and  liabilities. — See  4  A.  C.  667; 
8  A.  C.  260. 

Same — Same — Liabilities  of  corporation  to  third  parties  on 
contracts  of  its  promoters. — See  8  A.  C.  262. 

Same — Same — Relation  of  promoter  to  corporation  and  stock- 
holder.—See   4  A.  C.   669. 

Same — To   locate  mining  claim. — See   7   L.   N.   S.   816. 

Same — To  sue  for  libel. — See  2  L.  N.  S.  741. 

Sale  by  of  all  their  assets  and  the  effect  thereof. — Ste  99  A. 
D.    333;    103    A.    S.    548. 

Same  corporation  of  one  class  cannot  exercise  powers  granted 
to  another  class. — See  1  Obiter  Dig.   450. 

School  district.— See  2  W.  &  P.  1620. 

Seal  of — Effect  of  as  evidence. — See  64  A.  S.  260. 

Same — May  be  omitted  when. — See  13  A.  D.  561. 

Secret  profits,  liability  of  promoters,  for,  as  well  as  those  con- 
spiring with  them  to  purchase  property. — See  97  P.  10,  16;  18 
L.  N.  S.  1106. 

Special  and  hostile  legislation,  protection  of  from. — See  62  A. 
S.    165. 

State.— See  2  W.  &  P.   1620. 

State  university. — See  2  W.   &  P.  1621. 

Status  of  corporations. — See  10  L.  129;  11  L.  216;  14  L.  184;  14 
L.   580;   14  L.  585;  15  L.  82;  19  L.  223;   60  L.  330. 

Statute  of  limitations  in  actions  against  officers  and  stock- 
holders.— See  96  A.   S.   972. 

Stock — Collateral,  liability  of  persons  holding  as. — See  68  A.  S. 
542. 

Same — Fraudulent  and  overissued. — See  87  A.  S.  847. 

Same — Mandamus  to  compel  transfer  of. — See  51  A.  R.   798. 

Same. — Preferred,  what  is  and  what  are  the  special  rights  of 
its   holders. — See   73  A.  S.   227. 

Same — Subscriber  for,  transfer  by,  effect  of. — See  14  A.  D. 
264. 

Same — Subscriptions  for,  when  become  void  by  nonpayment. — 
See  11  A.  D.  609. 

Same — Subscriptions  to  and  distinction  between  subscriptions 
and  offers  or  agreements  to  subscribe. — See  81  A.  D.  392. 

146 


Tit.I,ch.I,art.I.]        PUBLIC  AND  private.  §  284 

Same — Transfers  of,  to  what  extent  may  be  restricted. — See 
57  A.  S.  379. 

Stockholder — Actions  against  for  debts  of. — See  4-3  A.  D.  694. 

Same — Actions  by  on  behalf  of. — See  97  A.  S.  29. 

Same — Estoppel  of  to  deny. — See  31  A.  R.   88. 

Same — Included. — See    2   W.    &   S.    1617. 

Same — Liability 'of. — See  9  A.  D.  96. 

Same — Same — Enforcement  of  in  other  states. — See  37  A.  S.  168. 

Same — ^Same — For  debts  of. — See  49  A.  D.  308. 

Same— Same — For  debts   of,  nature   of. — See   99   A.   D.   432. 

Same — Same — To  the  creditors  of  the  corporations. — See  3  A. 
S.    806. 

Same — ^Meetings  and  voting — Generally. — See  12  L.  783;  15  L. 
665;    15   L.    682. 

Same — Right  to  vote  by  proxy. — See   29   L.  ^44-849. 

Same — What  constitutes  quorum  for  stockholder. — See  2  2  L. 
174. 

Same — Right  of  one  who  has  paid  more  than  his  share  of' 
the  corporate  liabilities. — See  71  A.  S.   40. 

Same — Right  of  to  inspect  books,  and  remedies  for  its  en- 
forcement.— See  107  A.  S.  674. 

Same. — Right  of  to  maintain  a  bill  to  dissolve  and  to  dis- 
tribute assets. — See  91  A.   S.   33. 

Same — Subscription  of  for  stock,  liability  of  upon. — See  40  A. 
D.    358. 

Same — When  may  maintain  suits  against  ofRcers  and  agents 
to  call  them  to  an  accounting  or  to  set  aside  their  acts. — See 
41    A.   D.    367. 

Subscribers  to  stock   of,  liability  of  to. — See   93   A.  S.   349. 

Subscriptions,  liability  of  transferee  of  stock  for  subsequent 
calls. — See   6  A.  S.   838. 

Suits  by  and  against  corporations. — See  1  Obiter  Dig.  461-463. 

Torts — Liability   of,  for. — See  5  A.   D.   42;   13  A.  D.   596. 

Same — Liability    of   directors    for. — See  74    A.    S.    610. 

Transactions  in  the  name  of  supposed,  but  nonexisting,  cor- 
porations.— See   94  A.  S.   593. 

Ultra  vires  contracts  of. — See  13  A.  D.  108;  70  A.  S.   156. 

United   States.— See   2   W.   &  P.    1621. 

Withdrawal   of  assets  of,   what  amounts  to.- — See   57   A.   S.   63. 

§284.  [KINDS  OF]— WHAT  ARE  PUBLIC  A>D  WHAT 
PRIVATE  CORPORATIONS.  Corporations  are  either  public 
or  private.  Public  corporations  are  formed  or  organized  for 
the  government  of  a  portion  of  the  state;  all  other  corpora- 
tions are  private. 

Historyj  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  197. 

147 


§§  285, 286  CIVIL  CODE.  [Div.I.Pt.lV. 

See  Kerr's  Cyc.   C.   C.   for  29  pars,  annotation. 

51  C.  406,  409  (applied  to  levy  districts);  117  C.  114,  121,  48  P. 
1016  (applied  to  reclamation  districts);  134  C.  477,  478,  66  P. 
668  (applied  to  reclamation  districts);  144  C.  329,  334,  77  P. 
937  (section  must  be  taken  as  definition  of  a  public  or  municipal 
corporation);  151  C.  797,  805,  91  P.  740,  744  (what  is  not  essential 
to  a  public   corporation). 

As  to  many  miscellaneous  matters  relating  to  corporations 
generally,  see  note  §  283,  ante. 

§285.  PRIVATE,  HOW  FORMED.  Private  corporations 
may  be  formed  by  the  voluntary  association  of  any  three  or 
more  persons  in  the  manner  prescribed  in  this  article.  A 
majority  of  such  -persons  must  be  residents  of  this  state. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  198;  March  20,  1905,  Stats,  and  Amdts. 
1905,  p.   502. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

128  C.  257,  260,  60  P.  865  (referred  to  in  construing  other  sec- 
tions). 

As  to  corporations  de  facto,  see  19  A.  D.  67;  33  A.  S.  181. 

As  to  defective  formation  of  corporation  by  reason  of  failure 
to  comply  with  statute,  see  Kerr's  Cyc.  C.  C.  §  290  note  pars. 
33  et  seq.;  also  33  A.  S.  176-186. 

As  to  many  miscellaneous  matters  relating  to  corporations 
generally,   see  note  §  283,   ante. 

As  to  requisites  for  valid  incorporation  de  jure,  see  Kerr's 
Cyc.  C.  C.  §  290  note  pars.  6-32. 

As  to  substantial  compliance  being  sufficient  to  form  de  facto 
corporation,  see  Kerr's  Cj'C.  C.  C.  §  290  note  pars.  4,  5. 

§  286.  [SAME]— FOR  WHAT  PURPOSE.  Private  corpora- 
tions may  be  formed  for  anj"-  purpose  for  which  individuals 
may  lawfully  associate  themselves. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   198. 

52  C.  53,  60,  28  A.  R.  629  (policy  of  exercise  of  enlarged 
powers  by  corporations  is  bej'-ond  reach  of  the  courts);  109  C. 
571,  590,  42  P.  225  (it  is  infra  vires,  when,  to  purchase,  hold, 
and  sell  stock  in  other  corporations);  113  C.  526,  531,  45  P.  820 
(cited);  144  C.  578,  594,  77  P.  1113  (construed  with  §360,  as  to 
power   of   corporation    to   acquire   title   by   i^rescription). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 

148 


Tit.I,cli.I,art.I.]      PURPOSES  OF  private.  §  286 

erally,  see  note  §  283,  ante.  An  enumeration  of  seventeen  pur- 
poses for  which  corporations  might  be  formed,  was  contained 
in  the  original   section,  which  prohibited  all  other  purposes. 

Bonds  may  be  given  by  private  corporations,  where  required 
by  law  (Stats.  1885,  p.  114;  1893,  p.  476),  see  Hen.  G.  L.,  tit. 
Bonds  Required  by  Law,  and  note;  also  tit.  Libel  and  Slander. 
See  also  Kerr'.s  Pocket  Pol.  C.  §  955  subd.  6;  and  Kerr'.s  Pocket 
C.  C.  P.  §§  1056,  1057. 

Cemetery  associations,  act  authorizing  incorporation  of  rural, 
see  Hen.  G.  L.  tit.  Cemeteries. 

Chambers  of  Commerce.— See  Kerr's  Cyc.  C.  C.   §  286,  note. 

Co-operative  associations,  act  providing  for  incorporation 
and  management  of  (Stats.  1895),  see  Hen.  G.  L.,  tit.  Corpora- 
tions. 

Corporations,  acts  protecting  stockholders  and  persons  deal- 
ing with   company,   see  Hen.  G.  L.,  tit.  Corporations. 

Deed  by  corporation,  manner  of  executing. — See  Hen.  G.  L. 
(Stats.    1895,   p.    75),   tit.   Cemeteries. 

Fire  insurance  companies,  organization  and  management. — • 
See  Hen.  G.  L.  (Stats.  1865-6,  p.  743),  tit.  Corporations;  for 
county  fire  insurance  companies  (Stats.  1897,  p.  439),  see  Id.  tit. 
Corporations. 

Foreign  corporations,  acts  relating  to. — See  Hen.  G.  L.,  tit. 
Corporations. 

Same — Certified  copy  of  certificate  to  be  filed  with  secretary 
of  state    (Stats.  1901,  p.  108). — See  Hen.  G.  L.,  tit.  Corporations. 

Surety  corporations,  for  statutes  providing  that  corporations 
may  act  as  surety  where  bond  is  required  by  law. — See  Hen. 
G.  L.,  tit.  Corporations. 

Homestead  corporations,  act  atithorizing  formation  of.— See 
Hen.  G.  L.,  note  to  tit.  Corporations. 

Insurance  in  assessment  plan,  act  relating  to,  and  regulating 
conduct  of  business  (Stats.  1873-4,  p.  745;  Stats.  1891,  p.  126). — 
See  Hen.  G.  L.,  tit.  Corporations. 

Irrigation,  as  to  act  relating,  see  Hen.  G.  L.,  tit.  Irrigation. 

Mutual  insurance  companies,  as  to  (Stats.  1873-4,  p.  745). — 
See  Hen.  G.  L.,  tit.  Corporations. 

Acts  April  2,  1866,  p.  752;  1868,  p.  330,  661;  1880,  p.  239,  incor- 
porated in  Civil  Code. 

Railroads,  for  acts  requiring  safeguarding,  sale  of  franchise, 
management  and  operation  (other  than  "special"  acts). — See 
Hen.  G.  L.,  tits.  Commissioner  of  Transportation;   Railroads. 

Telegraph  Companies,  as  to  granting  franchise,  etc.  (Stats. 
1862,  p.  288),  see  Hen.  G.  L.,  tit.  Telegraph. 

This  statute  was  thoroughly  codified  except  as  to  §§  11,  14,  15, 
which  may  possibly  have  some  vitality;  but  see  Hen.  G.  L.,  tit. 
Telegraph,  note. 

149 


§  287  CIVIL  CODE.  [Div.I.Pt.IV. 

§287.    EXISTENCE,  HOW  CONTINUED   [UNDER  CODE]. 

Any  corporation  existing  on  the  first  daj'  of  January,  one 
thousand  eight  hundred  and  seventy-three,  formed  under  the 
laws  of  this  state,  and  still  existing,  which  has  not  already 
elected  to  continue  its  existence,  under  the  provisions  of  this 
code  applicable  thereto,  may,  at  any  time  hereafter,  make 
such  election  [1]  by  the  unanimous  vote  of  all  its  directors, 
or  such  election  may  be  made  [2]  at  any  annual  meeting  of 
the  stockholders,  or  members,  or  [3]  at  any  meeting  called 
by  the  directors  expressly  for  considering  the  subject,  if  voted 
by  stockholders  representing  a  majority  of  the  capital  stock, 
or  by  a  majority  of  the  members,  or  [4]  may  be  made  by  the 
directors  upon  the  written  consent  of  that  number  of  such 
stockholders  or  members. 

[Certificate  to  be  filed.]  A  certificate  of  the  action  of  the 
directors,  signed  by  them  and  their  secretary,  when  the 
election  is  made  by  their  unanimous  vote,  or  upon  the  written 
consent  of  the  stockholders  or  members,  or  a  certificate  of 
the  proceedings  of  the  meeting  of  the  stockholders  or  mem- 
bers, when  such  election  is  made  at  any  such  meeting,  signed 
by  the  chairman  and  secretary  of  the  meeting  and  a  majority 
of  the  directors,  must  be  filed  in  the  office  of  the  clerk  of 
the  county  where  the  original  articles  of  corporation  are 
filed,  and  a  certified  copy  thereof  must  be  filed  in  the  office 
of  the  secretary  of  state;  and  thereafter  the  corporation  shall 
continue  its  existence  under  the  provisions  of  this  code  which 
are  applicable  thereto,  and  shall  possess  all  the  rights  and 
powers,  and  be  subject  to  all  the  obligations,  restrictions, 
and  limitations  prescribed  thereby. 

HLsfory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  198-199. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

57  C.  532,  533  (construed  and  applied);  105  C.  526,  552,  38  P. 
94,  109,  722,  28  L,.  773  (referred  to);  109  C.  571,  579,  580,  586,  42 
P.  225  (referred  to);  111  C.  57,  65,  52  A.  S.  R.  149,  43  P.  418 
(referred  to);  119  C.  334,  342,  51  P.  317  (referred  to);  122  C.  335, 
336,  337,  339,  55  P.  10   (cited). 

As  to  many  miscellaneous  matters  affecting'  corporations  gen- 
erally, see  note  §  283,  ante. 

150 


Tit.I,ch.I,art.I.]      instrument  creating.  §§288-290 

As  to  validating  act,  passed  before  Code  (April  1,  1864,  Stats. 
1863-4,  p.  303),  as  to  corporations  theretofore  deficiently  incor- 
porated,   see    56    C.    345,    348. 

Building  and  loan  associations — Election  to  continue  in  btisi- 
ness. — See  Kerr's  Cyc.  C.  C.  §  646  and  note. 

§288.    EXISTING  CORPOEATIOXS  ^OT  AFFECTED.    No 

corporation  formed  or  existing  before  twelve  o'clock,  noon, 
of  the  day  upon  which  this  code  takes  effect,  is  affected  by 
the  provisions  of  Part  IV  of  Division  First  of  this  code, 
unless  such  corporation  elects  to  continue  its  existence  under 
it  as  provided  in  section  287;  but  the  laws  under  which  such 
corporations  were  formed  and  exist  are  applicable  to  all  such 
corporations,  and  are  repealed,  subject  to  the  provisions  of 
this  section. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

52  C.  132,  141  (referred  to  in  construing  other  sections);  60  C. 
308,  310  (construed);  105  C.  526,  550,  552,  553,  38  P.  94,  109,  722, 
28  L.  773  (construed  and  applied);  109  C.  571,  579,  580,  581,  582, 
583,  42  P.  225  (construed);  111  C.  57,  65,  52  A.  S.  149,  43  P.  418 
(applied  to  pre-existing  bank);  119  C.  334,  341,  342,  51  P.  317 
(applied  to  pre-existing  bank);  122  C.  335,  337,  55  P.  10  (con- 
strued). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see   note    §  283,    ante. 

§289.  NAME  OF  INSTRUxMENT  CREATING  CORPORA- 
TION. The  instrument  by  which  a  private  corporation  is 
formed  is  called  "articles  of  incorporation." 

History:     Enacted  March   21,  1872. 

128  C.  257,  260,  60  P.  865   (referred  to). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§290.  ARTICLES  OF  INCORPORATION.  WHAT  THEY 
MUST  SET  FORTH.  Articles  of  incorporation  must  be  pre- 
pared, setting  forth: 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  is  to  be  transacted. 

151 


§  290  CIVIL  CODE.  [Div.I,Pt.IV. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  [Number  of  directors — Lodges.]  The  number  of  its 
directors  or  trustees,  which  shall  not  be  less  than  three,  and 
the  names  and  residences  of  those  who  are  appointed  for 
the  first  year;  provided,  that  the  corporate  powers,  business, 
and  property  of  corporations  formed,  or  to  be  formed, 
for  the  purpose  of  erecting  and  managing  halls  and 
buildings  for  the  meetings  and  accommodations  of  sev- 
eral lodges  or  societies  of  any  benevolent  or  charitable  order 
or  organization,  and  in  connection  therewith  the  leasing  of 
stores  and  offices  in  such  building  or  buildings  for  other  pur- 
poses, may  be  conducted,  exercised,  and  controlled  by  a  board 
of  not  less  than  three  or  more  than  fifty  directors,  to  be 
chosen  from  among  the  stockholders  of  such  corporation,  or 
among  the  members  of  such  order  or  organization; 

[Number  of  directors  may  be  changed.]  And  provided, 
also,  that  at  any  time  during  the  existence  of  corporations  for 
profit,  other  than  those  of  the  character  last  hereinabove 
provided  for,  the  number  of  the  directors  may,  by  a  majority 
of  the  stockholders  of  the  corporation,  be  increased,  or  dimin- 
ished to  any  number  not  less  than  three,  who  must  be  mem- 
bers of  the  corporation;  whereupon  a  certificate  stating  the 
number  of  directors  must  be  filed,  as  provided  for  in  section 
two  hundred  and  ninety-six  for  the  filing  of  the  original  arti- 
cles of  incorporation; 

[Corporations  for  social  purposes.]  And  provided,  also,  that 
the  corporate  powers,  business,  and  property  of  corporations 
formed  or  to  be  formed  for  social  purposes,  and  not  directly 
for  profit,  may  be  exercised,  conducted,  and  controlled  by  a 
board,  consisting  of  such  number  of  directors  as  may  be  in 
the  constitution  or  by-laws  provided;  and  corporations  so 
formed  may,  in  their  constitution  or  by-laws,  provide  for  the 
length  of  time  that  the  directors,  or  any  number  thereof,  shall 
act,  and  may,  in  like  manner  provide  that  certain  directors,  or 
a  certain  number  of  the  board  of  directors,  to  be  selected  by 
the  corporation  or  the  board  of  directors,  in  the  mode  and 
manner  provided  in  the  constitution  or  by-laws,  shall  act  for 

152 


Tit.I,ch.I,art.I.]  articles,  etc.  §290 

any   specified   length   of   time,    or   otherwise,    as    shall    be   in 
the  constitution  or  by-laws  set  forth. 

6.  [Capital  Stock.]  The  amount  of  its  capital  stock,  and 
the  number  of  shares  into  which  it  is  divided.  Corporations 
formed  for  profit,  pursuant  to  the  provisions  of  this  code, 
may,  by  their  articles  of  incorporation,  provide  for  the  classifi- 
cation of  their  capital  stock  into  preferred  and  common  stock. 
In  the  event  that  the  articles  of  incorporation  shall  provide 
for  such  classification  the  same  must  contain  a  statement  of 
the  number  of  shares  of  stock  to  which  preference  is  granted, 
and  the  number  of  shares  of  stock  to  which  no  preference  is 
granted.  The  articles  of  incorporation  shall  also  state,  in 
clear  and  succinct  manner,  the  nature  and  extent  of  the 
preference  granted,  and  except  as  to  the  matters  and  things 
so  stated,  no  distinction  shall  exist  between  said  classes  of 
stock  or  the  owners  thereof; 

[Classes  or  stock — Distinctions.]  Provided,  however,  that 
no  preference  shall  be  granted  nor  shall  any  distinction  be 
made  between  the  classes  of  stock  either  as  to  voting  power 
or  as  to  the  statutory  or  constitutional  liability  of  the  holders 
thereof  to  the  creditors  of  the  corporation. 

7.  [Amount  subscribed.]  If  there  is  a  capital  stock,  the 
amount  actually  subscribed,  and  by  whom. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  199;  April  1,  1876,  Code  Amdts.  1875-6,  p. 
70;  April  16,  1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  11;  March  31, 
1891,  Stats,  and  Amdts.  1891,  p.  285;  March  20,  1905,  Stats,  and 
Amdts.  1905,  pp.  502-503;  amended  March  18,  1907,  Stats,  and 
Amdts.  1907,  p.  347,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  401. 

See  Kerr's  Cyc.  C.  C.   for  38  pars,   annotation. 

53  C.  123,  128  (applied  to  railroads);  64  C.  49,  52,  28  P.  495 
(construed  with  §419  and  applied  to  insurance  companies); 
65  C.  600,  601,  4  P.  641  (construed  and  applied);  89  C.  52,  54,  26 
P.  605  (construed  with  other  sections);  102  C.  55,  64,  41  A.  S. 
151,  36  P.  368  (construed  and  applied);  106  C.  302,  309,  39  P.  617 
(giving  history  of  section);  127  C.  261,  267,  268  (construed  and 
applied),  269  (construed  with  §305),  59  P.  563;  128  C.  257,  260 
(construed),  261,  262  (applied  to  social  corporations),  60  P.  865; 
130  C.  27,  39,  62  P.  386  (referred  to  with  other  sections);  146 
C.  219,  222,  79  P.  889  (subd.  5  of  this  section  construed  with 
§  302,  as   to    exercise   of  powers   by   directors   named   in   articles 

153 


§  290a  CIVIL  CODE.  [Div.I.Pt.IV. 

of  incorporation);  148  C.  313,  314,  328,  83  P.  54,  5  L.  N.  S.  174, 
7  A.  C.  511  (cited  as  to  place  of  principal  business);  2  C.  A.  540, 
542,  544,  84  P.  296  (cited,  as  to  diminution  of  directors),  5  F. 
403,  409  (articles  of  incorporation  of  railroad,  telegraph,  and 
wagon-road    associations    must   state    what   facts). 

Amendment  of  1874  did  not  require  statement  in  articles  of 
number  of  shares  subscribed,  or  by  whom;  but  amendment  of 
1876  did  (see  People  v.  Leonard,  106  C.  302,  309,  39  P.  617);  so 
did  amendments  of  1880  and  1891.  Code  commissioner  has  need- 
less'lj'  bungled  and  confused  by  incorporating  in  paragraph  5 
what  is  provided  in  better  shape  in   §  305  post. 

As  to  acknowledgment  prerequisite  to  valid  incorporation,  see 
Kerr's  Cyc.   C.   C.   §  292  and  note. 

Acknowledgment  and  verification  are  essential. — See  130  C. 
27,  40,  62  P.  386. 

As  to  articles  of  railroads,  wagon-road,  and  telegraph  com- 
panies, see  Kerr's  Cyc.  C.  C.  §  291  and  note. 

As  to  collateral  attack,   see   19  A.  D.   67. 

As  to  defective  formation  of  corporations,  see  33  A.  S.  176-186. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Subscription,  proper,  requisite  to  a  valid  incorporation. — See 
Kerr's  Cyc.  C.  C.  §  292  and  note. 

§290a.    MINIMUM  CAPITAL  REQUIRED  TO  BE  PAID  IN. 

Before  the  secretary  of  state  issues  any  certificate  of  incor- 
poration or  certificate  of  authority  to  transact  business  in  this 
state,  to  any  corporation,  authorized  in  its  articles  of  incor- 
poration to  act  as  executor,  administrator,  guardian,  assignee, 
receiver,  depositary  or  trustee,  there  must  be  filed  in  his 
office  the  affidavit  of  the  persons  named  in  said  articles  as  the 
first  directors  of  the  corporation,  that  at  least  two  hundred 
thousand  dollars  of  the  capital  stock,  has  actually  been  sub- 
scribed, and  paid  in  to  a  person  named  in  such  affidavit,  for 
the  benefit  of  the  corporation  and  before  he  issues  any  certifi- 
cate of  incorporation,  or  certificate  of  authority  to  transact 
business  in  this  state,  to  any  corporation,  authorized  in  its 
articles  of  incorporation  to  engage  in  the  business  of  bank- 
ing, or  of  receiving  the  money  of  others  on  deposit,  there 
must  in  like  manner  be  filed  the  affidavit  provided  herein  that 
at  least  twenty-five  thousand  dollars  of  the  capital  stock,  has 
actually  been  subscribed,  and  paid  in  to  a  person  named  in 
such  affidavit,  for  the  benefit  of  the  corporation. 

154 


Tit.I,ch.I,art.I.]  FURTHER  FACTS.  §§  290y2,  291 

History:  Enacted  March  21,  1907,  Stats,  and  Amdts.  1907,  p. 
482,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  402;  amended  March  13, 
1909,  Stats,  and  Amdts.   1909,  p.  300. 

§  2905^.  "TEUST"  AND  "TEUSTEE,"  WHEN  MAI  BE 
PAET  OF  COEPOEATE  NAME.  No  corporation  hereafter 
formed  shall  use  the  word  "trust"  or  "trustee"  as  a  part  of 
its  corporate  name  unless  it  shall  be  authorized  by  its  arti- 
cles of  incorporation  to  act  as  executor,  administrator,  guard- 
ian, assignee,  receiver,  depositary  or  trustee,  nor  shall  any 
corporation  hereafter  formed  accept  or  execute  any  trust 
unless  it  shall  have  complied  with  all  the  provisions  of  "An 
act  authorizing  certain  corporations  to  act  as  executor,  and 
in  other  capacities,  and  to  provide  for  and  regulate  the 
administration  of  trusts  by  such  corporation,"  approved  April  ' 
sixth,  eighteen  hundred  and  ninety-one,  and  the  amendment 
thereto  approved  April  first,  eighteen  hundred  and  ninety- 
seven. 

History:  Enacted  March  IS,  1905,  Stats,  and  Amdts.  1905,  p. 
251. 

§291.  CEETAIN  COEPOEATIONS  TO  STATE  FUETHEE 
FACTS  IN  AETICLES.  The  articles  of  incorporation  of  any 
railroad,  wagon-road,  or  telegraph  organization  must  also 
state : 

1.  The  kind  of  road  or  telegraph  intended  to  be  constructed ; 

2.  The  place  from  and  to  which  it  is  intended  to  be  run, 
and  all  the  intermediate  branches; 

3.  The  estimated  length  of  the  road  or  telegraph  line; 

4.  That  at  least  ten  per  cent  of  the  capital  stock  subscribed 
has  been  paid  in  to  the  treasurer  of  the  intended  corporation. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

53  C.  123,  128  (erroneously  cited  as  §191);  142  C.  222,  227,  75 
P.  575  (cited  in  discussion);  2  C.  A.  546,  553,  555,  557,  84  P.  298 
(applied  as  to  power  of  corporation  to  condemn  rights  of  way 
for  lines  of  road  not  stated  in  its  articles);  5  F.  403,  409  (articles 
of  incorporation  of  railroad,  telegraph,  and  wagon-road  asso- 
ciations must  state   what  facts). 

155 


§§  292, 293  CIVIL  CODE.  [Div.I.Pt.IV. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  292.  HOW  EXECUTED  —  [SlBSt  RIPTION  AND  AC- 
KN()>VLED(t!3IENT].  The  articles  of  incorporation  must  be 
subscribed  by  three  or  more  persons,  a  majority  of  whom 
must  be  residents  of  this  state,  and  acknowledged  by  each 
before  some  officer  authorized  to  take  and  certify  acknowledg- 
ments or  conveyances  of  real  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  199;  March  20,  1905,  Stats,  and  Amdts. 
1905,   p.    503. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

80  C.  348,  353,  22  P.  200  (miscited  for  §2927  post);  97  C.  276, 
278,  280,  33  A.  S.  172,  32  P.  236  (construed  and  applied);  128  C. 
257,  260,  261,  263,  60  P.  865  (construed  and  applied  to  benevolent 
and  social  organizations);  130  C.  27,  39,  62  P.  386  (construed 
and  applied  to  benevolent  associations);  5  F.  403,  409  (articles 
of  incorporation  of  railroad,  telegraph,  and  wagon-road  asso- 
ciations must  state   wliat  facts). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,   ante. 

§  2»3.  PREREQUISITE  TO  FILING  ARTICLES— AMOUNTS 
TO  BE  Sl^BSCRIBED  TO  BE  FIXED.  Each  intended  corpo- 
ration named  in  section  two  hundred  and  ninety-one,  before 
filing  articles  of  incorporation,  must  have  actually  subscribed 
to  its  capital  stock,  for  each  mile  of  the  contemplated  work, 
the  following  amounts,  to  wit: 

1.  One  thousand  dollars  per  mile  of  railroads; 

2.  One  hundred  dollars  per  mile  of  telegraph  lines; 

3.  Three  hundred  dollars  per  mile  of  wagon  roads. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

2  C.  A.  546,  550;  84  P.  298  (erroneously  cited  by  court  as  re- 
quiring affidavit);  5  F.  403,  409  (articles  of  incorporation  of 
railroad,  telegraph,  and  wagon-road  associations  must  state 
what  facts). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Amount  subscribed  and   by   whom   must  be  fully  set  forth   In 

156 


Tit.I,ch.I,art.I.]  piling  articles.  §§  294-296 

articles  of  incorporation  of  railroads. — Monterey  &  S.  V.  R.   Co. 
vs.   Hildreth,    53   Cal.   123,    128,   129. 

See  Kerr's  Cyc.  C.  C.  §  290  note  pars.  26,  27. 

§  294.  PREREQUISITE  TO  FILING  ARTICLES  OF  IXCOR- 
PORATIONS  FOR  PROFIT.  Before  the  articles  of  incorpora- 
tion of  any  corporation  referred  to  in  the  preceding"  section 
are  filed,  there  must  be  paid  for  the  benefit  of  the  corpora- 
tion, to  a  treasurer  elected  by  the  subscribers,  ten  per  cent 
of  the  amount  subscribed. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

2  C.  A.   546,   550;   84  P.   298    (erroneously  cited  by  court  as  re- 
quiring-   afRdavit);    5    P.    403,    409    (articles    of    incorporation    of 
railroad,    telegraph,    and    wagon-road    associations    must    state  ■ 
what  facts). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  295.  OATH  OF  OFFICER  TO  SUBSCRIPTION  OF  STOCK 
AND  PAYMENT  OF  TEN  PER  CENT.  Before  the  secretary 
of  state  issues  to  any  such  corporation  a  certificate  of  the 
filing  of  articles  of  incorporation,  there  must  be  filed  in  his 
office  an  affidavit  of  the  president,  secretary,  or  treasurer 
named  in  the  articles,  that  the  required  amount  of  the  capital 
stock  thereof  has  been  actually  subscribed,  and  ten  per  cent 
thereof  actually  paid  to  a  treasurer  for  the  benefit  of  the 
corporation. 

Hi.story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

2  C.  A.  546,  550;  84  P.  298  (cited  as  to  requirement  of  affi- 
davit). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§296.  ARTICLES  OF  INCORPORATION  — CORPORATE 
NAMES  ]»IUST  NOT  BE  DUPLICATED  NOR  CLOSELY  IMI- 
TATED. Upon  filing  [1]  the  articles  of  incorporation  in  the 
office  of  the  county  clerk  of  the  county  in  which  the  principal 
business  of  the  company  is  to  be  transacted,  and   [2]   a  copy 

157 


§  297  CIVIL  CODE.  [Div.I,Pt.IV. 

thereof  certified  by  the  county  clerk  with  the  secretary  of 
state,  and  [3]  the  affidavit  mentioned  in  the  last  section  where 
such  affidavit  is  required,  the  secretary  of  state  must  issue 
to  the  corporation,  over  the  great  seal  of  the  state,  a  certificate 
that  a  copy  of  the  articles  containing  the  required  statement 
of  facts  has  been  filed  in  his  office,  and  thereupon  the  persons 
signing  the  articles  and  their  associates  and  successors  shall 
be  a  body  politic  and  corporate  by  the  name  stated  in  the 
certificate,  and  for  the  term  of  fifty  years,  unless  it  is,  in  the 
articles  of  incorporation,  otherwise  stated,  or  in  this  code 
otherwise  specially  provided; 

[When  certificate  not  to  issue — Keseinblauce  in  name.] 
Provided,  however,  that  the  secretary  of  state  shall  not  file 
any  copy  of  the  copy  of  any  articles,  or  issue  any  certificate 
of  incorporation  to  any  corporation,  which  articles  set  forth 
the  corporate  name  of  any  corporation  heretofore  organized 
in  this  state,  or  file  any  copy  of  any  articles,  or  issue  any 
certificate  of  incorporation  to  any  corporation  existing  at  the 
time  of  filing  said  articles,  which  articles  set  forth  a  name 
so  closely  resembling  the  name  of  such  corporation  as  will 
tend  to  deceive. 

History:      Enacted   March    21,    1872;    amended    March    30,    1874, 
.Code    Amdts.    1873-4,    pp.    199-200;    March    23,    1901,    Stats,    and 
Amdts.  1900-1,  p.  629.     In  effect  March  23,  1901. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

72  C.  379,  382,  14  P.  37,  39  (referred  to  in  construing  §297); 
93  C.  34,  39,  28  P.  792,  793,  15  L.  R.  A.  106  (referred  to  with 
other  sections);  102  C.  55,  62,  41  A.  S.  151,  33  P.  368  (construed); 
111  C.  133,  135,  136,  43  P.  525  (construed);  128  C.  257,  262,  60  P. 
865  (construed  with  other  sections);  130  C.  27,  38,  62  P.  386 
(construed);  142  C.  276,  281,  100  A.  S.  130,  75  P.  832  (referred  to 
in  discussion);  146  C.  219,  222;  79  P.  889  (cited,  as  to  how  cor- 
poration is  brought  into  existence);  2  C.  A.  546,  550;  84  P.  298 
(cited  as  to  necessity  of  certificate  of  secretary  of  state). 

As  to  fees  for  filing,  see  Kerr's  Pocket  Pol.  C,  §  416. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  297.     €Ori  OF  ARTICLES  PRIMA  FACIE  EVIDENCE.   A 

copy  of  any  articles  of  incorporation  filed  in  pursuance  of  this 

158 


Tit.I,ch.I,art.I.]  lost  articles.  §§  297a,  298 

chapter,  and  certified  by  the  secretary  of  state,  or  by  the 
county  clerk  of  the  county  where  the  original  articles  shall 
have  been  filed,  must  be  received  in  all  the  courts  of  this 
state,  and  other  places,  as  prima  facie  evidence  of  the  facts 
therein  stated. 

History:  ,  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  200;  March  8,  1895,  Stats,  and  Amdts. 
1895,  p.  30.     In  effect  March  8,  1895. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

67  C.  485,  488,  8  P.  22,  24  (construed  and  applied);  72  C.  379, 
382,  14  P.  37,  38  (construed  and  applied);  2  C.  A.  546,  555,  84  P. 
298    (articles  of  incorporation  as   evidence). 

As  to  many  miscellaneous  matters  affecting  corporations 
generally,    see    note    §  283,    ante. 

Company  in  good  faith  doing  business  as  a  corporation. — See. 
Kerr's  Cyc.  C.  C.  §290  note  pars.   33,   34;   §358  and  note. 

§297a.  RESTORATIOX  OF  LOST  ORItllXAL  ARTICLES 
OF  IIVCORPORATION.  Whenever  the  articles  of  incorpora- 
tion of  any  corporation  have  been,  or  may  hereafter  be, 
destroyed  by  conflagration  or  other  public  calamity,  a  copy 
of  the  certified  copy  of  the  articles  of  incorporation  of  such 
corporation  filed  in  the  office  of  the  secretary  of  state  pursu- 
ant to  the  provisions  of  section  two  hundred  ninety-six  of  this 
code,  duly  certified  by  such  secretary  of  state,  may  be  filed 
in  the  office  of  the  county  clerk  of  the  county  where  such 
articles  of  incorporation  were  on  file  at  the  time  of  their  loss 
or  destruction.  Any  such  copy  filed  pursuant  to  this  section 
shall  have  the  same  force  and  effect  as  the  document  so  lost 
or  destroyed. 

History:  Enacted  June  16,  1906,  Stats,  and  Amdts.  1906,  p.  83, 
Kerr's  Stats,  and  Amdts.  1906-7,  p.  403.     In  effect  immediately. 

§  298.  >VHO  ARE  MEMBERS  AND  WHO  STOCKHOLDERS 
OF  A  CORPORATION.  The  owners  of  shares  in  a  corporation 
which  has  a  capital  stock  are  called  stockholders.  If  a  cor- 
poration has  no  capital  stock,  the  corporators  and  their  suc- 
cessors are  called  members. 

History:     Enacted  March   21,  1872. 
159 


§§299, 299[a]  CIVIL  CODE.  [Div.I.Pt.IV. 

See  Kerr's  Cyc.   C.   C.  for  19  pars,  annotation. 

109  C.  571,  588,  590,  42  P.  225  (referred  to  with  other  sections); 
115  C.  584,  593,  56  A.  S.  119,  47  P.  582,  35  L.  309  (construed  and 
applied). 

As  to  becoming  stockholders  by  subscription,  see  26  A.  S.  658, 
49    A.    D.    604. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  voting  trust,  see  Kerr's  Cyc.  C.  C.  §§  307,  312  and  notes. 

§299.  WHEN  MEMKEKS  DIE  SUCCESSORS  TO  BE 
ELECTED   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   200. 

§299  [a].  COPIES  OF  ARTICLES  MUST  BE  FILED  IPf 
EVERY  COUNTY  WHEREIN  THE  CORPORATION  AC- 
QUIRED PROPERTY,  ETC.  No  corporation  hereafter 
formed  must  purchase,  locate,  or  hold  property,  in  any 
county  in  this  state,  other  than  the  county  in  which  its 
original  articles  of  incorporation  are  filed,  without  filing  a 
copy  of  the  copy  of  its  articles  of  incorporation  filed  in  the 
office  of  the  secretary  of  state,  duly  certified  by  such  secre- 
tary of  state,  in  the  office  of  the  county  clerk  of  the  county  in 
which  such  property  is  situated,  within  sixty  days  after  such 
purchase  or  location  is  made.  Every  corporation  now  in 
existence  whether  formed  under  the  provisions  of  this  code 
or  not,  must,  within  ninety  days  after  the  passage  of  this 
section,  file  such  certified  copy  of  the  copy  of  its  articles 
of  incorporation  in  the  office  of  the  county  clerk  of  every 
county  in  this  state  in  which  it  holds  any  property,  except 
the  county  where  the  original  articles  of  incorporation  are 
filed;  and  if  any  corporation  hereafter  acquires  any  property 
in  a  county  other  than  that  in  which  it  now  holds  property, 
it  must,  within  ninety  days  thereafter,  file  with  the  clerk 
of  such  county  such  certified  copy  of  the  copy  of  its  articles 
of  incorporation.  The  copies  filed  with  the  several  county 
clerks,  and  certified  copies  thereof,  have  the  same  force 
and  effect  in  evidence  as  the  originals.  Any  cori>oration  fail- 
ing  to    comply   >vith   the   provisions   of   this    section   cannot 

160 


Tit.I,ch.I,art.I.]  filing  COPIES.  §299  [a] 

maintain  or  defend  any  action  or  proceeding  in  relation  to 
such  property,  its  rents,  issues,  or  profits,  until  such  articles 
of  incorporation,  and  such  certified  copy  of  its  articles  of 
incorporation,  and  such  certified  copy  of  the  copy  of  its 
articles  of  incorporation,  are  filed  at  the  places  directed  by 
the  general  law  and  this  section;  provided,  that  all  corpora- 
tions are  liable  in  damages  for  any  and  all  loss  that  may 
arise  by  the  failure  of  such  corporation  to  perform  any  of 
the  foregoing  duties  within  the  time  mentioned  in  this  sec- 
tion; and  provided  further,  that  the  said  damages  may  be 
recovered  in  an  action  brought  in  any  court  of  this  state 
of  competent  jurisdiction,  by  any  party  or  parties  suffering 
the  same. 

History:  Enacted  April  3,  1876,  Code  Amdts.  1875-6,  p.  71;- 
amended  March  23,  1878,  Code  Amdts.  1877-8,  p.  76;  April  23, 
18.80,  Code  Amdts.  1880  (C.  C.  pt.),  p.  13;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  344, 
held  unconstitutional;  see  history,  §  4  ante;  amendment  re-en- 
acted March  21,  1905,  Stats,  and  Amdts.  1905,  pp.  556-557. 

See   Kerr's  Cyc.   C.   C.  for  21  pars,  annotation. 

67  C.  485,  487,  8  P.  22,  24  (certified  copy  of  certified  copy  of 
articles  of  incorporation  as  evidence);  73  C.  599,  601,  602,  15 
P.  302,  303  (pleading',  by  defendant  corporation,  that  articles 
of  incorporation  have  been  filed,  is  unnecessary);  77  C.  69,  72, 
18  P.  886,  888  (construed  with  §  2468  as  to  necessity  of  pleading- 
that  articles  of  incorporation  have  not  been  filed  by  plaintiff 
corporation);  80  C.  68,  69,  71,  22  P.  66,  67  (complaint  may  state 
a  cause  of  action,  though  it  fails  to  show  that  plaintiff  corpo- 
ration has  complied  with  this  section);  80  C.  333,  335,  336,  22  P. 
222,  223  (failure  by  plaintiff  corporation  to  coinply  with  section 
must  be  specially  pleaded  in  answer);  83  C.  12,  17,  23  P.  63,  64 
(section  does  not  apply  to  what  religioiis  corporations);  97  C. 
270,  274,  32  P.  231  (objection  that  corporation  has  not  filed  copy 
of  its  articles  is  waived  if  not  objected  to  at  trial);  108  C.  88, 
90,  91,  40  P.  1061  (effect  on  corporation  of  its  failure  to  comply 
with  this  section);  111  C.  133,  135,  137,  138,  43  P.  525  (effect 
of  compliance,  or  non-compliance,  with  section);  120  C.  177,  178, 
179,  180,  181,  52  P.  305  (failure  to  comply  with  section  affects 
actions  by  or  against  corporation,  but  does  not  forbid  them 
from  acquiring  property);  146  C.  644,  649,  651,  652,  80  P.  1080 
(section  is  inapplicable  to  what  corporate  transaction);  147  C. 
747,  753,  82  P.  426  (cited  as  making  a  distinction  between  the 
commencement  of  an  action  and  its  maintenance) ;  148  C.  252, 
Kerr's    C.    C. — 6  161 


§  300  CIVIL  CODE.  [Div.I.Pt.IV. 

253,  82  P.  1049  (not  applicable  to  corporation  whose  original 
certificate  of  incorporation  was  filed  prior  to  enactment  of 
section);  2  A.  546,  556;  84  P.  298  (cases  arising  under  this  sec- 
tion distinguished.     Provisions  of  section  may  be  waived  how). 

As  to  compliance  with  requirements  of  statute,  see  Kerr's 
Cyc.   C.  C.   §  290  and   note  pars.   3-32. 

As  to  many  miscellaneous  iriatters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§300.  CAPITAL  STOCK  OF  BA>KING}  CORPORATIONS 
— DIVIDENDS.  Every  corporation  that  has  been  or  may  be 
created  under  the  general  laws  of  this  state,  doing  a  banking 
business  therein,  and  which  has  no  capital  stock,  may  elect 
to  have  a  capital  stock,  and  may  issue  certificates  of  stock 
therefor,  in  the  same  manner  as  corporations  formed  under 
the  provisions  of  chapter  one,  article  one,  of  the  civil  code, 
relating  to  the  formation  of  corporations;  provided,  that  no 
such  corporation  shall  use  or  convert  any  moneys  or  funds 
theretofore  belonging  to  it,  or  under  its  control,  into  capital 
stock;  but  such  funds  or  moneys  must  be  held  and  managed 
only  for  the  purposes  and  in  the  manner  for  which  they  were 
created.  Before  such  change  is  made,  a  majority  of  the 
members  of  such  corporation  present  at  a  meeting  called  for 
the  purpose  of  considering  the  proposition  whether  it  is 
best  to  have  a  capital  stock,  its  amount,  and  the  number  of 
shares  into  which  it  shall  be  divided,  must  [1]  vote  in  favor 
of  having  a  capital  stock,  [2]  fix  the  amount  thereof,  and 
[3]  the  number  of  shares  into  which  it  shall  be  divided. 

Notice  [a]  of  the  time  and  place  of  holding  such  meeting, 
and  [b]  its  object,  must  be  given  by  the  president  of  such 
corporation,  by  publication  in  some  newspaper  printed  and 
published  in  the  county,  or  city  and  county,  in  which  the 
principal  place  of  business  of  the  corporation  is  situated,  at 
least  once  a  week  for  three  successive  weeks  prior  to  the 
holding  of  the  meeting. 

A  copy  of  the  proceedings  of  this  meeting,  giving  the  num- 
ber of  persons  present,  the  votes  taken,  the  notice  calling 
the  meeting,  the  proof  of  its  publication,  the  amount  of  capi- 
tal actually  subscribed,  and  by  whom,  all  duly  certified  by 
the  president  and  secretary  of  the  corporation,  must  be  filed 

162 


Tit.I,ch.I,art.I.]  COPY  OF  DECREE.  §  300a 

in  the  offices  of  the  secretary  of  state  and  clerk  of  the 
county  where  the  articles  of  incorporation  are  filed.  There- 
after such  corporation  is  possessed  of  all  the  rights  and 
powers,  and  is  subject  to  all  the  obligations,  restrictions,  and 
limitations,  as  if  it  had  been  originally  created  with  a  capital 
stock;  and  provided  further,  that  no  bank  in  this  state  shall 
ever  pay  any  dividend  upon  so-called  guaranty  notes,  nor 
upon  any  stock,  except  upon  the  amount  actually  paid  in 
money  into  said  capital  upon  such  stock,  and  any  payment 
made  in  violation  of  this  provision  shall  render  all  officers 
and  directors  consenting  to  the  same  jointly  and  severally 
liable  to  the  depositors  to  the  extent  thereof. 

History:  Enacted  March  29,  1878,  Code  Amdts.  1877-8,  pp. 
77-78. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

56  C.  345,  349  (referred  to);  74  C.  598,  600,  602,  16  P.  497,  499 
(construed  and   applied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see   note    §  283,    ante. 

§  300a.  COPY  OF  DECREE  TO  BE  FILED  WITH  SECRE- 
TARY OF  STATE.  Every  corporation  which  has  changed  its 
name  under  the  provisions  of  sections  one  thousand  two  hun- 
dred and  seventy-five,  one  thousand  two  hundred  and  seventy- 
six,  one  thousand  two  hundred  and  seventy-seven,  one  thou- 
sand two  hundred  seventy-eight,  and  one  thousand  two  hun- 
dred and  seventy-nine  of  the  Code  of  Civil  Procedure,  must 
file  in  the  office  of  secretary  of  state  and  in  the  office  of  the 
county  clerk  of  each  county  in  which  the  original  articles  or 
certified  copies  thereof  are  required  by  law  to  be  filed,  a 
certified  copy  of  the  decree  of  the  court  changing  such  name. 

History:  Enacted  March  20,  1903,  Stats,  and  Amdts.  1903,  p. 
256,  in  force  March  20,  1903;  amended  April  16,  1909,  Stats,  and 
Amdts.    1909,    p.    973. 

As  to  many  niiscellaneous  matters  affecting  corporations  gen- 
erally, see  note   §  283,  ante. 


163 


§  301  CIVIL  CODE.  [Div.T,Pt.IV. 

ARTICLE  II. 
BY-LAWS,   DIRECTORS,  ELECTORS,  AND  MEETINGS. 

§  301.     By-laws — [Adoption  of,  when,  how,  and  by  whom]. 

§  302.     Directors,  election  of,  etc. — [Notice]. 

§  303.     By-laws,  for  what  may  provide. 

§  304.     By-laws  recorded  and  how  amended. 

§  305.  Corporate  powers  and  business  exercised  by  board  of 
directors— Quorum. 

§  306.     Election  of  directors  and  adoption  of  by-laws  [repealed]. 

§  307.  Election  of  directors,  how  conducted — Cumulative  voting 
shall  not  be  denied. 

§  308.     Organization  of  board  of  directors,  etc. — [Quorum]. 

§  309.  Dividends  from  surplus  profits — Penalty  for  violation  of 
tliis  section — Distribution  of  land,  water,  etc. 

§  310.     Removal  from  office  of  directors,  etc. 

§  311.     Justice  of  peace  may  order  meeting  of  corporation,  when. 

§  312.     Majority  of  stock  must  be  represented  at  elections. 

§  312 [a].  [Same] — Corporations  other  than  for  profit. 

§  313.     Stock,  how  represented. 

§  314.     Election  may  be  postponed. 

§  315.  Complaints,  quo  warranto  and  proceedings  tliereon, 
regarding  elections — [Notice]. 

§  316.     Damages  for  false  entries,  etc. 

§  317.     Meeting  by  consent  to  be  valid.     [Written  waiver.] 

§  318.     Proceedings  at  meeting  to  be  binding. 

§  319.     Meetings,  where  held. 

§  320.  When  no  provision  in  by-laws  for  regular  meetings,  spe- 
cial meetings,  how  called — [Notice]. 

§  321.     Certain  books  to  be  open  for  inspection. 

§  321a.     Cliange  of  principal  place  of  business,  procedure. 

§  321b.  Stockholders'  meeting,  who  may  vote  at — Proxies,  void 
when;  maximum  period  of;  revocable. 

§301.  BY-LAWS— [ADOPTION  OF,  WHEN,  HOW,  AND 
BY  WHOM].  Every  corporation  formed  under  this  title  must, 
within  one  month  after  filing  articles  of  incorporation,  adopt 
a  code  of  by-laws  for  its  government  not  inconsistent  with 
the  constitution  and  laws  of  this  state.  The  assent  of  stock- 
holders representing  a  majority  of  all  the  subscribed  capital 
stock,  or  of  a  majority  of  the  members,  if  there  be  no  capital 
stock,  is  necessary  to  adopt  by-laws,  if  they  are  adopted  at  a 

164 


h 


Tit.I,ch.I,art.II.]  ELECTIONS— NOTICE.  §  302 

meeting  called  for  that  purpose;  and  in  the  event  of  such 
meeting  being  called,  two  weeks'  notice  of  the  same  by  adver- 
tisement in  some  newspaper  published  in  the  county  in  which 
the  principal  place  of  business  of  the  corporation  is  located, 
or  if  none  is  published  therein,  then  in  a  paper  published  in 
an  adjoining  county,  must  be  given  by  order  of  the  acting 
president.  The  written  assent  of  the  holders  of  two-thirds 
of  the  stock,  or  of  two-thirds  of  the  members,  if  there  be  no 
capital  stock,  shall  be  effectual  to  adopt  a  code  of  by-laws 
without  a  meeting  for  that  purpose. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  200-201;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  344^  held  uncon- 
stitutional;  see  history,   §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  46  pars,  annotation. 

74  C.  571,  574,  16  P.  397,  398  (construed  and  applied);  109  C. 
571,  588,  42  P.  225  (referred  to  with  other  sections);  116  C. 
410,  414,  415,  48  P.  375,  376  (construed  and  applied);  117  C.  157, 
162,  59  A.  S.  162,  48  P.  1090,  37  L.  619  (construed  and  applied); 
145  C.  696,  702,  79  P.  441  (restriction  on  adoption  of  by-laws). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  power  to  adopt  or  make  by-laws,  see  Kerr's  Cyc.  C.  C. 
§  301,  note  pars.  37-42. 

As  to  reasonableness  and  validity  of  municipal  ordinances,  see 
16  A.  D.  191-198;  34  A.  D.  627-643;  35  A.  R.  702-703;  69  A.  S. 
304;   32  N.  T.  261   (Ann.  Ed.  N.  Y.  Rep.);  21  Encyc.  L.  976-995. 

As  to  what  bj^-law  may  provide,  see  Kerr's  Cyc.  C.  C.  §  303 
and   note. 

By-law — Distinguished  from  ordinance. — See  Kerr's  Cyc.  C.  C. 
§  301,  note  pars.   18-22. 

§  302.  DIRECTORS,  ELECTION  OF,  ETC.  [NOTICE.]  The 
directors  of  a  corporation  must  be  elected  annually  by  the 
stockholders  or  members,  and  if  no  provision  is  made  in  the 
by-laws  for  the  time  of  election,  the  election  must  be  held 
on  the  first  Tuesday  in  June.  Notice  of  such  election  must 
be  given  as  prescribed  in  section  three  hundred  one,  unless 
all  of  the  stockholders  waive  such  notice  in  writing. 

Hi-story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March   16,    1901,   Stats,   and   Amdts.    1900-1,   p.    345,   act 

165 


§  303  CIVIL  CODE.  [Div.I,Pt.IV. 

held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  557;  amended 
February  22,   1909,  Stats,  and  Amdts.   1909,  p.   48. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

93  C.  34,  36,  28  P.  792,  29  P.  51,  15  L.  106  (referred  to  with 
other  sections);  146  C.  219,  222,  79  P.  889   (construed  with  §  290). 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  validity,  scope,  effect,  and  construction  of  by-laws,  see 
Kerr's  Cyc.  C.  G.   §  304  note  par.  2. 

Mode  of  electing  directors,  and  number  of  votes  allowed  each 
stockholder. — See  Kerr's  Cyc.  C.  C.  §  307  and  note. 

Postponing  election. — See  Kerr's  Cyc.  C.  C.  §§  312.  314  and 
notes. 


§  303.  BY-LAWS,  FOR  WHAT  MAY  PROVIDE.  A  corpora- 
tion may,  bj^  its  by-laws,  where  no  otlier  provision  is  spe- 
cially  made,   provide    for: 

1.  The  time,  place,  and  manner  of  calling  and  conducting 
its  meetings,  and  may  dispense  with  notice  of  all  regular 
meetings  of  stockholders  or  directors. 

2.  The  number  of  stockholders  or  members  constituting  a 
quorum. 

3.  The  mode  of  voting  by  proxy. 

4.  The  qualifications  and  duties  of  directors,  and  also  the 
time  of  their  annual  election,  and  the  mode  and  manner  of 
giving  notice  thereof. 

5.  The  compensation  and  duties  of  officers. 

6.  The  manner  of  election  and  tenure  of  office  of  all  officers 
other  than  the  directors;  and, 

7.  Suitable  penalties  for  violations  of  by-laws,  not  exceed- 
ing in  any  case  one  hundred  dollars  for  any  one  offense. 

8.  The  newspaper  in  which  all  notices  of  the  meetings  of 
stockholders  or  board  of  directors,  notice  of  which  is  required, 
shall  be  published,  which  must  be  some  newspaper  published 
in  the  county  where  the  principal  place  of  business  of  the 
corporation  is  located,  or  if  none  is  published  therein,  then 
in  a  newspaper  published  in  an  adjoining  county;  provided, 
that  when  the  by-laws  prescribe  the  newspaper  in  which 
said  publication  shall  be  made,  if  from  any  cause  at  the  time 

166 


Tit.I,ch.I,art.II.]  BY-LAWS.  §  303 

any  publication  is  desired  to  be  made,  the  publication  of  such 
newspaper  shall  have  ceased,  the  board  of  directors  may, 
by  an  order  entered  on  the  records  of  the  corporation,  direct 
the  publication  to  be  made  in  some  other  newspaper  published 
in  the  county,  or  if  none  is  published  therein,  then  in  an 
adjoining  county. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  201;  March  19,  1889,  Stats,  and  Amdts. 
1889,  p.  365;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  345,  held  unconstitutional;  see  his- 
tory, §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  45  pars,  annotation. 

93  C.  34,  38,  39,  28  P.  792,  793,  29  P.  51,  15  L.  106  (construed 
and  applied  to  election  of  officers);  96  C.  73,  82,  30  P.  1024,  1026 
(construed  and  applied  to  directors'  meetings);  104  C.  649,  653, 
654,  43  A.  S.  147,  38  P.  452,  29  L.  844  (construed  and  applied  to 
voting-  by  proxy);  109  C.  571,  599,  42  P.  225,  226  (construed  and 
applied  to  vote  by  proxy);  121  C.  202,  208,  53  P.  634  (referred 
to  with  other  sections);  130  C.  345,  347,  80  A.  S.  132,  62  P.  552 
(referred  to  with  other  sections);  1  C.  A.  189,  195,  196,  81  P. 
1029    (power  of  corporation   to   enact  by-laws). 

As  to  adoption  of  by-laws,  see  Kerr's  Cyc.  C.  C.  §  301  and 
note. 

As  to  amendment  of  by-laws,  see  Kerr's  Cyc.  C.  C.  §  304  and 
note. 

As  to  by-laws  of  benevolent  corporations,  see  Kerr's  Cyc.  C.  C. 
§  599  and  note. 

As  to  lien  of  corporation  on  stock,  see  11  A.  D.  581;  40  A.  S. 
405;  43  A.  S.  153;  57  A.  S.  388,  25  L.  48. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note   §  283,  ante. 

As  to  mode  of  filling  a  vacancy  in  the  board  of  directors,  see 
Kerr's  Cyc.  C.  C.  §  305  and  note. 

As  to  proxies,  their  form,  provision,  as  to  validity,  and  the 
like,  see  29  L.  844-849. 

As  to  reasonableness  of  amendatory  or  repealing  by-law,  see 
Kerr's  Cyc.  C.  C.   §  304  note  par.   29. 

As  to  recording  by-laws,  see  Kerr's  Cyc.  C.  C.  §  304  and  note. 

As  to  repeal  of  by-laws,  see  Kerr's  Cyc.  C.  C.  §  304  and  note. 

As  to  right  to  provide  for  issuing'  stock  certificates  prior  to 
their  full  payment,  see  Kerr's  Cyc.  C.  C.   §  323  and  note. 

As  to  right  to  provide  for  disposition  of  its  own  stock  held 
by  the  corporation,  see  Kerr's  Cyc.  C.  C.   §  344  and  note. 

As  to  validity,  scope,  effect,  and  construction  of  by-law,  see 
85   A.   D.   617-622;   43   A.  S.    152-158. 

167 


§  304  CIVIL,  CODE.  [Div.I.Pt.IV. 

As  to  voting  by  proxy,  see  Kerr's  Cyc.  C.  C.  §  312  and  note. 
Newspapers   for   purpose   of   publishing   notice    of   meeting   to 
adopt  by-laws,  see  Kerr's  Cyc.  C.  C.   §  301  and  note. 

§  304.    BY-LAWS  KECOKDED  AND  HOW  AMENDED.    All 

by-laws  adopted  must  be  [1]  certified  by  a  majority  of  the 
directors  and  secretary  of  the  corporation,  and  [2]  copied  in 
a  legible  hand,  in  some  book  kept  in  the  office  of  the  corpora- 
tion, to  be  known  as  the  "book  of  by-laws,"  and  [3]  the  book 
must  then  be  open  to  the  inspection  of  the  public  during 
office  hours  each  day  except  holidays. 

The  by-laws  may  be  repealed  or  amended,  or  new  by-laws 
may  be  adopted,  [1]  at  the  annual  meeting,  or  [2]  at  any 
other  meeting  of  the  stockholders  or  members,  called  for  that 
purpose  by  the  directors,  by  a  vote  representing  two-thirds 
of  the  subscribed  ^tock,  or  by  two-thirds  of  the  members.  The 
written  assent  of  the  holders  of  two-thirds  of  the  stock,  or 
two-thirds  of  the  members  if  there  is  no  capital  stock,  is 
effectual  to  repeal  or  amend  any  by-law,  or  to  adopt  addi- 
tional bj^-laws.  The  power  to  repeal  and  amend  the  by-laws, 
and  adopt  new  by-laws,  may,  by  a  similar  vote  at  any  such 
meeting,  or  similar  written  assent,  be  delegated  to  the  board 
of  directors.  The  power,  when  delegated,  may  be  revoked  by 
a  similar  vote,  at  any  regular  meeting  of  the  stockholders  or 
members.  Whenever  any  amendment  or  new  by-law  is 
adopted,  it  must  be  copied  in  the  book  of  by-laws  with  the 
original  by-laws,  and  immediately  after  them.  If  any  by-law 
is  repealed,  the  fact  of  repeal,  with  the  date  of  the  meeting 
at  which  the  repeal  was  enacted,  or  written  assent  was  filed, 
must  be  stated  in  said  book.  Until  copied  or  stated  as  herein- 
before required,  no  by-law,  nor  any  amendment  or  repeal 
thereof,  can  be  enforced  against  any  person,  other  than  the 
corporation,  not  having  actual  notice  thereof. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  201;  March  14,  1885,  Stats,  and  Amdts. 
1885,  pp.  130-131;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  345,  held  unconstitutional;  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats. 
and  Amdts.   1905,  p.   557. 

168 


Tit.I,cli.I,art.II.]        CORPORATE  POWERS.  §305 

See  Kerr's  Cyc.   C.  C.  for  34  pars,  annotation. 

89  C.  52,  54,  26  P.  605  (referred  to  with  other  sections);  (C. 
March  24,  1900),  60  P.  776,  777   (referred  to  with  other  sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  preferred  stock,  see  Kerr's  Cj'c.  C.  C.  §  323  note  pars.  4-9. 


§305.  CORPORATE  POWERS  AND  BUSINESS  EXER- 
CISED BY  BOARD  OF  DIRECTORS— QUORUJffi.  The  corpo- 
rate powers,  business,  and  property  of  all  corporations  formed 
under  this  title  must  be  exercised,  conducted,  and  controlled 
by  a  board  of  not  less  than  three  directors,  to  be  elected  from 
among  the  holders  of  stock;  or  where  there  is  no  capital 
stock,  then  from  the  members  of  such  corporations;  except 
that  corporations  formed  or  to  be  formed  for  the  purpose  of- 
erecting  and  maiiagiug  halls  and  buildings  for  the  meetings 
and  accommodation  of  several  lodges  or  societies  of  any 
benevolent  or  charitable  order  or  organization,  and  in  connec- 
tion therewith,  the  leasing  of  stores  and  offices  in  such  build- 
ing or  buildings  for  other  purposes,  the  corporate  powers, 
business,  and  property  thereof  may  be  conducted,  exercised, 
and  controlled  by  a  board  [of]  not  less  than  three  or  more 
than  fifty  directors,  to  be  chosen  from  among  the  stockhold- 
ers of  such  corporation  or  from  among  the  members  of  such 
order  or  organization.  A  majority  of  the  directors  must  be 
in  all  cases  residents  of  this  state.  Directors  of  corporations 
for  profit  must  be  holders  of  stock  therein  to  an  amount  to 
be  fixed  by  the  by-laws  of  the  corporation.  Directors  of  all 
other  corporations  must  be  members  thereof. 

Unless  a  quorum  is  present  and  acting  no  business  per- 
formed or  act  done  is  valid  as  against  the  corporation.  When- 
ever a  vacancy  occurs  in  the  office  of  director,  unless  the 
by-laws  of  the  corporation  otherwise  provide,  such  vacancy 
must  be  filled  by  an  appointee  of  the  board. 

History:  Enacted  March  21,  1872;  amended  January  20,  1876, 
Code  Arndts.  1875-6,  p.  71;  March  15,  1901,  Stats,  and  Amdts. 
1900-1,  pp.  308-309;  amended  by  Code  Commission,  Act  March  20, 
1905,  Stats,  and  Amdts.  1905,  p.  503,  by  changing  number  of 
directors  from  five  to  three   (and  negligently  omitting  an  "of"). 

169 


§§  306, 307  CIVIL  CODE.  [Div.T,Pt.TV. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

78  C.  629,  632,  21  P.  373,  374  (referred  to  with  other  sections); 
81  C.  231,  234,  22  P.  654  (referred  to  in  discussion);  93  C.  34,  36, 
39,  28  P.  792,  793,  29  P.  51,  15  L.  106  (referred  to  with  other 
sections);  94  C.  546,  549,  29  P.  1105,  1106  (construed  and  ap- 
plied); 111  C.  114,  116,  43  P.  585  (construed  and  applied);  118 
C.  131,  138,  50  P.  269  (referred  to  with  other  sections);  121  C. 
202,  208,  53  P.  634  (construed  and  applied);  126  C.  413,  417,  58 
P.  914  (construed  and  applied):  127  C.  261,  267.  269,  270,  59  P. 
563  (construed  and  applied);  127  C.  630,  636,  637  (construed  and 
applied— erroneously  cited  as  C.  C.  P.);  60  P.  424,  426  (cor- 
rectly cited);  130  C.  345,  347,  349,  351,  80  A.  S.  132,  62  P.  552, 
553  (construed  and  applied);  132  C.  637,  652,  61  P.  791,  64  P.  1082, 
52  L.  611  (construed  and  applied  in  dis.  op.);  146  C.  219,  222,  79 
P.  889  (what  construction  would  set  at  naught  many  pro- 
visions of  the  code);  45  F.  518,  526  (referred  to  with  other  sec- 
tions). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note   §  283,  ante. 

Code  Commission  has  needlessly  bungled  and  confused  by 
introducing  in  a  very  disjointed  shape  the  main  provisions  in 
this  section   into  par.   5,  §  290  ante. 

§306.  ELECTION  OF  IHKECTOKS  AM)  ADOPTION  OF 
BY-LAWS  (repealed). 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  202;  repealed  March  19,  1889,  Stats,  and 
Amdts.  1889,  p.  365. 

§  307.  ELECTIONS  OF  DIRECTORS,  HOW  CONDUCTED— 
CUMULATIVE  VOTING  SHALL  NOT  BE  DENIED.  All  elec- 
tions must  be  by  ballot,  and  every  stockholder  shall  have  the 
right  to  vote  in  person  or  by  proxy  the  number  of  shares 
standing  in  his  name,  as  provided  in  section  three  hundred 
and  twelve  of  this  code,  for  as  many  persons  as  there  are 
directors  to  be  elected,  or  to  cumulate  said  shares  and  give 
one  candidate  as  many  votes  as  the  number  of  directors  mul- 
tiplied by  the  number  of  his  shares  of  stock  shall  equal,  or 
to  distribute  them  on  the  same  principle  among  as  many 
candidates  as  he  shall  think  fit.  The  provisions  of  this  sec- 
tion, so  far  as  it  relates  to  cumulative  voting,  shall  apply  to 
all  corporations  and  associations  doing  business  in  this  state, 
having  a  capital  stock  or  shares  of  stock,  and  electing  direc- 

170 


Tit.I,ch.I,art.II.]  ORGANIZING  BOARD.  §308 

tors  by  a  meeting  of  stockholders  held  in  this  state,  whether 
such  corporations  or  associations  are  organized  under  the 
laws  of  this  state  or  not,  and  no  election  for  directors  of  any 
corporation  or  association,  doing  business  in  this  state,  and 
electing  directors  in  this  state,  shall  be  valid,  if  the  right  of 
a  stockholder  to  cumulate  his  shares  as  herein  provided  shall 
be   denied. 

In  corporations  having  no  capital  stock,  each  member  of 
the  corporation  may  cast  as  many  votes  for  one  director  as 
there  are  directors  to  be  elected,  or  may  distribute  the  same 
among  any  or  all  the  candidates.  In  any  case  the  director 
receiving  the  highest  number  of  votes  shall  be  declared 
elected. 

[Cumulative  voting  not  applicable,  when.]  The  provisions 
of  this  section,  so  far  as  it  relates  to  cumulative  voting,  shall 
not  apply  to  literary,  religious,  scientific,  social  or  benevolent 
societies,  having  no  capital  stock  or  shares  unless  it  shall 
be  so  provided  in  their  by-laws  or  rules. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  202;  Feb.  1,  1878,  Code  Amdts.  1877-8,  p. 
78;  March  10,  1887,  Stats,  and  Amdts.  1887,  p.  95;  March  20,  1903, 
Stats,  and  Amdts.   1903,  p.   253. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

93  C.  34,  36,  37,  28  P.  792,  29  P.  51,  15  L.  106  (construing-  term 
"election");  103  C.  357,  363,  35  P.  1045,  37  P.  207  (construed  and 
applied);  109  C.  571,  589,  42  P.  225  (construed  and  applied),  597 
(has  no  application  to  vote,  under  §  359,  for  creation  of  bonded 
indebtedness);  115  C.  584,  590,  609  (construed  with  §312),  609 
(construed  in  dissenting-  opinion),  56  A.  S.  119,  47  P.  582,  35  L. 
309;   127  C.  681,  683,  60  P.   438    (construed  with  §312). 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

Voting  trust. — See  Kerr's  Cyc.  C.  C.   §  312  and  note  par.   16. 

§308.  ORGAMZATION  OF  BOARD  OF  DIRECTORS,  etc.— 
[QUORUM.]  Immediately  after  their  election,  the  directors 
must  organize  by  the  election  of  a  president,  who  must  be 
one  of  their  number,  a  secretary,  and  treasurer.  They  must 
perform  the  duties  enjoined  on  them  by  law  and  the  by-laws 
of  the  corporation. 

171 


§  309  CIVIL  CODE.  [Div.I.Pt.IV. 

[Quorum.]  A  majority  of  the  directors  is  a  sufficient  num- 
ber to  form  a  board  for  the  transaction  of  business,  and  every 
decision  of  a  majority  of  the  directors  forming  such  board, 
made  when  duly  assembled,  is  valid  as  a  corporate  act. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

78  C,  289,  292,  12  A.  S.  53,  20  P.  677  (construed  and  applied): 
78  C.  629,  632,  21  P.  373  (construed);  93  C.  34,  38  (construed). 
39  (referred  to  with  other  sections),  28  P.  792,  793,  29  P.  51,  15 
L.  106;  94  C.  546,  549,  29  P.  1105,  1106  (construed);  96  C.  73,  82, 
30  P.  1024,  1026  (construed);  103  C.  357,  363,  35  P.  1045,  37  P. 
207  (referred  to  with  other  sections);  121  C.  202,  208,  53  P.  634 
(construed  and  applied  to  president);  127  C.  261,  267,  268,  59  P. 
563  (construed  and  applied);  127  C.  630,  631,  637  (applied — erro- 
neously cited  as  C.  C.  P.  §  305,  concerning  the  filling  of  vacan- 
cies in  board  of  directors),  60  P.  424,  426  (correct  citation);  60 
P.  776,  778,  Cal.,  March  24,  1900  (construed  and  applied);  61  P. 
791,  795,  Cal.,  July  2,  1900  (vote  essential  to  adoption  of  reso- 
lution); 130  C.  345,  348,  349,  80  A.  S.  132,  62  P.  552  (construction 
of  this  section  and  §305,  how  limited);  131  C.  656,  659,  63  P. 
1011  (referred  to  with  other  sections);  145  C.  352,  364,  104  A.  S. 
42,  78  P.  550  (president  of  corporation  is  necessarily  a  director 
thereof);    45    F.    526. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see   note    §  283,   ante. 

Authority  of  officers. — See  Kerr's  Cyc.  C.  C.   §  305  and  note. 

Quorum  of  directors. — See  Kerr's  Cyc.  C.   C.  §  305  and  note. 

§309.  DIVIDENDS  FROM  SURPLUS  PROFITS— PEN- 
ALTY  FOR  VIOLATION  OF  THIS  SECTION— DISTRIBU- 
TION OF  LAND,  WATER,  ETC.  The  directors  of  corpora- 
tions [1]  must  not  make  dividends,  except  from  the  surplus 
profits  arising  from  the  business  thereof;  [2]  nor  must  they 
create  any  debts  beyond  their  subscribed  capital  stock;  [3] 
nor  must  they  divide,  withdraw,  or  pay  to  the  stockholders, 
or  any  of  them,  any  part  of  the  capital  stock,  except  as  here- 
inafter provided,  [4]  nor  reduce  or  increase  the  capital  stock, 
except  as  herein  specially  provided. 

For  a  Tiolatioii  of  the  provisions  of  this  section,  the  direc- 
tors under  whose  administration  the  same  may  have  hap- 
pened (except  those  who  may  have  caused  their  dissent  there- 
from to  be  entered  at  large  on  the  minutes  of  the  directors  at 

172 


i      Tit.I,ch.I,art.II.]   dividends  from   surplus.  §  309 

the  time,  or  were  not  present  when  the  same  did  happen)  are, 
in  their  individual  or  private  capacity,  jointly  and  severally 
liable  to  the  corporation,  and  to  the  creditors  thereof,  to  the 
full  amount  of  the  capital  stock  so  divided,  withdrawn,  paid 
out,  or  reduced,  or  debt  contracted;  and  no  statute  of  limita- 
tion is  a  bar  to  any  suit  against  such  directors  for  any  sums 
for  which  they  are  liable  by  this  section; 

[Land  and  water  companies.]  Provided,  however,  that 
where  a  corporation  has  been  heretofore  or  may  hereafter  be 
formed  for  the  purpose,  among  other  things,  of  acquiring, 
holding,  and  selling  real  estate,  water,  and  water  rights,  the 
directors  of  such  corporation  may,  with  the  consent  of  stock- 
holders representing  two-thirds  of  the  capital  stock  thereof, 
given  at  a  meeting  called  for  that  purpose,  divide  among, 
the  stockholders  the  land,  water,  or  water  rights  so  by  such 
corporation  held,  in  the  proportions  to  which  their  holdings 
of  such  stock  at  the  time  of  such  division  entitle  them.  All 
conveyances  made  by  the  corporation  in  pursuance  of  this 
section  must  be  made  and  received  subject  to  the  debts  of 
such  corporation  existing  at  the  date  of  the  conveyance 
thereof.  Nothing  herein  prohibits  a  division  and  distribution 
of  the  capital  stock  of  any  corporation  which  remains  after 
the  payment  of  all  its  debts,  upon  its  dissolution,  or  the  expi- 
ration of  its  term  of  existence. 

History:  Enacted  March  21,  1872;  amended  March  31,  1891, 
Stats,  and  Amdts.  1891,  p.  468;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  346,  held  uncon- 
stitutional; see  history,  §  4  ante;  re-enacted  March  21,  1905, 
Stats,  and  Amdts.   1905,  p.  558. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

57  C.  594,  602  (referred  to  with  other  sections);  81  C.  378, 
384,  387,  396,  397  (construed),  389  (referred  to),  390  (construed 
in  dis.  op.),  20  P.  401,  403,  22  P.  689.  693,  6  L.  520;  90  C.  131,  135, 
136,  139,  140  (construed  and  applied  to  surplus),  141,  142  (ap- 
plied to  mines),  27  P.  44,  46;  93  C.  300,  309,  310,  311,  28  P.  1049, 
1051  (construed  and  applied);  109  C.  571,  596,  42  P.  225  (con- 
strued and  applied);  116  C.  410,  415,  48  P.  375,  376  (construed 
and  applied);  51  P.  710,  714  (validity  of  bonds  issued  in  viola- 
tion of  section),  723,  724,  in  opinion  for  reversal  (proper  use 
of  phrase,   "subscribed  capital  stock");  124  C.   147,   149,   71  A.  S. 

173 


§  310  CIVIL  CODE.  [Div.I.Pt.IV. 

36,  56  P;  787,  788,  45  L.  863  (construed);  125  C.  407,  412,  58  P. 
85  (construed  with  otlier  sections);  127  C.  669,  674,  60  P.  439, 
49  L.  647  (referred  to  with  other  sections);  135  C.  472,  482,  63  P. 
1025,  67  P.  759  (construed  and  applied);  151  C.  118,  122,  90  P. 
521  (corporation  may  make  a  sale  to  a  stockholder);  152  C. 
454,  462,  92  P.  1030  (application  of  section  to  the  making  of 
dividends). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, foe  note  §  283,  ante. 

Definition  of  phrase  "create  debts,"  within  moaning  of  tliis 
section,  is  discussed,  Kerr's  Cyc.  C.  C.  §  579  and  note,  also,  2 
W.   &  P.    1708. 

§310.     REMOVAL   FROM  OFFICE  OF   DIRE(  TORS,  ETC. 

The  board  of  directors  may  be  removed  from  office  by  a  vote 
of  two-thirds  of  the  members,  or  of  stockholders  holding  two- 
thirds  of  the  capital  stock,  at  a  general  meeting  held  after 
previous  notice  of  the  time  and  place,  and  of  the  intention  to 
propose  such  removal.  Meetings  of  stockholders  for  this  pur- 
pose may  be  called  by  the  president,  or  by  a  majority  of  the 
directors,  or  by  members  or  stockholders  holding  at  least  one- 
half  of  the  votes.  Such  calls  must  be  in  writing,  and 
addressed  to  the  secretary,  who  must  thereupon  give  notice 
of  the  time,  place,  and  object  of  the  meeting,  and  by  whose 
order  it  is  called.  If  the  secretary  refuses  to  give  the  notice, 
or  if  there  is  none,  the  call  may  be  addressed  directly  to  the 
members  or  stockholders,  and  be  served  as  a  notice,  in  which 
case  it  must  specify  the  time  and  place  of  meeting.  The 
notice  must  be  given  in  the  manner  provided  in  section  three 
hundred  and  one  of  this  title,  unless  other  express  provision 
has  been  made  therefor  in  the  by-laws.  In  case  the  board 
of  directors  is  so  removed,  a  new  board  may  be  elected  at 
the  same  meeting. 

History:  Enacted  March  21,  1872:  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  347,  held 
unconstitutional;  see  history,  §  4  ante:  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  pp.  558,  559. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
97  C.  610,   630,  32  P.  600,  605    (cited  in  discussion). 
As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

174 


Tit.I,ch.I,art.II.]        ORDERING  election.  §§  311, 312 

§311.  JUSTICE  OF  PEACE  MAY  ORDER  MEETING  OF 
CORFORATIOX,  WHEN.  Whenever,  from  any  cause,  there 
is  no  person  authorized  to  call  or  to  preside  at  a  meeting  of 
a  corporation,  any  justice  of  the  peace  of  the  county  where 
such  corporation  is  established  may,  on  written  application  of 
three  or  more  of  the  stockholders  or  of  the  members  thereof, 
issue  a  warrant  to  one  of  the  stockholders  or  members,  direct- 
ing him  to  call  a  meeting  of  the  corporation,  by  giving  the 
notice  required,  and  the  justice  may,  in  the  same  warrant, 
direct  such  person  to  preside  at  such  meeting  until  a  clerk 
is  chosen  and  qualified,,  if  there  is  no  other  officer  present 
legally  authorized  to  preside  thereat.  The  application  of  a 
number  of  stockholders  less  than  three,  but  holding  a  major- 
ity of  the  capital  stock,  has  the  same  effect  as  an  application 
by  three  or  more  stockholders  or  members. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act.  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  347,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  559. 

§312.  MAJORITY  OF  STOCK  MUST  BE  REPRESENTED 
AT  ELECTIONS.  At  all  elections  or  votes  had  for  any  pur- 
pose in  corporations  formed  for  profit  there  must  be  a  major- 
ity of  the  subscribed  capital  stock  or  of  the  members  repre- 
sented, either  in  person  or  by  proxy  in  writing;  provided, 
that  in  all  instances  of  corporations  formed  for  purposes 
other  than  profit  the  by-laws  shall  provide  the  number  of 
members  or  stockholders  that  shall  constitute  a  quorum  for 
the  transaction  of  business.  Every  person  acting  therein,  in 
person  or  by  proxy  or  representative,  must  be  a  member 
thereof  or  a  stockholder,  having  stock  in  his  own  name  on 
the  stock  books  of  the  corporation  at  least  ten  days  prior  to 
the  election.  Any  vote  or  election  had  other  than  in  accord- 
ance with  the  provisions  of  this  article  is  voidable  at  the 
instance  of  absent  or  any  stockholders  or  members,  and  may 
be  set  aside  by  petition  to  the  superior  court  of  the  county 
where  the  same  is  held. 

[Meeting  may  adjourn  from  day  to  day.]     Any  regular  or 

175 


§312[a]  CIVIL  CODE.  [Div.I,Pt.IV. 

called  meeting  of  the  stockholders  or  members  may  adjourn 
from  day  to  day,  or  from  time  to  time,  if  for  any  reason 
there  is  not  present  a  majority  of  the  subscribed  stock  or 
members,  or  no  election  had,  such  adjournment  and  the 
reasons  therefor  being  recorded  in  the  journal  of  proceedings 
of  the  board  of  directors. 

History:  Enacted  March  21,  1872;  amended  April  1,  1878,  Code 
Amdts.  1877-8,  p.  79;  amended  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  347,  held  unconstitutional; 
see  history,  §  4  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  c.  CDXVI,  p.  559.  A  further  amendment 
by  the  Legislature  of  1905,  on  following  day  (March  22),  appears 
in  "note"  below;  amendment  enacted  March  18,  1907,  Stats,  and 
Amdts.   1907,  p.   596,  Kerr's  Stats,  and  Amdts.   1906-7,   p.   403. 

Note:  Section  312  was  amended  March  21,  1905,  and  also  on 
March  22,  1905,  numbered  respectively  §  312  and  §  312[a]  in 
this  Code.  The  Legislature  of  1907  repealed  §  312  as  amended 
March  21,  1905,  and  amended  §  312[a]  as  above,  and  numbered 
it    §312. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

54  C.  149,  150  (erroneously  cited  as  C.  C.  P.);  67  C.  532,  533, 
534,  536,  8  P.  70  (construed  and  applied);  93  C.  34,  36,  39,  28 
P.  792,  29  P.  51,  15  L.  106  (construed  and  applied);  103  C.  357, 
363,  35  P.  1045,  37  P.  207  (referred  to  with  other  sections); 
104  C.  649,  651,  652,  43  A.  S.  147,  38  P.  452,  29  L.  844  (construed 
and  applied);  109  C.  571,  588,  599,  42  P.  225,  226  (construed  and 
applied);  112  C.  53,  63,  44  P.  333,  33  L.  788  (construed  and  ap- 
plied); 115  C.  584,  589,  590,  594,  609,  56  A.  S.  119,  47  P.  582,  35 
L.  309  (construed  and  applied);  127  C.  681,  683,  60  P.  438  (con- 
strued with  §307);  133  C.  42,  47,  65  P.  131,  576  (miscited) ;  146 
C.  219,  224,  79  P.  889  (criterion  under  section  for  determining 
amount  of  stock  held  by  any  person,  and  for  which  he  is  en- 
titled to  cast  a  vote);  23  Nev.  437,  49  P.  41,  47  (voidable  election 
under  this  section  is  valid  in  another  state  until  declared  void 
by    the    courts    of    California). 

As  to  adjournment  of  meetings,  see  post   §  314. 

As  to  many  miscellaneous  luatters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§312[a].  [SAME]— CORPORATIONS  OTHER  THAN  FOR 
PROFIT.  At  all  elections  or  votes  had  for  any  purpose  in 
corporations  formed  for  profit  there  must  be  a  majority  of 
the  subscribed  capital  stock  or  of  the  members  represented, 

176 


Tit.I,ch.I,art.II.]      REPRESENTING  STOCK.  §§313,314 

either  in  person  or  by  proxy  in  writing;  provided,  that  in 
all  instances  of  corporations  formed  for  purposes  other  than 
profit  the  by-laws  shall  provide  the  number  of  members  or 
stockholders  that  shall  constitute  a  quorum  for  the  transac- 
tion of  business.  Every  person  acting  therein  (in  person  or 
by  proxy  or  representative),  must  be  a  member  thereof  or  a 
bona  fide  stockholder,  having  stock  in  his  own  name  on  the 
stock-books  of  the  corporation  at  least  ten  days  prior  to  the 
election.  Any  vote  or  election  had  other  than  in  accordance 
with  the  provisions  of  this  article  is  voidable  at  the  instance 
of  absent  (or  any)  stockholders  or  members,  and  may  be  set 
aside  by  petition  to  the  superior  court  of  the  county  where 
the  same  was  held.  Any  regular  or  called  meeting  of  the 
stockholders  or  members  may  adjourn  from  day  to  day,  or 
from  time  to  time,  if  for  any  reason  there  is  not  present  a 
majority  of  the  subscribed  stock  or  members,  or  no  election 
had,  such  adjournment  and  the  reasons  therefor  being 
recorded  in  the  journal  of  proceedings  of  the  board  of  direc- 
tors. 

History:  Enactments  and  amendments  recited  in  section 
above.  This  amendment,  March  22,  1905,  Stats,  and  Amdts.  1905, 
p.  787.     See  history  and  "note"  to  §  312. 

§  313.  STOCK,  HOW  EEPRESEXTED.  The  shares  of  stock 
of  an  estate  of  a  minor,  or  insane  person,  may  be  represented 
by  his  guardian,  and  of  a  deceased  person  by  his  executor  or 
administrator. 

History:  Enacted  March  21,  1872;  amended  March  31,  1874, 
Code  Amdts.  1873-4,  p.  203. 

See  Kerr's   Cyc.  C.   C.   for   2  pars,   annotation. 

109  C.  571,  590,  42  P.  225,  226  (construed  and  applied);  115  C. 
584,  590,  591,  56  A.  S.  119,  47  P.  582,  35  L.  309  (construed  and 
applied). 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note   §  283,  ante. 

§314.  ELECTION  MAT  BE  POSTPONED.  If  from  any 
cause  an  election  does  not  take  place  on  the  day  appointed 
by  law  or  the  by-laws,  or  otherwise,  it  may  be  held  on  any 

177 


§  315  CIVIL  CODE.  [Div.I.Pt.IV. 

day  thereafter  as  is  provided  for  in  such  by-laws,  or  to  which 
such  election  may  be  adjourned  or  ordered  by  the  directors. 
If  an  election  has  not  been  held  at  the  appointed  time,  and 
no  adjourned  or  other  meeting  for  the  purpose  has  been 
ordered  by  the  directors,  a  meeting  may  be  called  by  the 
stockholders  as  provided  in  section  three  hundred  and  ten. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  348,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  559. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§315.  COMPLAINTS,  QUO  WAKIUNTO  AND  PROCEED- 
INGS    THEREON,    REGARDING     ELECTIONS— [NOTICE]. 

Upon  the  application  of  any  person  or  body  corporate 
aggrieved  by  any  election  held  by  any  corporate  body,  the 
superior  court  of  the  county  in  which  such  election  is  held 
must  proceed  forthwith  to  hear  the  allegations  and  proofs  of 
the  parties,  or  otherwise  inquire  into  the  matters  of  com- 
plaint, and  thereupon  confirm  the  election,  order  a  new  one, 
or  direct  such  other  relief  in  the  premises  as  accords  with 
right  and  justice. 

[Notice.]  Upon  filing  the  petition,  and  before  any  further 
proceedings  are  had  under  this  section,  five  days'  notice  of 
the  hearing  must  be  given,  under  the  direction  of  the  court 
or  the  judge  thereof,  to  the  adverse  party,  or  those  to  be 
affected  thereby. 

History:  Enacted  March  21,  1872;  amended  April  1,  1878,  Code 
Amdts.  1877-8,  p.  79;  amended  by  Code  Commission,  Act  -March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  248,  held  unconstitutional; 
see  history,  §  4  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  560. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

93  C.  34,  35,  36,  39,  28  P.  792,  793,  29  P.  51,  15  L.  106  (con- 
strued and  applied);  93  C.  41,  42,  28  P.  793  (applied);  98  C.  304, 
305,  306,  33  P.  123  (applied);  103  C.  357,  360,  364,  35  P.  1045,  37 
P.  207  (construed  and  applied);  115  C.  279,  281,  47  P.  58  (re- 
ferred to);   115  C.   584,  587    (referred  to   in   statement   of  facts), 

178 


Tit.I,ch.I,art.II.]        MEETING  BY  CONSENT.  §§316,317 

594  (referred  to  in  discussion),  609  (referred  to  in  dis.  op.),  56 
A.  S.  119,  47  P.  582,  35  L.  309;  126  C.  67,  72,  58  P.  376  (con- 
strued); 23  Nev.  437,  49  P.  41,  47  (applicability  of  §§312,  315,  to 
mining-  corporations,  and  remedy  under  latter  section  is  avail- 
able only  when  a  vote  or  election  has  been  had). 

As  to  many  miscellaneous  matters  affecting-  corporations 
generally,   see   note   §  283,   ante. 

§  316.  DAMAGES  FOR  FALSE  ENTRIES,  ETC.  Any  officer 
of  a  corporation  who  wilfully  gives  [1]  a  certificate,  or  [2] 
wilfully  makes  an  official  report,  [3]  public  notice,  or  [4] 
entry  in  any  of  the  records  or  books  of  the  corporation,  con- 
cerning the  corporation  or  its  business,  which  is  false  in  any 
material  representation,  shall  be  liable  for  all  the  damages 
resulting  therefrom  to  any  person  injured  thereby,  and  if  two. 
or  more  officers  unite  or  participate  in  the  commission  of  any 
of  the  acts  herein  designated,  they  shall  be  jointly  and  sev- 
erally liable. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.   1873-4,  p.   203. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Penal  liability  of  ofHcers. — See  Kerr's  Cyc.  Pen.  C.  §§  558,  564 
and   notes. 

§317.  MEETING  BY  CONSENT  TO  BE  VALID.  [WRIT- 
TEN WAIVER.]  When  all  the  stockholders  or  members  of 
a  corporation  are  present  at  any  meeting  however  called  or 
notified,  and  sign  a  written  consent  thereto  on  the  records 
of  such  meetings,  or  if  those  not  present  sign  in  writing  a 
waiver  of  notice  of  such  meeting,  which  waiver  is  presented 
and  made  a  part  of  the  records  of  such  meeting,  the  doings 
of  such  meeting  are  as  valid  as  if  had  at  a  meeting  legally 
called  and  noticed. 

History:  Enacted  March  21,  1872;  amended  February  22, 
1909,    Stats,   and  Amdts.    1909,  p.    49. 

51  P.  710,  713,  Cal.,  Dec.  28,  1897  (cited,  as  to  what  constitutes 
a  valid   meeting  of  stockholders). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

179 


§§  318-320  CIVIL  CODE.  [Div.I,Pt.IV. 

§  318.    PROCEEDINGS  AT  MEETING  TO  BE  BINDING.    The 

stockholders  or  members  of  such  corporation,  when  so  assem- 
bled, may  elect  officers  to  fill  all  vacancies  then  existing,  and 
may  act  upon  such  other  business  as  might  lawfully  be  trans- 
acted at  regular  meetings  of  the  corporation. 

History:     Enacted  Marcli   21,  1872. 

As  to  many  nii.scellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

§319.  MEETINGS,  WHERE  HELD.  The  meetings  of  the 
stockholders  and  board  of  directors  of  a  corporation  must  be 
held  at  its  office  or  principal  place  of  business. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.    C.   for   7   pars,   annotation. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

Change  of  place  of  business. — See  Kerr's  Cyc.  C.  C.  §  321a  and 
note. 

§320.  WHEN  NO  PROVISION  IN  BY-LAWS  FOR  REGU- 
LAR    MEETINGS,    SPECIAL    MEETINGS,    HOW    CALLED. 

When  no  provision  is  made  in  the  by-laws  for  regular  meet- 
ings of  the  directors  and  the  mode  of  calling  special  meetings, 
all  meetings  must  be  called  by  special  notice  in  writing,  to 
be  given  to  each  director  by  the  secretary,  on  the  order  of 
the  president,  or  if  there  be  none,  on  the  order  of  two 
directors. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

59  C.  678,  681,  682  (construed  and  applied);  76  C.  153,  154,  9 
A.  S.  187,  18  P.  153  (applied  to  adjourned  meeting);  96  C.  73, 
79,  82,  30  P.  1024  (construed  and  applied);  109  C.  1,  9,  10,  41 
P.  809  (construed  and  applied);  130  C.  345,  347,  80  A.  S.  132,  62 
P.  552  (construed  and  applied);  134  C.  175,  177,  66  P.  220  (con- 
strued and  applied);  146  C.  699,  705;  81  P.  17  (sufficiency  of 
written   notice   for  special  meeting). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

180 


Tit.I,ch.I,art.II.]         BOOKS,   INSPECTION.  §§321, 321a 

§  321.     CERTAIN  BOOKS  TO  BE  OPEN  FOR  INSPECTION. 

Every  corporation  doing  a  banking  business  in  this  state 
must  keep  in  its  office,  in  a  place  accessible  to  the  stockhold- 
ers, depositors,  and  creditors  thereof,  and  for  their  use,  a 
book  containing  a  list  of  all  stockholders  in  such  corporation, 
and  the  number  of  shares  of  stock  held  by  each,  and  every 
such  corporation  must  keep  posted  in  its  office,  in  a  conspicu- 
ous place,  accessible  to  the  public  generally,  a  notice,  signed 
by  the  president  or  secretary,  showing: 

1.  The  names  of  the  directors  of  such  corporation. 

2.  The  number  and  value  of  shares  of  stock  held  by  each 
director. 

The  entries  on  such  book  and  such  notice  shall  be  made 
and  posted  within  twenty-four  hours  after  any  transfer  of 
stock,  and  shall  be  conclusive  evidence  against  each  director 
and  stockholder  of  the  number  of  shares  of  stock  held  by 
each.  The  provisions  of  this  section  shall  apply  to  all  bank- 
ing corporations  formed  or  existing  before  twelve  o'clock 
noon  of  the  day  on  which  this  code  took  effect,  as  well  as  to 
those  formed  after  such  time. 

History:     Enacted  Jan.  29,  1876,  Code  Amdts.  1875-6,  p.  72. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

63  C.  261,  267  (cited  in  dis.  op.);  89  C.  52,  54,  26  P.  605  (referred 
to);  140  C.  103,  105,  98  A.  S.  17,  73  P.  734  (construed  and  ap- 
plied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

§321a.  CHANGE  OF  PRINCIPAL  PLACE  OF  BUSINESS, 
PROCEDURE.  Every  corporation  that  has  been  or  may  be 
created  under  the  general  laws  of  this  state  may  change  its 
principal  place  of  business  from  one  place  to  another  in  the 
same  county,  or  from  one  city  or  county  to  another  city  or 
county  within  this  state.     Before  such  change  is  made,  the 

Consent  in  writing,  of  the  holders  of  two-thirds  of  the  cap- 
ital stock  of  the  corporation  must  be  obtained  and  filed  in  its 
office.  When  such  consent  is  obtained  and  filed,  notice  of  the 
intended  renioyal  or  change  must  be  published,  at  least  once 

181 


§  321b  CIVIL  CODE.  [Div.I,Pt.IV. 

a  week,  for  three  successive  weeks,  in  some  newspaper  pub- 
lished in  the  county  wherein  said  principal  place  of  business 
is  situated,  if  there  is  one  published  therein;  if  not,  in  a 
newspaper  of  an  adjoining  county,  giving  the  name  of  the 
county  or  city  where  it  is  situated  and  that  to  which  it  is 
intended  to  remove  it. 

[Copy  of  resolution,  etc.,  to  be  filed.]  Whenever  any  such 
change  is  made,  a  copy  of  the  resolution  or  action  of  the 
board  of  directors  authorizing  the  same  together  with  a  copy 
of  an  affidavit  of  the  publication  above  required,  all  duly  cer- 
tified by  the  president  and  secretary  of  the  corporation  with 
the  corporate  seal  affixed  shall  be  filed  in  each  office  where 
the  original  articles  of  incorporation  are,  or  any  copy  thereof 
is  required  to  be  filed. 

[Removal  of  location  in  same  town.]  This  section  shall 
not  be  construed  to  require  such  consent,  notice  or  publica- 
tion in  the  case  of  any  such  removal  from  one  location  to 
another  in  the  same  city,  town  or  village. 

HLstory:  Enacted  April  3,  1876  (as  §  321),  Code  Amdts.  1875-6, 
p.  73;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  348,  held  unconstitutional;  see  history,  §  4 
ante;  re-enacted  March  20,  1903,  Stats,  and  Amdts.  1903,  p.  254. 

89  C.   52,   54,  26   P.   605. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

Corporation  can  not  change  its  citizenship  or  residence. — See 
Kerr's  Cyc.   C.  C.   §  321a,   note. 

§321b.  STOCKHOLDERS'  MEETINGS,  WHO  MAY  VOTE 
AT— PROXIES,  VOID  WHEN;  MAXI3IUM  PERIOD  OF, 
REVOCABLE.  At  all  meetings  of  stockholders  of  corpora- 
tions organized  under  the  laws  of  this  state,  or  in  the  case 
of  corporations  having  no  capital  stock,  then  at  all  meetings 
of  the  members  of  such  corporation,  only  the  stockholders  or 
members  actually  present  shall  be  entitled  to  vote  on  any 
proposition,  including  the  election  of  directors  and  other 
officers  of  the  corporation,  unless  proxies  from  absent  or  non- 
attending  stockholders  or  members  shall  be  held  by  some  per- 

182 


Tit.I,Cll.I,art.II.]  VOTING— PROXIES.  §  321b 

son  or  persons  present  at  such  meeting  and  shall  be  executed 
in  accordance  with  the  provisions  of  this  section. 

[Essentials  to  Talidity  of  proxy.]  Every  such  proxy  must 
be  executed  in  writing  by  the  member  or  stockholder  himself, 
or  by  his  duly  authorized  attorney.  No  proxy  heretofore  given 
or  made  shall  be  valid  after  the  expiration  of  eleven  months 
from  the  passage  of  this  act,  unless  the  member  or  stock- 
holder executing  it  shall  have  specified  therein  the  length 
of  time  for  which  such  proxy  is  to  continue  in  force,  which 
must  be  for  some  limited  period,  and  in  no  case  exceed  seven 
years  from  the  date  of  the  execution  of  such  proxy.  No 
proxy  hereafter  to  be  given  or  made  shall  be  valid  after  the 
expiration  of  eleven  months  from  the  date  of  its  execution, 
unless  the  member  or  stockholder  executing  it  shall  have 
specified  therein  the  length  of  time  for  which  such  proxy  is 
to  continue  in  force,  which  must  be  for  some  limited  period, 
and  in  no  case  to  exceed  seven  years  from  the  date  of  the 
execution  of  such  proxy. , 

Erery  proxy  shall  be  revocable  at  the  pleasure  of  the  per- 
son executing  it;  but  a  corporation  having  no  capital  stock 
may  prescribe  in  its  by-laws  the  persons  who  may  act  as 
proxies  for  members,  and  the  length  of  time  for  which  such 
proxies  may  be  executed. 

History:     Enacted  Feb.  27,  1905,  Stats,  and  Amdts.  1905,  p.  22. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 


183 


§  322  CIVIL  CODE.  [Div.I,Pt.IV. 

CHAPTER  II. 

CORPORATE  STOCK. 

Article  I.     Stock  and  Stockholders,  §§  322-329. 
II.     Assessment  of  Stock,  §§  331-349. 

ARTICLE  I. 
STOCK  AND  STOCKHOLDERS. 

§322.  Liability  of  stockholders;  released  when;  how  deter- 
mined; trust  fund  not  liable;  stock  held  as  collateral. 

§  323.     Certificates  of  stock,   how  issued. 

§  324.  Shares  of  stock,  personal  property — How  transferred — 
[Water  companies — Stock  appurtenant   to   land]. 

§  325.  Married  woman  may  transfer  stock;  dividends  paid  to 
her;  her  proxy. 

§  326.     Affidavit  or  bond  may  be  required  before  transfer. 

§  327.  Contracts  to  relieve  directors  from  liabilities  fixed  by 
constitution  void. 

§  328.  Lost,  etc.,  certificate;  action  for  new  certificate;  parties; 
procedure. 

§  329.     Burned  bonds,  procedure  to  obtain  duplicates. 

§322.  LIABILITY  OF  STOCKHOLDERS;  RELEASED 
WHEN;  HOW  DETER.IIINEH;  TRIST  FUXD  >0T  LIABLE; 
STOCK  HELD  AS  COLLATERAL.  Each  stockholder  of  a 
corporation  is  individually  and  personally  liable  for  such 
proportion  of  all  its  debts  and  liabilities  contracted  or  incur- 
red during  the  time  he  was  a  stockholder  as  the  amount  of 
stock  or  shares  owned  by  him  bears  to  the  whole  of  the 
subscribed  capital  stock  or  shares  of  the  corporation. 

Any  creditor  of  the  corporation  may  institute  joint  or  sev- 
eral actions  against  any  of  its  stockholders,  for  the  propor- 
tion of  his  claim  payable  by  each,  and  in  such  action  the 
court  must  [1]  ascertain  the  proportion  of  the  claim  or  debt 
for  which  each  defendant  is  liable,  and  [2]  a  several  judgment 
must  be  rendered  against  each,  in  conformity  therewith. 

If  any  stockholder  pays  his  proi>ortion  of  any  debt  due 
from  the  corporation,  incurred  while  he  was  such  stockholder, 

184 


Tit.I,ch.II,art.I.]  STOCKHOLDERS.  §  322 

he  is  relieved  from  any  further  personal  liability  for  such 
debt,  and  if  an  action  has  been  brought  against  him  upon 
such  debt,  it  must  be  dismissed,  as  to  him,  upon  his  paying 
the  costs,  or  such  proportion  thereof  as  may  be  properly 
chargeable  against  him. 

The  liability  of  each  stockholder  is  deterniiued  by  the 
amount  of  stock  or  shares  owned  by  him  at  the  time  the  debt 
or  liability  was  incurred;  and  such  liability  is  not  released 
by  any  subsequent  transfer  of  stock. 

The  term  stockholder,  as  used  in  this  section,  applies  not 
only  to  such  persons  as  appear  by  the  books  of  the  corpora- 
tion to  be  such,  but  also  to  every  equitable  owner  of  stock, 
although  the  same  appears  on  the  books  in  the  "name  of 
another;  and  also  to  every  person  who  has  advanced  the 
instalments  or  purchase  money  of  stock  in  the  name  of  a 
minor,  so  long  as  the  latter  remains  a  minor;  and  also  to 
every  guardian,  or  other  trustee,  who  voluntarily  invests  any 
trust  funds  in  the  stock. 

Trust  funds  in  the  hands  of  a  guardian,  or  trustee,  are  not 
liable  under  the  provisions  of  this  section,  by  reason  of  any 
such  investment;  nor  must  the  person  for  whose  benefit  the 
investment  is  made  be  responsible  in  respect  to  the  stock 
until  he  becomes -competent  and  able  to  control  the  same; 
but  the  responsibility  of  the  guardian  or  trustee  making  the 
investment  continues  until   that  period. 

Stock  held  as  collateral  security,  or  by  a  trustee,  or  in  any 
other  representative  capacity,  does  not  make  the  holder 
thereof  a  stockholder  within  the  meaning  of  this  section, 
except  in  the  cases  above  mentioned,  so  as  to  charge  him 
with  any  proportion  of  the  debts  or  liabilities  of  the  corpo- 
ration; but  the  pledgeor,  or  person  or  estate  represented,  is 
to  be  deemed  the  stockholder,  as  respects  such  liability. 

In  a  corporation  having  no  capital  stock,  each  member  is 
individually  and  personally  liable  for  an  equal  share  of  its 
debts  and  liabilities,  and  similar  actions  may  be  brought 
against  him,  either  alone  or  jointly  with  other  members,  to 
enforce    such    liability    as    by    this    section    may    be    brought 

185 


§  322  CIVIL  CODE.  [Div.I.Pt.IV. 

against  one  or  more  stockholders,  and  similar  judgments 
may  be  rendered. 

[Foreign    corporations — Liability    of    stockliolders.]      The 

liability  of  each  stockholder  of  a  corporation  formed  vmder 
the  laws  of  any  other  state  or  territory  of  the  United  States, 
or  of  any  foreign  country,  and  doing  business  within  this 
state,  is  the  same  as  the  liability  of  a  stockholder  of  a  corpo- 
ration created  under  the  constitution  and  laws  of  this  state. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  203;  March  15,  1876,  Code  Amdts.  1875-6, 
p.  73;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  349,  held  unconstitutional;  see  history,  § 
4  ante;  amendment  re-enacted  March  20,  1905,  Stats,  and  Amdts. 
1905,   p.    396. 

See  Kerr's  Cyc.  C.  C.  for  118  pars,  annotation. 
59  C.  107,  109,  110  (construed  and  applied);  59  C.  285,  286 
(construed  and  applied);  62  C.  448,  461  (construed  and  applied); 
64  C.  117,  121,  28  P.  110,  112  (construed  and  applied);  64  C.  287, 
288,  289,  30  P.  820  (construed  and  applied);  65  C.  193,  210,  3 
P.  661,  802  (referred  to);  87  C.  29,  31  (cited),  32  (construed), 
25  P.  752,  753,  95  C.  578,  580,  30  P.  777  (construed);  95  C.  581. 
589,  29  A.  S.  158,  27  P.  674,  675,  30  P.  776  (construed  and  ap- 
plied); 97  C.  93,  95,  33  A.  S.  163,  31  P.  846,  847  (construed  and 
applied);  32  P.  756,  758  (stockholder's  individual  liability,  under 
the  California  statute,  may  be  enforced  by  a  common-law  ac- 
•tion  in  the  courts  of  Oregon,  when);  99  C.  89,  92,  37  A.  S.  32, 
33  P.  737  (construed  and  applied);  107  C.  378,  381,  40  P.  495 
(construed);  107  C.  446,  447,  48  A.  S.  145,  40  P.  557  (construed 
and  applied);  108  C.  1,  4,  5,  40  P.  1077  (construed  and  applied): 
109  C.  571,  588,  42  P.  225  (referred  to);  111  C.  57,  63  (referred 
to),  66  (construed  and  applied),  52  A.  S.  149,  43  P.  418;  113  C. 
21,  25,  45  P.  12  (referred  to);  115  C.  380,  381,  47  P.  108  (construed 
and  applied);  115  C.  584,  594,  56  A.  S.  119,  47  P.  582,  35  L.  309 
(referred  to  with  other  sections);  116  C.  382,  384,  48  P.  322 
(quoted);  118  C.  274,  276,  50  P.  430  (construed  and  applied); 
122  C.  669,  672,  673,  674,  55  P.  689,  691  (construed  and  applied); 
124  C.  147,  150,  71  A.  S.  36,  56  P.  787,  45  L.  863  (construed  and 
applied);  125  C.  6,  8,  73  A.  S.  17,  57  P.  664  (construed  and  ap- 
plied); 125  C.  407,  412,  58  P.  85  (construed);  127  C.  72,  82,  59 
P.  319  (construed);  127  C.  669,  675,  60  P.  439,  49  L.  647  (con- 
strued and  applied);  130  C.  272,  274,  62  P.  510  (applied);  133  C. 
506,  507,  65  P.  1039  (applied);  136  C.  510,  513,  69  P.  257  (ap- 
plied); 140  C.  103,  104,  105-107,  98  A.  S.  17,  73  P.  734  (construed 
and  applied  to  pledgees);   141  C.   221,  227,   74  P.   754    (applied  to 

186 


« 


Tit.I,ch.II,art.I.]  certificates.  §  323 

expenses  of  water  system);  142  C.  383,  384,  77  P.  939  (stock- 
holder's individual  liability  is  created  by  the  constitution);  145 
C.  696,  710,  79  P.  441  (what  payments  to  creditors  cannot  be 
considered  as  payments  made  upon  capital  stock);  147  C.  571, 
575,  82  P.  248  (construed,  who  is  liable  as  a  stockholder,  where 
his  name  appears  on  the  books  as  such);  2  C.  A.  122,  131  (case 
f  distinguishable  from  that  of  statutory  liability  of  stockholder), 
134,  138,  139  (creditor's  right  to  maintain  action,  both  at  law 
and  in  equity),  83  P.  62,  2  C.  A.  445,  447,  84  P.  329  (section  deals 
with  what  liability  only);  4  C.  A.  291,  293,  87  P.  630  (complaint 
against  stockholders  is  fatally  defective  when) ;  4  C.  A.  690, 
693,  88  P.  1098  (section  has  no  application  to  action  by  corpo- 
ration to  recover  assessments);  5  F.  403,  410,  412  (cited  as  to 
limit  of  liability  of  stockholders — erroneously  cited  as  C.  C.  P.); 
37  F.  394,  404,  405  (construed  with  other  sections,  and  with 
§  36  of  the  old  constitution,  as  to  personal  liability  of  stock- 
holders);  46  F.  357,  affirmed  in  50  F.  260  (applied  to  a  bill  of 
exchange  drawn  by  the  corporation);  69  F.  25,  44  (has  no  ap- 
plication to  contracts  made  before  its  passage);  183  U.  S.  144, 
146,   46   L.    ed.    125    (referred   to). 

As  to  amount  claimed  determining  jurisdiction,  see  1  Encyc.  P. 
703,    tit.    "Amount    in    controversy." 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

Limitations  of  actions. — See  Kerr's  Cyc.  C.  C.  P.  §  338  subd. 
1,    §  359    and    notes. 

Limitation  of  action  to  enforce  stockholder's  liability. — See 
Kerr's  Cyc.  C.  C.  P.  §  338  subd.  1,  and  §  359  and  notes. 

§323.    CERTIFICATES    OF    STOCK,   HOW   ISSUED.     All 

corporations  for  profit  must  issue  certificates  for  stock  when 
fully  paid  up,  signed  by  the  president  and  secretary,  and  may 
provide,  in  their  by-laws,  for  issuing  certificates  prior  to  full 
payment,  under  such  restrictions  and  for  such  purposes  as 
their  by-laws  may  provide,  but  any  certificate  issued  prior 
to  full  payment  must  show  on  its  face  what  amount  has  been 
paid  thereon.  All  certificates  of  stock  issued  by  corporations 
authorized  by  their  articles  of  incorporation  to  issue  stocks 
of  different  classes,  shall  express  upon  their  face  the  char- 
acter of  stock  represented  by  said  certificates.  The  said  cer- 
tificates shall  also  state  the  number  of  shares  of  stock  of  each 
class  which  said  corporation  is  authorized  to  issue,  and  the 
said  certificates  shall  also  contain  a  statement  of  the  nature 
and  extent  of  the  preference  granted  to  the  preferred  stock. 

187 


§  324  CIVIL  CODE.  [Div.I.Pt.TV. 

History:  Enacted  1S72;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  350,  held  unconstitu- 
tional; see  history,  §  4  ante;  amendment  re-enacted  March  20, 
1905,  Stats.  Amdts.  1905,  p.  397;  amended  March  18,  1907,  Stats, 
and  Amdts.  1907,  p.  348,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  403. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

82  C.  600,  602,  603,  23  P.  134,  135  (construed  and  applied);  9G 
C.  322,  329,  330,  31  P.  100,  102  (construed  and  applied);  101  C. 
70,  79,  35  P.  349  (construed  and  applied);  135  C.  579,  583,  87  A. 
S.  143,  67  P.  1057,  56  L.  728  (cited  in  discussion);  2  C.  A.  122, 
130  (what  agreement  indicates  tliat  stock  was  issued  as  paid- 
up  stock),  131  (case  distinguished  from  that  of  statutory  lia- 
bility of  stockholder),   83   P.   62. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 


§324.  SHAKES  OF  STOCK  PERSONAL  PROPERTY; 
HOW  TRANSFERRED.  Whenever  the  capital  stock  of  any 
corporation  is  divided  into  shares,  and  certificates  therefor 
are  issued,  such  shares  of  stock,  except  as  liereiuafter  pro- 
vided, are  personal  property,  and  may  be  transferred  by 
indorsement  by  signature  of  the  proprietor,  his  agent,  attor- 
ney, or  legal  representative,  and  the  delivery  of  the  certifi- 
cate; but  such  transfer  is  not  valid,  except  as  to  the  parties 
thereto,  until  the  same  is  so  entered  upon  the  books  of  the 
corporation  as  to  show  the  names  of  the  parties  by  whom 
and  to  whom  transferred,  the  number  of  the  certificate,  the 
number  or  designation  of  the  shares,  and  the  date  of  the 
transfer ; 

[Water  companies — Stock  appurtenant  to  land.]  Provided, 
however,  that  any  corporation  organized  for,  or  engaged  in 
the  business  of  selling,  distributing,  supplying,  or  delivering 
water  for  irrigation  purposes  or  for  domestic  use,  may  in  its 
by-laws  provide  that  water  shall  only  be  sold,  distributed, 
supplied,  or  delivered  to  owners  of  its  capital  stock,  and  that 
such  stock  shall  be  appurtenant  to  certain  lands  when  the 
same  are  described  in  the  certificate  issued  therefor;  and 
when  such  certificate  shall  be  so  issued,  and  a  certified  copy 
of  such  by-law  recorded  in  the  office  of  the  county  recorder 
in  the  county  where  such  lands  are  situated,  the  shares  of 

188 


Tit.I,Cll.II,art.I.]  SHARES   OF   STOCK.  §  324 

stock  so  located  on  any  land  shall  only  be  transferred  with 
said  lands,  and  shall  pass  as  an  appurtenance  thereto.  When- 
ever any  officer  of  any  corporation  shall  refuse  to  make 
entries  upon  the  books  thereof,  or  to  transfer  stock  therein, 
or  to  issue  a  certificate  or  certificates  therefor  to  the  trans- 
feree as  provided  by  this  and  the  next  preceding  section,  such 
officer  shall  be  subject  to  a  penalty  of  four  hundred  dollars, 
to  be  recovered  as  liquidated  damages,  in  an  action  brought 
against  him  by  the  person  aggrieved. 

History:  Enacted  March  21,  1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  1895,  p.  118;  amended  March  22,  1907,  Stats, 
and  Amdts.  1907,  p.  854,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  404. 

This  section  traceable  to  Act  April  22,  1850,  §  12,  (5  C.  186,  187, 
63  A.  D.  117;  53  C.  428,  431);  the  Act  of  1853  did  not  substantially 
alter  §  12  (6  C.  425,  429);  as  to  effect  of  amendatory  act  of  1854 
(p.  84)   see  9  C.  112,  114. 

Wisconsin  adopted  their  statute  from  tlais  section  of  tlie  code. 
—See   51  Wis.   519,  8  N.  W.   419,  420,   421. 

See   Kerr's  Cyc.  C.  C.  for  98   pars,   annotation. 

53  C.  428,  431,  432  (applied  and  construed);  58  C.  426,  428 
(construed  and  applied);  63  C.  359,  364  (construed  and  applied); 
72  C.  5,  9,  1  A.  S.  17,  12  P.  801,  802  (cited  in  discussion);  79  C. 
323,  331,  12  A.  S.  145,  21  P.  852,  855,  5  L.  233  (construed  and  ap- 
plied); 82  C.  600,  603,  23  P.  134,  136  (referred  to  in  discussion); 
84  C.  131,  137,  18  A.  S.  166,  24  P.  436,  437,  11  L.  125  (applied 
and  construed);  108  C.  490,  493,  41  P.  487  (erroneously  referred 
to  instead  of  §334);  109  C.  630,  632,  42  P.  298  (applied);  113  C. 
272,  273,  276,  277,  278,  54  A.  S.  348,  45  P.  329,  33  L>.  459  (construed 
and  applied);  126  C.  531,  534,  59  P.  30  (construed  and  applied); 
134  C.  408,  410,  411,  66  P.  494  (construed  and  applied);  136  C. 
510,  513,  69  P.  257  (referred  to  with  other  sections);  141  C.  13, 
16,  74  P.  299  (provision  as  to  entry  of  transfer  on  books  is  not 
applicable  when);  147  C.  236,  240,  242,  81  P.  539  (construed 
and  applied  to  shares  in  a  water  company);  150  C.  106,  108,  109, 
110,  88  P.  280  (construed  and  applied,  showing  that  liability 
is  limited  to  registered  owner);  2  C.  A.  122,  131,  S3  P.  62 
(cited,  directors  thougli  trustees,  may  act  in  double  capacity 
when);  37  F.  394,  407  (cited,  as  to  wlio  naust  be  deemed  owner 
of   stock). 

As  to  lost  certificate  and  procediire  to  secure  issuance  of  a 
new  one,  see  post  §  328. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

Bond  may  be  required  of  non-resident  stockholder  by  corpo- 

189 


§§  325, 326  CIVIL  CODE.  [Div.I.Pt.IV. 

ration  before  entering-  transfer  of  shares  on  its  books. — See 
•Kei-r's  Cyc.  C.  C.  §  326  and  note. 

By-laws  providing-  for  lien  upon  stock. — See  Kerr's  Cyc.  C.  C. 
§  354  and  note. 

Gift  of  corporate  stock. — See  Kerr's  Cyc.  C.  C.  §  1146  and 
note. 

§  325.  MARKIED  WOMAN  MAY  TRANSFER  STOCK;  DIV- 
IDENDS  PAID  TO  HER;  HER  PROXY.  Shares  of  stock  in 
corporations  standing  on  the  books  of  the  corporation  in  the 
name  of  a  married  woman  may  be  transferred  by  her,  her 
agent  or  attorney,  without  the  signature  of  her  husband,  and 
in  the  same  manner  as  if  such  married  woman  were  a  feme 
sole.  All  dividends  payable  upon  any  of  such  shares  of  stock 
may  be  paid  to  her,  her  agent  or  attorney,  in  the  same  man- 
ner as  if  she  were  unmarried;  and  any  proxy  or  power  given 
by  her,  touching  any  of  such  shares,  is  valid  and  binding,  and 
neither  it  nor  any  receipt  for  dividends  need  be  signed  by 
her  husband. 

History:  Enacted  Marcli  21,  1S72;  amended  by  Code  Commis- 
sion, Act.  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  350,  held 
unconstitutional;  see  history,  §  4  ante;  amendment  re-enacted 
March  20,  1905,  Stats,  and  Amdts.  1905,  p.  397. 

As  to  contracts  by  married  woman,  see  Kerr's  Cyc.  C.  C.  §  158 
and  note. 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally,   see    note    §  283,    ante. 

§326.  AFFIDAVIT  OR  BOND  MAY  BE  REQUIRED 
BEFORE  TRANSFER.  When  the  shares  of  stock  in  a  corpo- 
ration are  owned  by  parties  residing-  out  of  the  state,  the 
president,  secretary,  or  directors  of  the  corporation,  before 
entering  any  transfer  of  the  shares  on  its  books,  or  issuing  a 
certificate  therefor  to  the  transferee,  may  require  from  the 
attorney  or  agent  of  the  non-resident  owner,  or  from  the 
person  claiming  under  the  transfer,  [1]  an  affidavit  or  other 
evidence  that  the  non-resident  owner  was  alive  at  the  date 
of  the  transfer,  and  if  such  affidavit  or  other  satisfactory  evi- 
dence be  not  furnished,  may  require  from  the  attorney,  agent, 
or  claimant,  [2]  a  bond  of  indemnity,  with  two  sureties,  satis- 

190 


Tit.I,ch.II,art.I.]      DIRECTORS'  liability.  §§327,328 

factory  to  the  officers  of  the  corporation;  or,  if  not  so  satis- 
factory, then  [3]  one  approved  by  a  judge,  of  the  superior 
court  of  the  county  in  which  the  principal  office  of  the  corpo- 
ration is  situated,  conditioned  to  protect  the  corporation 
against  any  liability  to  the  legal  representatives  of  the  owner 
of  the  shares,  in  case  of  his  or  her  death  before  the  transfer; 
and  if  such 

Affidavit  or  other  evidence  or  bond  be  not  furnished  when 
required  as  herein  provided,  neither  the  corporation  nor  any 
officer  thereof  shall  be  liable  for  refusing  to  enter  the  trans- 
fer on  the  books  of  the  corporation. 

History:      Enacted   March    21,    1872;   amended   March    30,   1874, 
Code  Amdts.  1873-4,  p.  205;  Feb.  16,  1883,  Stats,  and  Amdts.  1883,  ■ 
p.  4.     In  force  Feb.  16,  1883. 

58  C.   426,  428    (referred  to). 

As  to  many  miscellaneous  matters  affecting  coi'porations  gen- 
erally,   see    note    §  283,    ante. 

As  to  whether  bond  must  be  demanded,  see  Kerr's  Cyc.  C.  C. 
§  326,  note. 

§327.  CONTRACTS  TO  RELIEVE  DIRECTORS  FROM 
LIABILITIES  FIXED  BY  COJVSTITUTIOIV  YOID.  Any  con- 
tract or  contracts,  verbal  or  written,  hereafter  made,  whereby 
it  is  sought  directly  or  indirectly  to  relieve  any  director  or 
trustee  of  any  corporation  or  joint  stock  association  from 
any  liability  imposed  by  section  three,  of  article  twelve,  of 
the  constitution  of  California,  are  hereby  declared  to  be  and 
shall  be  null  and  void. 

History:  Enacted  April  12,  1880,  Code  Amdts.  1880,  p.  9.  In 
force  April   12,  1880. 

84  C.  420,  422  (erroneously  cited  for  §3275),  24  P.  316,  317 
(correct  citation). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

§328.  LOST,  ETC.,  CERTIFICATE;  ACTION  FOR  NEW 
CERTIFICATE;  PARTIES;  PROCEDURE.  Whenever  a  cer- 
tificate of  stock  or  of  shares  in  a  corporation  organized  under 
the  laws  of  this  state  has  been  lost,  destroyed  or  wrongfully 
withheld,  the  owner  thereof  may  bring  an  action  against  such 

191 


§  328  CIVIL  CODE.  [Div.I,Pt.IV. 

corporation  in  the  superior  court  of  the  county  in  Avhich  is 
located  its  principal  place  of  business,  for  the  purpose  of 
obtaining  a  new  or  duplicate  certificate.  If  by  the  books  of 
the  corporation  the  stock  stands  in  the  name  of  a  person 
other  than  the  plaintiff,  or  if  by  such  books  it  appears  that 
some  other  person  claims  or  has  some  rights,  title,  or  interest 
in,  or  lien  upon,  such  stock,  all  such  persons  must  be  made 
parties  defendant  with  the  corporation. 

[Summons  and  notice.]  Summons  must  be  issued  and 
served  as  in  other  civil  actions,  and  in  addition  thereto,  the 
court  must  direct  its  clerk  to  issue  and  cause  to  be  published, 
at  least  once  a  week  for  four  successive  weeks,  in  some  news- 
paper published  in  the  county,  a  notice  setting  forth  the  pend- 
ency of  the  action,  the  names  of  the  parties  thereto,  the  court 
in  which  it  is  pending,  the  name  of  the  corporation  issuing 
the  stock,  the  number  of  the  certificate  and  the  number  of  the 
shares,  the  name  of  the  person  mentioned  as  stockholder  in 
the  certificate,  and  notifying  all  persons  claiming  said  shares, 
or  any  of  them,  or  any  interest  or  lien  therein  or  thereupon, 
to  be  and  appear  before  the  court  at  a  time  and  place  to  be 
designated  in  the  notice  not  less  than  thirty  days  from  the 
first  publication  thereof,  then  and  there  to  show  cause  why 
a  new  certificate  should  not  be  directed  to  be  issued  to  the 
plaintiff,  and  to  set  forth  their  rights  in  or  claim  to  such 
shares. 

[Proceeding  on  answer — Judgment.]  If  any  one  appears 
and  answers  or  intervenes  in  the  action,  it  must  proceed  to 
trial  as  in  other  civil  cases,  and  the  court  must  enter  judg- 
ment as  from  the  facts  established  may  be  proper;  but  if  no 
one  appears  within  the  time  designated  in  such  notice,  nor 
within  the  time  allowed  by  law  after  the  service  of  such 
summons,  the  court  must  hear  such  evidence  as  may  be 
offered  in  support  of  the  allegations  of  the  complaint,  and 
make  and  file  its  decision  thereon,  and  thereupon  may  enter 
its  judgment  canceling  the  lost,  destroyed  or  wrongfully  with- 
held certificate  and  directing  the  corporation,  upon  payment 
to  it  of  all  costs  incurred  by  it  in  the  premises  and  without 

192 


Tit.I,ch.II,art.I.]  BURNED   bonds.  §329 

costs  against  the  corporation,  to  issue  to  the  plaintiff  a  new 
or  duplicate  certificate. 

After  the  issuing  of  a  new  certificate  by  the  corporation 
pursuant  to  any  judgment  in  such  action,  no  action  can  ever 
be  maintained  by  any  person  against  the  corporation  in  ref- 
erence to  said  lost  or  destroyed  certificate  or  the  shares  repre- 
sented thereby,  and  thereafter  any  such  action  is  forever 
barred  as  against  the  corporation. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
500,   501. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

§329.  BURNED  BONDS,  PEOCEDURE  TO  OBTAIN 
DUPLICATES.  Whenever  a  bond  or  bonds  of  a  corporation 
organized  under  the  laws  of  this  state  or  of  any  other  state, 
or  any  territory  of  the  United  States  has  or  have  been  lost 
or  destroyed  in  this  state  by  fire,  earthquake,  or  other  calam- 
ity, the  owner  thereof  may  bring  an  action  against  such  cor- 
poration and  the  trustee  or  mortgagee  of  such  bonded  indebt- 
edness in  the  superior  court  of  the  county  in  which  such  bond 
or  bonds  were  lost  or  destroyed,  or  in  which  owner  resides, 
or  in  which  is  located  the  principal  place  of  business  of  such 
corporation  for  the  purpose  of  obtaining  a  new  or  duplicate 
bond  or  bonds.  If  said  bond  or  bonds  stand  in  the  name  of, 
or  are  registered  in  the  name  of  a  person  other  than  the 
plaintiff,  or  if  it  appears  by  the  books  of  the  corporation  that 
any  other  person  claims  or  has  some  right,  title,  interest  in, 
or  lien  upon  such  bond  or  bonds,  all  such  persons  must  be 
made  parties  defendant  with  the  corporation  and  the  trustee 
and  mortgagee. 

[Form  of  summons.]  Summons  must  be  issued  and  served 
as  in  other  civil  actions  and  in  addition  thereto  the  court 
must  direct  its  clerk  to  issue  and  cause  to  be  published  at 
least  once  a  week,  for  four  successive  weeks,  in  some  news- 
paper published  in  the  county  a  notice  setting  forth  the  pend- 
ency of  the  action,  the  names  of  the  parties  thereto,  the  court 
in  which  it  is  pending,  the  name  of  the  corporation  which  had 
Kerr's    C.    C— 7  193 


§  329  CIVIL  CODE.  [Div.I.Pt.IV. 

issued  the  bond  or  bonds,  the  number  of  said  bond  or  bonds, 
if  any,  and  the  amount  thereof,  and  the  person  in  whose  name 
the  same  stands  or  is  registered,  and  notifying  all  persons 
claiming  said  bond  or  bonds,  or  any  of  them  or  any  interest 
or  lien  therein  or  thereupon,  to  be  and  appear  before  the 
court  at  a  time  and  place  to  be  designated  in  the  notice,  not 
less  than  thirty  days  from  the  first  publication  thereof,  then 
and  there  to  show  cause  why  a  new  bond  or  bonds  should 
not  be  directed  to  be  issued  to  the  plaintiff  and  to  set  forth 
their  rights  in,  or  claims  to  such  bond  or  bonds.  If  any  one 
appears  and  answers  or  intervenes  in  the  action  it  must  pro- 
ceed to  trial  as  in  other  civil  cases  and  the  court  must  enter 
judgment  as  from  the  facts  established  may  be  proper;  but 
if  no  one  appears  within  the  time  designated  in  said  notice, 
nor  within  the  time  allowed  by  law  after  the  service  of  such 
summons,  the  court  must  hear  such  evidence  as  may  be 
offered  in  support  of  the  allegations  of  the  complaint  and 
make  and  file  its  decision  thereon. 

[Entry  of  judgment — Indemnity.]  And  thereupon  may 
enter  its  judgment  canceling  the  lost  or  destroyed  bond  or 
bonds  and  directing  such  corporation,  upon  payment  to  it 
of  all  costs  incurred  by  it  in  the  premises,  and  upon  payment 
to  it  of  the  money  required  and  necessary  to  re-issue  new 
bond  or  bonds  and  without  costs  against  the  corporation  or 
other  defendant,  mortgagee  or  trustee;  to  issue  to  the  plain- 
tiff a  new  or  duplicate  bond  or  bonds  upon  the  said  plaintiff 
giving  proper  indemnity  to  the  said  corporation  and  the  said 
mortgagee  or  trustee. 

Hl-Htory:  Enacted  March  6,  1907,  Stats,  and  Amdts.  1907,  p. 
116,  Kerr's  Stats,  and  Amdts.  1906-7,  p.   404. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 


194 


Tit.I,ch.II,art.II.]  ASSESSMENT    OF    STOCK.  §331 

ARTICLE  II. 

ASSESSMENT  -OF  STOCK. 

§  331.  Assessments,   how  levied. 

§  332.  Limitation — How  levied. 

§  333.  Levy    of   assessment — Old   assessment    remaining-   unpaid. 

§  334.  Wliat  order  sliall  contain. 

§  335.  Notice  of  Assessment — ^Form. 

§  336.  Publication  and  service  of  notice. 

§  337.  Delinquent  notice — Form. 

§  338.  Contents  of  notice. 

§  339.  How  published. 

§  340.  Jurisdiction  acquired,  how. 

§  341.  Sale  to  be  by  public  auction. 

§  342.  Highest  bidder  to   be  purchaser. 

§  343.  In   default  of  bidders,  corporation   may  purchase. 

§  344.  Disposition  of  stock  purchased  by  corporation. 

§  345.  Extension   of  time  of  delinquent  sale    [notice]. 

§  346.  Assessments  shall  not  be  invalidated. 

§  347.  Action  for  recovery  of  stock,  and  limitation  thereof. 

§  348.  Proofs  of  publication  and  sale. 

§  349.  Waiver  of  sale — Action  to  recover  assessment. 

§331.  ASSESSMENTS,  HOW  LEVIED.  The  directors  of 
any  corporation  formed  or  existing  under  the  laws  of  this 
state,  after  one-fourth  of  its  capital  stock  has  been  subscribed, 
may,  for  the  purpose  [1]  of  paying  expenses,  [2]  conducting 
business,  or  [3]  paying  debts,  levj'  and  collect  assessments 
upon  the  subscribed  capital  stock  thereof,  in  the  manner  and 
form  and  to  the  extent  provided  herein. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   206. 

See  Kerr's  Cyc.  C.  C.  for  73  pars,  annotation. 

65  C.  193,  194  (construed),  195,  196  (construed  with  §§  332,  333), 
200  (applied),  209  (referred  to  in  dis.  op.),  210  (construed  in 
dis.  op.),  3  P.  661,  662,  666,  802;  80  C.  375,  377,  22  P.  189,  190 
(construed  and  applied);  82  C.  600,  602  (erroneously  cited),  and 
in  23  P.  134,  135  is  erroneously  cited  to  take  place  of  §  537.  A 
corporation  may  give  credit  for  its  stock  as  well  as  for  any 
other  property  sold  by  it,  but  there  is  no  lien,  in  this  state,  in 
favor  of  a  corporation,  for  unpaid  instalments  of  subscriptions 

195 


§  331  CIVIL  CODE.  [Div.I.Pt.IV. 

for  stock;  92  C.  47,  50,  27  A.  S.  91,  28  P.  54,  55  (construed  with 
§5  art.  6  constitution);  101  C.  70,  80,  35  P.  349,  350  (construed); 
108  C.  490,  492,  41  P.  487  (construed  and  applied);  109  C.  571, 
588,  42  P.  225  (construed  with  other  sections);  116  C.  260,  263, 
48  P.  65  (construed  and  applied);  126  C.  582,  586,  59  P.  136 
(applied);  127  C.  72,  82,  59  P.  319  (referred  to);  129  C.  293,  296, 
61  P.  939  (referred  to  in  discussion);  133  C.  64,  66,  65  P.  143 
(construed);  135  C.  628,  632,  67  P.  1084  (applied);  141  C.  221, 
227,  74  P.  754  (applied  to  expenses  of  water  system);  145  C. 
696,  700,  701,  702,  79  P.  441  (applied  to  assessment  levied  by 
directors  of  a  savings  bank);  146  C.  699,  706,  81  P.  17  (provision 
that  one  fourth  of  the  capital  stock  must  be  subscribed,  how 
satisfied);  2  C.  A.  122,  136,  83  P.  62  (construed  with  other  sec- 
tions as  constituting-  terms  of  contract);  4  C.  A.  505,  507,  88 
P.  506  (what  is  essential  to  recovery  of  judgment  for  assess- 
ment);  5  F.    403,   410    (cited). 

As   to   assessments    on    paid-up    stock,    see    26    Encyc.    L.    923; 
also    45   L.    647;    76   A.   S.    132-135. 

As    to    assessment    of    stock    Issued    as   paid    up,    see    76    A.    S. 
134-136. 

As  to  assessments  to  pay  instalments  on  subscription  to  cor- 
poration stock,  see  81  A.  D.   393-395. 

As    to    assessments    under    statute    on    paid-up    stock    and    the 
construction  of  such   statutes,   see   26  Encyc.  L.   923. 

As  to  definition  of  assessment  of  stock,  see  76  A.  S.  126. 

As  to  difference  between  assessments  of  stock  and  calls  upon 
stock,  see  76  A.  S.   127. 

As  to  effect  of  assessment  on  stockholders  made  under  order 
of  the  court  in  another  state,  see  34  L.   694. 

As  to  effect   of  nominal   payment  for   shares   on   bonus   stock, 
see    38    L.    490. 

As    to    enforcement    of   assessment    by    action    against    stock- 
holder, see  Kerr's  Cyc.  C.  C.  §  349  and  note. 

As  to  enforcement  of  assessment  by  means  of  sale,  see  Kerr's 
Cyc.   C.   C.    §  334  and   note. 

As   to   existence   of  lien   as   restraint   upon    alienation,    see    57 
A.   S.   393-396. 

As  to  liability  of  stockholders  to  assessments,  see  4  L.   232. 

As   to   lien,   see   Kerr's   Cyc.   C.   C.    §  331,   note   pars.    67-73    this 
note. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,   see    note    §  283,    ante. 

As  to  power  of  corporations  to  assess  their  stockholders,  see 
76  A.  S.   126-136. 

As  to  power  of  courts  to  compel  levy  of  assessments  for  pay- 
ment of  subscriptions,  see  100  A.  D.  552-557. 

As  to  power  to  sell  stock  to  procure  payment  of  assessment, 
see  Kerr's  Cyc.  C.  C.  §  334  and  note. 

196 


.Tit.I,ch.II,art.II.]  limitation.  §332 

As  to  right  of  action  to  enforce  collection  of  assessment,  see 
Kerr's  Cyc.  C.  C.  §  349  and  note. 

As  to  sole  right  of  director  to  make  assessments  of  stock, 
see   76   A.   S.   127,   128. 

As  to  validity  of  agreement  not  to  levy  for  assessment  of  un- 
paid subscription,  see  57  A.  S.  67. 

§332.  LIMITATION— HOW  LEVIED.  No  one  assessment 
must  exceed  ten  per  cent  of  the  amount  of  the  capital  stock 
named  in  the  articles  of  incorporation,  except  in  the  cases 
in  this  section  otherwise  provided  for,  as  follows: 

1.  If  the  whole  capital  of  a  corporation  has  not  been  paid 
up,  and  the  corporation  is  unable  to  meet  its  liabilities  or  to 
satisfy  the  claims  of  its  creditors,  the  assessment  may  be  for 
the  full  amount  unpaid  upon  the  capital  stock;  or  if  a  less  . 
amount  is  sufficient,  then  it  may  be  for  such  a  percentage  as 
will  raise  that  amount; 

2.  The  directors  of  railroad  corporations  may  assess  the 
capital  stock  in  instalments  of  not  more  than  ten  per  cent 
per  month,  unless  in  the  articles  of  incorporation  it  is  other- 
wise provided; 

3.  The  directors  of  fire  or  marine  insurance  corporations 
may  assess  such  a  percentage  of  the  capital  stock  as  they 
deem  proper. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

65  C.  193,  194,  195,  196  (construed  with  §331),  199  (referred 
to  in  discussion),  200  (construed  in  dis.  op.),  201  (construed 
with  §323  in  dis.  op.),  202,  209,  210  (referred  to  in  dis.  op.),  3 
P.  661,  802;  93  C.  538,  549,  550,  27  A.  S.  215,  29  P.  126  (con- 
strued as  not  applying);  99  C.  9,  14,  33  P.  741,  742  (construed); 
107  C.  447,  450,  40  P.  542  (applied);  129  C.  293,  296,  61  P.  939 
(construed  and  applied  with  §§331-349);  145  C.  696,  701,  702, 
707,  709,  710,  79  P.  441  (applied  to  assessment  levied  by  directors 
of  savings  bank);  2  C.  A.  122,  136,  83  P.  62  (construed  with 
other  sections  as  constituting  terms  of  contract);  2  C.  A.  445, 
448,  84  P.  329  (validity  of  "call,"  by  directors,  for  unpaid  por- 
tion of  capital  stock). 

As  to  its  construction  with  §  331,  see  Kerr's  Cyc.  C.  C.  §  331 
pars.  22-25. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,  see  note  §  283,  ante. 

As  to  purposes  for  which  assessments  are  allowed,  see  26 
Encyc.  L.  924;  10  Cyc.  484;  and  ante  §  331,  note  part  IV. 

197 


§§  333, 334  CIVIL  CODE.  [Div.I.Pt.IV. 

§333.  LEVY  OF  ASSESSMENT— OLD  ASSESSMENT 
REMAINING}  UNPAID.  No  assessment  must  be  levied  while 
any  portion  of  a  previous  one  remains  unpaid,  unless: 

1.  The  power  of  the  corporation  has  been  exercised  in 
accordance  with  the  provisions  of  this  article  for  the  purpose 
of  collecting  such  previous  assessment; 

2.  The  collection  of  the  previous  assessment  has  been 
enjoined;  or 

3.  The  assessment  falls  within  the  provisions  of  either  the 
first,  second,  or  third  subdivision  of  section  332. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for   10   pars,  annotation. 

65  C.  193,  194,  195,  196  (construed  as  limiting  §  332),  201  (con- 
strued with  §  332  in  dis.  op.),  3  P.  661,  667,  802;  129  C.  293,  296,  61 
P.  939  (construed  with  other  sections);  66  P.  660,  662  (construed 
and  applied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§334.  WHAT  ORDER  SHALL  CONTAIN.  Every  order 
levying  an  assessment  must  [1]  specify  the  amount  thereof, 
when,  to  whom,  and  where  payable;  [2]  fix  a  day,  subsequent 
to  the  full  term  of  publication  of  the  assessment  notice,  on 
which  the  unpaid  assessments  shall  be  delinquent,  not  less 
than  thirty  nor  more  than  sixty  days  from  the  time  of  making 
the  order  lev>'ing  the  assessment;  and  [3]  a  day  for  the  sale 
of  delinquent  stock,  not  less  than  fifteen  nor  more  than  sixty 
days  from  the  day  the  stock  is  declared  delinquent. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

129  C.  293,  296,  61  P.  939  (construed  with  other  sections);  108 
C.  490,  493,  41  P.  487  (construed  and  applied,  erroneously  cited 
as  §324);  6  C.  A.  356,  358,  92  P.  194  (section  is  part  of  charter 
of  corporation,  and  the  order  levying  the  assessment  must  spe- 
cify where  the  assessment  is  payable). 

As  to  action  to  recover  stock,  see  Kerr's  Cyc.  C.  C.  §  347  and 
note. 

As  to  construction  of  this  section  along  with  §  331,  see  Kerr's 
Cyc.   C.   C.   §  331   and   note. 

As  to  effect  of  forfeiture  of  stock  and  non-payment  of  assess- 
ments, see  26  Encyc.  L.  930;  10  Cyc.  503. 

198 


Tit.I,Ch.II,art.II.]        ASSESSMENT  NOTICE.  §§  335,  336 

As  to  forfeiture  of  stock,  see  26  Encyc.  L.  927-929;  10  Cyc. 
499;    68  A.   D.   83;    27   L.    305-321;   45   L>.   365. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  payment  and  time  and  place  of  payment  of  assess- 
i      ments,  see  26  Encyc.  L.  925;  10  Cyc.  486. 

§  335.  NOTICE  OF  ASSESSMENT— FORM.  Upon  the  mak- 
ing of  the  order,  the  secretary  shall  cause  to  be  published  a 
notice  thereof,  in  the  following  form: 

(Name  of  corporation  in  full.  Location  of  principal  place 
of  business.)  Notice  is  hereby  given,  that  at  a  meeting  of 
the  directors,  held  on  the  (date),  an  assessment  of  (amount) 
per  share  was  levied  upon  the  capital  stock  of  the  corpora- 
tion, payable  (when,  to  whom,  and  where).  Any  stock  upon 
which  this  assessment  shall  remain  unpaid  on  the  (day 
fixed)  will  be  delinquent  and  advertised  for  sale  at  public 
auction,  and,  unless  payment  is  made  before,  will  be  sold 
on  the  (day  appointed),  to  pay  the  delinquent  assessment, 
together  with  costs  of  advertising  and  expenses  of  sale. 

(Signature  of  secretary,  with  location  of  office.) 

HLstory:     Enacted  March   21,  1872. 

See  Kerr's  Cj'c.  C.  C.  for  6  pars,  annotation. 

101  C.  70,  81,  35  P.  349,  350  (construed  and  applied);  129  C. 
293,  296,  61  P.  939   (construed  with  other  sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  notice  not  being  a  prerequisite  to  section,  see  81  A.  D. 
394. 

§336.    PUBLICATIOX  AND   SERVICE   OF   NOTICE.     The 

notice  must  [1]  be  personally  served  upon  each  stockholder, 
or,  in  lieu  of  personal  service,  must  [2]  be  sent  through  the 
mail,  [a]  addressed  to  each  stockholder  at  his  place  of  resi- 
dence, if  known,  and  if  not  known,  at  the  place  where  the 
principal  office  of  the  corporation  is  situated,  and  [b]  be  pub- 
lished once  a  week,  for  four  successive  weeks,  in  [c]  some 
newspaper  of  general  circulation  and  devoted  to  the  publica- 
tion of  general  news,  published  at  the  place  designated  in 
the  articles  of  incorporation  as  the  principal  place  of  busi- 

199 


§  337  CIVIL  CODE.  [Div.I.Pt.IV. 

ness,  and  also  [d]  in  some  newspaper  published  in  the 
county  in  which  the  works  of  the  corporation  are  situated,  if 
a  paper  be  published  therein.  If  the  works  of  the  corporation 
are  not  within  a  state  or  territory  of  the  United  States,  pub- 
lication in  a  paper  of  the  place  where  they  are  situated  is  not 
necessary.  If  there  be  no  newspaper  published  at  the  place 
designated  as  the  principal  place  of  business  of  the  corpora- 
tion, then  the  publication  must  be  made  in  some  other  news- 
paper of  the  county,  if  there  be  one,  and  if  there  be  none,  then 
in  a  newspaper  published  in  an  adjoining  'county. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  206. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

129  C.   293,   296,   61   P.   939    (construed  with  other  sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  notice  of  assessment,  see  Kerr's  Cyc.  C.  C.  §§  333,  334 
and  note,  §  337  and  note. 

§337.  DJILINQUENT  NOTICE— FORM.  If  any  portion  of 
the  assessment  mentioned  in  the  notice  remains  unpaid  on 
the  day  specified  therein  for  declaring  the  stock  delinquent, 
the  secretary  must,  unless  otherwise  ordered  by  the  board 
of  directors,  cause  to  be  published  in  the  same  papers  in 
which  the  notice  hereinbefore  provided  for  shall  have  been 
published,  a  notice  substantially  in  the  following^  form : 

(Name  in  full.  Location  of  the  principal  place  of  busi- 
ness.) Notice. — There  is  delinquent  upon  the  following 
described  stock,  on  account  of  assessment  levied  on  the 
(date),  (and  assessments  levied  previous  thereto,  if  any), 
the  several  amounts  set  opposite  the  names  of  the  respect- 
ive shareholders,  as  follows:  (Names,  number  of  cer- 
tificate, number  of  shares,  amount.)  And  in  accordance 
with  law  (and  an  order  of  the  board  of  directors,  made 
on  the  [date],  if  any  such  order  shall  have  been  made), 
so  many  shares  of  each  parcel  of  such  stock  as  may  be 
necessary,  will  be  sold,  at  the  (particular  place),  on  the 
(date),  at   (the  hour)   of  such  day,  to  pay  delinquent  assess- 

200 


Tit.I,ch.II,art.II.]     CONTENTS  OF  NOTICE.  §§338,339 

ments  thereon,  together  with  costs  of  advertising  and  expenses 
of  the  sale. 

(Name  of  the  secretary,  with  location  of  office.) 

History:  Enacted  March  21,  1872,  founded  upon  §  2  Act  April 
4,    1864,   Stats.    1863-4,   pp.    492-493. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

101  C.  70,  76,  35  P.  349  (construed  with  other  sections);  108 
C.  490,  493,  41  P.  487  (construed  with  other  sections);  109  C. 
1,  8,  41  P.  809  (construed  and  applied);  129  C.  293,  296,  61  P. 
939    (construed  with  other  sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§338.  CONTENTS  OF  NOTICE.  The  notice  must  specify 
[1]  every  certificate  of  stock,  [2]  the  number  of  shares  it 
represents,  and  [3]  the  amount  due  thereon,  except  where 
certificates  may  not  liaye  been  issued  to  parties  entitled 
thereto,  in  which  case  [1]  the  number  of  shares  and  [2] 
amount  due  thereon,  together  with  [3]  the  fact  that  the  cer- 
tificates for  such  shares  have  not  been  issued,  must  be  stated. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

101  C.  70,  76,  35  P.  349  (construed  with  other  sections);  129 
C.  293,  296,  61  P.  939   (referred  to  with  other  sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  339.  HOW  PUBLISHED.  The  notice,  wlien  published  in 
a  daily  paper,  must  be  published  for  ten  days,  excluding  Sun- 
days and  holidays,  previous  to  the  day  of  sale.  When  pub- 
lished in  a  weekly  paper,  it  must  be  published  in  each  issue 
for  two  weeks  previous  to  the  day  of  sale.  The  first  publica- 
tion of  all  delinquent  sales  must  be  at  least  fifteen  days  prior 
to  the  day  of  sale. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

101  C.  70,  76,  35  P.  249  (construed  with  other  sections);  108 
C.  490,  493,  41  P.  487  (construed  with  other  sections);  129  C. 
293,  296,  61  P.  939   (referred  to  with  other  sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

201 


§§  340-343  CIVIL  CODE.  [Div.I,Pt.IV. 

§  340.  JURISDICTION  ACQUIRED,  HOW.  By  the  publica- 
tion of  the  notice,  the  corporation  acquires  jurisdiction  to 
sell  and  convey  a  perfect  title  to  all  of  the  stock  described 
in  the  notice  of  sale  upon  which  any  portion  of  the  assess- 
ment or  costs  of  advertising  remains  unpaid  at  the  hour 
appointed  for  the  sale,  but  must  sell  no  more  of  such  stock 
than  is  necessary  to  pay  the  assessments  due  and  costs  of 
sale. 

HLstory:     Enacted  March  21,  1872, 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  341.  SALE  TO  BE  BY  PUBLIC  AUCTION.  On  the  day, 
at  the  place,  and  at  the  time  appointed  in  the  notice  of  sale, 
the  secretary  must,  unless  otherwise  ordered  by  the  directors, 
sell  or  cause  to  be  sold  at  public  auction,  to  the  highest  bid- 
der for  cash,  so  many  shares  of  each  parcel  of  the  described 
stock  as  may  be  necessary  to  pay  the  assessment  and  charges 
thereon,  according  to  the  terms  of  sale;  if  payment  is  made 
before  the  time  fixed  for  sale,  the  party  paying  is  only 
required  to  pay  the  actual  cost  of  advertising,  in  addition  to 
the  assessment. 

History:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  342.    HIGHEST  BIDDER  TO  BE  THE  PURCHASER.  The 

person  offering  at  such  sale  to  pay  the  assessment  and  costs 
for  the  smallest  number  of  shares  or  fraction  of  a  share  is 
the  highest  bidder,  and  the  stock  purchased  must  be  trans- 
ferred to  him  on  the  stock-books  of  the  corporation,  on  paj''- 
ment  of  the  assessment  and  costs. 

History:     Enacted  March  21,  1872. 

§343.  IN  DEFAULT  OF  BIDDERS,  CORPORATION  MAY 
PURCHASE.  If,  at  the  sale  of  stock,  no  bidder  offers  the 
amount  of  the  assessments  and  costs  and  charges  due,  the 
same  may  be   [1]   bid  in  and  purchased  by  the  corporation, 

202 


Tit.I,ch.II,art.II.]      purchase  OF  stock.  §§344,345 

through  the  secretary,  president,  or  any  director  thereof,  [2] 
at  the  amount  of  the  assessments,  costs,  and  charges  due;  and 
[3]  the  amount  of  tlie  assessments,  costs,  and  charges  must 
be  credited  as  paid  in  full  on  the  books  of  the  corporation, 
and  [4]  entry  of  the  transfer  of  the  stock  to  the  corporation 
must  be  made  on  the  books  thereof.  While  the  stock  remains 
the  property  of  the  corporation  it  is  not  assessable,  nor  must 
any  dividends  be  declared  thereon;  but  all  assessments  and 
dividends  must  be  apportioned  upon  the  stock  held  by  the 
stockholders  of  the  corporation. 

History:     Enacted  March   21,  1872. 

57  C.  396,  398  (cited  in  holding-  that  neither  allegations  nor 
evidence  proved  ownership  of  stock,  or  that  disposition  thereof 
by  sale  was  authorized  by  by-laws,  or  by  vote  of  stockholders). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§344.  DISPOSITION  OF  STOCK  PURCHASED  BY  COR- 
PORATION. All  purchases  of  its  own  stock  made  by  any 
corporation  vest  the  legal  title  to  the  same  in  the  corporation; 
and  the  stock  so  purchased  is  held  subject  to  the  control  of 
the  stockholders,  who  may  make  such  disposition  of  the 
same  as  they  deem  fit,  in  accordance  with  the  by-laws  of 
the  corporation  or  vote  of  a  majority  of  all  the  remaining 
shares.  Whenever  any  portion  of  the  capital  stock  of  a  cor- 
poration is  held  by  the  corporation  by  purchase,  a  majority 
of  the  remaining  shares  is  a  majority  of  the  stock  for  all  pur- 
poses of  election  or  voting  on  any  question  at  a  stockholders' 
meeting. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation 

57  C.  396,  398  (cited);  72  C.  32,  33,  34,  13  P.  65  (construed  and 
applied);  109  C.  571,  588,  42  P.  225  (construed  and  applied  with 
other    sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§345.    EXTENSION  OF  TIME  OF  DELINQUENT  SALE— 

[NOTICE].     The  dates  fixed  in  any  notice  of  assessment  or 
notice  of  delinquent  sale,   published  according  to   the  pro- 

203 


§§346,347  CIVIL  CODE.  [Div.I,Pt.IV. 

visions  hereof,  may  be  [1]  extended  from  time  to  time  for  not 
more  than  thirty  days,  by  order  of  the  directors,  entered  on 
the  records  of  the  corporation;  but  no  order  extending  the 
time  for  the  performance  of  any  act  specified  in  any  notice  is 
effectual  unless  [2]  notice  of  such  extension  or  postponement 
is  appended  to  and  published  with  the  notice  to  which  the 
order  relates. 

History:     Enacted  March   21,  1872. 

4  C.  A.  505,  508,  88  P.  506  (construed  as  limiting  right  of  ex- 
tension  of  time  for   sale  to   thirty   days   in   the   aggregate). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§34G.    ASSESSMENTS    SHALL    NOT    BE    INVALIDATED. 

No  assessment  is  invalidated  by  a  failure  to  make  publica- 
tion of  the  notices  hereinbefore  provided  for,  nor  by  the  non- 
performance of  any  act  required  in  order  to  enforce  the  pay- 
ment of  the  same;  but  in  the  case  of  any  substantial  error 
or  omission  in  the  course  of  proceedings  for  collection,  all 
previous  proceedings,  except  the  levying  of  the  assessment, 
are  void,  and  publication  must  be  begun  anew. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

76  C.  26,  28,  17  P.  939,  940  (construed  and  applied);  108  C. 
490,  495,  41  P.  487  (construed  and  applied  with  §349);  109  C. 
1,  8,  41  P.  809    (construed  and  applied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  347.  ACTION  FOR  RECOVERY  OF  STOCK,  AND  LIMI- 
TATION  THEREOF.  No  action  must  be  sustained  to  recover 
stock  sold  for  delinquent  assessments,  upon  the  ground  of 
[1]  irregularity  in  the  assessment,  [2]  irregularity  or  [3] 
defect  of  the  notice  of  sale,  or  [4]  defect  or  irregularity  in 
the  sale,  unless  the  party  seeking  to  maintain  such  action 
first  pays  or  tenders  to  the  corporation,  or  the  party  holding 
the  stock  sold,  [1]  the  sum  for  which  the  same  was  sold, 
together  with  [2]  all  subsequent  assessments  which  may 
have  been  paid  thereon  and  [3]  interest  on  such  sums  from 

204 


Tit.I,ch.II,art.II.]  PROOF— waiver.  §§  348, 349 

the  time  they  were  paid;  and  no  such  action  must  be  sus- 
tained unless  the  same  is  [4]  commenced  by  the  filing  of  a 
complaint  and  the  issuing  of  a  summons  thereon  within  six 
months  after  such  sale  was  made. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

76  G.  26,  28,  17  P.  939,  940  (construed  and  applied);  133  C. 
64,  66,   65  P.  143    (construed  and  applied). 

As  to  many  miscellaneous  matters  affecting'  corporations  gen- 
erally, see  note  §  283,  ante. 


§  348.  PROOFS  OF  PUBLICATION  AND  SALE.  The  pub- 
lication of  notice  required  by  this  article  may  be  proved  by 
the  affidavit  of  [1]  the  printer,  [2]  foreman,  or  [3]  principal 
clerk  of  the  newspaper  in  which  the  same  was  published;  and 
the  affidavit  of  tlie  secretary  or  auctioneer  is  prima  facie 
evidence  of  [1]  the  time  and  place  of  sale,  or  [2]  the  quantity 
and  particular  description  of  the  stock  sold,  and  [3]  to  whom, 
and  [4]  for  what  price,  and  [5]  of  the  fact  of  the  purchase 
money  being  paid. 

The  affidavits  must  be  filed  in  the  office  of  the  corporation, 
and  copies  of  the  same,  certified  by  the  secretary  thereof,  are 
prima  facie  evidence  of  the  facts  therein  stated.  Certificates, 
signed  by  the  secretary  and  under  the  seal  of  the  corporation, 
are  prima  facie  evidence  of  the  contents  thereof. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  207. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§349.    WAIVER     OF     SALE.       ACTION     TO     RECOVER 

ASSESSMENT.  On  the  day  specified  for  declaring  the  stock 
delinquent,  or  at  any  time  subsequent  thereto  and  before 
the  sale  of  the  delinquent  stock,  the  board  of  directors  may 
elect  to  waive  further  proceedings  under  this  chapter  for  the 
collection  of  delinquent  assessments,  or  any  part  or  portion 
thereof,  and  may  elect  to  proceed  by  action  to  recover  the 

205 


§  349  CIVIL  CODE.  [Div.I,Pt.IV. 

amount  of  the  assessment  and  the  costs  and  expenses  already 
incurred,  or  any  part  or  portion  thereof. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for   36  pars,   annotation. 

101  C.  70,  76,  77,  35  P.  349  (construed  and  applied);  108  C. 
490,  493,  495,  41  P.  487  (construed  and  applied);  109  C.  1,  5,  41  P. 
809  (cited  in  discussion);  110  C.  632.  635,  52  A.  S.  136.  43  P.  10 
(construed  and  applied);  (C.  March  24,  1900),  60  P.  776,  778 
(applied  and  construed);  129  C.  293,  296,  61  P.  939  (referred  to 
in  other  sections);  145  C.  696,  700,  701,  79  P.  441  (amount  of  as- 
sessment may  be  recovered  by  suit  in  name  of  the  corpora- 
tion); 2  C.  A.  122.  136,  83  P.  62  (construed  with  other  sections 
as  forming  terms  of  contract);  4  C.  A.  505,  507,  88  P.  506  (what 
is  essential  to  recovery  of  judgment  for  assessment);  5  F.  403, 
408,  409,  410,  429  (construed  and  applied,  though  erroneously 
cited  as  C.   C.   P.). 

As  to  actions  and  remedies  for  amounts  due  on  assessments, 
see  26  Encyc.  L.  926;   10  Cyc.  510. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  power  of  court  to  compel  payment  of  calls  of  assess- 
ments,  see  100  A.  D.   552. 

As  to  prerequisites  of  action  for  assessments  of  stock,  see  26 
Encyc.  L.   926;    10  Cyc.    511. 

As  to  right  to  proceed  in  equity  to  compel  payment,  see  100 
A.  D.  553. 

As  to  right  to  sue  upon  contract  for  subscription  before 
issuing   certificate,   see   81   A.   D.    394. 


206 


Tit.I,ch.III,art.I.]      CORPORATE    POWERS.  §354 

CHAPTER  III. 
CORPORATE  POWERS. 

Article  I.  General  Powers,  §§  354-365. 

II.  Records,  §§  377,  378. 

III.  Examinations  of  corporations,  etc.,  §§  382-384. 

IV.  Judgment  Against  and  Sale  of  Corporate  Property, 

§§  388-393. 

ARTICLE  I. 

GENERAL   POWERS. 

§  354.     Powers    of   corporations. 
§  355.     Limitation  of  powers. 
§  356.     Banking  expressly  prohibited. 
§  357       Misnomer  does  not  invalidate  instrument. 
§  358'.     Corporations,  time  in  which  must  be  organized,  and  con- 
tinuance of  business. 
8  359      Increasing    and    diminishing    capital    stock.       [Fictitious 
increase    of    stock    void.]       Bonded    Indebtedness,    how 
created  or  increased. 
§  360      Corporations  may  acquire  real  property,  and  how  much. 
§  36L     Consolidation     of     mining     companies     owning    adjoining 

claims    [repealed]. 
§  361a.     Transfer  of  franchise   of  corporation  not  valid  without 

consent  of  the  stockholders. 
§362.     Amendment   of   articles   or   certificate    of   incorporation- 
Filing,  penalty. 
§  363.     Corporations   to    own    their   own   lots   and   buildings    [re- 
pealed]. .  . 
§363[a].  Correction     of     erroneous     filing     of     incorporation-Peti- 
tion, nature  of — Action  of  court. 
§  364      Corporation  may  transfer  foreign  concessions. 
§  365.     Restoration  of  lost  records,  certificates  of  stock,  etc. 

§  354.    POWERS  OF  COKPORATIONS.    Every  corporation, 
as  such,  has  power: 

1.  Of  succession,  by  its  corporate  name,  for  the  period  lim- 
ited;  and  when  no  period  is  limited,  perpetually; 

2    To  sue  and  be  sued,  in  any  court; 

207 


§  354  CIVIL  CODE.  [Div.T.Pt.IV. 

3.  To  make  and  use  a  common  seal,  and  alter  the  same  at 
pleasure; 

4.  To  purchase,  hold,  and  convey  such  real  and  personal 
estate  as  the  purposes  of  the  corporation  may  require,  not 
exceeding  the  amount  limited  in  this  part; 

5.  To  appoint  such  subordinate  officers  or  agents  as  the 
business  of  the  corporation  may  require,  and  to  allow  them 
suitable  compensation ; 

6.  To  make  by-laws,  not  inconsistent  with  any  existing  law, 
for  the  management  of  its  property,  the  regulation  of  its 
affairs,  and  for  the  transfer  of  its  stock; 

7.  To  admit  stockholders  or  members,  and  to  sell  their 
stock  or  shares  for  the  payment  of  assessments  or  instal- 
ments; 

8.  To  enter  into  any  obligations  or  contracts  essential  to 
the  transaction  of  its  ordinary  affairs,  or  for  the  purposes  of 
the  corporation. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cj^c.  C.  C.  for  118  pars,  annotation. 

52  C.  53,  59,  28  A.  R.  629  (referred  to);  56  C.  61,  63  (construed 
and  applied);  62  C.  69,  104  (referred  to);  63  C.  359,  363,  364  (con- 
strued and  applied);  93  C.  300,  309,  28  P.  1049,  1051  (construed 
with  other  sections);  108  C.  549,  558,  41  P.  495,  29  L.  839  (ap- 
plied); 109  C.  160,  163,  41  P.  855  (construed  and  applied);  116  C. 
410,  414,  415,  48  P.  375  (construed  with  other  sections);  117  C. 
168,  177,  48  P.  1075  (construed  and  applied);  118  C.  131,  138,  50 
P.  269  (construed  and  applied);  126  C.  413,  416,  417,  58  P.  914 
(construed  and  applied);  144  C.  578,  594,  77  P.  1113  (section  ex- 
pressly authorizes  corporation  to  "hold"  land);  1  C.  A.  189,  195, 
81  P.  1029  (cited  as  to  power  of  corporation  to  make  by-laws); 
2  C.  A.  624,  627,  84  P.  271  (cited  as  to  power  of  corporations  to 
make  by-laws). 

As  to  business  being  conducted  by  board  of  directors,  see 
Kerr's  Cyc.  C.  C.  §  305  and  note. 

As  to  compensation  of  directors,  see  Kerr's  Cj'C.  C.  C.  §  305 
and  note. 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  provisions  of  by-laws,  see  Kerr's  Cyc.  C.  C.  §  303  and 
note. 

Railroad  companies — Power  to  acquire  real  estate. — See  Kerr's 
Cyc.  C.  C.  §  465  subds.   2,  3,  7,  §§  474,  477. 

208 


Tit.I,ch.III,art.I.]  LIMIT  OF  POWER.  §§  355-357 

Recording,  amending-,  and  repeal  of  by-laws. — See  Kerr's 
Cyc.  C.  C.  §  304  and  note. 

Sale  of  stock  for  non-payment  of  assessments. — See  Kerr's 
Cyc.  C.  C.  §  331  and  note. 

§355.  LIMITATION  OF  POWERS.  In  addition  to  the 
powers  enumerated  in  the  preceding  section,  and  to  those 
expressly  given  in  that  title  of  this  part  under  which  it  is 
incorporated,  no  corporation  shall  possess  or  exercise  any 
corporate  powers,  except  such  as  are  necessary  to  the  exer- 
cise of  the  powers  so  enumerated  and  given. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

59  C.  22,  24  (cited  as  to  power  of  agent  of  company  to  raise 
money  for  it  and  to  pay  debts);  62  C.  69,  104  (referred  to  in 
connection  with  §  354). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§356.  BANKING  EXPRESSLY  PROHIBITED.  No  corpo- 
ration shall  create  or  issue  bills,  notes,  or  other  evidences  of 
debt,  upon  loans  or  otherwise,  for  circulation  as  mone3\ 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  powers  of  corporation,  see  Kerr's  Cj^c.  C.  C.  §  354  and 
note. 

For  Commissioners'  comment  on  this  section  see  Kerr's  Cyc. 
C.  C.   §  356,  note. 

§357.    MISNOMER    DOES    NOT    INVALIDATE    INSTRU- 
MENT.    The  misnomer  of  a  corporation  in  any  written  instru- 
ment does  not  invalidate  the  instrument,  if  it  can  be  reason- 
ably ascertained  from  it  what  corporation  is  intended. 
History:     Enacted  March  21,  1872. 

See  Kerr's   Cyc.  C.  C.   for   3  pars,   annotation. 

93  C.  300,  314,  28  P.  1049,  1052  (applied);  138  C.  183,  194,  94 
A.  S.  28,  71  P.  93   (applied);  2  C.  A.  436,  441,  83  P.  1077   (applied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

209 


§  358  CIVIL  CODE.  [Div.LPt.IV. 

§358.  CORPOKATIONS,  TIME  IN  WHICH  MUST  BE 
ORGANIZED,  AND  CONTINUANCE  OF  BUSINESS.  If  a  cor- 
poration does  not  organize  and  [1]  commence  the  transaction 
of  its  business,  or  [2]  the  construction  of  its  works  within 
one  year  from  the  date  of  its  incorporation,  or  if,  after  its 
organization  and  commencement  of  its  business,  it  [3]  shall 
lose  or  dispose  of  all  its  property,  and  [-I]  shall  fail  for  a 
period  of  two  years  to  elect  officers  and  transact,  in  regular 
order,  the  business  of  said  corporation,  its  corporate  powers 
sliaH  cease,  and  the  said  corporation  may  be  dissolved  at 
the  instance  of  any  creditor  of  the  said  corporation,  at  the 
suit  of  the  state,  on  the  information  of  the  attorney-general, 
but  the  resumption  of  Its  business  in  good  faith  by  such  cor- 
poration prior  to  the  commencement  thereof  shall  be  a  bar 
to  such  suit. 

[Collateral  attack  not  allowed.]  The  due  incorporation  of 
any  company  claiming  in  good  faith  to  be  a  corporation  under 
this  part,  and  doing  business  as  such,  or  its  right  to  exercise 
corporate  powers,  shall  not  be  inquired  into  collaterally  in 
any  private  suit  to  which  such  de  facto  corporation  may  be 
a  party;  but  such  inquiry  may  be  had  at  the  suit  of  the  state 
on  information  of  the  attorney-general;  provided,  however, 
as  to  any  company  claiming  in  good  faith  to  be,  and  which 
has  been  doing  business  for  ten  consecutive  years  as  a  cor- 
poration, no  such  inquiry  shall  be  made  either  by  the  state 
or  by  any  person  whatsoever. 

History:  Enacted  March  21,  1S72;  amended  March  23,  1901, 
Stats,  and  Amdts.   1900-1,  p.   632. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

64  C.  69,  72,  28  P.  496,  497  (applied);  77  C.  360,  372,  18  P.  85, 
86,  19  P.  693,  2  L.  92  (cited  in  discussion);  80  C.  181,  186,  22  P. 
76  (applied);  82  C.  184,  186,  23  P.  45,  46  (applied);  97  C.  276,  277, 
33  A.  S.  172,  32  P.  236  (applied);  102  C.  55,  64,  65,  66  (construed 
and  applied),  67  (cited),  41  A.  S.  151,  36  P.  368;  106  C.  302,  310, 
39  P.  617  (applied);  109  C.  571,  601,  42  P.  225,  226  (referred  to  in 
dis.  op.);  126  C.  541,  545,  58  P.  1049  (applied);  131  C.  153,  154, 
63  P.  163  (applied);  151  C.  504,  507,  508,  91  P.  258  (concluding 
clause  of  section,  as  amended  in  1901,  construed  and  applied  to 

210 


Tit.I,ch.III,art.I.]     increasing  capital.  §359 

a  corporation  which  had  been  in  existence  for  more  than  ten 
years  prior  to  such  amendment). 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

§359.  IXCEEASING  AND  DIMINISHING  CAPITAL 
STOCK.  [FICTITIOUS  INCREASE  OF  STOCK  VOID.] 
BONDED  INDEBTEDNESS,  HOW  CREATED  OR  INCREASED. 

No  corporation  shall  issue  stocks  oi'  bonds  except  for  money 
paid,  labor  done  or  property  actually  received,  and  all  ficti- 
tious increase  of  stock  or  indebtedness  is  void.  Every  corpo- 
ration may  increase  or  diminish  its  capital  stock,  and  every 
corporation,  or  two  or  more  corporations,  may  create  or 
increase  its  or  their  bonded  indebtedness,  subject  to  the  fol- 
lowing provisions: 

1.  [How  capital  stock  may  be  increased  or  diminished.]  The 
capital  stock  of  a  corporation  may  be  increased  or  dimin- 
ished at  a  meeting  of  the  stockholders  by  a  vote  representing 
at  least  two-thirds  of  the  subscribed  or  issued  capital  stock, 
or  in  the  manner  otherwise  in  this  section  provided;  when  by 
meeting  as  aforesaid,  then  such  meeting  must  be  called  by 
the  board  of  directors  or  trustees,  and  notice  must  be  given 
by  publication  in  a  newspaper  published  in  the  county  or 
city  and  county  where  the  principal  place  of  business  of  the 
corporation  is  located,  or  if  there  be  none  published  in  said 
county  or  city  and  county,  then  in  a  newspaper  published  in 
an  adjoining  county,  or  city  and  county,  such  paper  to  be 
designated  by  the  board  of  directors  or  trustees  in  the  order 
calling  for  the  meeting;  provided,  however,  that  where  the 
articles  of  incorporation  provide  for  two  or  moi-e  kinds  of 
capital  stock,  no  increase  or  reduction  of  capital  stock  shall 
be  made  without  the  assent  of  two-thirds  of  all  the  sub- 
scribed stock,  and  in  making  such  increase  or  reduction,  the 
assent  shall  identify  the  particular  class  or  classes  of  stock 
to  be  increased  or  reduced,  and  the  amounts  apportioned  to 
each. 

2.  [What  notice  must  specify.]  The  notice  must  specify 
the  object  of  the  meeting  and  the  amount  to  which  it  is  pro- 
posed to  increase  or  diminish  the  capital  stock,  the  time  and 

211 


§359  CIVIL   CODE.  [Div.I.PtlV. 

place  of  holding  the  meeting,  which  latter  must  be  at  the 
principal  place  of  business  of  the  corporation  and  at  the 
building  where  the  board  of  directors  or  trustees  usually 
meet.  The  notice  herein  provided  must  be  published  once  a 
week  for  at  least  sixty  days.  The  capital  stock  cannot  be 
diminished  to  an  amount  less  than  the  indebtedness  of  the 
corpoiation. 

3.  [How  bonded  indebtedness  may  be  created  or  increased.] 
The  bonded  indebtedness  of  a  corporation  may  be  created  or 
increased  by  a  vote  of  the  stockholders  representing  at  least 
two-thirds  of  the  subscribed  or  issued  capital  stock  at  a 
meeting  called  by  the  board  of  directors  or  trustees,  and  after 
notice  of  the  time  and  place  of  the  meeting  published  in  the 
same  manner  and  for  the  time  prescribed,  which  notice  shall 
state  the  amount  of  the  bonded  indebtedness  which  it  is  pro- 
posed to  create,  or  the  amount  to  which  it  is  proposed  to 
increase  such  indebtedness,  and  shall  in  all  other  respects 
contain  the  same  matters  as  are  above  provided  and  set  forth 
in  the  notice  of  meeting  to  increase  or  diminish  the  capital 
stock;  or  such  original  creation  of  bonded  indebtedness  may 
be  made  as  otherwise  in  this  section  provided. 

4.  [Notification  to  stockholders.]  In  addition  to  the  notice 
by  publication,  when  proceedings  are  to  be  had  hereunder  at 
a  meeting  of  stockholders,  the  secretary  of  the  corporation 
shall  also  address  a  notice  to  each  of  the  stockholders  whose 
names  appear  on  the  company's  books  as  sufficiently 
addressed  or  identified,  at  his  place  of  residence,  if  known, 
and  if  not  known,  then  at  the  place  in  which  the  principal 
place  of  business  of  the  corporation  is  situate,  which  notice 
shall  be  so  mailed  to  such  stockholders  at  least  thirty  days 
before  the  day  appointed  for  such  meeting. 

5.  [Directors  may  diminish  stock  and  create  indebted- 
ness.] In  lieu  of  such  call  for  meeting  of  stockholders  and 
of  such  notice  and  publication  of  the  same  and  of  a  stock- 
holders' meeting  held  in  pursuance  thereof  and  of  said  vote 
thereat  representing  at  least  two-thirds  of  the  subscribed 
capital  stock,  any  corporation  may  diminish  its  capital  stock 
and  also  originally  create  its  bonded  indebtedness  by  a  reso- 

212 


Tit.I,ch.III,art.I.]     increasing  capital.  §359 

lution  adopted  by  the  unanimous  vote  of  its  board  of  direc- 
tors or  trustees  at  a  regular  meeting  or  at  a  special  meeting 
called  for  that  purpose  and  approved  by  the  written  assent 
or  assents  of  the  stockholders  holding  two-thirds  of  the  sub- 
scribed or  issued  capital  stock,  which  assent  or  assents  must 
be  filed  with  the  secretary  of  the  corporation;  but  the  secre- 
tary of  the  corporation  must  address  by  mail,  postage  fully 
prepaid,  a  copy  of  such  resolution  to  each  of  the  stockholders 
whose  names  appear  upon  the  company's  books  as  sufficiently 
addressed  or  identified,  at  his  place  of  residence,  if  known, 
and  if  not  known,  then  at  the  place  in  which  the  principal 
place  of  business  of  the  corporation  is  situate,  which  notice 
shall  be  so  mailed  to  such  stockholders  at  least  thirty  days 
before  the  certificate  hereinafter  provided  is  made  and  signed 
or  filed,  as  hereinafter  provided,  and  within  that  time  any 
stockholder  may  file  with  such  secretary  his  dissent  in  writ- 
ing; but  it  is  further  provided,  that  if  at  any  time  within 
said  thirty  days  such  written  assent  or  assents  of  the  stock- 
holders holding  all  of  the  subscribed  or  issued  capital  stock 
be  so  filed  with  said  secretary,  then  and  at  once  and  without 
further  delay  the  certificate  hereinafter  provided  for  may  be 
so  made,  signed  and  filed  as  hereinafter  provided  and  with 
the  same  effect. 

[Limit  of  diminution.]  But  such  capital  stock  cannot  be 
diminished  to  an  amount  less  than  the  indebtedness  of  the 
corporation,  and  no  increase  of  capital  stock  or  bonded 
indebtedness  can  be  made,  except  at  a  meeting  of  stockholders 
as  in  this  section  provided. 

6.  [Consolidated  indebtedness.]  Any  two  or  more  corpora- 
tions may  by  a  separate  compliance  by  each  corporation  with 
the  provisions  of  this  section  applicable  in  the  premises  in 
respect  to  creating  or  increasing  bonded  indebtedness,  create 
or  increase  a  consolidated  bonded  indebtedness  of  such  cor- 
porations, to  be  binding  jointly  and  severally  on  such  corpo- 
rations, and  which  may  be  secured  by  a  consolidated  mort- 
gage or  deed  of  trust  executed  by  all  such  corporations, 
mortgaging  or  conveying  in  trust  all  or  any  of  the  properties 
of  all  such  corporations,  acquired  or  to  be  acquired. 

213 


§  359  CIVIL  CODE.  [Div.I,Pt.IV. 

7.  [Certificate  of  increase  or  (liminution.]  Upon  such 
increase  or  diminution  of  the  capital  stock  or  creation  or 
increase  of  the  bonded  indebtedness  being  made  in  accord- 
ance with  the  provisions  of  this  section  there  shall  be  made, 
if  proceedings  are  had  under  subdivisions  first,  second,  third 
and  fourth  above,  a  certificate  under  the  corporate  seal  and 
signed  by  the  president  and  secretary  of  the  corporation  or 
of  each  corporation  acting  in  the  premises  and  a  majority 
of  the  directors  or  trustees  of  such  corporation,  or  each  cor- 
poration so  acting,  showing  a  compliance  by  such  corpora- 
tion, or  each  corporation  so  acting,  with  the  requirements  of 
said  last-named  subdivisions  and  the  amount  to  which  the 
capital  stock  has  been  increased  or  diminished  or  tlie  amount 
of  the  bonded  indebtedness  created,  or  to  which  the  bonded 
indebtedness  may  liave  been  increased,  and  the  amount  of 
stock  represented  at  the  meeting  and  the  total  vote  in  the 
affirmative  by  which  the  same  was  accomplished  and  the 
total  vote  in  the  negative;  or  if  such  proceedings  be  had  and 
taken  under  subdivision  fifth  of  this  section  as  to  diminution 
of  capital  stock  or  original  creation  of  bonded  indebtedness 
a  like  certificate  shall  be  made  and  sealed  and  signed,  as 
aforesaid,  showing  a  compliance  by  such  corporation,  and 
by  each  corporation  acting  in  the  premises,  with  the  require- 
ments of  said  subdivision  fifth,  and  the  amount  to  which 
the  capital  stock  has  been  diminished  or  the  amount  of 
bonded  indebtedness  so  originally  created,  and  the  total 
amount  of  the  stock  represented  by  the  said  written  assent 
or  assents  so  filed  with  the  secretary  and  the  total  amount 
of  stock  represented  by  the  said  written  dissent  or  dissents 
so  filed.  In  case  of  a  consolidated  bond  of  indebtedness  each 
corporation  which  is  a  party  thereto  shall  cause  to  be  made 
and  signed  and  sealed  and  verified  and  filed,  as  in  this  sec- 
tion provided,  a  separate  certificate. 

8.  [What  certificate  shall  state.]  In  all  cases  the  certifi- 
cates shall  state  the  total  number  of  subscribed  or  issued 
shares  of  the  capital  stock  of  the  corporation,  or  of  each 
corporation   respectively   acting   in   the   premises,   and   shall 

214 


Tit.I,cli.III,art.I.]      INCREASING   CAPITAL.  §  359 

be  verified  by  the  oath  of  the  said  president  and  secretary, 
or  of  the  said  respective  presidents  and  secretaries.  Such 
consolidated  bonded  indebtedness  may  be  created  or  increased 
to  an  amount  equal  to  the  par  or  face  value  of  the  aggre- 
gate amount  of  the  subscribed  or  issued  capital  stock  of  said 
two  or  more  corporations,  but  shall  not  exceed  such  aggre- 
gate amount. 

[Where  filed.]  In  each  and  every  case  the  certificate  must 
be  filed  in  the  office  of  the  clerk  in  the  county  or  city  and 
county  where  the  original  articles  of  incorporation  of  the 
corporation  or  corporations  acting  hereunder  are  filed  and 
a  certified  copy  thereof,  certified  by  such  clerk,  shall  be  filed 
in  the  office  of  the  secretary  of  state;  and  thereupon  the 
capital  stock  shall  be  so  increased  or  diminished,  or  the. 
bonded  indebtedness  or  consolidated  bonded  indebtedness 
shall  be  created  or  increased  accordingly,  and  such  certifi- 
cate or  certificates  so  filed  shall  be,  when  said  certified  copy 
or  copies  are  so  filed,  conclusive  proof  of  such  increase  or 
diminution  of  capital  stock  or  such  creation  or  increase  of 
bonded  or  consolidated  bonded  indebtedness  and  the  validity 
of  each  thereof. 

[Publication  of  notices.]  When  the  by-laws  of  a  corpora- 
tion prescribe  the  paper  in  which  notices  of  meetings  of 
directors  or  trustees  or  stockholders  are  to  be  published  the 
notices  of  publication  herein  provided  for  shall  be  published 
in  such  paper,  unless  publication  thereof  shall  have  ceased. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  207;  March  3,  1883,  Stats,  and  Amdts.  1883, 
p.  31;  March  18.  1885,  Stats,  and  Amdts.  1885,  p.  141;  March  19, 
1889.  Stats,  and  Amdts.  1889,  p.  364;  March  23,  1893,  Stats,  and 
Amdts.  1893,  p.  191;  March  21,  1903,  Stats,  and  Amdts.  1903,  p. 
347;  amended  March  18,  1907,  Stats,  and  Amdts.  1907,  pp.  439- 
452,  Kerr's  Stats,  and  Amdts.  1906-7,  pp.  405-408. 

See  Kerr's  Cyc.   C.   C.   for   27   pars,   annotation. 

56  C.  649,  651,  653,  655  (held  unconstitutional);  65  C.  616,  617, 
4  P.  662,  663  (applied);  96  C.  160,  161,  31  P.  14  (referred  to);  103 
C  624  630,  37  P.  638  (construed);  109  C.  571,  594  (construed), 
597,  600  (referred  to),  42  P.  225;  112  C.  208,  213,  44  P.  476  (re- 
ferred to);  116  C.  416,  424,  48  P.  377  (construed  and  applied); 
125   C.   453,   454,   455,    58   P.    64    (construed  and  applied);    (C.   Dec. 

215 


§  360  CIVIL  CODE.  [Div.I,Pt.IV. 

19,  1900)  63  P.  74,  77  (construed);  135  C.  579,  583,  87  A.  S.  143, 
67  P.  1057,  56  L.  728  (referred  to);  147  C.  581,  582,  109  A.  S.  176, 
82  P.  247  (proceedings  for  increase  of  capital  stock  are  invalid 
unless  the  public  notice  required  by  statute  was  given);  2  C.  A. 
122,  130,  83  P.  62  (what  agreement  indicates  that  stock  was 
issued  as  paid-up  stock);  45  F.  518,  528  (construed  as  to  in- 
debtedness for  which  bonds  may  be  issued);  79  F.  842,  846 
(neither  this  section  nor  art.  XII,  §  11,  of  the  constitution,  says 
anytliiiitf  about  the  "sale"  or  "pledge"  of  stocks  or  bonds.  A 
corporation  is  not  prohibited  from  pledging  its  bonds  as  col- 
lateral   security). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Limitations  on  power  to  increase  capital  stock. — See  Kerr's 
Cyc.  C.  C.  §  309  and  note. 

Limitations  on  power  to  reduce  capital  stock,  see  Kerr's 
Cyc.  C.  C.  §  309  and  note. 


§360.  CORPOEATIONS  MAY  ACQUIRE  REAL  PROP- 
ERTY, AND  HOW  MUCH.  No  corporation  shall  acquire  or 
hold  any  more  real  property  than  may  be  reasonably  neces- 
sary [1]  for  the  transaction  of  its  business,  or  [2]  the  con- 
struction of  its  works,  [3]  except  as  otherwise  specially  pro- 
vided. A  corporation  may  acquire  real  property,  as  pro- 
vided in  title  seven,  part  tliree,  of  the  Code  ot  Civil  Procedure, 
when  needed  for  any  of  the  uses  and  purposes  mentioned  in 
said  title.  By  a  unanimous  vote  of  all  the  directors  at  any 
regular  meeting,  any  corporation  existing,  or  hereafter  to 
be  formed  under  the  laws  of  this  state,  may  [1]  acquire  and 
hold  the  land  and  building  on  and  in  which  its  business  is 
carried  on,  and  may  [2]  improve  the  same  to  any  extent 
required  for  the  convenient  transaction  of  its  business. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  208;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  351,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  22, 
1905,  Stats,  and  Amdts.  1905,  p.  774. 

See  Kerr's  Cyc.  C.  C.  for  32  pars,  annotation. 

144  C.  578,  594,  77  P.  1113  (construed  with  §  286,  as  to  power 
of  corporation  to  acquire  title  by  prescription). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

216 


Tit.T,ch.III,art.I.]      TRANSFER  OF  FRANCHISE.      §§  361,  361a 

Equitable  interest  cannot  be  acquired  by  corporation  when  it 
cannot  hold  in  its   own  name.-See  Kerr's   Cyc.   C.   C.   §  354  and 

""TnsTrlnTe   companies-Power    to    hold    land.-See    Kerr's    Cyc. 

C    C.  §  415  and  note.  r^    n 

Presumption  as  to  power  to  hold  land.— See  Kerr  s  Cyc.  C.  C. 

§  354  and  note  par.  39.  t.-^,.^'.,    c^m 

Turnpike    companies-Power    to    hold    land.-See    Kerr  s    Cyc. 

C.  C.  §  354  and  note  pars.  62,  63. 

§  361.  CONSOLIDATION  OF  MINING  COMPANIES  OWN- 
ING  ADJOINING  CLAIMS  (repealed). 

History:  Enacted  March  21,  1872;  amended  March  20.  1876, 
Code  Amdts.  1875-6,  p.  75;  repealed  by  Code  Commission,  Act 
March  18,  1901,  Stats,  and  Amdts.  1900-1,  p.  351,  \\eld  unconsti- 
tutional,  see  history,  §  4  ante;  re-repealed  March  22,  1905,  Stats, 
and  Amdts.  1905,  p.  775. 

147  C.  663,  666.  82  P.  319  (effect  of  consolidation  of  mining 
corporations). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§  361a.  TRANSFER  OF  FRANCHISE  OF  CORPORATION 
NOT  YALID  WITHOUT  CONSENT  OF  STOCKHOLDERS. 

No   sale,    lease,   assignment,   transfer   or   conveyance   of   the 
business,  franchise  and  property,  as  a  whole,  of  any  corpora- 
tion now  existing,  or  hereafter  to  be  formed  in  this   state, 
shall  be  valid  without  the  consent  of  stockholders  thereof, 
holding  of  record  at  least  two-thirds  of  the  issued  capital 
stock  of  such  corporation;  such  consent  to  be  either  expressed 
in    [1]    writing,  executed  and  acknowledged  by  such   stock- 
holders, and  attached  to  such  sale,  lease,  assignment,  trans- 
fer or  conveyance,  or  [2]  by  a  vote  at  a  stockholders'  meet- 
ing of  such  corporation   called  for  that  purpose;    but   with 
such  assent,  so  expressed,  such  sale,  lease,  assignment,  trans- 
fer  or   conveyance   shall   be   valid;    provided,   however,   that 
nothing    herein    contained    shall    be    construed    to    limit    the 
power   of   the   directors   of   such   corporation   to   make   sales, 
leases,    assignments,   transfers   or   conveyances   of    corporate 
property  other  than  those  hereinabove  set  forth. 

217 


§  362  CIVIL  CODE.  [Div.I,Pt.TV. 

History:  Enacted  March  24,  1903,  Stats,  and  Amdts.  1903, 
p.   396. 

152  C.  579,  584,  586,  587,  588,  93  P.  490   (construed  and  applied). 
As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

§362.  AMENDMENT  OF  ARTICLES  OR  CERTIFICATE 
OF  INCORPORATION— FILING},  PENALTY.  Any  corporation 
may  amend  its  articles  of  incorporation  [1]  by  a  majority 
vote  of  its  board  of  directors  or  trustees,  and  [2]  by  a  vote 
or  written  assent  of  the  stockholders  representing  at  least 
two-thirds  of  the  subscribed  capital  stock  of  such  corpora- 
tion, or  [3]  the  written  assent  of  the  majority  of  the  mem- 
bers if  there  is  no  capital  stock;  and  a  copy  of  the  said 
articles  of  incorporation,  as  thus  amended,  duly  certified  to 
be  correct  by  the  president  and  secretary  of  the  board  of 
directors  or  trustees  of  such  corporation,  [4]  shall  be  filed 
in  the  office  where  the  original  articles  of  incorporation  are 
filed,  and  [5]  a  certified  copy  thereof,  duly  certified  by  such 
county  clerk,  [shall  be  filed]  in  the  office  of  the  secretary 
of   state. 

A  copy  of  such  articles  of  incorporation,  so  amended,  duly 
certified  by  the  secretary  of  state,  must  be  filed  in  the  office 
of  the  county  clerk  of  every  county  in  which  such  corpora- 
tion has  or  holds  property,  except  only  the  county  in  which 
the  original  amended  articles  of  incorporation  have  been 
filed.  Any  corporation  which  shall  amend  its  articles  of 
incorporation  and  shall  fail  to  file  copies  of  its  amended  arti- 
cles, as  required  by  the  preceding  sentence,  shall  be  subject 
to  the  penalties  and  liabilities  provided  in  section  two  hun- 
dred and  ninety-nine  for  a  failure  of  corporations  to  file 
copies  of  their  articles  of  incorporation  in  the  offices  of  the 
county  clerks  of  the  counties  in  which  they  shall  purchase, 
hold,  or  locate  property,  and  from  the  time  of  so  filing  such 
copy  of  the  amended  articles  of  incorporation,  such  corpora- 
tion shall  have  the  same  powers,  and  the  stockholders  thereof 
shall  thereafter  be  subject  to  the  same  liabilities,  as  if  such 
amendment,  had  been  embraced  in  the  original  articles  of 
incorporation. 

218 


Tit.I,ch.III,art.I.]      AMENDING   ARTICLES.  §363 

Such  original  and  amended  articles  of  incorporation  shall 
together  contain  all  the  matters  and  things  required  by  the 
laws  under  which  the  original  articles  of  incorporation  were 
executed  and  filed.  Nothing  contained  in  this  section  must 
be  construed  to  cure  or  amend  any  defect  existing  in  the 
original  articles  of  incorporation  heretofore  filed,  in  that  such 
articles  did  not  set  forth  the  matters  required  to  make  the 
same  valid  at  the  time  of  filing. 

If  the  assent  of  two-thirds  of  said  stocliholders,  or  of  the 
majority  of  members  where  there  is  no  capital  stock,  to  such 
amendment  has  not  been  obtained,  a  notice  of  the  intention 
to  make  such  amendment  must  first  be  advertised  for  thirty 
days  in  some  newspaper  published  in  the  town,  city,  county, 
or  city  and  county  in  which  the  principal  place  of  business' 
of  the  corporation  is  located,  before  the  filing  of  the  proposed 
amendment.  Nothing  in  this  section  shall  be  construed  to 
authorize  any  corporation  to  increase  or  diminish  its  capital 
stock,  change  its  name,  extend  its  corporate  existence,  or 
Increase  or  diminish  the  number  of  its  directors,  without 
complying  with  the  special  provisions  of  this  code  applicable 
thereto. 

History:  Enacted  March  21,  1872;  amended  March  12,  1885, 
Stats,  and  Amdts.  1885,  p.  91;  March  11,  1893,  Stats,  and  Amdts. 
1893,  p.  131;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  351,  held  unconstitutional,  see  his- 
tory, §  4  ante;  March  25,  1903,  Stats,  and  Amdts.  1903,  p.  411; 
March    22,    1905,   p.    775. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

99  C.  392,  396,  34  P.  103  (construed);  124  C.  112,  115,  56  P.  779 
(applied);  2  C.  A.  546,  552,  84  P.  298  (notice  of  intention  to  make 
am.endment  is  required  only  when). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§363.  CORPORATIONS  TO  OWN  THEIR  OWN  LOTS 
AND  BUILDINGS   (repealed). 

History:  Enacted  March  5,  1889,  Stats,  and  Amdts.  1S89,  p. 
67.  At  the  same  session  another  section  numbered  §  363  was 
enacted  by  the  same  legislature  on  March  19  (Stats,  and  Amdts. 
1889,  p.  332).     The  Act  of  March  5  was  repealed  by  Code  Com- 

219 


§363[a]  CIVIL  CODE.  [Div.I,Pt.IV. 

mission,  Act  of  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352, 
held  unconstitutional,  see  history,  §  4  ante,  and  the  act  was 
re-repealed  March  22,  1905,  Stats,  and  Amdts.   1905,  p.  776. 

See  Kerr's  Cyc.  C.  C.  §  360  and  note. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§363[a].  CORRECTION  OF  ERRONEOUS  FILING  OF 
INCORPORATION— PETITION,  NATURE  OF— ACTION  OF 
COURT.  When  articles  of  incorporation  have  been  prepared, 
subscribed,  and  executed  in  accordance  with  the  provisions 
of  section  two  hundred  and  ninety  and  two  hundred  and 
ninety-two  of  the  civil  code,  and  such  original  articles  filed 
by  error  or  inadvertence  with  the  clerk  of  a  county  other 
than  that  named  in  the  articles  of  incorporation  as  the 
county  in  which  the  principal  place  of  business  is  to  be  trans- 
acted, and  the  secretary  of  state  shall  have  issued  a  certifi- 
cate of  incorporation  based  on  a  certified  copy  of  such  origi- 
nal articles  of  incorporation,  any  stockholder  or  director  of 
such  corporation  may  petition  the  superior  court  of  the 
county  in  which  said  original  articles  of  incorporation  were 
filed  for  an  order  to  withdraw  such  original  articles  of  incor- 
poration, and  file  in  place  thereof  a  certified  copy  of  the  copy 
thereof  on  file  in  the  office  of  the  secretary  of  state.  Such 
petition  must  [1]  be  verified,  and  must  [2]  state  clearly  the 
facts,  showing  that  such  articles  of  incorporation  were  filed 
by  inadvertence  and  mistake;  and  [3]  notice  of  the  hearing 
of  said  petition  must  be  given  for  at  least  ten  days  before 
the  day  of  hearing,  [4]  by  publication  in  a  newspaper  pub- 
lished in  the  county  where  such  petition  is  filed. 

[Hearing  and  proceedings  on  order.]  Upon  the  day  set  for 
hearing  the  petition  the  superior  court  may  [1]  grant  an 
order  allowing  such  original  articles  of  incorporation  to  be 
withdrawn,  and  [2]  a  certified  copy  of  the  copy  in  the  office 
of  the  secretary  of  state  in  the  place  thereof  filed;  and  [3] 
the  original  articles  of  incorporation  must  be  filed  within  ten 
days  thereafter  in  the  county  in  which  the  principal  place 
of  [where]  business  is  to  be  transacted,  as  stated  in  such 
articles    of   incorporation,    and    [4]    a    certified    copy    of    the 

220 


Tit.I,ch.III,art.I.]     FOREIGN   concession.  §§364,365 

order  allowing  such  action  must  be  filed  with  the  certified 
copy  in  the  office  of  the  secretary  of  state,  after  which  said 
corporation  shall  be  entitled  to  all  rights  and  privileges  of 
a  private  corporation,  and  the  title  to  any  property  it  may 
have  previously  acquired  shall  not  be  affected  by  reason  of 
the  failure  to  file  the  original  articles  of  incorporation  in 
the  first  instance. 

History:  Enacted  March  19,  1889,  Stats,  and  Amdts.  1889,  p. 
332.     In  force  March   19,   1889. 

§  364.  CORPORATIONS  MAT  TRANSFER  FOREIGN  CON- 
CESSIONS. Any  corporation  of  this  state  owning  grants, 
concessions,  franchises,  and  properties,  or  any  thereof,  in  anj' 
foreign  country,  may  sell  and  convey  the  same  to  the  govern- 
ment of  such  foreign  country,  or  to  any  person  or  persons,  or 
any  corporation  or  corporations,  or  association  or  associa- 
tions, created  by  or  existing  under  the  laws  of  this  or  any 
other  state  of  the  United  States,  or  any  foreign  government; 
provided,  however,  that  the  powers  hereby  granted  shall  only 
be  exercised  by  a  majority  of  the  entire  board  of  directors 
of  such  corporation  of  this  state,  with  the  concurrence  in 
writing  of  the  holders  of  two-thirds  in  amount  of  the  capital 
stock  thereof. 

History:  Became  law,  under  unconstitutional  provision,  witli- 
out  governor's  approval,  March  13,  1899. 

§365.  RESTORATION  OF  LOST  RECORDS,  CERTIFI- 
CATES OF  STOCK,  ETC.  Whenever  it  shall  appear  that  the 
minutes,  records,  seal,  assessment  book,  stock  journal,  stock 
ledger,  certificate  book,  certificate  of  stock  or  bonds  or  other 
papers  or  records  of  any  corporation,  municipal,  quasi  or 
otherwise,  in  this  state,  shall  have  been  or  shall  hereafter 
be  lost  or  destroyed  by  conflagration  or  other  public  calamity, 
such  corporation,  by  a  vote  of  its  board  of  directors,  or  any 
stockholder  or  bondholder  of  such  corporation,  may  petition 
the  superior  court  of  the  county,  or  city  and  county,  in  which 
the  principal  place  of  business  of  such  corporation  is  located, 
to  restore  such  lost,  destroyed,  or  injured  minutes,  records, 

221 


§  365  CIVIL  CODE.  [Div.LPt.IV. 

seal,  assessment  book,  stock  journal,  stock  ledger,  certificate 
book,  certificate  of  stock  or  bonds  or  other  papers  or  records. 
Such  petition  shall  state  the  loss,  destruction  or  injury  to 
any  such  records  or  documents  or  certificates  of  stock  or 
bonds,  or  other  papers  or  records,  or  any  part  or  portion 
thereof,  giving  the  cause  of  such  loss,  injury  or  destruction. 

[Petition  filed  with  court.]  On  the  filing  of  such  petition, 
duly  verified,  said  superior  court  shall  make  an  order,  fixing 
a  time  and  place  for  the  hearing  of  the  same,  and  directing 
the  clerk  of  the  court  to  give  notice  of  such  a  hearing  by 
publication  of  a  notice  stating  the  time  and  place  of  the 
hearing  of  said  petition  and  the  purpose  thereof,  which  time 
shall  not  be  less  than  twenty-five  nor  more  than  thirty  days 
from  the  completion  of  such  publication. 

[Publicatiou  of  notice  of  hearing.]  Notice  of  such  hearing 
shall  be  given  by  publication  in  some  newspaper  of  general 
circulation,  printed  and  published  in  such  county,  or  city 
and  county,  where  the  principal  place  of  business  of  said 
corporation  is  located,  and  if  there  be  no  such  newspaper 
published  in  said  county,  or  city  and  county,  then  in  some 
adjoining  county,  to  be  designated  by  the  court  or  judge 
thereof,  which  publication  shall  be  daily  (except  Sundays) 
for  a  period  of  at  least  three  successive  weeks.  In  case  there 
is  no  daily  newspaper  published  in  either  of  said  counties 
then  such  notice  shall  be  published  once  a  week  for  three 
successive  weeks  in  a  weekly  newspaper  published  in  such 
county. 

[Service  of  notice.]  A  copy  of  said  notice  shall  also  be 
personally  served  upon  all  persons  affected  thereby  residing 
in  the  state  of  California,  whose  place  of  residence  or  place 
of  business  is  known  to  the  corporation  or  any  of  its  officers, 
if  such  person  can  be  found  within  the  state,  which  service 
may  be  made  at  any  time  during  said  period  of  publication. 
If  the  place  of  business  or  place  of  residence  of  any  persons 
affected  by  said  petition  or  proceeding  is  unknown  to  the 
corporation  or  any  of  its  officers,  within  forty-eight  hours 
after  the  filing  of  said  petition,  a  copy  of  said  notice  shall 

222 


Tit.I,cll.III,art.I.]       RESTORING    RECORDS.  §365 

be  mailed  to  each  of  the  persons  affected  by  said  petition  or 
proceeding  whose  place  of  residence  or  place  of  business  is 
unknown  to  said  corporation  or  any  of  its  officers, 
addressed  to  them,  postage  prepaid,  at  the  county  seat  of 
the  county,  or  county  and  city,  where  the  place  of  business 
of  said  corporation  is  located.  In  addition  to  the  notice  by 
publication,  the  petitioner  shall  address  a  copy  of  said  notice 
to  each  of  the  stockholders  of  said  corporation,  and  also  to 
each  of  the  persons  affected  by  said  petition,  whose  names 
and  places  of  residence  or  business  are  known  to  the  corpo- 
ration or  any  of  its  officers,  at  his  place  of  business  or  resi- 
dence, postage  prepaid,  which  notice  shall  be  mailed  to  such 
stockholders  or  persons  within  forty-eight  hours  after  the 
filing  of  said  petition. 

[Proof  required  of  publication  and  service  of  notice.]  The 
court  before  proceeding  to  hear  the  case,  shall  require  proof 
to  be  made  that  notice  has  been  published  and  given  as  here- 
inbefore required  and  service  of  such  notice  personally  if 
the  same  has  been  so  served  and  if  the  same  has  not  been 
so  served,  an  affidavit  of  the  petitioner  stating  the  reasons 
why  such  personal  service  has  not  been  made,  shall  also  be 
then  filed. 

[Jurisdiction  of  court — Judgment  and  decree.]  Upon  the 
completion  of  said  publication,  said  court  shall  have  jurisdic- 
tion to  inquire  into  and  determine  the  loss,  injury  or  destruc- 
tion of  such  minutes,  records,  seal,  assessment  book,  stock 
journal,  stock  ledger,  certificate  book,  certificates  of  stock 
or  bonds,  or  other  papers  and  documents,  and  to  fix  and 
determine  by  its  judgment  or  decree,  the  ownership  of  said 
certificates  of  stock  or  bonds  and  the  persons  entitled  thereto, 
and  to  direct  such  corporation  to  restore  its  records,  seal, 
assessment  book,  stock  journal,  stock  ledger,  certificate  book, 
certificates  of  stock  or  bonds  or  any  other  paper  or  record 
so  lost,  injured  or  destroyed,  and  to  issue  new  bonds  or  cer- 
tificates of  stock  or  other  paper  or  document  to  any  person 
or  persons  to  whom  the  same  may  belong  or  who  may  be 
entitled  thereto,  as  determined  by  the  judgment  of  the  court. 

223 


§  365  CIVIL  CODE.  [Div.I.Pt.IV. 

[Unknown  owners — Sale  of  stock  for  delinquent  assess- 
ments.] Any  stock,  bond  or  other  paper,  the  ownership  of 
which  cannot  be  determined,  shall  be  found  by  the  court,  by 
its  judgment;  to  belong  to  unknown  owners,  and  in  all  pro- 
ceedings of  such  corporation,  including  proceedings  for 
assessment  of  stock,  and  the  collection  of  such  assessment, 
and  the  payment  of  dividends,  and  notice  of  sale  and  sale 
for  delinquent  assessments,  said  stock  or  dividends  shall  be 
so  designated  as  belonging  to  unknown  owners,  without  giv- 
ing the  name  of  the  owner  thereof  or  the  number  of  the 
certificate  or  series  or  issue. 

History:  Enacted  June  18,  1906,  Stats,  and  Amdts.  1906,  pp. 
84-86,  Kerr's  Stats,  and  Amdts.  1906-7,  pp.  408,  409.  In  effect 
immediately. 


224 


Tit.I,ch.III,art.II.]       RECORDS,    KEEPING.  §377 

ARTICLE   II. 
RECORDS. 

§  377.     Records — Of  what,  and  how  kept.      [Record  must  embrace 

what.] 
§  378.     Other  records  to  be  kept  by  corporations  for  profit,  and 

others. 

§  377.  RECORDS— OF  WHAT,  AND  HOW  KEPT.  All  cor- 
porations for  profit  are  required  to  keep  a  record  of  all  their 
business  transactions;  a  journal  of  all  meetings  of  their 
directors,  menabers,  or  stockholders,  with  the  [1]  time  and 
place  of  holding  the  same,  [2]  whether  regular  or  special, 
and  if  special,  [3]  its  object,  [4]  how  authorized,  and  [5]  the 
notice  thereof  given.  The  record  must  embrace  [1]  every  act 
done  or  ordered  to  be  done;  [2]  who  were  present,  and  [3] 
who  absent;  and,  if  requested  by  any  director,  member,  or 
stockholder,  [4]  the  time  shall  be  noted  when  he  entered 
the  meeting  or  obtained  leave  of  absence  therefrom.  On  a 
similar  request,  [5]  the  ayes  arid  noes  must  be  taken  on  any 
proposition,  and  a  record  thereof  made.  On  similar  request, 
[6]  the  protest  of  any  director,  member,  or  stockholder,  to 
any  action  or  proposed  action,  must  be  entered  in  full— all 
such  records  to  be  open  to  the  inspection  of  any  director, 
member,  stockholder,  or  creditor  of  the  corporation. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

63  C.  483,  484  (miscited);  76  C.  24,  25,  26,  17  P.  940,  941  (ap- 
plied); 78  C.  629,  633,  21  P.  373,  374  (referred  to);  94  C.  546,  549, 
29  P.  1105,  1106  (applied);  107  C.  629,  636,  40  P.  1047  (cited,  cor- 
porations for  profit  must  keep  journal  of  all  meeting's);  135  C. 
624,  625,  87  A.  S.  156,  67  P.  1050  (construed  and  applied);  146  C. 
219,  223,  79  P.  889,  890  (construed);  5  C.  A.  614,  621,  91  P.  109 
(exhibits  and  records  of  corporation  are  admissible  in  evi- 
dence); 45  F.  518,  526  (referred  to);  138  U.  S.  483,  484,  34  L.  ed. 
1031,   1032    (applied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Kerr's    C.    C. — 8  225 


§  378  CIVIL  CODE.  [Div.I.Pt.IV. 

§378.  OTHER  RECORDS  TO  BE  KEPT  BY  CORPORA- 
TIOIVS  FOR  PROFIT,  AND  OTHERS.  In  addition  to  the 
recoi-ds  required  to  be  kept  by  the  preceding  section,  corpo- 
rations for  profit  must  keep  a  book,  to  be  known  as  the 
"Stock  and  Transfer  Book,"  in  which  must  be  kept  [1]  a 
record  of  all  stocks;  [2]  the  names  of  the  stockholders  or 
members,  alphabetically  arranged;  [3]  instalments  paid  or 
unpaid;  [4]  assessments  levied  and  paid  or  unpaid;  [5]  a 
statement  of  every  alienation,  sale,  or  transfer  of  stock  made, 
the  date  thereof,  and  by  and  to  whom;  and  [6]  all  such  other 
records  as  the  by-laws  prescribe.  Corporations  for  relig-ions 
and  bonevolent  purposes  must  provide  in  their  by-laws  for 
such  records  to  be  kept  as  may  be  necessary.  Such  stock 
and  transfer  book  must  be  kept  open  to  the  inspection  of  any 
stockholder,  member,  or  creditor. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.  C.   for   3   pars,   annotation. 

107  C.  447,  453,  40  P.  542  (referred  to);  107  C.  629,  636.  40  P. 
1047  (construed  and  applied);  146  C.  219,  223,  79  P.  889,  890 
(referred  to);  2  C.  A.  638,  639,  84  P.  270  (construed  and  applied, 
in  connection  with  §14,  art.  XII,  of  the  constitution,  and  held 
to  authorize  an  inspection  of  thfe  books  of  the  corporation). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 


226 


Tit.I,ch.III,art.III.]         EXAMINING  AFFAIRS.  §§  382,  383 

ARTICLE    III. 

EXAMINATION  OF  CORPORATIONS,   ETC. 

[This   article    was   taken    from    the   Stautes    of    1850,    §§    29,    30, 
p.  350.] 
§  382.     Examination    into   affairs    of    corporation,    how    made    by 

officers  of  state. 
§  383.     Examination  made  by  legislature. 
§  384.     Chapter  and  article  may  be  repealed   [repealed]. 

§382.  EXAMINATION  INTO  AFFAIRS  OF  CORPORA- 
TION, HOW  MADE  BY  OFFICERS  OF  STATE.  The  attorney- 
general  or  district  attorney,  whenever  and  as  often  as 
required  by  the  governor,  must  examine  into  the  affairs  and 
condition  of  any  corporation  in  this  state,  and  report  such 
examination,  in  writing,  together  witli  a  detailed  statement 
of  facts,  to  the  governor,  who  must  lay  the  same  before  the 
legislature;  and  for  that  purpose  the  attorney-general  or 
district  attorney  may  administer  all  necessary  oaths  to  the 
directors  and  officers  of  any  corporation,  and  may  examine 
them  on  oath  in  relation  to  the  affairs  and  condition  thereof, 
and  may  examine  the  books,  papers,  and  documents  belong- 
ing to  such  corporation,  or  appertaining  to  its  affairs  and 
condition. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
72  C.  21,  23,  13  P.  48,  49   (referred  to  in  discussion). 
As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§383.    EXAMINATION    MADE    BY    THE    LEGISLATURE. 

The  legislature,  or  either  branch  thereof,  may  examine  into 
the  affairs  and  condition  of  any  corporation  in  this  state  at 
all  times;  and,  for  that  purpose,  any  committee  appointed  by 
the  legislature,  or  either  branch  thereof,  may  administer  all 
necessary  oaths  to  the  directors,  officers,  and  stockholders 
of  such  corporation,  and  may  examine  them  on  oath  in  rela- 
tion to  the  affairs  and  condition  thereof;   and  may  examine 

227 


§  384  CIVIL  CODE.  [Div.I,Pt.IV. 

the  safes,  books,  papers,  and  documents  belonging  to  such 
corporation,  or  pertaining  to  its  affairs  and  condition,  and 
compel  the  production  of  all  keys,  books,  papers,  and  docu- 
ments by  summary  process,  to  be  issued  on  application  to 
any  court  of  record  or  any  judge  thereof,  under  such  rules 
and  regulations  as  the  court  may  prescribe. 

History:     Enacted  March  21,  1872. 

1  C.  A.  61,  67,  81  P.  748  (cited  as  to  legislative  power  of  ex- 
amination). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§384.  CHAPTER  A?fD  AKTK  LE  MAY  BE  REPEALED. 
[REPEALED.]  Section  three  hundred  and  eighty-four  of 
the  Civil  Code  is  hereby  repealed;  provided  however,  that  this 
shall  not  be  deemed  to  repeal  or  otherwise  affect  section 
four  hundred  and  four  of  said  code;  and  provided  further  that 
no  rights  acquired  under  the  provisions  of  said  section  three 
hundred  and  eighty-four  shall  be  affected  hereby,  but  the 
same  shall  be  continued  in  force  under  the  provisions  of  said 
section  four  hundred  and  four. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  lield 
unconstitutional,  see  history,  §  4  ante;  repealed  Marcli  18,  1907, 
Stats,  and  Amdts.  1907,  p.  578,  'Kerr's  Stats,  and  Amdts.  1906-7, 
p.  410. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 


228 


Tit.I,ch.III,art.IV.]  FRANCHISE,  SALE  OF.  §§  388, 389 

ARTICLE   IV. 

JUDGMENT  AGAINST  AND  SALE  OF  CORPORATE  PROPERTY. 

S  388.  Franchise  sold  under  execution. 

§  3S9.  Purchaser  to  transact  business  of  corporation. 

§  390.  Purchaser  may   recover   penalties,   etc. 

§  391.  Liabilities  same  as  before  sale. 

§  392.  Redemption. 

§  393.  Sale,  when  made. 

§  388.    FRANCHISE  SOLD  UNDER  EXECUTION.    For  the 

satisfaction  of  any  judgment  against  any  person,  company, 
or  corporation  having  any  franchise  other  than  the  franchise 
of  being  a  corporation,  such  franchise,  and  all  the  rights  and 
privileges  thereof,  may  be  levied  upon  and  sold  under  execu- 
tion, in  the  same  manner,  and  with  the  same  effect,  as  any 
other  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  208;  Feb.  23,  1897,  Stats,  and  Amdts.  1897, 
p.  16;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  352,  held  unconstitutional,  see  history,  §  4 
ante;  amendment  re-enacted  March  20,  1905,  Stats,  and  Amdts. 
1905,  p.  409. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

80  C.  338,  341,  22  P.  254,  255  (applied);  86  C.  279,  283,  24  P. 
1032,  1033  (referred  to);  98  C.  311,  313,  33  P.  199  (construed  and 
applied). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§389.  PURCHASER  TO  TRANSACT  BUSINESS  OF  COR- 
PORATION. The  purchaser  at  the  sale  must  receive  a  cer- 
tificate of  purchase  of  the  franchise,  and  be  immediately  let 
into  the  possession  of  all  property  necessary  for  the  exercise 
of  the  powers  and  the  receipt  of  the  proceeds  thereof,  and 
must  threafter  conduct  the  business  of  such  corporation,  with 
all  its  powers  and  privileges,  and  subject  to  all  its  liabilities, 
until  the  redemption  of  the  same,  as  hereinafter  provided. 

History:     Enacted  March  21,  1872. 
229 


§§  390-393  CIVIL  CODE.  [Div.I.Pt.IV. 

§390.    PURCHASER   MAY    RECOVER   PENALTIES,   ETC. 

The  purchasei'  or  his  assignee  is  entitled  to  recover  any  pen- 
alties imposed  by  law  and  recoverable  by  the  corporation  for 
an  injury  to  the  franchise  or  property  thereof,  or  for  any 
damages  or  other  cause,  occurring  during  the  time  he  holds 
the  same,  and  may  use  the  name  of  the  corporation  for  the 
purpose  of  any  action  necessary  to  recover  the  same.  A 
recovery  for  damages  or  any  penalties  thus  had  is  a  bar 
to  any  subsequent  action  by  or  on-  behalf  of  the  corporation 
for  the  same. 

Hi.story:     Enacted  Marcli   21,   1872. 

§  391.  LIABILITIES  SAME  AS  BEFORE  SALE.  The  per- 
son, company,  or  corporation  whose  franchise  is  sold,  as  in 
this  article  provided,  in  all  other  respects  retains  the  same 
powers,  is  bound  to  the  discharge  of  the  same  duties,  and  is 
liable  to  the  same  penalties  and  forfeitures,  as  before  such 
sale. 

Hi-story:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   20,   1905,  Stats,  and  Amdts.   1905,  p.   409. 

§392.  REDEMPTION.  Redemption  from  any  such  sale 
may  be  had  as  provided  in  the  Code  of  Civil  Procedure  in 
the  case  of  redemptions  from  sales  of  real  estate  on  execu- 
tion. 

History:  Enacted  Marcli  21,  1872,  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional,  see  liistory,  §  4  ante;  amendment  re-enacted 
March   20,   1905,   Stats,   and  Amdts.    1905,  p.   409. 

As  to  many  miscellaneous  matters  affecting-  corporations  gen- 
erally, see  note  §  283,  ante. 

§393.  SALE,  WHERE  MADE.  The  sale  of  any  franchise 
under  execution  must  be  made  in  the  county  in  which  the 
corporation  has  its  principal  place  of  business,  or  in  which 
the  property,  or  some  portion  thereof,  is  situated. 

230 


Tit.I.ch.IV.]  EXTENSION,    DISSOLUTION.  §§399,400 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  209;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  Marcli  20,  1905,  Stats, 
and  Amdts.  1905,  p.  409. 


CHAPTER  IV. 

EXTENSION  AND   DISSOLUTION  OF  CORPORATIONS. 

§  399.     Proceedings  on  disincorporation   [repealed]. 

§  400.  Corporations,  directors  trustees  of  creditors,  when  dis- 
solved, except. 

§  401.  Extension  of  corporate  existence,  how  made— Certificate 
and  certified  copy,   filing  of. 

§  402.  How  corporations  may  continue  their  existence  [re- 
pealed]. 

§  403.  Title  I  to  apply  to  all  Corporations,  with  certain  excep- 
tions   [repealed]. 

§399.  PROCEEDINGS  ON  DISINCORPOBATION  (re- 
pealed). 

Hi.story:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
unconstitutional,  see  history,  §  4  ante;  repeal  re-enacted  March 
21,  1905,  Stats,  and  Amdts.  1905,  p.  563. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

84  C.  327,  365,  366,  367,  18  A.  S.  192,  24  P.  121,  129,  130,  10 
L.   627   (referred  to);   108  C.   431,   436,   41  P.   477    (referred  to). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§400.  CORPORATIONS,  DIRECTORS  TRUSTEES  OF 
CREDITORS,  WHEN  DISSOLVED,  EXCEPT.  Unless  other 
persons  are  appointed  by  the  court,  the  directors  or  managers 
of  the  affairs  of  a  corporation  at  the  time  of  its  dissolution 
are  trustees  of  the  creditors  and  stockholders  or  members 
of  the  corporation  dissolved,  and  have  full  power  to  settle 
the  affairs  of  the  corporation. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  352,  held 
vinconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,   1905,  Stats,  and  Amdts.   1905,  p.   563. 

231 


§  401  CIVIL  CODE.  [Div.T.Pt.TV. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

84  C.  327,  358  (referred  to),  365  (cited),  366,  367  (construed), 
369,  370  (referred  to),  374  (construed  with  section  564  C.  C.  P.), 
380    (referred  to),   18  A.   S.   192,   24   P.    121,   127,   129,   130,   131,   132, 

134,  10   L.    627;    100   C.    105,   119,    34   P.    492    (referred   to);    101    C. 

135,  147,  148,  149,  35  P.  549  (construed  and  applied);  150  C.  575, 
580,  581,  89  P.  335  (this  provision  is  applicable  in  all  cases  of 
dissolution,  wliether  voluntary   or   involuntary). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§401.  EXTENSION  OF  CORPORATE  EXISTENCE,  HOW 
MADE.  Every  corporation  heretofore  or  hereafter  formed, 
and  existing  under  the  laws  of  this  state,  may  at  any  time 
prior  to  the  expiration  of  the  term  of  its  corporate  existence 
extend  such  term  to  a  period  not  exceeding  fifty  years  from 
the  date  of  such  extension.  Such  extension  may  be  made 
at  any  meeting  of  the  stockholders,  or  members,  called  by  the 
directors  especially  for  considering  the  subject,  if  voted  for 
by  stockholders  representing  two-thirds  of  the  capital  stock; 
or  by  two-thirds  of  the  members  where  there  is  no  capital 
stock;  or  may  be  made  upon  the  written  assent  of  two-thirds 
of  the  members  or  of  stockholders  representing  two-thirds 
of  the  capital  stock. 

[Certificate  filed  witli  county  clerk  and  secretary  of  state.] 
A  certificate  of  such  vote  or  assent  shall  be  signed  and  sworn 
to  by  the  president  and  secretary  and  by  a  majority  of  the 
directors  of  the  corporation,  and  filed  in  the  office  of  the 
county  clerk  where  the  original  articles  of  incorporation  were 
filed,  and  a  copy  certified  by  such  clerk  shall  be  filed  in  the 
office  of  the  secretary  of  state,  and  thereupon  the  term  of 
existence  of  the  corporation  shall  be  extended  for  the  period 
specified  in  such  certificate.  The  fees  for  certifying  such  cer- 
tificate and  filing  the  same  and  the  certified  copy  thereof, 
shall  be  the  same  as  those  prescribed  by  law  for  certifying 
and  filing  articles  of  incorporation  in  such  cases. 

[Franchises.]  In  no  event  shall  such  extension  be  con- 
strued to  prolong  or  extend  the  duration  of  any  franchise 
or  privilege  heretofore  granted  to  any  coi'poratlon  or  joint 
stock  company  by  special  legislative  act,  or  by  the  munici- 
pal authorities  of  any  county,  city,  city  and  county,  town,  or 

232 


Tit.I.ch.IV.l  EXTENSION,   HOW   MADE.  §§402,403 

Other  political  subdivision  of  this  state,  beyond  the  term 
fixed  by  the  provisions  of  the  act,  ordinance  or  resolution 
conferring  such  privilege  or  franchise,  or  beyond  the  term 
fixed  for  the  maximum  period  of  existence  of  such  corpora- 
tion or  joint  stock  company  by  laws  in  force  and  governmg 
the  formation  and  organization  thereof  at  the  time  such 
corporation  or  joint  stock  company  was  formed  or  organized. 

History:  Enacted  March  21,  1872;  amended  March  30.  1874 
Code  Amdts.  1873-4,  p.  209;  by  Code  Commission,  Act  March  16 
1901,  Stats,  and  Amdts.  1900-1,  p.  353,  ^eld  unconstitutiona^.  see 
history  §  4  ante;  amendments  re-enacted  March  21,  1905  Stats 
and  Imdts.  1905.  p.  564;  amended  March  18,  1907,  Stats  and 
Imdtt  1907,  p.  344,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  410.  In 
effect   immediately. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation.  ., 

109  C.  571,  582,  42  P.  225  (construed  and  applied),  122  C.  66a. 
.^39    55  P.  10   (referred  to). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 

erally,  see  note  §  283,  ante.  ^.     ^    r^f 

Ex^;nsion  of  corporate  existence  not  to  exceed  a  term  of 
fifty  years,  provided  for  by  the  amendment  to  above  section  by 
act  o^Ma^ch  18,  1907,  held  in  conflict  with  Art.  XII,  §  7  of  the 
constitution  and  therefore  void,  in  Boca  Mill  Co.  vs.  Curry,  97 
P.    1117. 

§402.  HOW  CORPORATIONS  MAT  CONTINUE  THEIR 
EXISTENCE   (repealed). 

History:  Enacted  March  21.  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   209. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

122  C.  335,  336,  339,  55  P.  10   (construed). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§403.  TITLE  I  TO  APPLY  TO  ALL  CORPORATIONS, 
WITH  CERTAIN  EXCEPTIONS   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  20,  1905. 
Stats,   and   Amdts.    1905,   p.    410. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation 

109    C.    571,    582,    42    P.    225    (referred    to);    122    C.    335,    339.    55 

^  AS  t^o^many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283.  ante. 

233 


§§403[a],404  CIVIL  CODE.  [Div.I.Pt.IV. 

CHAPTER  V. 
GENERAL    PROVISIONS    AFFECTING    CORPORATIONS. 

S  40.3 [a].  General  provisions  apply,  when — Special  provision.s 
apply,   when. 

§  404.  Legislature  may  amend,  etc.,  corporation  laws  and  dis- 
solve corporations. 

§403[a].  GENERAL  THOVISIONS  APPLY,  WHEN  SPE- 
CIAL PROVISIONS  APPLY,  WHEN.  The  provisions  of  this 
title  are  applicaljle  to  every  corporation,  unless  such  corpo- 
ration is  excepted  from  its  operation,  or  unless  a  special  pro- 
vision is  made  in  relation  thereto  inconsistent  with  some 
provisions  in  this  title,  in  which  case  the  special  provision 
prevails. 

Hi.«ttory:  Enacted  Marcli  21.  1905,  Stats,  and  Amdts.  1905,  p. 
410. 

§404.  LEGISLATURE  MAY  AMEND,  ETC.,  CORPORA- 
TION LAWS  AND  DISSOLVE  CORPORATIONS.  The  legis- 
lature may  at  any  time  amend  or  repeal  this  part,  or  any 
title,  chapter,  article,  or  section  thereof,  and  dissolve  all 
corporations  created  thereunder;  but  such  amendment  or 
repeal  does  not,  nor  does  the  dissolution  of  any  such  corpo- 
ration, take  away  or  impair  any  remedy  given  against  any 
such  corporation,  its  stockholders  or  officers,  for  any  liability 
which  has  been  previously  incurred. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  353,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   410. 

See  Kerr's  Cyc.   C.  C.  for  15   pars,  annotation. 

As  to  dissolution  of  corporation,  see  2  L.  549,  8  L.  858,  9  L.  33, 
34;   12    A.   D.    239-243,    40    A.   D.    737-740. 

As  to  effect  of  dissolution  of  corporation,  whether  by  repeal 
of  its  charter  or  otherwise,  see   7  A.  S.    717-726. 

As  to  effect  of  proceedings,  by  dissolution,  upon  rights  of 
action,    see    15    L.    627-629. 

234 


Tit.I,ch.VI.]  FOREIGN   CORPORATIONS.  §  405 

As  to  equitable  jurisdiction,  see  9  L.  650. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  restraining  exercise  of  corporate  franchise,  see  9  L. 
273. 


CHAPTER  VI. 

FOREIGN  CORPORATIONS. 

[This  chapter  is  a  codification,  Act  April   3,  1880    (Stats.   1880, 

p.   21),  and  Act  March   17,   1899    (Stats,  and  Amdts.    1899,   p.    Ill), 

amending  Act  April  1,  1872,  Stats.  1871-2,  p.  826.     See  120  C.  156, 

47  P.  874,  52  P.   302,   40  L.   350.] 

§  405.  Designation  of  person  on  whom  process  may  be  served — 
Service  on  the  secretary  of  state,  when  valid. 

§  406.  Foreign  corporations,  statute  of  limitations  in  favor  of 
— Proof  of  corporate  existence — Change  of  designation. 

§  407.      Foreign   railroads,  rights  in  this   state. 

§  408.  Foreign  corporations  to  file  certified  copies  of  articles  of 
incorporation. 

§  409.  Foreign  corporations,  fees  to  be  paid  by,  on  filing  certi- 
fied copies  of  articles  of  incorporation. 

§  410.  Foreign  corporations,  penalty  for  failure  to  file  certified 
copies   of  articles  of  incorporation. 

§405.  DESIGNATION  OF  PERSON  ON  >VHOM  PROCESS 
MAY  BE  SERVED.  SERVICE  ON  SECRETARY  OF  STATE 
VALID,  WHEN.  Every  corporation  other  than  those  created 
by  or  under  the  laws  of  this  state  must,  at  the  time  of  filing 
the  certified  copy  of  its  articles  of  incorporation,  file  in  the 
office  of  the  secretary  of  state  a  designation  of  some  person 
residing  within  the  state  upon  whom  process  issued  by 
authority  of  or  under  any  law  of  this  state  may  be  served. 
A  copy  of  such  designation,  duly  certified  by  the  secretary 
of  state,  is  sufficient  evidence  of  such  appointment.  Such 
process  may  be  served  on  the  person  so  designated,  or,  in 
the  event  that  no  such  person  is  designated,  then  on  the 
secretary  of  state,  and  the  service  is  a  valid  service  on  such 
corporation. 

History:  Added  by  Code  Commission,  Act  March  21,  1901, 
Stats,  and  Amdts.  1900-1,  p.   353,  held  unconstitutional;   see  his- 

235 


§  406  CIVIL  CODE.  •    [Div.I.Pt.lV. 

tory,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Anidts.  1905, 
p.  630.  A  codification  of  §  1  Act  March  17,  1899;  see  introductory 
note  to  this  chapter;  amended  March  18,  1907,  Stats,  and  Amdts. 
1907,  p.  558,  Kerr's  Stats,  and  Amdts.  1906-7,  p.   410. 

See  Kerr's  Cyc.  C.  C.   for  21   pars,  annotation. 

As  to  distinction  between  words  "writ"  and  "process,"  sec 
Kerr's  Cyc.  C.  C.  P.  §  17  par.  6  and  note. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

§406.  FOREKiX  (OKrOKATlON,  STATUTE  ()F  LIMITA- 
TIONS IN  FAVOR  OF— PROOF  OF  CORPORATE  EXIST- 
ENCE—CHANGE OF  DESIGNATION.  Every  corporation 
which  complies  with  the  provisions  of  this  chapter  is  there- 
after entitled  to  the  benefit  of  the  laws  of  this  state  limiting 
the  time  for  the  commencement  of  civil  actions,  but  no  cor- 
poration not  created  by  or  under  the  laws  of  this  state  is 
entitled  to  the  benefit  thereof,  nor  can  any  such  corporation 
maintain  or  defend  any  action  or  proceeding  in  any  court  of 
this  state  until  the  corporation  has  complied  with  the  pro- 
visions of  the  preceding  section. 

[Proof  of  foreign  corporation.]  In  any  action  or  proceed- 
ing instituted  against  any  body  styled  as  a  corporation,  but 
not  created  by  nor  under  the  laws  of  this  state,  evidence 
that  such  body  has  acted  as  a  corporation,  or  employed 
methods  usually  employed  by  corporations,  must  be  received 
by  the  court  for  the  purpose  of  proving  the  existence  of  such 
corporation,  the  sufficiency  of  such  evidence  to  be  determined 
by  the  court  with  like  effect  as  in  other  cases. 

[Designation  for  service — Revocation,  etc. — New  designa- 
tion.] Every  corporation  which  has  complied  with  the  laws 
then  in  force,  requiring  it  to  make  and  file  a  designation  of 
the  person  upon  whom  process  against  it  may  be  served,  need 
not  make  or  file  any  further  designation.  Any  designation 
heretofore  or  hereafter  made  may  be  revoked  by  the  filing 
by  the  corporation  with  the  secretary  of  state  of  a  writing 
stating  such  revocation.  Within  forty  days  after  the  death 
or  removal  from  the  state  of  any  person  designated  by  the 
corporation,  or  after  the  revocation  of  the  designation,  the 

236 


Tit.I.Ch.VI.]  FOREIGN    RAILROADS.  §  407 

corporation  must  make  a  new  designation,  or  be  subject  to 
the  provisions  and  penalties  of  this  chapter. 

Historj-:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  353,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.  630-631;  see  introductory  note  to  this  chapter. 

See   Kerr's  Cyc.   C.   C.   for   11   pars,   annotation. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Construction  of  statute  is  strict. — See  Kerr's  Cyc.  C.  C.  §  405 
and  note  par.    12. 

Interstate  commerce — Interference  with  not  permitted. — See 
Kerr's  Cyc.  C.  C.   §  405  and  note  par.   15. 

Limitations — How  pleaded. — See  'Kerr's  Cyc.  C.  C.  P.  §  458 
and    note. 


§  407.    FOREIGN  RAILROADS,  RIGHTS  IN  THIS  STATE. 

Every  railway  or  other  corporation  organized  for  the  pur- 
pose of  carrying  freight  or  passengers  under  or  by  virtue  of 
the  laws  of  the  United  States,  or  of  any  state  or  territory 
thereof,  may  build  railroads,  exercise  the  right  of  eminent 
domain,  and  transact  any  other  business  which  it  might  do 
if  it  were  created  and  organized  under  or  by  virtue  of  the 
laws  of  this  state,  and  has  the  same  rights,  privileges,  and 
immunities,  and  is  subject  to  the  same  laws,  penalties,  obli- 
gations, and  burdens  as  if  created  or  organized  under  and 
by  virtue  of  the  laws  of  this  state.  Nothing  contained  in 
this  section  shall  be  construed  to  exempt  any  corporation 
from  any  duty  or  liability  imposed  upon  it  by  any  of  the 
provisions  of  this  chapter. 

History:  Enacted  by  Code  Commisison,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  354,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   631;  see  the  introductory  note  to  this  chapter. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  statute  conferring  right  of  eminent  domain  on  foreign 
corporation,    see   Kerr's   Cyc.   C.   C.    §  407,   note. 

237 


§§408,409  CIVIL  CODE.  [Div.I.Pt.IV. 

§408.  FOREIGN  (OKPORATION  MUST  FILE  CERTI- 
FIED  COPY  OF  ARTKLES  OF  INTORPORATIOX  [IX 
OFFICE  OF  SECRETARY  OF  STATE].  Every  corporation 
organized  under  the  laws  of  another  state,  territory,  or  of 
a  foreign  country,  which  [1]  is  now  doing  business  in  this 
state,  or  [2]  is  maintaining  an  office  herein,  or  [3]  which  shall 
hereafter  do  business  in  this  state,  or  [4]  maintain  an  office 
herein,  or  [5]  which  shall  enter  this  state  for  the  purpose 
of  doing  business  herein,  must  file  in  tlio  office  of  the  secre- 
tary of  state  of  the  state  of  California  [1]  a  certified  copy 
of  its  articles  of  incorporation,  or  [2]  of  its  charter,  or  [3] 
of  the  statute  or  statutes,  or  [4]  legislative,  or  executive,  or 
governmental  act  or  acts  creating  it,  in  cases  where  it  has 
been  created  by  charter,  or  statute,  or  legislative,  or  execu- 
tive, or  governmental  act,  duly  certified  by  the  secretary  of 
state,  or  other  officer  authorized  by  the  law  of  the  jurisdic- 
tion under  which  such  corporation  is  formed  to  certify  such 
copy,  and  [5]  a  certified  copy  thereof,  duly  certified  by  the 
secretary  of  state  of  this  state,  [a]  in  the  office  of  the  county 
clerk  of  the  county  where  its  principal  place  of  business  is 
located,  and  [b]  also  where  such  corporation  owns  property. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
631;  amended  March  18,  1907,  Stats,  and  Amdts.  1907,  p.  559, 
Kerr's  Stats,   and  Amdts.   1906-7,   p.   411. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  failure  to  designate  agent,  see  Kerr's  Cyc.  C.  C.  §  405 
and  note  pars.   2,  3. 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally, see  note  §  283,  ante. 

Business — What  constitutes  doing. — See  Kerr's  Cyc.  C.  C.  §  405 
and    note    par.    5. 

§409.  FOREIGN  CORPORATIONS,  FEES  TO  BE  PAID 
BY,  0>  FILING  (ERTIFIEI)  COPIES  OF  ARTKLES  OF 
INCORPORATION.  For  filing  and  issuing  a  certified  copy 
as  required  in  section  four  hundred  and  eight  of  this  code, 
corporations  formed  under  the  laws  of  another  state,  or  of 
a  territory,  or  of  a  foreign  country,  must  pay  the  same  fees 

238 


Tit.I.ch.VI.]  FAILURE   TO   FILE   COPIES.  §  410 

as  are  paid  by  corporations  formed  under  the  laws  of  this 
state. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
631;  see  introductory  note  to  this  chapter. 

As  to  many  miscellaneous  matters  relating  to  corporations, 
see    note,    §  283,   ante. 

Doing  business — As  to  wliat  constitutes. — See  Kerr's  Cyc.  C. 
C.   §  405  and  note  par.   5;   3  W.   &  P.   2155. 

Same — Single  or  isolated  transaction  by  foreign  corporation 
does  not  constitute. — See  10  L.  N.  S.   693;   3  W.  &  P.   2155. 


§  410.  FOREIGX  CORPORATIOXS,  PENALTY  FOR  FAIL- 
URE  TO  FILE  CERTIFIED  COPIES  OF  ARTICLES  OF 
INCORPORATION^.  Every  corporation  organized  under  the 
laws  of  another  state,  territory,  or  of  a  foreign  country, 
which  shall  neglect  or  fail,  within  ninety  days  from  the  tak- 
ing effect  of  this  section,  to  comply  with  the  conditions  of 
sections  four  hundred  and  eight  and  four  hundred  and  nine 
of  this  code,  shall  be  subject  to  a  tine  of  not  less  than  five 
hundred  dollars,  to  be  recovered  in  any  court  of  competent 
jurisdiction;  and  it  is  hereby  made  the  duty  of  the  secretary 
of  state,  as  he  may  be  advised  that  corporations  are  doing 
business  in  contravention  of  sections  four  hundred  and  eight 
and  four  hundred  and  nine  of  this  code,  to  report  the  fact 
to  the  governor,  who  shall  instruct  [1]  the  district  attorney 
of  the  county  wherein  sucli  corporation  has  its  principal 
place  of  business,  or  [2]  the  attorney-general  of  the  state, 
or  both,  as  soon  as  practicable,  to  institute  proceedings  to 
recover  the  fine  provided  for  in  this  section,  and  the  amount 
so  recovered  must  be  paid  into  the  state  treasury  to  the  credit 
of  the  general  fund  of  the  state; 

[Further  penalty,  inability  to  maintain  suits.]  In  addition 
to  which  penalty,  no  foreign  corporation  which  shall  fail  to 
comply  with  sections  four  hundred  and  eight  and  four  hun- 
dred and  nine  of  this  code  can  maintain  any  suit  or  action 
in  any  of  the  courts  of  this  state  until  it  has  complied  with 
said  sections;  provided,  that  any  such  corporation  which, 
prior  to  the  eighth  day  of  March,  nineteen  hundred  and  one, 

239 


§  410  CIVIL  CODE.  [Div.I,Pt.IV. 

shall  have  complied  with  the  provisions  of  the  act  entitled 
"An  act  to  amend  'An  act  in  relation  to  foreign  corporations,' 
approved  April  first,  eighteen  hundred  and  seventy-two," 
approved  March  seventeenth,  eighteen  hundred  and  ninety- 
nine,  is  exempted  from  the  provisions  of  this  section  and 
the  two  sections  next  preceding. 

History:     Enacted  March  21,  1905,  Slats,  and  Amdts.  1905,  pp. 
631,  632;  see  introductory  note  to  this  chapter. 


240 


Tit.II.ch.I.]  INSURANCE    COMPANIES.  §  414 

TITLE  II. 

INSURANCE  CORPORATIONS. 

Chapter  I.     General  Provisions,  §§  414-421[a]. 

II.     Fire,    Marine,    and    Title    Insurance    Companies, 
§§  424-432. 

III.  Mutual  Life,  Health,  and  Accident  Insurance  Cor- 

porations, §§437-452. 

IV.  Mutual  Benefit  and  Life  Associations,  §§  452a,  453. 
V.     Corporations  to  Discover  Fire  and  Save  Property 

and   Human    Life    from    Destruction    Thereby, 
§§  453a-453c. 
VI.     Life,    Health,   Accident,   and   Annuity   or  Endow-' 
ment     Insurance     on     the     Assessment     Plan, 
§§  453d-453p. 

CHAPTER  I. 
GENERAL   PROVISIONS. 

§  414.     Subscription  to  capital  stock   opened,  and  how  collected. 

§  415.  Purchase  and  conveyance  of  real  estate.  [What  property 
may  be  held;  what  must  be  sold  within  Ave  years.] 

§  416.     Policies,  ho^v  issued  and  by  whom  signed. 

§  417.     Dividends,  of  what  and  when  declared. 

§  418.     Directors  liable  for  loss  on  insurance  in  certain  cases. 

§  419.  Certain  insurance  companies  to  have  capital  stock  of 
two   hundred   thousand   dollars    [repealed]. 

§  420.  Certain  insurance  companies  to  have  capital  stock  of  one 
hundred  thousand  dollars   [repealed]. 

§  421.  Investment  of  capital  and  accumulations  of  certain  cor- 
porations— Report  of  officers  [repealed]. 

§  421  [a].  Same— Same. 

§414.  SUBSCEIPTIONS  TO  CAPITAL  STOCK  OPENED, 
AND  HOW  COLLECTED.  After  the  secretary  of  state  issues 
the  certificate  of  incorporation,  as  provided  in  article  one, 
chapter  one,  title  one,  of  this  part,  the  directors  named  in 
the   articles   of   incorporation   must   proceed   in   the   manner 

241 


§  414  CIVIL  CODE.  [Div.I,Pt.IV. 

specified,  or  in  their  by-laws,  or  if  none,  then  in  such  man- 
ner as  they  may  by  order  adopt,  to  open  books  of  sub- 
scription to  the  capital  stock  then  lyisubscribed,  and  to 
secure  subscriptions  to  the  full  amount  of  the  fixed  capital; 
to  levy  assessments  and  instalments  thereon,  and  to  collect 
the  same,  as  in  chapter  two  of  title  one  provided. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  354,  held 
unconstitutional,  see  history,  §  4  ante. 

INSURANCE — GENERALLY. 

As  to  insurance  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2527-2766 
and  notes. 

Accident,  death,  evidence  of  cause  of. — See  50  A.  S.  441. 
Accident  policy — Cause  of  loss  or  death  under. — See  3  L.   443; 

9  L.  371;  9  L.  687;  13  L.  263;  17  L.  753;  30  L.  211. 

Same — What  constitutes  an  accident  within  an  accident  pol- 
icy.—See    30    L.     206-211. 

Accidental  means,  what  is  injury  or  death  by. — See  54  A.  R. 
302;    8    A.    S.    763. 

Action  on  contract  of — As  to  generally. — See  4  A.  C.  1045; 
5  A.  C.  402;  7  A.  C.  809;  10  A.  C.  821;  4  L.  N.  S.  870;  5  L.  N.  S. 
88;  10  L.  N.  S.  264;  12  L.  N.  S.  907;  also  "Loss  and  its  adjust- 
ment,"   this   note. 

Same — Constitutionality  of  statute  providing-  damages  or 
penalty  for  refusal  or  failure  of  insurance  company  to  pay 
loss. — See    5    A.    C.    405. 

Same — Defense  of  ultra  vires  by  insurance  company  in  an 
action  on  a  policy. — See  4  A.  C.   1046. 

Same — Right  of  noncomplying  foreign  insurance  company 
to  enforce  domestic  contract. — See  9  A.  C.  338. 

Same — Submission  to  arbitration  as  condition  precedent  to 
suit  on  insurance  contract,  when. — See  8  A.  C.  171;  also  "Arbi- 
tration   clause,"    this    note. 

Acts  and  declarations  of  agent — Liability  of  principal  for. — 
See   2  A.  C.   99;   see  also   1  A.  C.   723;   3  A.  C.   980;   3  A.   C.   1145; 

10  A.  C.  92;  10  A.  C.  732;  see  also  "Authority  of  insurance 
agent,"    this   note. 

Adjustments  of,  when  may  be  opened. — See  35  A.  R.  775. 

Against    fire. — See    "Fire"  Insurance,"    this   note. 

Agents — Notice   to. — See   notes    §§  18,    19,   ante. 

Same — Stipulations  that  persons  procuring  policies  must  be 
deemed  agents   of  the  assured. — See   53   A.   R.   201. 

Same — Waiver  or  estoppel  by. — See  9  L.  N.  S.  1084;  also 
"Estoppel   and    waiver"   this   note. 

242 


Tit.II,ch.I.]      INSURANCE,  GENERALLY.  §  414 

Alienation,  recovery  by  insurer,  retaining  a  lien  or  insurable 
interest    after. — See    59    A.    D.    304. 

Arbitration  clause — Agreements  to  submit  disputes  respecting 
to.— See    2    A.    S.    565. 

Same — Effect  of  failure  to  arbitrate. — See  4  L.  N.  S.  288;  also 
"Action    on    Contract,"    this    note. 

Same — Submission  to  as  a  condition  precedent. — .See  10  L. 
558;   11  L.   598. 

Assessrnents  and  premiums. — See  "Premiums  and  assess- 
ments,"  this   note. 

Assignment  of,  when  valid  and  wliat  constitutes. — See  56  A. 
D.    747. 

Autliority  of  insurance  agents. — See  "Acts  and  declarations 
of  agent,"   this   note. 

Same — As  to  generally,  see  2  A.  C.  299;  1  L.  217;  1  L.  482; 
1  L.  563;  7  L.  217;  8  L.  72;  10  L.  60*9;  11  L.  341;  20  L.  277;  21 
L.    342. 

Same — Effect  of  limitations  on  agent's  authority  to  waive 
conditions   in    insurance   policy. — See    2   A.   C.    112;    9    A.    C.    380. 

Same — Employment  of  clerk  by. — See  10  L.   69. 

Same — Insurance  agent  is  agent  of  the  assured  when. — See 
20  L.   277. 

Same — ^Knowledge  of  agent — Imputed  to  company  when. — 
See    1    L.    217. 

Same — Same — For  notice  to  company  when. — See  1  L.  563; 
also   21  L.   342. 

Same — Liability  of  agent  to  insurance  company  for  loss  oc- 
casioned by  disobedience   of  Instructions. — See   8   L.   72. 

Same — Right  of  insurance  agent  to  commissions  on  renewal 
premiums  after   termination   of  agency. — See   7   A.   C.    1169. 

Same — Subagent,  effect  of  notice  to. — See  21   L.   342. 

Beneficiary— Power  of  insured  to  destroy  rights  of. — See  49 
L.    737-753. 

Same — Change  of. — See  5  L.   95;   15  L.   350;    63   L.   862. 

Benefit  association,  as  an  insurance  company. — See  38  L.  33-54. 

Blood  relative,  insurable  interest  in  life  of. — See  "Insurable 
interest,"   this   note. 

By-laws — As  to,  generally,  1  L.  N.  S.  1065;  8  L.  N.  S.  521;  12 
L.   N.   S.    504. 

Cancellation  of  policy  or  contract. — See  3  L.  N.  S.  114;  7  L.  N. 
S.   1163;   12  L.  N.  S.   881. 

Cause  of  loss  or  death. — As  to,  generally,  3  L.  486;  6  L.  495; 
9   L.   685;   13   L.    838;    26   L.   267;   68   L.    282. 

Same — Explosion. — See    19   L.    594-598;    29   L.    359. 

Certificate  of  magistrate,  necessity  for,  and  waiver  of. — See 
23    A.   S.    258. 

Child,  insurable  interest  in  life  of. — See  "Insurable  interest," 
this  note. 

243 


§  414  CIVIL  CODE.  [Div.I.Pt.IV. 

Concealment   or  misrepresentations,  when   avoids  policy. — See 
35  A.  R.   629. 

Conclusiveness   of  proof  of  loss  or  death,  as   against  insured 
or  beneficiary. — See  44  L.   846-860. 

Condition — As  to  keeping  and  producing  books  and  papers. — 
See    51    L..    699-713. 

Same — Against      keeping     petroleum     or     other     inflammable 
fluids,  when  violated. — See   37  A.   R.    650. 

Same — Requiring   payment    before    delivery    of   policy,    waiver 
of.— See    57   A.   R.    514. 

Consent  of  person  whose  life  is  insured  as  a  condition  prece- 
dent.—See    56    L.    586-591. 

Constructive    total    loss    of    insured   building. — See    56    L.    784- 
792. 

Contract    of   insurance — Irt    general,    see    2    A.    C.    17;    2    A.    C. 
99;    9    A.    C.    916. 

Same — Divisibility   of   insurance   contracts. — See    2   A.   C.    22. 

Same — Validity    of    oral    contract    of    insurance. — See    6    A.    C. 
624. 

Same — When   contract   of   insurance  is  complete. — See   9   A.   C. 
220;    69   A.   S.   143. 

"Cyclone,"    meaning    of    in    insurance    policy. — See    8    L.    N.    S. 
308;   2   V7.   &   P.    1809. 

Death,  proof  of. — See   "Loss  and  its  adjustment,"   this  note. 

Description    of   insured   property,    mistakes    in. — See    16    A.    D. 
462. 

Determination    as   to,   by   tribunals    of   association. — See   49    L. 
363,  372. 

Distribution    of    assets    of    insolvent    insurance    company — As 
to  who  are  distributees. — See  38  L.  97-100. 

Same — Contract    right. — See    38    L.    110. 

Same — Priorities. — See   38  L.   103-107. 

Same — Special    funds,    reinsurance    and    stockholder's    liabil- 
ity.— See    38    L.    108-110. 

Same — Valuation    and   adjustment   of    claims. — See    38    L.    100- 
102. 

Distribution  of  surplus  upon   dissolution   of  mutual    insurance 
company. — See   3  L.   N.   S.    653. 

Divorce  as  affecting  wife's  right  to  insurance  upon  husband's 
life.— See   50  L.   552-554. 

Duty    of    insured    to    submit    to    examination    and    furnish    in- 
formation.— See    52    L.    424-427, 

Effect  of  extra  hazards. — See   11   L.    299. 

Effect   of  receipt   of   insurance  money. — To   mitigate   damages 
for  personal   injuries. — See    67   L.    87. 

Same — To    mitigate     damages    for     wrongful     death. — See     67 
L.   92. 

244 


Tit.II.ch.I.]      INSURANCE,  GENERALLY.  §  414 

Effect  of  stipulations  seeking  to  niake  agent  of  insurer  agent 
of   the   assured. — See    77   A.   D.    724. 

Entirety  of,  policy  void  as  to  part  of  property  wliether  void 
in   toto. — See   74   A.   D.    498;    38   A.   R.    230. 

Estoppel -and  waiver — As  to  generally,  see  1  L.  217;  1  L.  222; 
1  L.  256;  1  L.  563;  7  L.  81;  8  L.  74;  9  L.  317;  10  L.  558-560;  11 
L.  599;  2  L.  N.  S.  548;  3  L.  N.  S.  444;  4  L.  N.  S.  421;  4  L.  N.  S. 
607;   4  L.  N.  S.   758;   10  L.  N.  S.   136;   10  L.  N.   S.   1064-1089. 

Same — Knowledge  of  fraud  of  insurance  agent. — See  5  L.  646; 
16    L.    33-38. 

Same — Rendition  of  policy  as  waiver  of  mistake  or  fraud 
of  insurer  or  its  agent. — See   67  L.   705-744. 

Estoppel  by  application  made  out  by  agents. — See  9  A.  S. 
229. 

Explosion,  as  cause  of  loss  or  death. — See  19  L.  594-598:  29 
L.    359. 

Expulsion  from  society,  effect  of  on  insurance. — See  25  L. 
149. 

Extra  hazards,  effect  of  on  policy  of  insurance. — See  11  L. 
299. 

"Extrahazardous,"  meaning  of  in  insurance  policy. — See  97 
A.   D.   798,   3  W.   &  P.    2624. 

Extrinsic  evidence  to  control  or  vary  policy. — See  2  A.  D. 
364. 

False  representations  as  to  previous  application  for  insurance, 
effect  on  policy. — See   55  L.   122-138. 

Fidelity,   nature   of,  and   rules   governing. — See    100   A.   S.    774. 

Fire  Insurance — Alterations  in  premises,  when  avoid  policy. — 
See    26    A.    S.    407. 

Same — Change  of  title,  sale  by  one  partner  to  another, 
whether  amounts  to. — See  49  A.  R.  22;   52  A.  R.  442. 

Same — Conditions  as  to  use  of  premises,  construction  of.- — - 
See    30    A.    S.    731. 

Same — Conditions  requiring  notice  of  other  insurance  to  be 
indorsed  on  the  policy. — See  64  A.  D.  221. 

Same — Forfeiture,  hazard,  increase  of,  what  results  in. — See 
66   A.  S.    691. 

Same — Insurable  interest  must  exist  under  policj',  when. — 
See    52    L.    330-341. 

Same — Loss  by,  what  included  in. — See   45   A.   D.   657. 

Same — Same— Total,  what  is. — See  59  A.  S.   810. 

Same — On  property  illegally  used,  validity  of. — See  40  L.  845- 
848. 

Same — Overvaluation  of  insured  property,  effect  of. — See  29 
A.   D.    616;    25    A.    R.    74. 

Same — Prohibited  risks,  conditions  against,  when  broken. — 
See    33    A.    R.    781. 

Same — Right  of  insurer  to  rebuild  or  repair. — See  11  A.  R.  57. 

245 


§  414  CIVIL  CODE.  [Div.I,Pt.IV. 

Same — Subsequent  insurance,   when  avoids. — See   20   A.   R.   319. 

Same — -Use  or  keeping  of  forbidden  materials,  when  avoids 
policy. — See    24    A.    R.    150. 

Same — Warranties,  answers  concerning-  watchmen,  when 
deemed   to   be. — See   33   A.   R.    832. 

Same — What  property  included  within  policies  respecting. — 
See    22    A.    R.    253. 

Same — When  remains  in  force  after  removal  of  property. — 
See  33  A.  R.   147. 

First   and   last   days   in    computing   time    on. — See    49    L.    208. 

"For  whom  it  may  concern." — See   16  A.  D.   323. 

Foreign  companies — Restriction  on  business  of,  etc. — See  20 
L.    405-409;    24    L.    298-312.  - 

Same — Revocation  of  license  of  on  account  of  removal  of 
action  to  Federal  court. — See   1  L.  N.  S.  1019. 

Same — Suits  by  or  on  behalf  of — Effect  of  location  of  insured 
property  within  the  state  to  prevent  action  by  foreign  insur- 
ance company  on  contract  made  in  another  state. — See  9  L.  N. 
S.    417. 

Forfeiture  of  policy — As  to  generally,  see  2  A.  C.  99;  8  A.  C. 
497. 

Same — Acts  and  knowledge  of  agents,  when  prevent. — See  9 
A.    S.    236. 

Same — And  suspensions — As  to,  generally. — See  1  L.  256;  2 
L.  118;  4  L.  538;  5  L.  806:  9  L.  189;  9  L.  317;  14  L.  283;  26  L. 
112;    49   L.    208;    50   L.    111. 

Same — By  assignor's  acts,   effect   on   assignee. — See   18   L.    136. 

Same — Discontinuance  of  cause  of,  whether  revives. — See  80 
A.    S.    305. 

Same — Estoppel  to  insist  upon  because  of  knowledge  of 
agent. — See  26  A.   R.   370. 

Same — Paid-up  and  non-forfeited  policy  of  life  insurance. — 
See    15   L.    449-455. 

Same — Silence  or  failure  to  act  by  insurer  after  notice  of 
breach  of  condition  in  policy,  as  waiver  of  forfeiture  for 
breach. — See  8  A.  C.   500. 

Funds   against   foreign    company. — See    20    L.    409. 

Habits  and  occupation  as  affecting  policy  or  contract. — See 
5   L.   N.   S.    283. 

"Hazardous"  and  "extrahazardous,"  nneaning  of  in  insurance 
policy. — See  97  A.  D.  798;   3  W.  &  P.   2624;   4  W.  &  P.   3224. 

Same — Same — Prohibited  articles  kept  in  the  ordinary  course 
of   business. — See   24   A.    R.    150. 

Incontestable  clause,  as  to  generally,  see  42  L.  247-261;  2  L. 
N.  S.   821;   5  L.  N.  S.   747;    6  L.  N.  S.   1039;   6   L.  N.  S.   1064. 

Increase  of  risk  by  change  of  companies  of  person. — See  10  L. 
383. 

246 


Tit.II.ch.L]      INSURANCE,  GENERALLY.  §  414 

Incumbrances,  conditions  ag-ainst.^ — See  1  L.  218;  4  L.  538;  8 
L.    73;   20   L.    400. 

Indemnity  insurance — As  to,  generally,  7  L.  N.  S.  958;  9  L.  N. 
S.   654;   11  L.  N.  S.   194;   12  L.  N.  S.   478. 

Same — Loss  and  settlement.— See  6  L.  N.  S.  562-565;  9  L.  N.  S. 
478. 

Infants  as  members  of  co-operative  or  assessment  company. — 
See   17   L.   547. 

Innocent  misrepresentations  as  to  health,  effect  on  policy. — 
See   53   L.    193-205. 

Insurable  interest — In  life — As  to  generally,  see  1  L.  238;  2 
L.  844;   6  L.  136;   7  L.  217;   12  L>409;  13  L.  434;  19  L.   187. 

Same — Same — Assig'nment  to  one  within  insurable  interest. — 
See   "Transfer  of  policy  or  interest,"  this  note. 

Same— Same— Consent  of  person  whose  life  is  insured  as  a 
condition   precedent.- — See   56   L.   586-591. 

Same — Same — Defense  of  want  of  as  affected  by  incontestable 
clause.— See   5  L.   N.   S.   747. 

Same^Same — "Dependent,"  who  may  be  considered  as  a, 
within  restrictions  as  to  benefit  of  mutual  benefit  associa- 
tions.— See    2    L.   N.    S.    653.  • 

Same — Same — "Family,"  who  is  a  member  of,  within  contract 
of  benefit  society. — See  3  L.  N.  S.  334. 

Sam.e — Same — In  the  life  of  another,  and  necessity  of. — See 
57  A.   D.  93;   46  A.  R.   189;   52  A.  R.   135;   58  A.  R.   S52. 

Same — Same — In  life  of  parent  or  child  or  otlier  blood  rela- 
tive.— See    54    L.    225-233. 

Same — Same — Insurable  interest  of  creditor  in  life  of  debtor. 
— See    2   L.    844. 

Same — Same — Right  to  take  life  insurance  for  benefit  of 
stranger. — See    25    L.    627-630. 

Same — Same — Validity  of  life  insurance  for  benefit  of  be- 
trothed wife. — See   19  L.   187;   53   L.   825. 

Same — Same — Wife's  right  to  insure  life  of  husband.— See  53 
L.    817-825. 

Same — Same — Same — Promised  marriage  and  irregular  mar- 
riages.— See    52   L.    825. 

Same — Same — Wager  policy  on  life. — See  6  L.  137;  7  L.  217; 
12  L.   409;    13   L.    434. 

Same — In  property — Generally,  see  11  L.  598;  43  L.  664;  66  L. 
657-662. 

Same — Same — Of  one  secondarily  liable  on  obligation  where 
property  is  primarily  charged. — See  9  L.  N.   S.   490. 

Same — Same — What   is. — See   7  A.   D.   42;    20   A.   D.    510. 

Same — Same — -When  must  exist  under  fire  policies. — See  52  L. 
330-341. 

Insurer — Right  to  change  from  assessment  to  level  premium 
plan.— See  4  A.  C.  361;   1  L.  N.  S.   623. 

'        247 


§  414  CIVIL  CODE.  [Div.I.Pt.IV. 

Interest  in  proceeds^ — As  to,  generally,  3  L.  N.  S.  478;  3 
L.  N.  S.  727;  3  U  N.  S.  904;  4  L.  N.  S.  456;  4  L.  N.  S.  939;  6  L. 
N.  S.  448;  7  L.  N.  S.  393;  8  L.  N.  S.  923;  10  L.  N.  S.  1066;  11  L. 
N.  S.   143;   11  L.  N.  S.  234;   12  L.  N.  S.   1206. 

Knowledge  of  fraud  of  insurer's  agent,  as  estoppel  or 
waiver. — See  5  L.  646;  16  L.  33-38. 

Liability — Of  funds  held  by  mutiial  benefit  societies  to  the 
claims  of  their  creditors. — See   6  L.   N.   S.    235. 

Same — Of  members  of  mutual  fire  insurance  company — As  to 
generally,    see    32   L.    481-508. 

Same — Of  officers  of  mutual  company  to  members  for  permit- 
ting division   of  funds. — See   2   L.  N.  S.   165. 

Life  insurance — Agents  accepting  insurance  when  they  know 
answers  in   tlie  application  are  false. — See  7   A.  R.   128. 

Same — Assignee,  whether  must  have  an  insurable  interest. — 
See   27   A.   R.    327. 

Same — Assignment  of  policies  of. — See   87  A.  S.   484. 

Same — Same — To  one  having  no  interest  in  the  life  insured. — 
See    16    A.    S.    906. 

Same — Beneficiary,  results  of  the  death  of  before  that  of  the 
person  whc^e  life  is  insured. — See  11  A.  S.  721. 

Same — Same — When  not  entitled  to  sue  for. — See  19  A.  R.  331. 

Same — Conflict  of  laws  respecting  nonforfeiture  of  policy. — 
See   104   A.   S.    483. 

Same- — Death  by  voluntary  exposure  to  unnecessary  danger, 
hazard,  or  perilous  adventure,  what  is. — See  12  A.  S.   272. 

Same — Same — In   known   violation    of   law. — See    60   A.    S.    160. 

Same — Same — Resulting  from  a  criminal  act. — See  21  A.  R. 
542. 

Same — Disease  existing  at  time  of  application,  when  avoids 
policy   of. — See   3   A.   S.    634. 

Same — Fraud  on  creditors,  whether  results  from  withdrawal 
by  debtor  of  moneys  for  procuring. — See  88  A.  D.  530. 

Same — Fraudulent  as  to  creditors,   when. — See  29  A.   S.   360. 

Same — Good  health,  what  is  within  the  meaning  of  the  law 
of.— See   10   A.   S.   242. 

Same — Insurable  interest,  whether  policy  may  be  made  pay- 
able to  a  person  having  none. — See  58  A.   R.  852. 

Same — Same— When  exists. — See  57  A.  D.  93;  52  A.  R.  135; 
46  A.  R.   189. 

Same — Premiums,  nonpayment  of  due  to  war. — See  19  A.  R. 
512. 

Same — Suicide  as  a  defense. — See  59  A.  D.  487;  3  A.  R.  454; 
.19  A.  R.  628;  84  A.  S.  539;  17  L.  89;  42  L.  253;  63  L.  867;  7  L.  N.  S. 
223;   8  L.  N.  S.   1124. 

Same — Same — Insanity  as  affecting  condition  in  policy  as  to 
suicide. — See    35    L.    258-266. 

Same — To  secure  debt  of  insurer,   validity  of. — See   53   L.    462. 

248 


Tit.IT,ch.I.]  INSURANCE,    GENERALLY.  §  414 

Sam.e— Warranty  of  sober  and  temperate  habits,  what  con- 
stitutes breach   of. — See   38   A.   R.   615. 

Same — When  regarded  as  wagering  contract  becaiise  of  the 
small    insurable   interest. — See   60   A.    R.    729. 

Limitation  of  actions  on  policies  of — As  to  generally,  see  28 
A.    S.    583. 

Same — Effect  of  clause  in  policy.- — See  1  L.  847;  3  L.  344;  8 
L.   48;   49  L.   208;   63  L.   204;   63  L.   868. 

Same — When  time  begins  to  run. — See  47  L.   697-711. 

Lloyd's    insurance   policies — Action    on. — See    55   L.    193-203. 

Location   of  movable   property. — See   26   L.   237-242;    26   L.    26-7. 

Loss  and  its  adjustment — Actions,  enforcing  payment — As  to 
generally,  see  2  L.  788;  3  L.  525;  20  L.  669;  25  L.  274;  52  L.  721; 
61  L.  537,  545;   63  L.  863;   64  L.   615;  66  L.   200-234;   4  L.  N.  S.   870; 

5  L.  N.  S.  88;   10  L.  N.  S.   264;   12  L.  N.  S.  907. 

Same — Saine — Action    on    Lloyd    policy. — See    55    L.    193-203. 

Same — Same — Contractional  limitation  of  time. — See  1  L.  487; 
3  L.   344;   8  L.   48;   49  L.   208;   63  L.   204;   63  L.   868. 

Same — Same — Same — When  begins  to  run. — See  47  L.  697- 
711. 

Same — Arbitration. — See  4  L.  N.  S.  288;  10  L.  558-560:  11  L. 
598. 

Same- — By  fire,  what  included  within. — See   23   A.   S.  915. 

Same — ^Cause  of  loss  or  death — As  to  generally,   see  3  L.   486; 

6  L.  495;   9  L.  685;   13  L.  838;   26  L.  267;  68  L.  288. 

Same — Same — Explosion. — See   9   L.    594-598;   29   L.   359. 

Same — Saine — Suicide  as  a  defense. — See  17  L.  89;  42  L.  253; 
63  L.  687;  7  L.  N.  S.  223;   8  L.  N.  S.   1124. 

Same — Same — Saine — Insanity  as  affecting  condition  as  to 
suicide. — See   35   L.   258-266. 

Same — Same^Under  accident  policy. — See  3  L.  443;  9  L.  371; 
9   L.    687;    13   L.   263;    17   L.   753;   30  L.    211. 

Same — Same — Same — What  constitutes  an  accident  within  ac- 
cident  policy. — See    30   L.    206-211. 

Same — Same — Voluntary  exposure  to  unnecessary  damage. — 
See   40  L.  432-448. 

Same — Extent  of  injury,  loss  or  recovery — Generally. — See  2 
L.   845;   15  L.   127;   26  L.   107;   63  L.   866. 

Same — Same — Constructive  total  loss  of  insured  building. — 
See   56   L.    784-792. 

Sam.e — Same — Insurer's  option  to  rebuild. — See  3  L.  170;  26 
L.    853-857. 

Same — game — Marine   insurance. — See   9   L.    831;    20   L.    839. 

Same — Same — What  constitutes  total  disability. — See  38  L. 
529-539. 

Same — For  which   insurer  is  liable. — See   36   A.   S.   852. 

Same — Interest  in  proceeds — -As  to  generally,  see  3  L.  426; 
13  L.  434;   17  L.  438;   19  L.  34;   63  L.  862;  3  L.  N.  S.  478;   3  L.  N.  S. 

249 


§  414  CIVIL  CODE.  [Div.I,Pt.IV. 

727;  3  L.  N.  S.  904;  4  L.  N.  S.  456;  4  L.  N.  S.  939;  6  L.  N.  S.  448; 
7  L.  N.  S.  393;  8  L.  N.  S.  923;  10  L.  N.  S.  1166;  11  L.  N.  S.  143; 
11  L.  N.  S.  234;  12  L.  N.  S.  1206. 

Same — Same — Divorce  as  affecting  wife's  right  to  insurance 
on   husband's   life.— See   50    L.    552. 

Same — Same — "Heirs,"  wlio  are  within  life  policy. — See  30  L. 
593-596;    63    L.    856. 

Same — Same — Legal  representative,  who  are  within  life  pol- 
icy.— See    30    L.    609. 

Same — Same — Life  insurance  as  assets  of  bankrupt  or  insol- 
vent.—See    50    L.    33-4  6. 

Same — Same — Rights  of  mortgagee. — See  19  L.  321;  25  L.  305; 
25   L.    679. 

Same — Same — Rights  of  vendor  and  vendee  to  proceeds. — See 
37   L.    150. 

Sam.e — Proof  of  loss  or  death — As  to  generally,  see  1  L.  217; 
3  L.  426;  7  L.  72;  7  L.  81;  8  L.  77;  18  L.  85;  9  L.  N.  S.  485. 

Same — Same — Conclusiveness  of  as  against  insured  or  bene- 
ficiary.— See    44   L.    846-860. 

Same — Same — Duty  of  insured  to  submit  to  examination  and 
furnish    information. — See    52    L.    424-427. 

Same — Risk  and  causes  of  dearth  or  injury  to  person. — See  1 
L.  N.  S.  422;  2  L.  N.  S.  168;  4  L.  N.  S.  636;  5  L.  N.  S.  657;  5  L.  N. 
S.  926;  6  L.  N.  S.  609;  8  L.  N.  S.  970;  8  L.  N.  S.  1014;  10  L.  N.  S. 
957. 

Same- — Risk  and  causes  of  loss  or  injury  to  property. — See  1 
L.  N.  S.  1095-1098;   8  L.  N.   S.  308. 

Same — Submission  to  arbitration. — See  10  L.  558-560;  11  L. 
598;    4    L.    N.    S.    288. 

Same— Subrogation. — See  2  L.  N.  S.   922;  3  L.  N.  S.   79. 

Same — Suicide. — See   "Cause  of  loss  or  death,"  this   title. 

Loss  of  status  of  incorporation  as  limitation  upon  powers  of 
insurance    company. — See    63    L.    853. 

Marine  Insurance — Collisions,  liability  for  injuries  caused  by 
to  another  vessel   by   the   insured  vessel. — See  54  A.   D.   787. 

Same — Deviation  by  necessity,  effect  of  upon  policy. — See  58 
A.    D.    673. 

Same — Deviation  of  vessel,  what  is  and  effect  of. — See  33  A. 
D.    60. 

Same — Goods  stowed  on  deck  and  jettisoned,  M'hen  covered 
by   policJ^ — See    86    A.    D.    500. 

Same — Liability  for  injuries  caused  by  another  vessel  through 
collision   with   the   insured  vessel. — See   54  A.   D.   787. 

Sam.e — Loss  due  to  neglect  to  employ  a  pilot. — See  33  A.  D. 
599. 

Same — "Perils  of  the  sea,"  what  are. — See  41  A.  D.   281. 

Same — Seaworthiness,  implied  wai-ranty  of. — See  58  A.  D.  671. 

250 


Tit.IT,ch.T.]      INSURANCE,  GENERALLY.  §  414 

Same — Seaworthiness,  what  is  within  the  meaning  of  the 
law. — See   33   A.   D.    33. 

Same — Warranty  of  seamansliip,  what  einbraced  in. — See  1 
A.    D.    165. 

Minor,   policy  of  insurance  on  life  of. — See  57  L.   496-504. 

Mortgagees — Forfeiture  of,  as  against,  for  breaches  of  con- 
dition.— See    58    A.    S.    667. 

Same — Rights  of  under  an  insurance  on  the  mortgaged  prop- 
erty.—See    54    A.    D.    693. 

Mortgagor,  right  to  proceedings. — See  19  L.  321;  25  L.  305; 
25   L.    659. 

Mutual  or  membership,  life  or  accident,  features  of  law  spe- 
cially applicable  to. — See  52  A.  S.   543. 

Notice — Of  assessment. — See  2  L.  118;  5  L.  106;  49  L.  208;  63 
L.    862. 

Same — To  agents. — See  notes   §§  18,   19,   ante. 

Of  bicycles.— See   47   L.   307. 

On  mortgaged  premises,  application  of  proceeds  of. — See  118' 
A.   S.    968. 

On  movable  property  including  livestock,  and  the  effect  of 
removal. — See   95   A.   D.    751. 

Option  of  insurer  to  rebuild. — See  3  L.  170;  26  L.  853-857. 

Oral  contract  of  insurance,  validity  of. — See   22  L.   768-773. 

Other  insurance,  effect  on  policy. — See  10  L.   359;   49  L.   208. 

"Other,"   what   constitutes. — See   43  A.   R.    221. 

Overinsurance,  waiver  of  conditions  against. — See  27  A.  R. 
597. 

Overvaluation,   effect    of. — See    35   A.    R.    74. 

Paid-up  insurance. — See  8  L.  N.  S.  193. 

Parent,  insurable  interest  in  life  of.— See  "Insurable  inter- 
est,"  this   note. 

Policy  or  contract — As  to  generally,  see  5  L.  N.  S.  407;  5  L. 
N.  S.  739;  8  L.  N.  S.  916;  10  L.  N.  S.  198;  10  L.  N.  S.  1089;  12 
L.   N.   S.   421;    12   L.    N.   S.    612. 

Same — By-laws,  effect  of  on — See  1  L.  N.  S.  1065:  8  L.  N.  S. 
521;    12   L.   N.   S.    504. 

Same — Cancellation  of. — See  3  L.  N.  S.  114;  7  L.  N.  S.  1163; 
12   L.   N.   S.    881. 

Same — Conditions,  title  and  increase  of  risk — As  to  generally, 
see  1  L.  222;  1  L.  563;  4  L.  538;   8  L.  74;  9  L.  81;  13  L.  263. 

Same — Same- — Change  of  title  or  interest. — See  4  L.  539-541; 
9  L.   627;   11   L.    293;    18  L.   481;   38  L.    562-565. 

Same — Same — Conditions  against  encumbrance. — See  1  L.  218; 
4  L.  538;   8  L.  73;   20  L.   400. 

Same — Same — Conditions  as  to  keeping  and  producing  books 
and   papers. — See    51   L.    699-713. 

Same — Same — Location  of  movable  property. — See  26  L.  237- 
242;    26   L.    267. 

251 


§  414  CIVIL  CODE.  [Div.I.Pt.IV. 

Same — Same — Other  insurance,  increase  of  risk. — See  4  L.  84S; 
10  L.  359;  10  L.  383;   11  L.   299;   49  L.   208. 

Same — Construction  of — As  to  generally,  see  5  L.  96;  5  L.  799; 
5  L.  808;  7  L.  217;  8  L.  113;  8  L.  834;  11  L.  340;  12  L.  210;  13  L. 
263;   26  L.   267;   30  L.   636;   47  L.   681;   49  I..   208;   63  L.   856. 

Same — Same — Separability  of  insurance  in  same  policy. — Soo 
19   Lr.   212-218. 

Same — Effect  of  expulsion  for  society. — See  25  L.   149. 

Sam/^ — Forfeitures  and  suspensions — As  to  generally,  see  1 
L.  256;  2  L.  118;  4  L.  538;  5  L.  806;  9  L.  189;  9  L.  317;  14  L.  283; 
26  L.  112;  49  L.  208;  50  L.  111. 

Same — Same — Paid  up  and  nonforfeiting  policy  of  life  insur- 
ance.— See    15    L.    449-455. 

Same — Incontestability   of. — See   42   L.    247-261. 

Same — On  life   of  minor. — See  57  L.   496-504. 

Same — Paid-up   insurance. — See  8  L.  N.  S.   193. 

Same — Premiums  and  assessments — Generally,  see  1  L.  46;  2 
L.  786;  8  L.  114;  14  L.  283;  20  L.  407;  23  L.  435;  57  L.  69. 

Sam.e— Same— Notice.— See  2  L.  118;  5  L.  806;  49  L.  208;  63  L. 
862. 

Same — Reformation  of. — See  2  L.  64;  3  I...  189;  5  L.  712;  6  L. 
200;  6  L.   838;   2  L.  N.  S.  548;  11  L.  N.  S.  357;   12  L.  N.  S.   907. 

Same — Representations  and  warranties — As  to  generally. — See 

1  L.  564;  7  L.  217;  8  L.  72;  10  L.  666;   13  L.  265;  39  L.  265;  63  L>. 
864. 

Same — Same — False  representation  as  to  previous  applica- 
tion  for  insurance. — See   55   L.   122-138. 

Same — Same — Innocent  misrepresentation  as  to  health. — See 
53    L.    193-205. 

Same — Termination   of.— See  8  L.   719;   10  L.   144;   30  L.   69. 

Same— Validity— Generally. — See    63   L.    833-896. 

Same — Same — Of  fire  insurance  on  property  irregularly  used. 
— See    40   L.    845-848. 

Same — Same — Of  life  insurance  to  secure  debt  of  insurer. — See 
53  L.   462. 

Same — Same — Of  oral  contract  of  insurance. — See  22  L.  768- 
773. 

Same — Warranties,  representations,  conditions,  and  incon- 
testability.— As  to,  generally,  8  L.  N.  S.  938;  10  L.  N.  S.  736; 
11   L.   N.   S.   92;    12   L.   N.   S.    484. 

Same — Sam.e — Habits    and    occupation. — See    5    L.    N.    S.    283. 

S{ime — Same — Incontestable  clause. — See  2  L.  N.  S.  821;  5  L. 
N.  S.  747;  6  L.  N.  S.  1039;  6  L.  N.  S.  1064. 

Same — Same — Premiums  and  assessments. — See  1  L.  N.  S.  914; 

2  L.  N.  S.  1051;  3  L.  N.  S.  1014;  6  L.  N.  S.  1039;  7  L.  N.  S.  238;  7 
L.  N.  S.   253;  7  L.  N.  S.  1154;  8  L.  N.  S.  848;   12  L.  N.  S.   319. 

Same — Same — Previous  rejection,  and  other  insurance. — See 
4  L.  N.  S.   347;   5  L.  N.   S.   759. 

252 


Tit.II.ch.L]      INSURANCE,  GENERALLY.    *        §  415 

Same — Same — Title  and  ownership. — See  2  L.  N.  S.  512;  3  L. 
N.  S.  107;   7  L.  N.  S.   627;   8  L.  N.  S.   903. 

Same— Same — Vacancy.— See  2  L.  517;  3  L.  966;  4  L.  1137;  12 
L.    456. 

Powers   of   members    of   benefit   societies. — See    2    L.    163. 

Premiums  and  assessments — As  to,  generally,  1  L.  146;  2  L. 
786;  8  L.  114;  14  L.  283;  20  L.  407;  23  L.  435;  57  L.  69;  1  L.  N.  S. 
914;  2  L.  N.  S.  1051;  3  L.  N.  S.  114;  6  L.  N.  S.  1039;  7  L.  N.  S.  238; 
7  L.  N.  S.  253;  7  L.  N.  S.   1154;  8  L.  N.  S.  884;   12  L.  N.  S.  319. 

Same — Notice. — See   2  L.   118;   5  L.   806;   49  L.   208;   63  L.   862. 

Same — Waiver  of  paj'ment  of,  what  amounts  to. — See  29  A.  R. 
777. 

Previous  rejection  and  other  insurance,  effect  on  contract  or 
policy.— See  4  L.  N.  S.  247;  5  L.  N.  S.  759. 

Privileged  communications,  statement  of  physicians,  exact- 
ing in  and  respecting  proofs  of  death. — See  52  A.  R.   4. 

Proof  of  loss — As  to,  generally,  9  L.  N.  S.  485;  also  "Loss 
and   its   adjustment,"    this   note. 

Proximate  cause  of  loss,  what  is. — See  36  A.  S.   852. 

Reformation  of  contract  or  policy. — See  65  A.  S.  514;  2  L. 
N.   S.    548;    11   L.   N.    S.    357. 

Same — Action  on  as  bar  to  reformation.- — See  12  L.  N.  S.   907. 

Reinsurance — As  to,  generally,  see  10  L.  423;  38  L.  110:  8  L. 
N.    S.    844-862. 

Same- — And  the  remedies  of  the  parties  thereunder. — See  45 
A.   S.    442. 

Representations   and   warranties. — See    16   A.   D.    462. 

Restrictions  on  insurance  by  unincorporated  associations  or 
individuals. — See   25  L.   238. 

Retention  of  policy  as  waiver  of  mistake  or  fraud  of  in- 
surer or  his  agent. — See   67  L.   705-744. 

Right  of  assessment  company  to  change  plan  or  class  of 
policies.— See  4  A.  C.  361;  1  L.  N.  S.  623. 

Right  of  policy  holder  to  inspect  books  of  insurance  com- 
pany.— See   11   L.   N.   S.   189. 

Right  to  proceeds,  "heirs,"  who  entitled  as. — See  44  A.  S.  404. 

Risks  and  cause  of  death  or  injury  to  person. — See  1  L.  N.  S. 
422;  2  L.  N.  S.  168;  4  L.  N.  S.  636;  5  L.  N.  S.  657;  5  L.  N.  S.  926; 
6  L.  N.  S.  609;  8  L.  N.  S.  970;  8  L.  N.  S.  1014;   10  L.  N.  S.   957. 

Risk  and  causes  of  loss  or  injury  to  property. — See  1  L.  N.  S. 
1095-1098;    8  L.   N.   S.    308. 

Sale  or  alienation  of  property,  when  avoids. — See  28  A.  D. 
154. 

Set-ofE  in  case  of  bankruptcy. — See   55  L.   49. 

Severability   of  insurance   in   same   policy. — See    19   L.    212-218. 

Situs  of  insurance  for  purposes  of  administration. — See  24 
L.    687. 

253 


§  414  CIVIL  CODE.  [Div.I.Pt.IV. 

Stranger,  right  to  take  life  insurance  for  benefit. — See  25  L. 
627-630. 

Subrogation — And  right  to. — See  2  L.  N.  S.  922;   3  L.  N.  S.   79. 

Same — Insurer's  right  to. — See  44  A.  S.  731. 

Successive    insurers,    liability   of. — See    28   A.    D.    121. 

Suicide — As  a  defense  to  action  on  policy. — See  59  A.  D.  487; 
3  A.  R.  454;  19  A.  R.  628;  84  A.  S.  539;  17  K  89;  42  L.  253;  63 
L.  867;   7  L.  N.  S.  223;  8  L.  N.  S.  1124. 

Same — Effect  on  enforcement  of  policy. — See  7  L.  N.  S.  223; 
8  L.  N.  S.   1124. 

Same — Insanity  as  affecting  condition  in  policy  as  to  suicide. 
—See   35   L.   258-266. 

Surplus    assets. — See    38    L.    110. 

Suspension  and  forfeitures. — See  "Forfeitures  and  suspen- 
sions,"   this   title. 

Title  and  ownership — As  to  generally. — See  2  L.  N.  S.  512;  3 
L.  N.   S.   107;   7  L.  N.  S.   627;   8  L.  N.   S.   903. 

Same — Change  of  or  interest,  effect  on  policy  of  insurance. — 
See  4  L.  451;  4  L.  539;  9  L.  627;  11  L.  293;  18  L.  481;  38  L.  562- 
565. 

Temporary  removal   of  property,   effect  of. — See   43   A.   R.    34. 

"Tornado,"  meaning  of  in  insurance  policy. — See  8  L.  N.  S. 
308;    8   W.    &  P.    7006. 

Total    disability,    what   constitutes. — See    35    L.    529-539. 

Transfer  of  policy — and  interest  therein — As  to,  generally, 
3  L.  N.  S.   935-952;   6  L.  N.   S.   128;   12  L.  N.  S.   1206. 

Same — Beneficiary — Power  of  insured  to  destroy  rights  of. — 
See  49  L.  737-753. 

Same — Same — Change  of. — See  5  L.  95;   15  L.  350;   63  L.  862. 

Same — Or  interest  of  beneficiary — ^As  to  generally,  see  9  L. 
660;    10   L.   259;    32   L.   482;    63   L.    858. 

Same — Same— Change  of  beneficiary. — See  5  L.  95;  15  L.  350; 
63  L.   862. 

Same — Same — Effect  on  assignee  of  assignor's  act  of  for- 
feiture.— See    18   L.    136. 

Same — Same — Power  of  insured  to  destroy  right  of  bene- 
ficiary.—See    49    L.    737-753. 

Same — Significance  of  these  and  like  expressions. — See  10  A. 
S.   390;   8   W.   &   P.   7198-7205. 

"Vacant"  or  "unoccupied" — As  affecting  validity  of  Insurance. 
— See  2  L.  N.  S.  517;  3  L.  N.  S.  966;  4  L.  N.  S.  1137:  12  L,.  N.  S. 
456. 

Vendor  and  vendee — Respective  rights  in  when  part  of  the 
purchase  price  has   been  paid. — See  84  A.  D.   429. 

Same — Right   to   proceeds. — See   37   L.    150-153. 

Voluntary  exposure  to  unnecessary  dangers,  effect  of  on 
policy. — See    40    L.    432-448. 

254 


Ii     Tit.II,ch.I.]  PURCHASE    OF    REALTY.  §415 

Waiver — And  estoppel.- — See  "Estoppel  and  waiver,"  this  note. 

Sanie — By   requiring  further  proofs   of  loss. — See   9   A.   S.    236. 

Same — Of  conditions  against  other  insurance. — See  27  A.  R. 
601. 

Saine — Of  conditions  in  insurance  policy  by  insurer's  failure 
to   inquire   into   existing   facts. — See    9    A.    C.    994. 

Same — Of  conditions  requiring  waivers  to  be  indorsed  in 
writing.— See  42  A.  R.   621;   107  A.  S.   99. 

Same — Constitutionality  of  statutes  providing  damages  or 
penalty  for  refusal  or  failure  of  insurance  company  to  pay 
loss.— See    5    A.   C.    405. 

Same — Misrepresentations. — See   2   A.  C.   99;   3   A.   C.   821. 

Same — Same — Validity  of  statute  providing  that  insurance 
contract  shall  not  be  avoided  for  immaterial  or  false  war- 
ranty.— See   7   A.   C.    1107. 

Same — Validity  of  parol  assignment  of  insurance  policy. — 
See   5   A.   C.    410. 

Warranties  and  representations  and  their  effect. — See  16  A. 
D.    462;    59    A.    R.    816. 

Wife — Divorce  as  affecting  right  to  insure  upon  husband's 
life. — See    50    L.    552-554. 

Same — Right   to    insure   life   of   husband. — See    53    L.    817-825. 


§415.  PURCHASE  A>D  CO^fVEYANCE  OF  BEAL 
ESTATE.  [WHAT  PROPERTY  MAY  BE  HELD;  WHAT 
MUST  BE  SOLD  WITHIN  FIVE  YEABS.]  No  insurance  cor- 
poration may  purchase,  hold  or  convey  real  estate,  except 
as  hereinafter  set  forth,  to  wit: 

1.  The  building  in  which  it  has  its  principal  office  and 
the  land  upon  which  it  stands. 

2.  Also,  such  as  may  be  requisite  for  its  accommodation 
in  the  convenient  transaction  of  its  business. 

3.  Also,  such  as  may  be  conveyed  to  it,  or  to  any  person 
for  it,  by  way  of  mortgage,  or  in  trust  or  otherwise,  to  secure 
or  provide  for  the  payment  of  loans  previously  contracted 
or  for  moneys  due. 

4.  Also  such  as  may  be  purchased  at  sales  upon  deeds  of 
trust,  or  judgments  obtained  or  made,  for  such  loans  or  debts. 

5.  Also  such  as  may  be  conveyed  to  it  in  satisfaction  of 
debts  previously  contracted  in  the  course  of  its  dealings. 

All  such  real  estate,  mentioned  in  subdivisions  three,  four, 
and  five,  so  acquired,  which  is  not  requisite  for  the  accom- 

255 


§§416,417  CIVIL  CODE.  [Div.I,Pt.IV. 

modation  of  such  corporation  in  the  transaction  of  its  busi- 
ness, must  be  sold  and  disposed  of  within  five  years  after 
such  corporation  acquired  title  to  the  same. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  354,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
Feb.  24,  1905,  Stats,  and  Amdts.  1905,  p.  21. 

§  416.    POLICIES,  HOW  ISSUED  A>D  BY  WHOM  SIGNED. 

All  policies  made  by  insurance  corporations  must  be  sub- 
scribed by  [1]  the  president  or  vice  president,  or  in  case  of 
the  death,  absence,  or  disability  of  those  officers,  by  [2]  any 
two  of  the  directors,  and  [3]  countersigned  by  the  secretary 
of  the  corporation.  All  such  policies  are  as  binding  and 
obligatory  upon  the  corporation  as  if  executed  over  the 
corporate  seal. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

As  to  power  of  corporations  generally  to  contract  without 
seal,  see  Kerr's  Cyc.  C.  C.  §  354,  subd.  S  and  note. 

As  to  validity  of  oral  insurance  contract,  see  22  L.  768-773. 

Conditional    delivery   of   insurance   policy. — See    2   L.    150. 

Powers  of  insurance  agents  in  respect  to  assured. — See-  16 
Encyc.    L.    914-918. 

§  417.    DIVIDENDS,  OF  WHAT,  AND  WHEN  DECLARED. 

The  directors  of  every  insurance  corporation,  at  such  times 
as  their  by-laws  provide,  must  make,  declare,  and  pay  to 
the  stockholders  dividends  of  so  much  of  the  net  profits  of 
the  corporate  business  and  interest  on  capital  invested  as  to 
them  appears  advisable;  but  the  moneys  received  and  notes 
taken  for  premium  on  risks  which  are  undetermined  and  out- 
standing at  the  time  of  making  the  dividend  must  not  be 
treated  as  profits,  nor  divided,  except  as  provided  in  chapter 
two  of  this  title. 

History:  Enacted  March  21,  1872,  founded  upon  §  21  Act  April 
2,  1866,  Stats.  1865-6,  p.  748;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  355,  held  unconstitu- 
tional, see  historj',  §   4  ante. 

256 


Tit.II,ch.I.]  INSURANCE    COMPANIES.  §§  418-420 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

Dividends — When  and  from  what  declared, — as  to,  see  Kerr's 
Cyc.   C.   C.    §  309   and   note. 

§  418.  DIRECTORS  LIABLE  FOR  LOSS  ON  I>SURANCE 

IX  CERTAIN  CASES.  If  any  insurance  corporation  is  under 
liabilities  for  losses  to  an  amount  equal  to  its  capital  stock, 
and  the  president  or  directors,  after  knowing  the  same, 
make  any  new  or  further  insurance,  the  estates  of  all  who 
make  such  insurance,  or  assent  thereto,  are  severally  and 
jointly  liable  for  the  amount  of  any  loss  which  takes  place 
under  such  insurance. 

History:  Enacted  March  21,  1872,  founded  upon  Act  April  2, 
1866,  Stats.  1865-6,  p.  747;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  355,  held  unconstitu- 
tional, see  history,  §  4  ante. 

§419.  CERTAIN  INSURANCE  COMPANIES  TO  HAVE  A 
CAPITAL  STOCK  OF  TWO  HUNDRED  THOUSAND  DOL- 
LARS  (repealed). 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  269;  April  1,  1878,  Code  Amdts.  1877-8, 
p.  80;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  355,  held  unconstitutional,  see  history,  §  4 
ante;  repealed  March  8,  1907,  Stats,  and  Amdts.  1907,  p.  141. 
Kerr's  Stats,  and  Amdts.  1906-7,  p.  411.  In  effect  immediately. 
Incorporated  in  Article  XVI,  of  Ch.  Ill,  Part  III,  Title  I,  of  the 
Political  Code.     See  Pol.  C.   §  594. 

See  Kerr's  Cyc.  C.  C.  for   2  pars,  annotation. 
64   C.    49,    52,   28   P.    495    (construed). 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

§420.  CERTAIN  INSURANCE  COMPANIES  TO  HAVE  A 
CAPITAL  STOCK  OF  ONE  HUNDRED  THOUSAND  DOL- 
LARS  (repealed). 

History:      Enacted    April    1,    1878,    Code    Amdts.    1877-8,    p.    80; 
repealed   March    8,    1907,    Stats,    and   Amdts.    1907,   p.    141,    Kerr's 
Stats,  and  Amdts.  1906-7,  p.  411.     In  effect  immediately.     Incor- 
porated in  Pol.  C.  as  noted  in  last  section. 
Kerr's    C.    C. — 9  257 


§§421, 421[a]  CIVIL  CODE.  [Div.I.Pt.IV. 

§421.  INVESTMENT  OF  CAPITAL  AND  ACCUMULA- 
TIONS  OF  CERTAIN  CORPORATIONS— REPORT  OF  OFFI- 
CERS   [repealed]. 

[Repeal.]  Sec.  1.  Section  four  hundred  and  twenty-one 
of  the  Civil  Code,  as  approved  March  3,  1905,  is  hereby 
repealed. 

[Saving'  clause.]  Sec.  2.  Nothing  herein  contained  shall 
be  deemed  to  repeal  any  of  the  provisions  of  section  four 
hundred  and  twenty-one  of  said  code,  as  approved  March  21, 
1905,  and  any  rights  acquired  under  said  section  four  hun- 
dred and  twenty-one,  as  approved  March  3,  1905,  shall  be 
preserved  under  the  provisions  of  said  section  four  hundred 
and  twenty-one,  as  approved  March  21,  1905. 

History:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  pp.  355-357,  lield  unconstitutional,  see 
history,  §  4  ante;  re-enacted  March  3,  1905,  Stats,  and  Amdts. 
1905,  pp.  34-36.  Also  re-enacted  on  March  21,  1905,  with  slight 
variations,  which  latter  enactment  is  given  below  as  §421  [a]; 
repeal  enacted  March  18,  1907,  Stats,  and  Amdts.  1907,  p.  597, 
Kerr's  Stats,  and  Amdts.  1906-7,  p.  411. 

Note:  The  section  421  approved  March  21,  1905,  and  which  is 
retained,  is  numbered  §  421[a]  herein  and  amended  March  22, 
1907.     See  next  section. 


§421  [a].     INSURANCE   CORPORATIONS,  HOW  CAPITAL 

MAY  BE  INVESTED.  Companies  organized  under  the  laws 
of  this  state  for  the  transaction  of  business  in  any  kind  of 
insurance,  may  invest  their  capital  and  accumulations  in 
the  following  named  securities: 

1.  [Seeurities  in  ^vliioli  may  be  invested.]  In  the  purchase 
of,  or  loans  upon  interest-bearing  bonds  of  the  United  States 
government. 

2.  In  tlie  purchase  of,  or  loans  upon  interest-bearing  bonds 
of  any  of  the  states  of  the  United  States,  not  in  default  for 
interest  on  such  bonds. 

3.  In  the  purchase  of,  or  loans  upon  interest-bearing  bonds 
of  any  of  the  counties  and  Incorporated  cities  and  towns  and 
duly  organized  school  districts  of  any  state  or  territory  of 
the  United  States  not  in  default  for  interest  on  such  bonds. 

258 


Tit.II.ch.L]  INVESTMENT   OF   CAPITAL.  §  421[a] 

4.  In  loans  upon  unencumbered  real  property,  no  loan  to 
exceed  sixty  per  cent  of  the  market  value  of  any  piece  of 
real   estate  to  be  taken  as  security. 

5.  [Title  insurance  companies.]  Corporations  engaged  in 
the  business  of  insuring  titles  to  real  estate  may,  after  the 
investment  of  one  hundred  thousand  dollars  in  the  manner 
provided  for  in  subdivisions  one,  two,  three  and  four  of  this 
section,  invest  an  amount  not  exceeding  fifty  per  cent  of  their 
subscribed  capital  stock,  in  the  preparation  or  purchase  of 
the  materials  or  plant  necessary  to  enable  them  to  engage 
in  such  business;  and  such  material  or  plant  shall  be  deemed 
an  asset  valued  at  the  actual  cost  thereof,  in  all  statements 
and  proceedings  required  by  law  for  the  ascertainment  and 
determination  of  the  condition  of  such  corporations. 

6.  [Fire,  life,  health,  accident  and  marine  insurance  com- 
panies.] Companies  organized  for  and  engaged  in  the  busi- 
ness of  fire,  life,  health,  accident  and  marine  insurance,  may, 
after  the  investment  of  two  hundred  thousand  dollars,  and 
companies  duly  formed  or  organized  for  the  transaction  of 
business  in  any  other  kind  of  insurance  may,  after  the 
investment  of  one  hundred  thousand  dollars,  in  the  manner 
provided  in  subdivisions  one,  two,  three  and  four  of  this 
section,  invest  the  balance  of  their  capital  and  any  accumu- 
lations in  the  purchase  of  or  loans  upon  the  stock  of  any 
corporation  (except  mining  companies)  organized  and  carry- 
ing on  business  under  the  laws  of  the  state  of  California 
which  have  at  the  time  of  investment  a  market  value  of  not 
less  than  their  paid-in  value,  and  which  are  rated  as  first- 
class  securities,  or  in  interest-bearing  bonds  of  any  corpora- 
tion of  any  state  or  territory  of  the  United  States  not  in 
default  of  interest;  provided,  that  a  two-thirds  vote  of  all 
the  directors  of  such  corporations  shall  approve  such  invest- 
ment. It  shall  be  the  duty  of  the  officers  of  such  corpora- 
tion to  report  quarterly  during  the  months  of  January,  April, 
July  and  October  of  each  year  to  the  insurance  commissioner 
a  list  of  such  investments  so  made  by  them,  and  the  insur- 
ance commissioner  may,  if  such  investments,  or  any  of  them, 

259 


§421[a]  CIVIL  CODE.  [Div.I,Pt.IV. 

seem  injudicious  to  him,  require  ttie  sale  of  ttie  same.  But 
no  investment  in  the  securities  named  in  subdivisions  one, 
two,  three  and  six  of  this  section  must  be  made  in  an  amount 
exceeding  the  market  value  of  such  securities,  at  the  date 
of  such  investment. 

7.  Life  insurance  companies  may  loan  upon  their  own  poli- 
cies provided  that  the  amount  so  loaned  upon  each  policy 
shall  not  exceed  the  reserve  against  said  policy  at  the 
time  said  loan  is  made;  provided  further,  that  no  policy  loans 
whatever  shall  ever  be  used  as  security  which  may  be  depos- 
ited with  the  insurance  commissioner  under  section  six  hun- 
dred and  thirty-four  of  the  Political  Code;  and  provided 
further,  that  whenever  any  such  loan  in  any  amount  is  made 
on  a  policy  registered  with  the  insurance  commissioner  under 
said  section  six  hundred  and  thirty-four  of  the  Political 
Code,  such  registration  shall  be  forthwith  canceled. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  pp.  355-357,  held  unconstitutional,  see 
history,  §  4  ante;  re-enacted  March  21,  1905,  pp.  628-629.  Also 
re-enacted  March  3,  1905  (see  ante  §  421);  amended  March  22, 
1907,  Stats,  and  Amdts.  1907,  p.  890,  Kerr's  Stats,  and  Amdts. 
1906-7,  p.  412.  The  section  amended  is  numbered  421[a]  herein 
and  is  especially  preserved  in  the  repeal  of  March  18,  1907.  See 
note  to  preceding  section. 

See  Kerr's  Cyc.  C.   C.  for   19   pars,   annotation. 

As  to  authority  of  corporations  to  hold  shares  in  other  cor- 
porations,   see    10   Cyc.    1107. 

As  to  authority  of  corporation  to  take  and  hold  land,  see 
2   Lr.   255;   13   Encyc.   L.   851. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,  ante. 

As  to  power  of  corporation  to  deal  in  stock  of  other  corpo- 
rations or  its  own,   see  18   L.   252. 

As  to  power  of  corporation  to  lend  out  funds,  see  10  Cyc. 
1105. 

As  to  right  to  acquire  mortgages,  see  13  Encyc.  L.   854. 

As  to  right  of  corporation  to  purchase  its  own  stock,  see  61. 
L.    621-633. 


260 


Tit.II,ch.II.]  PAYMENT  OF  CAPITAL.  §§  424, 425 

CHAPTER   II. 
FIRE,   MARINE,    AND    TITLE    INSURANCE    COMPANIES. 

§  424.  Paj'inent  of  subscriptions — Capital  to  be  all  paid  in 
twelve  months. 

§  425.     Certificate  of  capital  stock  paid  up  to  be  filed,  and  when. 

§  426.     Property  which  may  be  insured. 

§  427.     Funds  may  be  invested  how   [repealed]. 

§  428.  Corporations,  fire  and  marine;  amount  of  risk  to  be 
taken. 

§  429.  [Reserve  before  dividends] — Corporations  formed  subse- 
quent to  April   1,  1878. 

§  430.  Amount  to  be  reserved  by  companies  witli  less  than 
$200,000. 

§  431.  Amount  to  be  reserved  by  life  insiirance  conapanies 
[repealed]. 

§  432.      Accumulate  surplus   fund. 

§424.  PAYMENT  OF  SUBSCRIPTIONS— CAPITAL  TO 
BE  ALL  PAID  IN  TWELVE  MONTHS.  The  entire  capital 
stock  of  every  fire  or  marine  insurance  corporation  must  be 
paid  up  in  casli  within  twelve  months  from  the  filing  of  the 
articles  of  incorporation,  and  no  policy  of  insurance  must  be 
issued  or  risk  taken  until  twenty-five  per  cent  of  the  whole 
capital  stock  is  paid  up. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.  for  3   pars,   annotation. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

Fire  insurance, — as  to,  see  Kerr's  Cyc.  C.  C.  §§  2752-2757  and 
notes;    also   note    §  414,    ante. 

Same — County  fire  insurance  companies,  as  to  act  providing 
for,   see   Hen.   G.   L.,   tits.   Corporations   and   Insurance. 

Marine  insurance, — as  to,  see  Kerr's  Cyc.  C.  C.  §§  2655-2746 
and    notes;    also    note    §  414,    ante. 

§  425.  CERTIFICATE  OF  CAPITAL  STOCK  PAID  UP  TO 
BE  FILED,  AND  WHEN.  The  president  and  a  majority  of 
the  directors  must,  [1]  within  thirty  days  after  the  payment 
of  the  twenty-five  per  cent  of  the  capital  stock,  and  also  [2] 

261 


§§  426-428  CIVIL  CODE.  [Div.I,Pt.IV. 

within  tliirty  days  after  the  payment  of  the  last  instalment 
or  assessment  of  the  capital  stock  limited  and  fixed,  [3] 
prepare,  subscribe,  and  swear  to  [4]  a  certificate  setting 
forth  the  amount  of  the  fixed  capital  and  [5]  the  amount 
thereof  paid  up  at  the  times  respectively  in  this  section 
named,  and  [6]  file  the  same  in  the  office  of  the  county  clerk 
of  the  county  where  the  principal  place  of  business  of  the 
corporation  is  located,  and  [7]  a  duplicate  thereof,  similarly 
executed,  with  the  insurance  commissioner. 

History:     Enacted  March  21,  1872. 

§426.  PROPERTY  ^VHICH  MAY  BE  INSURED.  Every 
corporation  formed  for  fire  or  marine  insurance,  or  both, 
may  [1]  make  insurance  on  all  insurable  interests  witliln 
the  scope  of  its  articles  of  incorporation,  and  [2]  may  cause 
itself  to  be  reinsured. 

History:     Enacted  March   21,   1872. 

§427.    FUNDS  MAY  BE  INVESTED,  HOW   (repealed). 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  210;  April  1,  1878,  Code  Amdts.  1877-8,  p. 
81;  March  5,  1887,  Stats,  and  Amdts.  1887,  p.  22;  March  6.  1899, 
Stats,  and  Amdts.  1899,  pp.  66-68  (became  law,  under  constitu- 
tional provision,  witliout  governor's  approval);  repealed  March 
3.  1905,  Stats,  and  Amdts.  1905,  p.  34;  re-repealed  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  628. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

123  C.   196,   203,   55  P.   902    (referred  to). 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,   ante. 

Insurable  interest, — as  to  what  is,  see  Kerr's  Cyc.  C.  C.  §  2546 
and   note. 

§428.    CORPORATIONS,   FIRE   AND   MARINE;   AMOUNT 

OF  RISK  TO  BE  TAKEN.  Fire  and  marine  insurance  cor- 
porations must  never  take,  on  any  one  risk,  whether  it  is  a 
mai'ine  insurance  or  an  insurance  against  fire,  a  sum  exceed- 
ing one-tenth  part  of  their  capital  actually  paid  in,  and  intact 

262 


Tit.II,ch.II.]  RESERVE    AND    DIVIDENDS.  §  429 

at  the  time  of  taking  such  risk,  without  at  once  reinsuring 
the  excess  above  one-tenth. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Aindts.  1873-4,  p.  210;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  357,  held  unconstitu- 
tional, see  history,  §  4  ante;  re-amended  Marcli  21,  1905,  p.  570. 

See  Kerr's  Cyc.  C.   C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,  ante. 

As  to  waiver  of  condition  against  over-insurance,  see  27  A. 
R.    597. 

Power  of  state  to  regulate  and  limit  insurance  companies. — 
See    16    Encyc.   L.    884-886. 


§429.  [BESEKVE  BEFOEE  DIVIDENDS.]  CORPORA- 
TIONS  FORMED  SUBSEQUENT  TO  APRIL  1,  1878.  No  cor- 
poration formed  subsequent  to  April  first,  eighteen  hundred 
and  seventy-eight,  under  the  laws  of  this  state,  and  trans- 
acting fire,  marine,  inland  navigation  insurance  business,  or 
insurance  provided  for  by  section  four  hundred  and  twenty 
(420)  of  this  code,  except  insurance  of  the  title  to  real  prop- 
erty, must  make  any  dividends  except  from  profits  remaining 
on   hand   after   retaining   unimpaired: 

1.  The  entire  subscribed  capital  stock: 

2.  All  the  premiums  received  or  receivable  on  outstanding 
marine  or  inland  risks,  except  marine  time  risks. 

3.  A  fund  equal  to  one-half  of  the  amount  of  all  premium?* 
on  all  other  risks  not  terminated  at  the  time  of  making  such 
dividend. 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes. 

History:  Enacted  March  21,  1872;  amended  April  1,  1878,  Code 
Amdts.  1877-8,  p.  81;  March  5,  1887,  Stats,  and  Amdts.  1887,  p.  23. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

Declaring  dividends — When  and  from  what,  by  insurance 
companies. — As  to,  see  Kerr's  Cyc.  C.  C.  §  309  and  note;  §  417 
and    note;    also    99    A.    D.    761. 

263 


§§  430-432  CIVIL  CODE.  [Div.I,Pt.IV. 

§  430.  AMOUNT  TO  BE  ESERYED  BY  COMPAINIES  WITH 
LESS  THAN  $200,000.  No  fire  or  marine  insurance  corpora- 
tion, with  a  subscribed  capital  of  less  than  two  hundred  thou- 
sand dollars,  must  declare  any  dividends,  except  from  profits 
remaining  on  hand  after  reserving: 

1.  A  sum  necessary  to  form,  with  the  subscribed  capital 
stock,  the  aggregate  sum  of  two  hundred  thousand  dollars; 

2.  All  the  premiums  received  or  receivable  on  outstanding 
marine  or  inland  risks,  except  marine  time  risks; 

3.  A  fund  equal  to  one-half  the  amount  of  all  premiums  on 
fire  risks  and  marine  time  risks  not  terminated  at  the  time 
of  making  such  dividend; 

4.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course 
of  settlement,  and  all  liabilities  for  expenses  and  taxes. 

History:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

§431.  AMOUNT  TO  BE  RESERVED  BY  LIFE  INSUR- 
ANCE COMPANIES  (repealed). 

History:  Enacted  April  1,  1878,  Code  Amdts.  1877-8,  p.  81; 
repealed  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  357,  held  unconstitutional;  see  history,  §  4  ante; 
re-repealed  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  571. 

As  to  life  and  health  insurance  corporations  and  insurance, 
see   Kerr's  Cyc.   C.   C.    §§  2762   et   seq.   and   notes. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,   ante. 

§432.  ACCUMULATE  SURPLUS  FUND.  Corporations 
transacting  business  in  insuring  titles  to  real  estate,  shall 
annually  set  apart  a  sum  equal  to  twenty-five  per  cent  of 
their  premiums  collected  during  the  year,  which  sum  shall  be 
allowed  to  accumulate  until  a  fund  shall  have  been  created 
amounting  to  ten  per  cent  of  the  subscribed  capital  stock. 
Such  fund  shall  be  maintained  as  a  further  security  to 
policy  holders,  and  shall  be  known  as  the  surplus  fund; 

[Impairment  of  surplus  fund — Restoration.]     And  if  at  any 

264 


TitJI.Ch.II.]  SURPLUS  FUND.  §432 

time  such  fund  shall  be  Impaired  by  reason  of  a  loss,  the 
amount  by  which  it  may  be  impaired  shall  be  restored  in  the 
manner  hereinabove  provided  for  its  accumulation.  The 
reporting  of  a  loss  shall  be  deemed  an  impairment  of  such 
fund  for  the  purposes  of  this  section. 

[DiYideuds— From  what  made— ReserTatious.]  Such  cor- 
poration must  not  make  any  dividends  except  from  profits 
remaining  on  hand  after  retaining  unimpaired: 

1.  The  entire  subscribed  capital  stock. 

2.  The  amount  owing  to  the  surplus  fund,  under  the  pro- 
visions of  this  section. 

3.  A  sum  sufficient  to  pay  all  losses  reported,  or  in  course 
of  settlement,  which  shall  be  in  excess  of  the  surplus  fund, 
and  all  liabilities  for  expenses  and  taxes. 

Hi-story:  Enacted  March  5,  1887,  Stats,  and  Amdts.  1887,  p.  23. 
In  effect  March  5,  1887;  repealed  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  357,  held  unconstitutional; 
see  history,  §  4  ante. 


265 


§  437  CIVIL  CODE.  [Div.I.Pt.IV. 


CHAPTER  III. 

MUTUAL  LIFE,  HEALTH,  AND  ACCIDENT  INSURANCE  COR- 
PORATIONS. 

§  437.     Capital  stock — Guarantee  fund. 

§  438.     Of  what  guarantee  fund  shall  consist  [repealed]. 

§  439.     What  constitutes,  and  deficiency  in  fixed  capital. 

§  440.     Declaration  of  fixed  capital  to  be  filed. 

§  441.  Guarantee  notes  and  interest.  [Commission  and  interest 
allowed.] 

§  442.     Insured  entitled  to  vote,  when. 

§  443.     Number  of  directors,  how  altered. 

§  444.     Investment  of  capital  stock   [repealed]. 

§  445.  Limitation  to  the  holding  of  stock,  etc.,  may  be  provided 
for  in  by-laws. 

§  446.     Premiums,  how  payable. 

§  447.  Insurance  companies  to  furnish  data  to  insurance  com- 
missioner— Employment  of  actuary    [repealed]. 

§  448.  No  stamps  required  on  accident  insiirance  contract  [re- 
pealed]. 

§  449.      [Valuation  of  policies.]      Retaliatory  clause   [repealed]. 

§  450.     Policies  issued  within  state. 

§  451.     Certain  orders  not  insurance  companies   [repealed]. 

§  452.     Corporations,  life  insurance — Dividends,  how  made. 


§437.  CAPITAL  STOCK— GUARANTEE  FUND.  Every 
corporation  formed  for  .the  purpose  of  mutual  insurance  on 
the  lives  or  health  of  persons,  or  against  accidents  to  persons 
for  life  or  any  fixed  period  of  time,  or  to  purchase  and  sell 
annuities,  must  have  a  capital  stock  of  not  less  than  two 
hundred  thousand  dollars.  It  must  not  make  ar,y  insurance 
upon  any  risk  or  transact  any  other  business  as  a  corporation 
until  its  capital  stock  is  fully  paid  up  in  cash,  nor  until  it 
has  also  obtained  a  fund,  to  be  known  as  a  "guarantee  fund," 
of  not  less  than  two  hundred  and  fifty  thousand  dollars,  as  is 
hereinafter  provided.  If  more  than  the  requisite  amount  is 
subscribed,  the  stock  must  be  distributed  pro  rata  among  the 
subscribers.  Any  subscription  may  be  rejected  by  the  board 
of  directors  or  the  committee  thereof,  either  as  to  the  whole 
or  any  part  thereof,  and  must  be,  so  far  as  rejected,  without 

266 


TiUI,Cb.ni.]  FIXED    CAPITAU    ETC.  H  438-440 

etteot.  nothing  in  this  section  shall  be  deemed  to  «-;™-- 
any  ot  the  provisions  of  section  tour  hundred  and  fitty-one. 

n>.U,ry:     Enactecl  March  21,  1872;  ™.nded  1,y  Code  Commis- 
sion. Act  Marc,   16.   1901    Sta,.  -d  Amdt  .        «0-^l,^P.J^57._.    ^^^ 

unconstitutional,   see   history,    S    *   anLe, 
1905,  Stats,  and  Amdts.  1905,  pp.  183-184. 

See   Kerr's  Cyc.   C.  C.   for  2  pars,  annotation 

l-n  C    317    320,  321,   324,   53  P.  901    (construed). 

A^   to   life  and  accident   insurance,    see   note    §  414,   ante. 

fs    to  ^n.anT  nicellaneous    n.atters    of    insurance,    see    note 
§  414,    ante. 

§438.  OF  WHAT  GUARANTEE  FUND  SHALL  CONSIST 
(repealed). 

History:  Enacted  March  21,  1872;  repealed  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.   571. 

AS  to  debts  for  which  guarantee  fund  liable,  under  former 
^^rt^^maS;  mi'lnln^ufmatters  of  insurance,  see  note 
§  414,   ante. 

§439      WHAT     CONSTITUTES,     AND     DEFICIENCY     IN 
FIXED  CAPITAL.    The  sum  accumulated  as  provided  m  the 
preceding    section,    together    with    the    capital    stock,    shall 
become  and  remain  the  fixed  capital  of  the  corporation,  not 
subject  to  division  among  the  stockholders  or  parties  deamg 
with  it,  or  to  be  expended  in  any  manner  otherwise  than  [as] 
may  be  required  in  payment  of  the  corporation's  debts  and 
actual    expenses,    until    the    business    of    the    ^^owov^'ion  js 
closed,  its  debts  paid,  and  its  outstanding  policies  and  ob  iga- 
tions  of  every  kind  canceled  or  provided  for;    and   if  from 
any  cause  a  deficiency  at  any  time  occurs  in  such  fixed  capi- 
tal, no  further  division  of  profits  must  take  place  until  such 
deficiency  has  been  made  up. 

History:     Enacted  March   21,  1872. 

§440.  DECLARATION  OF  FIXED  CAPITAL  TO  BE 
FILED.  Whenever  the  fixed  capital  of  the  corporation  is 
obtained  as  hereinbefore  provided,   [1]   the  president  of  the 

267 


§  441  CIVIL  CODE.  [Div.I,Pt.IV. 

corporation  and  its  actuary,  or  its  secretary,  if  there  is  no 
actuary,  must  [2]  make  a  declaration  in  writing,  [3]  sworn  to 
before  some  notary  public,  of  the  amount  of  such  fixed  capital, 
and  of  [4]  the  particular  kinds  of  property  composing  the 
same,  with  [»5]  the  nature  and  amount  of  each  kind,  which 
[6]  must  be  filed  with  the  original  articles  of  incorporation, 
and  [7]  a  copy,  certified  by  the  county  clerk,  must  be  pub- 
lished for  at  least  four  successive  weeks,  in  a  newspaper 
published  in  the  county  where  the  principal  business  of  the 
corporation  is  situated.  Upon  the  filing  of  such  declaration 
the  guarantee  fund  is  discharged  of  its  obligations,  and  all 
notes  of  the  fund  remaining  in  the  control  of  the  corporation, 
and  not  affected  by  any  lien  thei-eon,  or  claim  of  that  nature, 
must  be  surrendered  by  it  to  the  makers  thereof,  respectively, 
or  other  parties  entitled  to  receive  the  same. 

History:     Enacted  March  21,   1872. 

§  441.  GUARANTEE  XOTES  A>D  INTEREST.  [COMMIS- 
SION AND  INTEREST  ALLOWED.]  Until  the  guarantee 
fund  is  discharged  from  its  obligations,  as  provided  in  the 
preceding  section,  no  note  must  be  withdrawn  from  the  fund, 
unless  another  note  of  equal  solvency  is  substituted  therefor, 
with  the  approval  of  the  board  of  directors.  The  corporation 
must  allow  [1]  a  commission,  not  exceeding  five  per  cent  per 
annum,  on  all  such  guarantee  notes  while  outstanding,  and 
also  [2]  interest  on  all  moneys  paid  on  such  notes  by  the 
parties  liable  thereon,  at  the  rate  of  twelve  per  cent  per 
annum,  payable  half  yearly  until  repaid  by  the  corporation, 
unless  the  current  rate  of  interest  is  different  from  this 
amount,  in  which  case  the  rate  payable  may,  from  time  to 
time,  at  intervals  of  not  less  than  one  year,  be  increased  or 
reduced  by  the  board  of  directors,  so  as  to  conform  to  the 
current  rate. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  210. 

268 


Tit.II,ch.III.]  LIMITING    HOLDING.  §§442-446 

§442.    INSURED    TO   BE    ENTITLED    TO    VOTE,   WHEN. 

After  the  filing  of  the  declaration  of  the  fixed  capital,  as  in 
this  article  provided,  the  holders  of  policies  of  life  insurance 
for  the  term  of  life,  on  which  the  premiums  are  not  in  default, 
may  vote  at  the  election  of  directors,  and  have  one  vote  for 
each  one  thousand  dollars  insured  by  their  policies,  respect- 
ively. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

§443.    NUMBER  OF  DIRECTORS,  HOW  ALTERED.     The 

number  of  directors  specified  in  the  articles  of  incorporation 
may  be  altered  from  time  to  time  during  the  existence  of  the 
corporation  by  resolution,  at  the  annual  meeting  of  a  majority 
of  those  enitled  to  vote  at  the  election  of  directors,  but  the 
number  must  never  be  reduced  below  five. 

History:     Enacted  March   21,   1872. 

§444.    INVESTMENT  OF  CAPITAL  STOCK   (repealed). 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  211;  repealed  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  357,  held  unconstitu- 
tional; see  history,  §  4  ante;  repealed  March  22,  1907,  Stats,  and 
Amdts.  1907,  p.  889,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  413.  In 
effect  immediately. 

§445.  LIMITATIONS  TO  THE  HOLDING  OF  STOCK, 
ETC.,  MAY  BE  PROVIDED  FOR  IN  BY-LAWS.  The  corpora- 
tion may,  by  its  by-laws,  limit  the  number  of  shares  which 
may  be  held  by  any  one  person,  and  make  such  other  pro- 
visions for  the  protection  of  the  stockholders  and  the  better 
security  of  those  dealing  with  it  as  to  a  majority  of  the 
stockholders  may  seem  proper,  not  inconsistent  with  the  pro- 
visions of  this  title  or  part. 

Hi.story:     Enacted  March  21,  1872, 

§  446.  PREMIUMS,  HOW  PAYABLE.  All  premiums  must 
be  payable  wholly  in  cash,  or  one-half  or  a  greater  proportion 

269 


§§  447-450  CIVIL  CODE.  [Div.I,Pt.IV. 

in  cash,  and  the  remainder  in  promissory  notes  bearing  inter- 
est, as  may  be  provided  for  by  the  by-laws.  Agrreenients  and 
policies  of  insurance  made  by  the  corporation  may  be  upon 
the  basis  of  full  or  partial  participation  in  the  profits,  or 
without  any  participation  therein,  as  may  be  provided  by  the 
by-laws  and  agreed  between  the  parties. 

Hi.story:     Enacted  March   2],   1872. 

§  447.  INSURAX  E  (OMPAMES  TO  FURMSH  DATA  TO 
INSURANCE  C03I.1IISSI0NER.  E.MPLOYMENT  OF  ACT- 
UARY   (repealed). 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  211;  Feb.  2.=),  1889,  Stats,  and  Amdts.  1889, 
p.  36;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  357,  held  unconstitutional,  see  history,  §  4 
ante;  repealed  March  18,  1907,  Stats,  and  Amdts.  1907,  p.  141, 
Kerr's  Stats,  and  Amdts.  1906-7,  p.  413.  In  effect  immediately. 
Incorporated  in  Political  Code  as  noted  under  §  419.  See  Pol.  C. 
§  625. 

§448.  NO  STAMPS  REQUIRED  ON  ACCIDENT  INSUR- 
ANCE CONTRACT  (repealed). 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  358,  held 
unconstitutional,  see  history,  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  571;  re-repealed  March  8,  1907, 
Stats,  and  Amdts.  1907,  p.  141,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  413.     In  effect  immediately. 

§449.  [VALUATION  OF  POLK  lES.]  RETALIATORY 
CLAUSE  (repealed). 

History:  Enacted  March  30,  1874,  Code  Amdts.  1873-4,  p.  271; 
amended  by  Code  Commission,  Act  March  16,  1901,  Stats,  arid 
Amdts.  1900-1,  p.  358,  held  unconstitutional,  see  history,  §  4  ante; 
repealed  March  8,  1907,  Stats,  and  Amdts.  1907,  p.  141,  Kerr's 
Stats,  and  Amdts.  1906-7,  p.  413.  In  effect  immediately.  Incor- 
porated in  Political  Code  as  noted  under  §  419  ante.  See  Pol.  C. 
§  618. 

§450.  POLICIES  ISSUED  IVITHIN  STATE.  Every  con- 
tract or  policy  of  insurance  hereafter  made  by  any  person  or 

270 


Tit.II.ch.III.]  POLICIES    IN    STATE.  §450 

corporation  organized  [1]  under  the  laws  of  this  state,  or  [2] 
under  those  of  any  other  state  or  country,  with  and  upon  the 
life  of  a  resident  of  this  state,  and  delivered  within  this  state, 
shall  contain,  unless  specifically  contracted  between  the 
insurer  and  the  insured  for  tontine  insurance,  or  for  other 
term  or  paid-up  insurance,  a  stipulation  that  when,  after 
three  full  annual  premiums  shall  have  been  paid  on  such 
policy,  it  shall  cease  or  become  void  solely  by  the  non-payment 
of  any  premium  when  due,  its  entire  net  reserve,  by  the 
American  experience  mortality,  and  interest  at  four  and  one- 
half  per  cent  yearly,  less  any  indebtedness  to  the  company  on 
such  policy,  shall  be  applied  by  such  company  as  a  single  pre- 
mium, at  such  company's  published  rates  in  force  at  the  date 
of  original  policy,  but  at  the  age  of  the  insured  at  time  of 
lapse,  either  to  the  purchase  of  non-participating  term  insur- 
ance for  the  full  amount  insured  by  such  policy,  or  upon  the 
written  application  by  the  owner  of  such  policy,  and  the  sur- 
render thereof  to  such  company  within  three  months  from 
such  non-payment  of  premium,  to  the  purchase  of  a  non- 
participating  paid-up  policy,  payable  at  the  time  the  original 
policy  would  be  payable  if  continued  in  force;  both  kinds  of 
insurance  to  be  subject  to  the  same  conditions,  except  as  to 
payment  of  premiums,  as  those  of  the  original  policy. 

[Proof  of  death  within  year.]  It  may  be  provided,  however, 
in  such  stipulation,  that  no  part  of  such  term  insurance  thall 
[shall]  be  due  or  payable,  unless  satisfactory  proofs  of  death 
be  furnished  to  the  insuring  company  within  one  year  after 
death,  and  that,  if  death  shall  occur  within  three  years  after 
such  non-payment  of  premium,  and  during  such  term  of  insur- 
ance, there  shall  be  deducted  from  the  amount  payable  the 
sum  of  all  the  premiums  that  would  have  become  due  on 
the  original  policy  if  it  had  continued  in  force. 

If  the  reserve  on  endowment  policies  he  more  than  enough 
to  purchase  temporary  insurance,  as  aforesaid,  to  the  end  of 
the  endowment  term,  the  excess  shall  be  applied  to  the  pur- 
chase of  pure  endowment  insurance,  payable  at  the  end  of  the 
term,  if  the  insured  be  then  living. 

271 


§451  CIVIL  CODE.  [Div.I.Pt.IV. 

[Penalty  for  failure  to  comply  with  above  provisions.]     If 

any  life  insurance  corporation  or  company  shall  deliver  to 
any  person  in  this  state  a  policy  of  insurance  upon  the  life 
of  any  person  residing  in  this  state,  not  in  conformity  with 
the  provisions  of  this  section,  the  right  of  such  corporation 
or  company  to  transact  business  in  this  state  shall  thereupon 
and  thereby  cease  and  terminate,  and  the  insurance  commis- 
sioner shall  immediately  revoke  the  certificate  of  such  corpora- 
tion or  company  authorizing  it  to  do  business  in  this  state, 
and  publish  such  revocation,  daily,  for  the  period  of  two 
weeks,  in  two  daily  newspapers,  one  published  in  the  city  of 
San  Francisco,  and  the  other  in  the  city  of  Sacramento. 

HlHtory:  Enacted  March  30,  1874,  Code  Amdts.  1873-4.  p.  271; 
amended  April  1,  1878,  Code  Amdts.  1877-8.  p.  82;  April  26.  1880. 
Code  Amdts.  1880  (Pol.  Code  pt.).  pp.  91-92;  amended  by  Code 
Commission,  Act  March  16.  1901,  Stats,  and  Amdts.  1900-1.  p. 
358,  held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.   C.   for  6   pars,  annotation. 

123  C.  677,  679,  680,  56  P.  546  (construed  and  applied);  129 
C.  459,  460,  62  P.  48  (construed  and  applied);  139  C.  332,  335. 
96  A.  S.  146.  73  P.  168  (reference  to  New  York  statute,  similar 
in    many   respects). 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,  ante. 

§451.  CERTAIN  ORDERS  NOT  INSURANCE  COMPA- 
NIES   (repealed). 

History:  Enacted  March  30,  1874,  Code  Amdts.  1873-4.  p.  271; 
amended  April  7,  1878,  Code  Amdts.  1877-8.  p.  82,  repealed  April 
26,  1880,  Code  Amdts.  1880  (Pol.  Code  pt.),  p.  92;  re-enacted 
March  23,  1885,  Stats,  and  Amdts.  1885,  p.  221;  repealed  March  8, 
1907,  Stats,  and  Amdts.  1907,  p.  141,  Kerr's  Stats,  and  Amdts. 
1906-7,  p.  413.     In   effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

121  C.  317,  321,  53  P.  901  (referred  to);  133  C.  686,  690,  691.  66 
P.  25  (referred  to);  148  C.  470.  478.  113  A.  S.  291.  83  P.  804.  805. 
4  L.  N.  S.  247,  7  A.  C.  672  (associations  like  the  "United  Mod- 
erns," not  conducted  for  profit,  are  not  regular  insurance  com- 
panies). 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,   ante. 

272 


Tit.II,cil.III,]  DIVIDENDS,   HOW  MADE.  §  452 

As  to  statutory  provisions  g-overning-  mutual  benefit  and  life 
associations,  see  Kerr's  Cyc.  C.  C.  §§  452a,  453,  453d-453p  and 
notes. 

Fraternal  and  secret  societies — What  constitute. — See  Kerr's 
Cyc.  C.  C.  §  453p  and  note;  also  3  Encyc.  L.  1041;  14  Id.  11. 

Special  rules  applicable  to  mutual  or  memtaersliip  life  or  ac- 
cident   insurance. — See    52    A.    S.    543-578. 

§  452.  COEPORATIOAS,  LIFE  INSURANCE— DIVIDENDS, 
HOW  MADE.  No  corporation  formed  under  the  laws  of  this 
state,  and  transacting  life  insurance  business,  must  make 
any  dividends,  except  from  profits  remaining  on  hand  after 
retaining  unimpaired: 

1.  The  entire  capital  stock; 

2.  A  sum  sufficient  to  pay  all  losses  reported  or  in  course  of 
settlement,  and  all  liabilities  for  expenses  and  taxes; 

3.  A  sum  sufficient  to  reinsure  all  outstanding  policies,  as 
ascertained  and  determined  upon  the  basis  of  the  American 
experience  table  of  mortality,  and  interest  at  the  rate  of  four 
and  one-half  per  cent  per  annum. 

History:  New  section  added  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  359,  held  unconstitutional, 
see  history,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and 
Amdts.  1905,  p.  571.  Original  section  452,  regulating  determina- 
tion of  net  valuation  of  policy  at  expiration'  of  term,  was 
enacted  April  1,  1878  (Code  Amdts.  1877-8,  p,  83),  and  repealed 
April  26,  1880,  Code  Amdts.  1880  (Pol.  C.  pt.),  p.  92. 


273 


§  452a  CIVIL  CODE.  [Div.I.Pt.IV. 

CHAPTER  IV. 

MUTUAL  BENEFIT  AND  LIFE  ASSOCIATIONS. 

[This  chapter  was  added  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  360,  held  unconstitutional,  see 
history.   §  4  ante;  re-enacted  March   20,  1905.] 

§  452a.  Formation  of  tl:e  association.      [Mutual  benefit  and  life.] 
§  453.     Levying  of  assessments — By-laws  which  may  be  made. 

§452a.  FORMATION  OF  THE  ASSOCIATION— [MUTUAL 
BENEFIT  AND  LIFE.]  Associations  of  not  exceeding  one 
thousand  persons  may  be  formed  for  the  purpose  of  paying 
to  the  nominee  of  any  member  a  sum,  upon  the  death  of  the 
member,  not  exceeding  three  dollars  for  each  member  of  the 
association.     Such  association  may  be  formed  by 

Filiue:  articles  of  incorporation  in  the  oftice  of  the  clerk  of 
the  connty  in  which  the  principal  place  of  business  is  situated 
and  a  certified  copy  of  such  articles  of  incorporation,  duly 
certified  by  the  county  clerk,  in  the  office  of  the  secretary  of 
state. 

[What  articles  must  sho^v.]  Such  articles  must  state  the 
name  of  the  corporation,  its  general  purposes,  its  principal 
place  of  business,  its  term  of  existence,  not  exceeding  fifty 
years,  the  names  and  residences  of  the  directors  selected  or 
appointed  to  serve  for  the  first  year,  and  must  be  signed 
and  verified  as  required  by  sections  two  hundred  and  ninety- 
two  and  five  hundred  and  ninety-four. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
410-411;  See  introductory  note  to  this  chapter. 

See  Kerr's  Cyc.  C.   C.   for  26  pars,  annotation. 

As  to  definitions  and  distinctions  between  benevolent  and 
beneficial   associations,    see   3    Encyc.   L.    1043. 

As  to  features  of  law  specially  applicable,  see  52  A.  S.  543. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

As  to  mutual  benefit  associations,  see  14  A.  S.  526;  19  A.  S. 
781-791;    3   Encyc.   L.    1045. 

As  to  what  are  benevolent  associations  and  their  purposes 
and   position    as    insurance    companies,   see    2    L.    420. 

274 


Tit.II,ch.IV.]  ASSESSMENTS— BY-LAWS.  §  453 

§453.  LEVimG  OF  ASSESSMENTS— BY-LAWS  WHICH 
MAY  BE  MADE.  Each  association  provided  for  in  this  chap- 
ter may,  on  the  death  of  a  member,  levy  an  assessment  on  the 
surviving  members  of  not  exceeding  three  dollars  for  each 
member,  and  collect  and  pay  the  same  to  the  nominee  of  such 
decedent,  and  may  also  provide  for  the  payment  of  such 
annual  payments  by  members  as  may  be  deemed  just,  but  no 
member  must  be  subject  to  any  annual  assessment  in  excess 
of  that  established  when  he  joined  the  association.  The  asso- 
ciation may  make  such  by-laves  not  inconsistent  with  the 
laws  of  the  state  as  may  be  necessary  for  its  government 
and  the  transaction  of  its  business;  may,  by  its  name,  sue 
and  be  sued; 

[Loaning  funds  and  purchasing  real  estate.]  Loan  such 
funds  as  it  may  have  on  hand ;  and  own  sufficient  real  estate 
for  its  business  purposes  and  such  as  it  may  be  necessary  to 
purchase  on  foreclosure  of  its  mortgages. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
410-411. 

See   Kerr's   Cyc.   C.    C.   for   115   pars,   annotation. 

As  to  assignment  of  interest  of  beneficiaries,  see  87  A.  S.  541. 

As  to  conclusiveness  and  review  of  decisions  of  tribunals  of 
benevolent   societies,    see   49    L.    353-401. 

As  to  effect  of  changes  of  by-laws  as  against  pre-existing 
members,   see   83   A.   S.   706. 

As  to  effect  of  decisions  of  tribunals  of  benevolent  associa- 
tions,   see    13   L.    625. 

As  to  enlarged  powers  conferred  upon  benevolent  associa- 
tions by   statute,   see   4  L.    382. 

As  to  law  of  benevolent  societies,  determining  rights  of 
members,  see  5  L.  96. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

As  to  power  to  make  by-laws  and  amend  and  repeal  same, 
see  3  L.  409. 

As  to  property   rights   in  benevolent  societies,   see  2  L.   841. 

As  to  remedies  of  members  of  benevolent  associations,  see  59 
A.  S.   198. 

As  to  result  of  death  of  beneficiary  before  insured,  see  11  A. 
S.    721-724. 

As  to  unborn  child's  rights  generally,  see  Kerr's  Cyc.  C.  C. 
§  29  and  note. 

As  to  when  insurance  paj^able  to  heirs,  see  44  A.  S.  404-409. 

275 


§  453a  CIVIL  CODE.  [Div.I.Pt.IV. 


CHAPTER  V. 

CORPORATIONS  TO  DISCOVER  FIRE  AND  SAVE  PROPERTY 
AND  HUMAN  LIFE  FROM  DESTRUCTION  THEREBY. 

[This  chapter  was  added  at  recommendation  of  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  pp.  360-362, 
held  unconstitutional,  see  history,  §  4  ante;  re-enacted  March 
21,  1905.  A  codification  of  Act  April  1,  1876,  Stats.  1875-6,  pp. 
689-690,  as  amended  by  Act  March  29,  1897,  Stats,  and  Amdts. 
1897,  pp.  223-225.] 

§  453a.  Powers  of  the  corporation.     [Underwriters]. 

§  453b.  Right  of  way  of  corporation  and  its  officers  when  run- 
ning to  fires. 

§  453c.  Yearly  meeting's  of  corporation,  notice  to  be  given 
thereof,  and  proceedings  which  may  be  authorized 
thereat. 

§453a.  POWERS  OF  THE  fORPO  RATION.  [UNDER- 
IVRITERS.]  Any  corporation  of  underwriters  heretofore 
organized  and  now  existing,  or  which  may  be  hereafter 
organized  under  the  laws  of  this  state,  for  the  purpose  of 
discovering  and  preventing  fires  and  of  saving  property  and 
human  life  from  conflagration,  and  doing  business  within  any 
municipal  corporation  of  this  state,  has  power,  at  its  own 
proper  cost  and  expense,  to  maintain  a  corps  of  men,  with 
proper  ofRcers,  equipped  with  the  necessary  machinery  and 
apparatus  therefor,  whose  duty  it  is,  so  far  as  practicable,  to 
discover  and  prevent  fires  and  save  property  and  human  life 
from  conflagration;  and  for  the  effective  discharge  of  such 
duties,  authority  is  hereby  granted  such  corps  to  enter  any 
building  on  fire,  or  in  which  property  is  on  fire,  or  which 
such  corps  or  any  officer  thereof  deems  to  be  immediately 
exposed  to  any  existing  fire,  or  in  danger  of  taking  fire  from 
a  burning  building,  and  to  remove  or  otherwise  save  and  pro- 
tect from  conflagration  or  damage  by  water  any  property, 
during  and  immediately  after  such  fire. 

[Not  to  interfere  with  fire  departments.]  Nothing  in  this 
chapter  must  be   so  construed  as  in  any  degree  to   lessen, 

276 


Tit.II.ch.IV.]  RUNNING  TO  FIRES.  §  453b 

impair,  or  interfere  with  tlie  powers,  privileges,  duties,  or 
autliority  of  tlie  regular  five  department  of  such  municipality; 
nor  can  any  act  of  such  corps  justify  any  owner  of  any  build- 
ing, or  property  in  abandoning  such  building  or  property. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
571-572;  see  introductory  note  to  this  chapter. 

See   Kerr's   Cyc.    C.   C.   for   2   pars,   annotation. 
As    to    many    miscellaneous    matters    of    insurance,    see    note 
§  414,    ante. 

§453b.  RIGHT  OF  WAY  OF  CORPORATION  AND  ITS 
OFFICERS  WHEN  RUNNING  TO  FIRES.  Such  corporation, 
with  its  officers  and  corps,  when  running  to  a  fire  with  its 
horses,  vehicles,  and  salvage  apparatus,  has  the  same  right' 
of  way  as  is  or  may  be  bestowed  by  any  ordinance  of  the 
municipality  or  law  of  this  state  upon  the  regular  fire  depart- 
ment of  the  municipality  wherein  such  corporation  is  acting; 
but  the  rights  of  such  fire  department  must  always  be  para- 
mount to  the  rights  of  such  corporation. 

[Certain  laws  and  ordinances  governing  fire  departments 
to  govern.]  All  ordinances  now  existing  or  which  may  here- 
after be  passed  by  the  municipal  authorities  of  any  city  and 
county,  or  of  any  incorporated  city  or  town  wherein  such  a 
corporation  may  carry  on  business,  and  all  laws  of  this  state 
applicable  to  such  city  and  county,  or  city  or  town,  for  the 
conviction  or  punishment  of  any  person  or  persons  wilfully 
or  carelessly  obstructing  the  progress  of  the  apparatus  of  the 
fire  department  of  such  city  and  county,  or  city  or  town,  while 
going  to  a  fire,  or  of  any  person  or  persons  wilfully  or  care- 
lessly injuring  any  animal  or  property  of  said  fire  department, 
are  equally  applicable  to  any  person  or  persons  wilfully  or 
carelessly  obstructing  the  progress  of  the  apparatus  of  such 
corporation  while  going  to  a  fire,  and  to  any  person  or  per- 
sons who  wilfully  or  carelessly  injures  any  animal  or  prop- 
erty of  such  corporation;  and  said  laws  and  ordinances,  and 
their  penalties,  may  be  enfo-rced  in  the  same  courts  and  in  the 
same  manner,  and  with  equal  force  and  effect,  as  in  the  case 
of  the  fire  department. 

277 


§  453c  CIVIL  CODE.  [Div.I.Pt.IV. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
572;   see   introductory  note  to  this  chapter. 

§  453c.  YEARLY  MEETINGS  OF  COEPORATION,  NOTICE 
THEREOF,  PROCEEDINGS  WHICH  MAY  BE  AUTHORIZED 
THEREAT.  [WHO  MAY  VOTE.]  In  the  month  of  July,  in 
every  year,  there  must  be  held  a  meeting  of  all  corporations 
created  for  the  purposes  specified  in  this  chapter;  of  which 
ten  days'  previous  notice  must  be  inserted  in  at  least  one 
daily  newspaper  published  in  the  municipality  where  said 
corporation  is  organized  or  established,  at  which  meeting 
each  insurance  company,  corporation,  association,  under- 
writer, agent,  person,  or  persons  doing  a  fire  insurance  busi- 
ness in  said  municipality,  whether  members  of  said  corpora- 
tion or  not,  shall  have  a  right  to  be  represented,  and  shall  be 
entitled  to  one  vote. 

[Power  of  majority  i)reseut — Fixing:  expenses.]  A  majority 
of  the  whole  number  so  represented  has  power  to  decide  upon 
the  question  of  sustaining  the  fire  patrol  organized  by  corpo- 
rations heretofore  created,  or  that  may  be  hereafter  created, 
and  fixing  the  maximum  amount  of  expenses  which  may  be 
incurred  therefor  during  the  fiscal  year  next  to  ensue,  which 
amount  must  in  no  case  exceed  two  per  centum  of  the  aggre- 
gate premiums  returned  as  received,  as  provided  in  this  sec- 
tion, and  the  whole  of  such  amount,  or  so  much  thereof  as 
may  be  necessary,  may  be  assessed  upon  all  insurance  com- 
panies, corporations,  associations,  underwriters,  agents,  per- 
son, or  persons  who  assume  risks  and  accept  premiums  for 
fire  insurance  in  said  municipality,  as  hereinbefore  mentioned, 
in  proportion  to  the  several  amounts  of  premiums  returned, 
as  received  by  each,  as  hereinafter  provided,  and 

[Assessments,  how  coHeeted.]  Such  assessment  is  collect- 
able by  and  in  the  name  of  said  corporation,  in  any  court  of 
law  in  the  state  of  California  having  jurisdiction,  in  such  man- 
ner and  at  such  time  or  times  as  said  corporation  may  deter- 
mine. 

[Pciyment  of  employees,  etc.,  how  provided  for.]  In  order 
to  provide  for  the  payment  of  persons  employed  by  said  cor- 
poration, and  to  maintain  suitable  rooms,  and  apparatus  for 

278 


Tit.II.ch.V.]  YEARLY   MEETINGS.  §  453c 

saving  life  and  property  contemplated,  said  corporation  is 
empowered  to  require  a  statement  to  be  furnished,  semi- 
annually, by  all  insurance  companies,  corporations,  associa- 
tions, underwriters,  agents,  or  persons,  of  the  aggregate 
amount  of  premiums  received  for  insuring  property  in  the 
municipality  where  said  corporation  is  organized  or  estab- 
lished, for  and  during  the  six  months  next  preceding  the  first 
day  of  July  and  the  first  day  of  January  of  each  year,  which 
statement  must  be  sworn  to  by  the  president  or  secretary  of 
the  corporation  or  association,  or  by  the  agent  or  person  so 
acting  or  effecting  such  insurance  in  said  municipality,  and 
must  be  handed  to  the  secretary  of  said  corporation  hereto- 
fore created  or  hereafter  to  be  created  under  the  provisions 
of  this  chapter  within  ten  days  after  the  first  day  of  July  and 
the  first  day  of  January  of  each  year.  Said  secretary  must, 
within  the  ten  days  aforesaid,  by  written  or  printed  demand 
signed  by  him,  require  from  every  insurance  company,  corpo- 
ration, association,  underwriter,  agent,  or  person  engaged  in 
the  business  of  fire  insurance  in  the  municipality  where  said 
corporation  is  organized  or  established,  the  statement  here- 
inbefore provided  for.  Such  demand  may  be  delivered  per- 
sonally at  the  office  of  such  insurance  company,  corporation, 
association,  underwriter,  agent,  or  person  within  said  munici- 
pality, and  every  officer  of  such  insurance  company,  corpora- 
tion, association,  and  every  such  underwriter,  agent,  or  per- 
son, who,  for  fifteen  days  after  said  demand,  neglects  to  ren- 
der the  statement  herein  provided  for,  forfeits  fifty  dollars 
for  the  use  of  said  corporation,  and  also  forfeits  for  its  use 
twenty-five  dollars  in  addition  for  every  day  he  so  neglects 
after  the  expiration  of  the  said  fifteen  days,  and  such  addi- 
tional penalty  may  be  computed  and  collected  up  to  the  time 
of  the  trial  of  any  action  brought  for  the  recovery  thereof. 
The  penalty  herein  provided  for  may  be  sued  for  and  col- 
lected, with  costs,  in  any  court  of  law  within  the  state  of 
California  having  jurisdiction,  by  and  in  the  name  of  said 
corporation. 

History:     Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
572-574;  see  introductory  note  to  this  chapter. 

279 


§  453d  CIVIL  CODE.  [Div.T,Pt.IV. 


CHAPTER  VI. 

LIFE,  HEALTH,  ACCIDENT,  AND  ANNUITY  OR  ENDOWMENT 
INSURANCE  ON  THE  ASSESSMENT  PLAN. 

[This  chapter  was  added  at  the  recommendation  of  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  pp.  359- 
366,  lield  unconstitutional,  see  history  §  4  ante;  re-enacted  at 
instance  Code  Commissioner  Marcli  20,  1905,  Stats,  and  Amdts. 
905,  c.  CCCLIII,  p.  418.  A  codification  of  Act  March  19,  1891, 
Stats,  and  Amdts.  1891,  p.  126.  In  connection  with  that  Act  see 
123  C.  107,  110,  55  P.  708;  129  C.  628,  633,  62  P.  191.] 

§  453d.    Contracts  which  may  be  made  by,  defined. 

§  453e.  Formation  of  corporations;  issuing  of  contracts;  invest- 
ments. 

§  453f.     Pre-existing  corporations,  right  of  to  reincorporate. 

§  453g.    Contracts  of  insurance;  contents  and  effects  of. 

§  453h.    Reserve  and  emergency  fund. 

§  453i.  Foreign  corporations.  Conditions  precedent  to  doing 
business  in  tliis  state. 

§  453j.     Limitations  upon   riglit  to   issue  contracts   of   insurance. 

§  453k.    Exemptions   from   attachment  and   execution. 

§  4531.  Statements  to  be  filed  with  the  insurance  commissioner; 
proceedings  to  be  taken   by  him  thereon. 

§  453m.  Lapsing  of  policies.     When  forbidden. 

§  453n.    Fees  and  penalties. 

§  453o.  Insurance  commissioner  to  present  bills  for  certain 
expenses. 

S  453p.    Exemption  of  fraternal  societies  from  this  chapter. 

§453d.  CONTRACTS  WHICH  MAT  BE  MADE  BY, 
DEFINED.  Every  contract  whereby  a  benefit  may  accrue  to 
a  party  or  parties  therein  named  upon  the  death  or  physical 
disability  of  a  person  insured  thereunder,  or  for  the  payment 
of  any  sums  of  money  dependent  in  any  degree  upon  the  col- 
lection of  assessments  or  dues  from  persons  holding  similar 
contracts,  is  deemed  a  contract  of  mutual  insurance  upon  the 
assessment  plan.  Such  contracts  must  show  that  the  liabili- 
ties of  the  insured  thereunder  are  not  limited  to  fixed  pre- 
miums. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
418.  See  introductory  note  to  this  chapter.  A  codification  of 
§  1,  Act  March  19,  1891,  Stats,  and  Amdts.  1891,  p.  126. 

280 


Tit.II,ch.VI.]  ISSUING  CONTRATS.  §  453e 

See  Kerr's  Cyc.  C.   C.  for   9   pars,  annotation. 
As  to  life,  accident,  etc.,  insurance,   see  note   §  414,  ante. 
As    to    many    miscellaneous    matters    of    insurance,    see    note 
§  414,    ante. 

Special  features  of  law  applicable  to. — See  52  A.  S.   543-579. 
When  complete. — See   69  A.   S.    143-153. 

§  453e.    FORMATION  OF  CORPO RATIONS;  ISSUING  COX- 

TRACTS;  INVESTMENTS.  Corporations  may  be  formed  to 
carry  on  the  business  of  mutual  Insurance  upon  the  assess- 
ment plan,  and  are  subject  only  to  the  provisions  of  this 
chapter. 

[Membership  before  contracts  issued.]  No  such  corpora- 
tion must  issue  contracts  of  insurance  until  at  least  two  hun- 
dred persons  have  applied,  in  writing,  for  membership  or- 
insurance  therein,  and  have  paid  to  the  treasurer  of  such 
corporation  the  sum  of  five  thousand  dollars.  Tin's  sum  must 
be  invested  in  bonds  or  securities,  approved  by  the  insurance 
commissioner  of  this  state,  or  deposited  in  some  bank  in  this 
state  where  it  will  earn  interest. 

[Deposit  with  state  treasurer.]  Said  bonds  or  securities,  or 
evidences  of  such  deposit,  must  be  placed,  through  the  insur- 
ance commissioner  of  this  state,  with  the  state  treasurer,  and 
the  principal  sum  must  be  held  in  trust  for  the  contract- 
holders  of  such  corporation,  with  the  right  in  the  corporation 
to  exchange  said  bonds,  securities,  or  evidence  of  bank  deposit 
for  others  of  like  value.  Such  corporation  must  also,  as  a 
condition  precedent  to  issuing  any  contracts  of  insurance, 
obtain  the  written  certificate  of  the  insurance  commissioner 
that  it  has  complied  with  the  requirements  of  this  chapter; 
and  that  the  name  of  the  corporation  is  not  the  same  as  that 
of  any  other  corporation  of  this  or  other  states,  as  indicated 
by  the  insurance  department  reports  in  his  office;  nor  must 
the  commissioner  approve  any  name  or  title  so  closely  resem- 
bling another  as  to  mislead  the  public. 

[No  legal  existence  for  one  year,  unless,  etc.]  No  corpora- 
tion formed  hereunder  has  legal  existence  after  one  year 
from  the  date  of  its  articles,  unless  its  organization  has  been 
completed  and  business  commenced;    nor  must  any  corpora- 

281 


§§453f,  453g  CIVIL  CODE.  [Div.I,Pt.IV. 

tion  or  individual  solicit,  or  cause  to  be  solicited,  any  busi- 
ness, until  such  corporation  has  complied  with  the  provisions 
of  section  six  hundred  and  thirty-three  of  the  Political  Code. 
[Constriictiou.]  Nothing  contained  in  this  chapter  shall  be 
construed  to  exempt  any  corporation  from  the  provisions  of 
section  two  hundred  and  ninety-six  and  two  hundred  and 
ninety-nine  of  this  code. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
418-419.  See  introductory  note  to  this  chapter.  A  codification 
of  §   2  Act  March   19,  1891,  Stats,  and  Amdts.   1891,  pp.   126-127. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  general  requisites  of  articles  of  incorporation,  see 
Kerr's  Cyc.  C.  C.  §  290  and  note. 

As  to  many  niiscellaneous  matters  of  insurance,  "  see  note 
§  414,   ante. 

Capital  required  of  insurance  companies  generally. — See 
Kerr's  Cyc.   C.  C.   §  419  and  note. 

Division  of  reserve  fund. — See  Kerr's  Cyc.  C.  C.  §453h  and 
note    pars.    2,    3. 

Emergency — Cessation  of  business. — See  Kerr's  Cyc.  C.  C. 
§  453h  and  note  par.   4. 

Insolvency  and  failure  to  make  up  capital — Proceedings. — 
See  Kerr's  Cyc.  Pol.  C.   §§  600-602  and  notes. 

§453f.  PRE-EXISTIXG  CORrORATIO>,  RIGHT  OF  TO 
REINCORPORATE.  Any  existing  corporation  engaged  in  the 
business  of  life,  health,  accident,  or  endowment  insurance  on 
the  assessment  plan  may  reincorporate  under  the  provisions 
of  this  code  and  chapter,  but  is  not  obliged  to  do  so,  and 
may,  without  such  reincorporation,  exercise  the  rights,  pow- 
ers, and  privileges  conferred  by  this  chapter. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
419.  See  introductory  note  to  this  chapter.  A  codification  of 
§  3  Act  March   19,   1891,  Stats,  and  Amdts.   1891,  p.   127. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,  ante. 

Continuance  of  existence  under  provisions  of  code. — See 
Kerr's  Cyc.  C.  C.  §  287  and  note. 

§453^.  t CONTRACTS  OF  INSURANCE;  CONTENTS  AND 
EFFECTS  OF.     Every  contract  of  insurance  issued  by  such 

282 


Tit.II,ch.VI.]  CONTRACTS,    CONTENTS.  §  453h 

corporation  must  specify  the  sum  or  sums  to  be  paid  upon 
the  happening  of  the  contingency  insured  against,  and  when 
such  payments  must  be  made.  Unless  the  contract  is  invali- 
dated by  fraud  or  by  breach  of  its  conditions,  the  corporation 
is  obligated  [1]  to  pay  the  beneficiary  the  amount  or  amounts 
specified  in  its  contract  at  the  time  or  times  therein  named, 
and  [2]  such  indebtedness  is  a  lien  upon  all  the  property  of 
such  corporation,  with  priority  over  all  indebtedness  there- 
after incurred,  [3]  except  as  hereinafter  provided  in  case  of 
insolvency. 

[Forfeiture  of  right  to  do  business  by  failure  to  pay.]     Fail- 
ure to  make   such  payment,   within  thirty   days  after  notice, 
at  the  home  office,  by  mail,  as  provided  by  law,  of  a  final 
judgment,  unless  waiver  is  made  by  the  beneficiary,   consti- ' 
tutes  a  forfeiture  of  the  right  to  do  business. 

History:  Enacted  March  20,  1905,  Stats,  and  Anidts.  1905,  p. 
419.  See  introductory  note  to  this  cliapter.  A  codification  of 
§   4   Act  March    19,   1891,   Stats,   and  Amdts.    1S91,   p.   127. 

See  Kerr's  Cyc.   C.  C.  for  2   pars,  annotation. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,   ante. 

Insolvency — Failure  to  naake  payment  within  thirty  days.— 
See  Kerr's  Cyc.  C.   C.   §  4531  note  par.   7. 

Lien — None  on  emergency  fund. — See  Kerr's  Cyc.  C.  C.  §  4531i 
and  note  par.  4. 


§  45311.  RESEEVATIOJf  AND  EMERGENCY  FUND.  Every 
domestic  corporation,  organized  to  do  or  doing  business  of 
insurance  on  the  assessment  plan,  must  accumulate  a  reserve 
or  emergency  fund,  which  must,  at  all  times,  be  not  less  than 
the  largest  benefit  contracted  to  be  paid  by  it  to  any  one 
person.  Every  corporation  organized  under  the  provisions  of 
this  chapter  must  accumulate  such  fund  within  a  year  from 
the  date  of  its  certificate  of  incorporation. 

[Investment  of  reserve  or  emergency  fund.]  Such  fund,  to 
the  extent  of  the  largest  amount  contracted  to  be  paid  by 
any  such  corporation  to  any  one  person,  must  be  invested  and 
deposited,  as  provided  in  section  four  hundred  and  fifty-three 

283 


§  453i  CIVIL  CODE.  [Div.I.Pt.IV. 

e,  with  the  right  in   the  corporation  to  exchange   any   such 
securities  for  others  of  equal  value. 

[Deposit  part  of  fund.]  The  deposit  required  by  section 
four  hundred  and  fifty-three  e  constitutes  a  part  of  the  reserve 
required  by  this  action,  at  the  option  of  such  corporation. 
When  any  such  corporation  discontinues  -business,  this  fund 
must  be  returned  to  such  corporation,  oi;  disposed  of  as  may 
be  determined  by  the  superior  court  of  the  county  in  which 
is  its  principal  place  of  business. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
418.  See  introductory  note  to  this  chapter.  A  codification  of 
§   5  Act  March  19,   1891,  Stats,  and  Amdts.  1891,  pp.  127-128. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,  ante. 

Capital  required  of  insurance  companies  generally.— See 
Kerr's  Cyc.   C.   C.    §  419   and   note. 


§  4531.  FOREIGN  CORPORATIONS.  CONDITIONS  PREC- 
EDENT TO  DO  BUSINESS  IN  THIS  STATE.  Corporations 
organized  under  the  laws  of  any  other  state  or  country  to 
transact  the  business  of  mutual  assessment  insurance  must, 
as  a  condition  precedent  to  transacting  business  in  this  state, 
[1]  comply  with  the  provisions  of  sections  four  hundred  and 
five  and  four  hundred  and  eight  of  this  code,  and  [2]  deposit 
with  the  insurance  commissioner  of  this  state  a  certified  copy 
of  its  charter  or  other  instrument  required  by  its  home 
authorities;  [3]  a  statement  under  oath,  of  [a]  its  president 
or  [I)]  secretary,  of  its  business  for  the  preceding  year,  in 
such  form  as  may  be  required  by  the  insurance  commissioner 
of  this  state;  [I]  an  appointment  of  a  general  agent,  service 
upon  whom  binds  the  corporation;  [5]  a  certificate  that  for 
the  next  preceding  twelve  months  it  has  paid  in  full  the 
maximum  amount  named  in  its  contract  of  insurance;  [6]  a 
certificate  from  the  proper  officer  of  its  state  or  government 
that  like  corporations  of  this  state  are  legally  entitled  to  do 
business  in  such  state  or  country;  [7]  copies  of  its  contracts 
of   insurance    and   applications,    which   must    show    that   the 

284 


Tit.II.ch.VI.]  CONDITIONS    PRECEDENT.  §  453} 

liabilities  of  its  members  are  not  limited  to  fixed  premiums; 
and  [8]  evidence,  satisfactory  to  the  insurance  commissioner, 
that  the  corporation  has  accumulated  a  fund  equal  to  that 
required  of  like  corporations  in  this  state,  constituting  a 
reserye  or  surplus  fund,  held  in  trust  for  the  benefit  of  its 
contract-holders,  and  so  invested  and  held  as  required  by 
the  laws  of  the  state  or  government  under  which  such  corpo- 
ration was  organized. 

[License,  issuance,  renei^al,  and  revocation.]  The  insur- 
ance commissioner  must  thereupon  issue  a  license  to  such 
corporation  to  do  business  in  this  state.  This  license  must 
be  renewed  annually,  and  may  be  revoked  whenever  it  is 
ascertained  that  the  statements  required  to  be  made  by  this 
section  are  not  true.  Upon  such  revocation,  notice  thereof 
must  be  given  by  the  insurance  commissioner  by  publication 
in  some  newspaper  published  in  the  city  and  county  of  San 
Francisco,  for  two  weeks,  daily,  and  no  new  contracts  must 
be  made  by  such  company  in  this  state. 

[License,  fees,  taxes,  and  penalties.]  When  any  other 
state  or  country  imposes  any  additional  license,  fees,  taxes, 
or  penalties  upon  any  corporation  organized  or  doing  busi- 
ness under  this  chapter,  like  license,  fees,  taxes,  or  penalties 
are  imposed  upon  corporations  of  the  same  kind  and  their 
agents  of  such  state  or  country  doing  business  in  this  state. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
419-420.  See  introductory  note  to  this  chapter.  A  codification 
of  §  6  Act  March  19,  1891,  Stats,  and  Amdts.  1891,  p.  128.  As  to 
appointment  of  agent  upon  whom  service  may  be  made,  see  Act 
April    1,   1872,   Stats.    1871-2,  p.   826. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

As  to  many  miscellaneous  matters  of  insurance,  see  note  §  414, 
ante. 

Agent  upon  whom  process  may  be  served. — See  Kerr's  Cyc. 
Pol.  C.    §  616   and  note. 

Conditions  prescribed  upon  foreign  companies. — See  Kerr's 
Cyc.   Pol.   C.    §§  622-624   and  notes. 

Securities  required  to  be  deposited. — See  Kerr's  Cyc.  Pol.  C. 
§  618   and   note. 

285 


§§453j,453k  CIVIL  CODE.  [Div.I.Pt.IV. 

§453j.  LIMITATIONS  UPON  RIGHT  TO  ISSUE  CON- 
TRACTS OF  INSURANCE.  No  corporation  doing  business 
under  this  cliapter,  except  accident  or  casualty  corporations, 
must  issue  a  contract  of  insurance  upon  tlie  life  of  any  per- 
son under  fifteen  nor  over  sixty-one  years  of  age.  Every 
such  contract  of  insurance  must  be  founded  upon  written 
application  therefor,  and,  except  where  the  application  is  for 
health,  accident,  or  casualty  insurance  only,  or  for  one  hun- 
dred dollars  life  insurance  or  less,  such  application  must  be 
accompanied  by  the  report  of  a  reputable  physician,  contain- 
ing a  detailed  statement  of  his  examination  of  the  applicant, 
showing  the  applicant  to  be  in  good  health,  and  recommend- 
ing the  issuance  of  a  contract  of  insurance. 

[False  or  fraudulent  statement  by  solicitor,  etc.]  Any 
solicitor,  agent,  employee,  examining  physician,  or  other  per- 
son, making  a  false  or  fraudulent  statement  to  any  corpora- 
tion doing  business  under  this  chapter,  with  reference  to  any 
application  for  insurance,  or  for  the  purpose  of  obtaining  any 
money  or  benefit  fi'om  such  corporation,  is  guilty  of  a  misde- 
meanor; and  any  person  who  makes  a  false  statement  of 
any  material  fact  or  thing  in  a  sworn  statement  as  to  the 
death  or  disability  of  a  contract-holder,  in  any  such  corpora- 
tion for  the  purpose  of  procuring  or  aiding  the  beneficiary  or 
beneficiaries  or  contract-holder  in  procuring  the  payment  of 
a  benefit  named  in  the  contract,  is  guilty  of  perjury. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  pp. 
420-421.  See  introductory  note  to  this  chapter.  A  codification 
of  Act  Marcli   19,  1891,  Stats,  and  Amdts.   1891,  pp.   128-129. 

§453k.  EXEMPTIONS  FROM  ATTACHMENT  AND  EXE- 
CUTION. The  money,  benefit,  annuity,  endowment,  charity, 
relief,  or  aid  to  be  paid  as  provided  by  the  contracts  issued 
by  any  corporation  doing  business  under  this  chapter,  is  not 
liable  to  attachment  or  other  process,  nor  to  be  seized,  taken, 
appropriated,  or  applied  by  any  legal  or  equitable  process, 
nor  by  operation  of  law,  to  pay  any  debts  or  liability  of  the 
contract-holder  or  any  beneficiary  named  thereunder. 

286 


Titll.ch.VI.]  STATEMENT.  §  4531 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
421.  See  introductory  note  to  this  chapter.  A  codification  of 
§  8  Act  March  19,  1891,  Stats,  and  Amdts.  1891,  p.   129. 

See  Kerr's  Cyc.   C.   C.   for   2  pars,   annotation. 
As    to    many    miscellaneous    matters    of    insurance,    see    note 
§  414,  ante. 

§4531.  STATEMEIVT  TO  BE  FILED  WITH  THE  INSUR- 
ANCE COMMISSIONER;  PROCEEDINGS  TO  BE  TAKEN  BY 
HIM  THEREON.  Every  corporation,  whether  domestic  or  for- 
eign, doing  the  business  of  effecting  insurance  on  the  assess- 
ment plan  must,  annually,  on  or  before  the  first  day  of  Feb- 
ruary, file  with  the  insurance  commissioner,  in  such  form  as 
he  may  prescribe,  a  statement  of  its  affairs  for  the  year  end- 
ing on  the  preceding  thirty-first  day  of  December.  The  insur- 
ance commissioner,  in  person  or  by  duly  authorized  deputy, 
has  the  power  of  examination  into  the  affairs  of  any  domestic 
corporation  doing  business  or  claiming  to  do  business  imder 
this  chapter,  at  any  time,  in  his  discretion,  and  must  make 
such  examination  at  least  once  a  year. 

[Revoking  authority  to  do  business;  i)rocedure.]  If  he, 
after  an  examination  of  the  affairs  of  a  corporation,  finds 
that  it  is  not  doing  its  business  in  conformity  to  this  chapter, 
or  that  it  is  doing  a  fraudulent  or  unlawful  business,  or  that 
it  is  not  carrying  out  its  terms  of  contract,  or  that  it  cannot, 
within  three  months  from  the  date  of  notice  of  default,  pay 
its  obligations,  he  must  cite  the  president,  secretary,  man- 
ager, or  general  agent  of  the  corporation,  or  all  of  them, 
to  appear  before  him,  stating  the  time  and  place,  to  show 
cause  why  the  authority  of  the  corporation  to  do  business 
should  not  be  revoked,  and  if  cause  is  not  shown,  then  he 
must  report  the  facts  to  the  attorney-general  of  the  state, 
who  must  commence  proceedings  in  the  proper  court  to 
restrain  the  corporation  from  doing  any  further  business. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
421.  See  introductory  note  to  this  chapter.  A  codification  of 
§§  9  and  10  Act  March  19,  1891,  Stats,  and  Amdts.  1891,  p.  129. 
Compare  Act  1856,  Stats.  1856,  p.  752.  See  81  C.  364,  22  P.  869; 
129   C.   628,   633,    62   P.   191. 

287 


§§453m,  453n.  CIVIL  CODE.  [Div.I.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

As  to  directors  being  trustees  upon  dissolution  of  corpora- 
tion,  see  Kerr's  Cyc.   C.   C.   §  400  and  note. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,   ante. 

Insolvency  and  failure  to  make  up  capital — Proceedings. — See 
Kerr's  Cyc.  Pol.  C.   §§  600-602  and  notes. 

§453111.    LAPSING   OF    POLICIES.     WHEN   FORBIDDEN. 

No  policy  or  certificate  issued  by  any  corporation  or  associa- 
tion doing  business  under  tlie  provisions  of  this  chapter  lapses 
for  the  non-payment  of  any  assessments,  dues,  or  premiums, 
unless  the  corporation  or  association  has  first  mailed  to  the 
insured  under  such  policy  or  certificate,  at  his  or  her  last 
given  post-office  address,  a  notice  setting  forth  the  amount  to 
be  paid,  and  the  time  the  same  is  due  and  payable;  and  such 
notice  must  be  mailed  at  least  fifteen  days  before  the  assess- 
ment is  due;  provided,  that  such  corporations  doing  business 
under  this  chapter  as  collect  specific  amounts  at  specific 
dates,  as  contained  in  the  contract,  are  not  compelled  to  send 
such  notices;  and  an  aftida\it  made  by  the  officer,  bookkeeper, 
or  clerk  of  any  such  corporation  having  charge  of  the  mailing 
of  notices,  setting  forth  the  facts  as  they  appear  on  the 
records  in  the  office  of  the  said  corporation,  showing  that 
such  notice  was  mailed  and  the  date  of  mailing,  is  conclusive 
evidence  of  the  mailing  of  such  notice. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
421-422.  See  introductory  note  to  this  chapter.  A  codification 
of  §  11  Act  March  19,  1891,  Stats,  and  Amdts.  1891,  pp.  129-130. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
As    to    many    miscellaneous    matters    of    insurance,    see    note 
§  414,  ante. 

§  453n.  FEES  AND  PENALTIES.  The  fees  for  filing  state- 
ments, certificates,  or  other  documents  required  by  this  chap- 
ter, or  for  any  sei'vice  or  act  of  the  insurance  commissioner, 
and  the  penalties  for  any  violation  of  this  chapter,  must, 
except  as  otherwise  provided  herein,  be  the  same  as  provided 
in  the  laws  of  this  state  relating  to  life  insurance  companies, 
and  must  be  disposed  of  as  provided  by  such  laws. 

288 


Titll.ch.VL]  BILLS   FOR   EXPENSES.  §§  453o,  453p 

History:     Enacted  March   20,   1905.   Stats,  and  Amdts.   1905.  p^ 
History.      J^^i'd.  PhaDter       A  codification    of 

422.      See   introductory   note   to   t^"%^^^P^'^^„„.'^^    130 
I  12  Act  March  19.  1891,  Stats,  and  Amdts.  1891.  p.  1^0- 

§4530.  INSURANCE  COMMISSIONER  TO  PRESENT 
BILLS  FOR  CERTAIN  EXPENSES.  For  all  lawful  expenses 
under  this  chapter,  or  by  reason  of  any  of  its  provisions,  m 
the  prosecution  of  any  suit  or  proceeding,  or  otherwise,  for 
the  enforcement  of  the  provisions  of  this  chapter  the  insur- 
ance commissioner  must  present  bills,  duly  certified  by  him, 
and  accompanied  with  vouchers,  to  the  state  board  of  exam- 
iners, who  may  allow  the  same,  and  direct  payment  thereof 
to  be  made;  and  the  state  controller  must  draw  warrants 
therefor  on  the  state  treasurer  for  the  payment  of  the  same 
to  the  insurance  commissioner,  out  of  the  general  fund,  m 
addition  to  the  ordinary  contingent  expense. 

History     Enacted  March   20.  1905.  Stats,  and  Anndts.   1905,  p. 

History.     ji,ud.i-i.c<^  rhanter      A  codification   of 

422.     See   introductory   note   to   ^Ins   chapter.  ^ 
§  13  Act  of  March  19.  1891,  Stats,  and  Amdts.  1891,  p.  130. 

§4531).  EXEMPTION  OF  FRATERNAL  SOCIETIES  FROM 
THIS  CHAPTER.  The  provisions  of  this  chapter  do  not 
apply  to  secret  or  fraternal  societies,  lodges,  o^'  co^"^;!^' 
which  conduct  their  business  and  secure  membership  on  the 
lodges  system  exclusively,  having  ritualistic  work  and  cere- 
monies in  their  societies,  lodges,  or  councils,  nor  to  any 
mutual  or  benefit  association  organized  or  formed  and  com- 
posed of  members  of  any  such  society,  lodge,  or  council 
exclusively. 

«■  *«^,-.     T^nacted  March   20,   1905,  Stats,  and  Amdts.   1905.  p. 

Historj:      Enactea   marci         ,  ehanter       A   codification    of 

422.      See    introductory    note    to    tl^j^/^'^f;'^^„„.'^„    ^30 
§   14  Act  March   19,  1S91,  Stats,  and  Amdts.   1891,  p.   130. 

AS  to  many  miscellaneous  matters  of  insurance,  see  note 
'Ts'Twi^at  constitutes  a  secret  society,  see  Kerr's  Cyc.  C.  C. 
I  453p.    note. 


Kerr's    C.    C— 10  289 


§  454  CIVIL  CODE.  [DiV.I,Pt.IV. 

TITLE  III. 
RAILROAD  CORPORATIONS. 

Chapter     I.     Officers  and  Corporate  Stock,  §§  454-459. 
II.     Enumeration  of  Powers.  §§  465-478. 
III.     Business,  How  Conducted,  §§479-494. 

CHAPTER  I. 

OFFICERS  AND  CORPORATE   STOCK. 

§  454.  Directors  to  be  elected,  when. 

§  4.55.  Additional  provisions  in  assessment  and  transfer  of  stock. 

§  456.  Railroad     corporations     may     borrow    money    and     issue 

bonds,  etc.     [Interest — limitation  of  amount.] 

§  457.  To  provide  a  sinking  fund  to  pay  bonds. 

§  458.  Capital  stock  to  be  fixed. 

§  459.  Certificate  of  payment  of  fixed  capital  stock. 

§  454.  DIRECTORS  TO  BE  ELECTED,  WHEK.  Directors 
of  railroad  corporations  may  be  elected  at  a  meeting  of  the 
stocliholders  other  than  the  annual  meeting,  as  a  majorit}^ 
of  the  fixed  capital  stock  may  determine,  or  as  the  by-laws 
may  provide;  notice  thereof  to  be  given  as  provided  for 
notices  of  meetings  to  adopt  by-laws  in  article  two,  chapter 
one,  title  one,  of  this  part. 

History:     Enacted  March  21,   1872. 

132  C.  677,   678,  64  P.   1085    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations,  gen- 
erally, see  note  §  283  ante. 

RAILROADS — GENERALLY. 

Accident  as  evidence  of  negligence  of. — See  20  A.  S.   490. 

Additional    servitude   upon    highway. — See    1   A.    C.    861. 

Adverse  possession  of  riglit  of  way. — See  2  A.  C.  715;  10  A. 
C.    992;    2   L.   N.   S.    272. 

Aid  in   construction. — See   5  L.   726;   14  L.   479;   27  L.    696. 

Alighting  from  moving  train,  passenger's  contributory  negli- 
gence in. — See   17  A.   S.   422. 

Animals — Duty    towards    and    injuries    to,   liability. — See    1    L. 

290 


Tit.III.ch.I.]  RAILROADS,    GENERALLY.  §  454 

148;  1  L.  449;  8  L.  135;  11  L.  426;  11  L.  460;  14  L.  841;  15  L. 
39;    18   L.    450;   25  L.    162;    25  L.   291;    37   L.    659. 

Same — On  the  track,  duty  of  to. — See  49  A.  D.  261;  20  A.  S. 
161. 

Appliances,   improved,   duty  of  to   furnisli. — See   65  A.  S.   738. 

Assessment  of  riglit  of  way  for  street  improvement. — See  2 
A.   C.   587;   also   "Taxation  and  Assessment,"   this   note. 

Attachment — Against  cars  of  foreign  railroad. — See  2  A.  C. 
349. 

Same — ^Liability  of  cars  of  foreign  railroad  to. — See  2  A.  C. 
349. 

Business    may    conduct    as    incidental    to    main    business. — See 

4  A.   C.    910. 

Change  of  location — Power  to  make. — See  7  A.  C.  1032;  36 
L.    510. 

Charter  rights  of  subject  to  legislative  control.— See  9  L.  754. 

Child — Care  required  of  railroad  in  operating  turn  tables  in 
respect   to. — See   5   A.   C.    377. 

Same — Righl:  of  persons  in  charge  of  train  to  presume  will 
get   out   of   danger. — See    6   L.   N.   S.    283. 

Same — Trespassing  on  track — Duty  of  railroad  to  anticipate 
presence   of.- — See   4   A.   C.    680. 

Collisions    on    roads    where    the    "block    system"    is    used. — See 

5  A.   C.    444. 

Combinations — Authority  of  railroad  in  respect  to. — See  5 
L.    726. 

Same — Between  to  prevent  competition. — See  74  A.  S.  250. 

Same — Constitutional  and  statutory  restraints  upon. — See  1 
L.   849. 

Same — Liability  of  consolidating  company  for  debts  of  prede- 
cessors.— See    23    L.    231. 

Same — Restriction  on  consolidation  of  parallel  or  competing 
roads. — See    45    L.    271. 

Compelling — Operation  of  and  increase  of  facilities,  etc. — See 
24   L.   564. 

Same — Roads  to  light  their  tracks  in  cit5'. — See  41  L.   422. 

Compensation  for  interest  acquired  by  telegraph  company  in 
right  of  way. — See  1  A.  C.  741. 

Completion   of  road,  compelling. — See   24   L.    564. 

Condemnation  of  right  of  way  of  for  telegraph  line. — See  1 
A.  C.  517;  1  A.  C.  533. 

Same — Compensation   for. — See   1   A.   C.    741. 

Connecting  lines  of  and  powers  of  carriers  to  contract  for 
transportation  beyond  and  to  limit  tlieir  liability  of  their  own 
routes. — See    72    A.    D.    230. 

Consignee  may  rightfully  demand  delivery  of  goods  without 
payment  of  freight  when. — See  7  A.  C.  790;   9  A.  C.   794. 

291 


§  454  CIVIL  CODE.  [Div.I,Pt.IV. 

Consolidation  of  and  its  effect  on  pre-existing  debts  and 
liens. — See   59  A.   S.    554. 

Constitutionality  of  statutes  imposing-  double  damages  for 
killing   stock. — See   52   A.   R.    375. 

Construction  of  fences. — See  3  A.  C.  181,  182;  7  A.  C.  987;  also 
"Fences,"    this   note. 

Contracts — For  location  of  stations,  when  invalid  as  against 
public  policy. — See  36  A.  R.   44. 

Same— Which  may  not  extort  from  shippers,  and  their  effect 
when  extorted. — See  13  A.  S.   782. 

Contributory  negligence — As  affecting  liability  of  railroad 
company.— See  3  L.  N.  S.  196;  4  L.  N.  S.  344;  11  L.  N.  S.  963; 
12   L.   N.   S.    359. 

Same — Of  driver  of  vehicle,  applicable  to  occupant. — See  5 
A.   C.    163. 

Criminal  offenses  against  and  liability  therefor. — See  25  Jj. 
345;   36   L.   208;    61  L.   281;   63  L.   378. 

Crossings — Care  which   must  exercise  at. — See  26  A.  R.   207. 

Same — Countrj^ — Speed  at  as  negligence. — See  3  L.  N.  S.  798. 

Same — Duty  and  liability — To  give  signals  at. — See  15  L.  426; 
21   L.    723. 

Same — Same — To  give  signals  at  other  than  grade. — See  3 
A.   C.   361. 

Same — Same — To  keep  flagman  or  other  person  at  to  give 
warning  of  approaching  trains  or  cars. — See  2  A.  C.  294;  100 
A.   D.   412;   37  A.  R.   443. 

Same — Same — To  maintain  flagman  at  in  absence  of  statute. — 
See   2   A.   C.   294;   100   A.   D.   412;   37  A.   R.   443. 

Same — Same — To  maintain  and  operate  gates  at. — See  2  A.  C. 
449. 

Same — Same — Toward  person  going  upon  track  to  pass 
around  a  train  blocking. — See  5  L.  N.  S.  775. 

Same — Duty  to  stop,  look  and  listen  at  where  flagman  situ- 
ated.— See  10  A.  C.  418;  also  "Duty  to  stop,  look,  and  listen," 
this  note. 

Same — Flagman  at,  liability  of  for  injuries  due  to  absence 
of.— See  2  A.  C.   294;   100  A.  D.   412;   17  A.  R.  363;   37  A.   R.   443. 

Same — Injury  by  trains  at  and  liability  therefor. — See  3  L. 
594;  3  L.  683;  3  L.  745;  7  L.  317;  9  L.  57;   18  L.  63;  47  L.  301. 

Same — Negligence  in  allowing  view  at  to  be  obstructed  by 
trees,  etc.,  on  its  right  of  way. — See  10  A.  C.  485. 

Same — Negligence  in  permitting  obstructions  on  right  of  way 
which  obscure  view  of  track  from. — See  12  L.  N.  S.  1067. 

Same — New  highway — Statute  requiring  railroad  to  construct. 
—See  8  A.  C.   1056. 

Same — Overhead — Duty  as  to  signals  by  locomotives  on  ap- 
proaching.— See  1  L.  N.  S.  307. 

292 


Tit.III.ch.I.]  RAILROADS,    GENERALLY.  §  4^4 

Same — Power  of  municipality  to  require  gates  at. — See  3  L. 
N.   S.    141. 

Same — Rig-lits  and  duties  at. — See  5  L.  813;  7  L.  121;  18  L. 
154;   26  L.   92;   29   L.   485. 

Same — Validity  of  statute  requiring-  railroad  to  construct  and 
maintain  at  new  highways  without  compensation.— See  8  A.  C. 
1056. 

Culverts — Necessity  of  notice  to  purchasing  road  to  construct, 
when. — See   12  L.  N.   S.   571. 

Damages  to  property  for  which  liable  after  acquiring  rights 
of  way  by  eminent  domain  proceedings. — See  5  A.  S.  537. 

Demurrage,  right  of  to  collect  for  detention  of  cars  by 
consignees. — See    44    A.    S.    921. 

Depot — Failure  to  erect  under  contract  for — Measure  of  dam- 
ages.— See   4   A.   C.   99. 

Depot  grounds — What  are,  within  the  meaning  of  fence  laws. 
— See  7   L.  N.   S.   203;   also   3   W.   &  P.   2005. 

Discrimination  by,  when  reasonable  and  lawful,  and  when 
not.— See    11    A.    S.    647. 

Distinction  between  street-railroads  and  commercial  rail- 
roads.— See    4    A.   C.    449. 

Dogs — Duty  of  railroad  company  with  respect  to  on  track. — ■ 
See   6  L.  N.   S.   911;  also  "Trespassers,"   this   note. 

Dominion   of  stations  and  grounds.- — See   8  L.    753. 

Draining  district — Taking  railroad  lands  for. — See  2  L.  N. 
S.    227. 

Duty — And  liability  toward  one  who  goes  upon  its  property 
to  pass  around  a  train  blocking  the  crossing. — See  5  L.  N.  S.  775. 

Same — As  to  signals  by  locomotives  approaching  overhead 
crossings. — See   1   L.   N.   S.   307. 

Same — Of  train-men  on  observing  object  on  track,  character 
of   which    is   unknown    but   which    is   a    trespasser   helpless. — See 

2  L.   N.   S.    498. 

Same — Of  traveler  on  highways  to  use  his  senses  of  sight, 
hearing,  etc.,  to  avoid  dangers  at  crossings.— See  90  A.  D.  780. 

Same — Owed  to  one  who,  with  company's  permission,  uses 
private  crossing  constructed  by  it. — See  7  L.  N.  S.  597. 

Same — To  anticipate  presence  of  trespassing  children  on 
track. — See    4    A.    C.    680. 

Same — To  furnish  employees  with  safe  means  and  appliances 
with   which  to  work. — See   92   A.   D.    218. 

Same — To    give    signals    at    other    than    grade    crossings. — See 

3  A.   C.    361. 

Same — To  keep  lookout  for  animals  on  track  or  fenced  roads 
or  where  no  duty  to  fence  exists. — See  3  A.  C.  891. 

Same — To  keep  lookout  for  trespassers  on  track. — See  8  L. 
N.   S.    1069-1083. 

293 


§  454  CIVIL  CODE.  [Div.I,Pt.IV. 

Same — To  maintain  and  operate  gates  at  crossings. — See  3 
A.  C.  449. 

Same — To  maintain  flagman  at  crossings  in  absence  of  stat- 
ute.— See    4   A.    C.    294. 

Same — To  maintain  looltout  on  railroad  train.— See  25  L.  287- 
291;   55   L,.   418. 

Same — To  moderate  speed  of  train  where  trespassers  are  to 
be   anticipated. — See    11   L.   N.    S.    352. 

Same- — To  stop,  look,  and  listen — At  railroad  crossings  where 
flagman   is   situated. — See   10   A.   C.   418. 

Same — Same — Duty  of  driver  of  fire  apparatus  to. — See  7  A. 
C.    352. 

Same — Same — Failure  of  railroad  company  to  give  statu- 
tory signals  as  excusing. — See  6  A.  C.   708. 

Same — Same — Presence  of  gates  at  crossings  as  excusing 
traveler  from. — See   7  A.   C.   801. 

Same — Same — Reasonable  belief  that  no  train  is  approaching 
as  relieving  traveler  of  imputation  of  negligence  per  se. — See 
9  A.  C.   216. 

Same — With  respect  to  dogs  on  track. — See  6  L.  N.  S.  911. 

Electricity — Right  to  use  as  motive  power. — See  5  A.  C.  553. 

Elevated,  damages  for  operating  in  the  public  streets. — See 
26   A.   S.   500. 

Emission  of  smoke,  soot,  cinders  and  coal  dust  as  a  nui- 
sance.— See    9    L.    712. 

Employees,  when  chargeable  with  knowledge  of  tlie  condi- 
tion of  the  road. — See  47  A.  R.  430. 

Estate  or  interest  acquired  in  land  purchased  for  riglit  of 
way.— See  6  A.  C.  242. 

Exclusive  privileges  on  depot  grounds. — See  2  A.  C.  190. 

Fence — Corporations  need  not  erect  unless  required  by  stat- 
ute.— See    7    A.    R.    47. 

Same — Duty  to  construct. — See  5  L.  737;  8  L.  135;  11  L.  426; 
12  L.   180;   25   L.   320. 

Same — Gates,  duty  to  keep  in. — See  49  L.   625. 

Same — Measure  of  care  of  company  to  maintain  after  con- 
struction.— See  11  L.  N.  S.   228. 

Same — On   depot  grounds. — See   5   L,.   737. 

Fence  laws — What  are  depot  grounds  within  the  meaning 
of.— See  7  L.  N.  S.  203;  also  3  W.  &  P.  2005. 

Fires — ^Duty  to  avoid  and  liability  for. — See  1  L.  N.  S.  533; 
5  L.  N.  S.  99;  10  L.  N.  S.  175;  12  L.  N.  S.  382;  12  L.  N.  S.  472; 
12  L.  N.  S.  526;   12  L.  N.  S.   624. 

Same — Liability  for  when  caused  by  coals  or  sparks  from 
locomotives. — See  38  A.  D.  70;   78  A.  D.  185;  6  A.  R.  597. 

Same — Liability    of    company    for   setting   out. — See    1    L.    625; 

294 


Titlll.ch.L]  RAILROADS,    GENERALLY.  §  454 

3  L.   639;   5   L.   591;    9  L.    750;    9   L.   824;    11  L.   506;   18   L.    449;    21 
L.    262. 

Same — Same — Constitutionality  of  statute  imposing  absolute 
liability   for.— See    25   L.    161. 

Same — Same — Presumption  as  to  negligence  in  case  of. — See 
15   L.   40. 

Same — Statute  imposing  liability  for,  whether  constitutional. 
—See  42  A.  S.  538. 

Fire  apparatus — Duty  of  driver  of  to  stop,  look,  and  listen 
at  crossings. — See   7   A.   C.    352. 

Flagman — Duty  of  railroad  to  maintain  at  crossings  in  ab- 
sence of  statute. — See  2  A.  C.  449;  also  "Crossings,"  this  note. 

Flying  switch — Making,   as  negligence. — See   10   A.   C.    1015. 

Foreign  railroad — Liability  to  attachment  or  garnishment  of 
cars. — See   2  A.   C.   349. 

Same — Rights  of  in  state. — See  24  L.  313. 

Franchises  and  property  of,  power  of  to  transfer. — See  75  A.  ■ 
D.    548. 

Free  passes,  risks  assumed  by  acceptors  of. — See  57  A.  R.  388. 

Frightening  horses — Liability  of  company  for  personal  in- 
juries caused  by. — See  3  A.  C.  1070;  10  A.  C.  302. 

Same — On  highway  by  engine,  etc.,  on  or  near  crossing,  lia- 
bility for. — See  3  L.  N.  S.  111. 

Garnishment — Liability  of  foreign  railroad  to. — See  2  A.  C. 
349. 

Same — Of  cars  of  foreign  railroad  company. — See  2  A.  C.  347, 
349;    9   A.   C.   437. 

Gates — At  crossings — Duty  of  railroad  company  to  maintain 
and   operate. — See    2   A.   C.    449. 

Same — Duty  to  keep   in  fences. — See  9  L.   625. 

Saine — Power  of  municipality  to  require  at  crossings. — See 
3  L.  N.  S.   141. 

Implied  power  of  railroad  to  engage  in  or  guarantee  enter- 
prise other  than  transportation  of  goods  or  passengers. — See 
2  L.  N.  S.  887. 

Imputation  of  contributory  negligence  of  driver  to  occupant 
of  vehicle. — See  5  A.  C.   163. 

In  highways — Liability  to  abutting  owner  for  mutilating 
trees,  etc. — See  12  L.  N.  S.  1125. 

Injunction  against,  as  nuisances,  in  suit  by  municipality. — See 
44   L.   565. 

Injuries — By   train   at   crossing. — See   "Crossings,"   this   note. 

Same — Caused  by  objects  thrown  from  moving  train,  liability 
of  railroad  company  for. — See  6  L.  N.  S.  581. 

Same — Which  wrongful  acts  of  are  deemed  the  proximate 
cause  of. — See  41  A.   R.   53. 

Same — To  animals. — See  "Animals,"  this  note. 

295 


§  454  CIVIL  CODE.  [Div.I,Pt.IV. 

Same — To  property  and  interference  with  rights  of  others.— 
See  2  L.  542;  3  L..  565;  9  L.  712;  17  L.  221;  40  L.  593;  59  L.  863; 
70   L.    585. 

Joint  traffic  arrangements,  power  of  the  states  to  compel  the 
entering   into. — See   89  A.   S.   527. 

Land-owner's  right  to  damages  for  obstruction  of  street  or 
highway  by  railroad  adjacent  to  his  property. — See  9  L.  N.  S 
496. 

Lateral  railroad — What  within  charter-power  to  build. — 
See  12   L.  N.   S.   326. 

Lease  as  affecting  liabilities  of. — See  7  L.  344;  10  L.  794. 

Leasing  their  property,  liability  of  afterward. — See  48  A.  R. 
580. 

Legalization  of  nuisances  injuriously  affecting  private  prop- 
erty.— See  1  A.   C.   625. 

Legislative  control — Charter  rights  of  subject  to. — See  9  L. 
754. 

Lessee  of  railroad — Liability  of  lessor  for  negligent  or  illegal 
operation  by. — See  2  A.  C.   861;   10  A.  C.   350. 

Same — Proper  pleading  in  action  against  railroads  for  dam- 
ages caused  by  its  lessee. — See  9  A.  C.   682. 

Lessor — Liability  of  to  persons  other  than  lessees. — See  58  A. 
S.    147. 

Liability — For  assaults  made  by  their  employees  on  passen- 
gers.— See   41  A.  R.   340. 

Same — For  conducting  surface  water  through  to  embank- 
ments and  on  to  the  property  of  an  adjoining  owner.- — See  12 
L.  N.   S.   680. 

Same — For  frightening  horses  on  highway  by  engine,  etc.,  on 
or  near  crossing. — See   3  L.  N.   S.   111. 

Same — For  injuries  inflicted  in  removing  trespassers  from 
train. — See  1  A.  C.   775. 

Same — For  injury  or  loss  of  baggage. — See  7  A.  C.  57;  9  A. 
C.   199. 

Same^ — For  injury  to  animals. — See  3  A.  C.  274;  3  A.  C.  590; 
8  A.  C.   417. 

Same — For  killing  dog. — See   3  A.   C.   275. 

Same — For  personal  injuries  by  objects  thrown  from  moving 
train. — See  6  L.  N.  S.  581. 

Same — For  personal  injuries  caused  by  frightening  of  horses 
by  train  or  cars. — See  3  A.  C.  1070;  10  A.  C.  302. 

Same — For  personal  injuries  due  to  employees. — See  60  A. 
R.   880. 

Same — For  physicians  and  siirgeons  attending  injured  ena- 
ployees. — See   1  A.  S.   199. 

Same — For  private  nuisance. — See   1   L.  N.   S.    62. 

Same — For  torts  of  their  lessees. — See  71  A.  D.  295. 

296 


Tit.III.ch.I.]  RAILROADS,    GENERALLY.  §  454 

Same — Of  cars  of  foreign  railroads  to  attachment  or  garnish- 
ment.— See  2  A.  C.  349. 

Same — Of  lessee  or  licensee  to  its  servants  for  condition  of 
track. — See    6    L.   N.    S.    787. 

Same — Of  lessor  of  railroad — For  injuries  caused  by  negli- 
gence of  lessee  or  licensee. — See   44  L.   737. 

Same — Same — For  negligent  or  illegal  operation  by  lessee. — 
See  2  A.  C.  861;  10  A.  C.  350. 

Same — Same — Proper  pleading  in  action  against  railroad  to 
recover  damages  caused  by  lessee. — See  9  A.  C.  682. 

Same — Of  purchaser  of  railroad  on  personal  contracts  of  old 
corporations. — See  6  A.  C.  85. 

Same — Of  right  of  way  to  assessment  for  local  improvements. 
—See   12   L.   N.   S.    112. 

Same — Of  sleeping  car  company  for  loss  of  passenger's  prop- 
erty left  by  him  in  berth  while  temporarily  absent  therefrom. — 
See   10  A.  C.   895. 

Same — Rimning  train  in  violation  of  speed  law  for  injury  to 
trespassers. — See  5  A.  C.  1007. 

Same — To  persons  with  whom  they  have  no  contract  rela- 
tions but  who  are  lawfully  on  their  tracks,  cars,  or  premises. — 
See  90  A.  D.  55. 

Same — While  in  the  hands  of  trustees  or  receivers. — See  5  A. 
S.   313. 

Lien — For  charges  on  goods  tortiously  delivered  to  it. — See 
3   A.   C.   1095. 

Same — For  demurrage. — See  3  A.  C.  1092;  4  A.  C.  12,  15;  5  A. 
C.  387,  388;  7  A.  C.  960;  9  A.  C.  790. 

Low  bridges,  liability  of  for  injuries  to  employees  by. — See 
53    A.    R.    699. 

Making  flying  switch  as  negligence. — See  10  A.  C.  1015. 

Mandamus  to  compel  to  perform  public  duty  required  by  its 
charter.— See  37  A.  S.  321;  12  L.  180. 

"Materials,"  construction  of  word  as  used  in  statute  given 
mechanics'  lien  for  materials  furnished  for  railroad  construc- 
tion.—See  9  A.  C.   309;  also  5  W.  &  P.  4409-4412. 

Measure — Of  care  of  to  maintain  fence  once  constructed. — 
See   11  L.   N.   S.    223. 

Same — Of  damages  for  breach  of  contract  by  railroad  to  erect 
depot.— See  4  A.  C.  99. 

Mechanics'  lien  laws,  applicable  to  railroads. — See  5  A.  C. 
433;  7  A.  C.  267,  269;   10  A.  C.  372,  374. 

Mortgages — After-acquired  property  which  is  covered  by. — See 
99  A.   S.   252. 

Same — Of  propertj' — What  included,  foreclosure. — See  1  L.  334; 
5  L.  566;  6  L.  44;  9  L.  140;  32  L.  208;  69  L.  682. 

Same — Subsequent  claims  which  take  precedence  of. — See  54 
A.  S.   400. 

297 


§  454  CIVIL  CODE.  [Div.T.Pt.IV. 

Same — What  included  within. — See  38  A.  R.  353. 

Motive  power  tliat  may  be  used  by. — See  2  L.  N.  S.  138. 

Same — Electricity  as  a. — See  5  A.  C.  53. 

Municipal  ordinances,  requiring  railroad  to  maintain  gates 
or  flagman  at  crossings,  validity  of. — See  5  A.  C.  301. 

Negligence — Contributory — Of  passengers  in  riding  on  plat- 
forms, etc.— See  37  A.  R.  710;  41  A.  R.  347. 

Same — Same — Of  passenger  in  jumping  from  moving  train. — 
See  56  A.  R.  842. 

Same — Same — Of  persons  not  looking  for  approach  of  cars. — 
See    51    A.    R.    360. 

Same — In  allowing  view  at  crossings  to  be  obstructed  by  trees, 
etc.,  on  its  right  of  way. — See  10  A.  C.  485. 

Same — In  permitting  obstructions  on  right  of  way  which  ob- 
scure view  of  track  from  highway  crossing. — See  12  L.  N.  S.  1067. 

Same — Speed  of  train  as  evidence  of. — See  53  A.  R.  52. 

Negligent  construction. — See  3  A.  C.   201;   3  A.  C.   1065. 

New  highways — Validity  of  statute  requiring  railroad  to  con- 
struct and  maintain  crossings  at  without  compensation. — See  8 
A.  C.  1056. 

Notice  to  purchasing  railroad  company  to  construct  culverts 
where  road  originally  constrvicted  without  them,  necessity  for. — 
See  12  L.  N.  S.   571. 

Nuisance — Emission  of  smoke,  soot,  cinders,  etc.,  as  a. — See 
9  L.  712. 

Same — In  injunction  against  as  a,  in  suit  by  municipality. — 
See   44  L.    565. 

Same — Injuriously  affecting  private  property — Legalization  of. 
—See  1  A.  C.  625. 

Same — Liability  for  private. — See  1  L.  N.  S.  62. 

Same — Statutory  authority  to  commit  by  construction  and 
operation. — See  70  L.  585. 

Ordinance — As  to  operation — Violation  of  as  ground  for  pri- 
vate action. — See  5  L.  N.  S.  186. 

Passenger — ^Alighting  from  trains,  right  of  and  duties  to. — 
See  50  A.  R.   277. 

Same — Duty  of  to  ascertain  whether  train  stops  at  their  sta- 
tion.— See  50  A.  R.  527. 

Same — Employees,  riding  on,  when  not  deemed  to  be. — See 
52  A.  R.   280. 

Same — Negligence  of  in  projecting  a  member  of  his  body  out 
of  a  car  window. — See  116  A.  S.  721. 

Same — Obligation  to  stop  for  at  the  times  advertised. — See  66 
A.  D.  603. 

Same — When  not  guilty  of  contributory  negligence  in  not 
remaining  in  their  seats. — See  58  A.   R.  113. 

Same — Who  is  a,  and  when  becomes  such. — See  61  A.  S.  75. 

298 


Tit.III,ch.I.]  RAILROADS,    GENERALLY.  §  454 

Persons  loading  or  unloading  not  simply  licensees. — See  1  A. 
C.    601. 

Power  to  change  its  location. — See  7  A.  C.  1032. 

Prescriptive  right  to  maintain. — See  53  L.  900. 

Presence  of  gates  at  railroad  crossings  as  excusing  traveler 
from  duty  to  look  and  listen. — See  7  A.  C.  801. 

Priority  of  claims  against  property  of,  in  hands  of  receiver 
over  recorded  liens. — See  2  L.  N.  S.  1015. 

Private  action — For  violation  of  statute  imposing  duties  on 
railroads.— See  9  L.  N.  S.  347. 

Same — Violating  ordinance  as  to  operation,  as  ground  for. — 
See   5   L.  N.   S.    186. 

Private  crossing — General  nature  of  duty  owed  by  railroad 
to  one  using  with  perinission.— See  7  L.  N.  S.  597. 

Privileges,  right  of  to  grant  exclusive  to  hackmen  and  other 
solicitors. — See   22    A.    S.    699. 

Property  of,  exempt  from  execution. — See  5  A.  C.  511. 

Railroad  bridge  over  navigable  stream.— See  2  L.  542;  59  L.  863. 

Reasonable  belief  that  no  train  is  approaching  crossings  as 
relief  of  negligence  per  se  in  failing  to  stop,  look,  and  listen. — 
See  9  A.  C.   216. 

Requisites  of  averment  in  complaint  as  to  casual  connection 
between  violation  of  law  or  ordinance  by  railroad  company  and 
injury. — See  8  L.  N.  S.  987. 

Right- — Of  persons  in  charge  of  train  to  presume  that  cliild 
will  get  out  of  danger. — See  6  L.  N.  S.  283. 

Same — Of  way,  as  encumbrance. — See  4  L.  N.  S.  318. 

Same — To  change  location  of  railroad. — See  36  L.  510. 

Same — To  condemn  land  for  spur  to  private  establishment. — 
See  7  A.  C.  835. 

Same — -To  grant  exclusive  privileges  on  depot  grounds. — See 
2  A.  C.   190. 

Same — To  use  electricity  as  motive  power. — See  5  A.  C.  553. 

Rules  and  regulations  which  may  make  respecting  passengers 
and  others  not  employees. — See  41  A.  D.  471. 

Sick,  aged,  and  feeble  passengers,  care  and  duty  with  respect 
to. — See  97  A.  D.  499. 

Signals  by  locomotives — Duty  as  to  approaching  overhead 
crossings. — See    1    L.    N.    S.    307. 

Speed — At  country  crossings  as  negligence. — See  3  L.  N.  S. 
778. 

Same — Excessive  as  negligence. — See  3  L.  594;  3  L.  6S3;  4 
L.   776;   7   L.   317;   9  L.   160;   11  L.   434. 

Same — Of  railroad  train  as  negligence  in  absence  of  pro- 
hibitory  statute. — See   7   A.   C.   988. 

Spur  to  private  establishment — Right  to  condemn  land  for. — 
See   7    A.   C.    835. 

299 


§  454  CIVIL  CODE.  [Div.I,Pt.IV. 

State  regulation  of  railroads — As  an  interference  with  inter- 
state   commerce. — See    7   A.    C.    5. 

Same — Validity  of  requirement  that  railroad  construct  and 
maintain  crossings  at  new  highways  without  compensation. — 
See    8   A.   C.    1056. 

Stations — And   grounds,   dominion    of. — See   8   L.    753. 

Same — Duty  of  to  keep  safe  for  passengers  and  others. — 
See   29  A.   S.   55. 

Statutory  signals — Failure  of  railroad  company  to  give  on 
approaching  crossings  as  excuse  for  traveler's  contributory 
negligence. — See   6   A.   C.    78. 

Stop,  look  and  listen — Duty  of  at  crossings  where  gates  are 
open. — See   4   L.   N.    S.    521. 

Same — Duty  of  traveler  to  on  approaching  overhead  or 
underground   railroad   crossing. — See   6   L.   N.    S.    150. 

Same — Failure  in  duty  to,  contributory  negligence. — See  7 
L.   316;   9  L.   161;   11  L.   385. 

Same — Failure  to  give  customary  signals  as  excusing  from. 
—See   3  L.  N.  S.   391. 

Stop-over  privileges  and  tickets,  rules  which  may  be  en- 
forced  respecting. — See    45    A.    D.    192. 

Street  improvements — Assessment  of  railroad  riglit  of  way 
for. — See   2  A.   C.   587;   28  L.   249;    12   L.  N.   S.   112. 

Street-railroads. — See    note    §  497,    post. 

Streets  and  highways,  constitute  additional  servitudes  upon. 
—See    28    A.    R.    267;    37    A.    R.    224. 

Taking  railroad  lands  for  draining  district. — See  2  L.  N.  S. 
227. 

Taxation  of — As  to  generally. — See  10  A.  C.  354,  355;  15  L. 
298;   57  L.   64;   60  L.   687;    66  L.   51;   69  L.   445. 

Same — Assessment  of. right  of  way  for  street  improvements. 
— See  2  A.  C.   587;   28  L.   249. 

Same — Exemption  from  taxation. — See  4  A.  C.  1195,  1203; 
1    L.    426. 

Tickets  of,  limitations  upon  and  of  right  to  stopover.— See 
24    A.    R.    22. 

Train-dispatcher's   record  as  evidence. — See  3  L.  N.   S.   1190. 

Trespasser — Child — Right  of  persons  in  charge  of  train  to 
presume   will   get   out   of   danger. — See   6   L.   N.   S.    283. 

Same — Duty  of  railroad  company  toward  person  going 
upon  property  to  pass  around  a  train  blocking  crossing. — See 
5   L.   N.   S.   775. 

Same — Duty  to  keep  lookout  for. — See   8  L.  N.  S.   1069-1083. 

Same — ^Duty  to  moderate  speed  where  to  be  anticipated. — 
See   11  L.  N.   S.   532. 

Same — Duty  with  respect  to  dogs. — See   6   L.  N.  S.   911. 

300 


Tit.III,ch.I.]  ASSESSMENTS,   ETC.,   STOCK.  §  455 

Same — Helpless  on  track,  duty  of  train-men  upon  observ- 
ing-.— See    2   L.   N.   S.    498. 

Same — Injury  to — Children   on   tracks. — See  4  A.  C.   680. 

Same — ^Same — In  running  train  in  violation  of  speed  law. — • 
See    5    A.   C.    1007. 

Same — Same- — ^Traveling  along  railroad  right  of  way. — See 
2   A.   C.    548. 

Same — On  track — Duty  toward  and  liability  for  injuries  to. — 
See  30  A.  S.  53;  6  L.  242;  10  L.  139;  11  L.  385;  13  L.  248;  16 
L.   634;   25  L.  287;   25  L.  784-791;   55  L.   418;    66  L.   587;   69  L.  523. 

Same- — Removal  from  trains — Authority  of  brakeman. — See 
2   A.   C.    624. 

Same — Same — Liabilities  for  injuries  inflicted  in. — See  1  A.  C. 
775. 

Same — Upon  cars,  liability  for  injuries   to. — See  55  A.   R.   42. 

Trespassing — By  traveling  along  railroad  right  of  way. — See 
2    A.    C.    548. 

Sam.e — Animals,  liability  of  for  negligently  or  willfully  kill- 
ing.— See    96    A.    D.    681. 

Turntables — And  other  dangerous  appliances,  liability  to 
trespassers   injured  by. — See   59   A.   R.    23. 

Same — Care  required  of  railroad  in  operation  of  in  respect 
to   children. — See   5   A.   C.    377. 

Validity  of  contract  to  pay  an  officer  of  a  railroad  company 
for  his  own  benefit  for  specific  location  of  road  or  depot. — 
See  6  L.  N.  S.  524. 

Violating  ordinance  as  to  operation  as  ground  for  private 
action. — See   5  L.  N.  S.   186. 

Violation  by  servant  of  rule  adopted  by  company  for  pro- 
tection of  public,  as  evidence  of  negligence  toward  a  member 
of  the  public. — See   8  L.  N.   S.   1063. 

Waiver  of  carrier's  lien  to  consignor's  agent  on  promise  to 
retain  goods  until  payment  of  freight  charges. — See  7  A.  C.  961. 


§  455.  ADDITIONAL  PROVISIONS  IN  ASSESSMENT  AND 
TRANSFER  OF  STOCK.  No  stock  in  any  railroad  corporation 
is  transferable  until  all  the  previous  calls  or  instalments 
thereon  have  been  fully  paid  in; 

[Transfer  not  \alid,  except.]  Nor  is  any  such  transfer 
valid,  except  as  between  the  parties  thereto,  unless  at  least 
twenty  per  cent  has  been  paid  thereon  and  certificates  issued 
therefor,  and  the  transfer  approved  by  the  board  of  direc- 
tors. 

History:     Enacted  March  21,  1872. 
SOX 


§  456  CIVIL  CODE.  [Div.I,Pt.IV. 

§456.  RAILROAD  CORPORATIONS  MAY  BORROW 
MONEY  AND  ISSUE  BONDS,  ETC.— [INTEREST— LIMITA- 
TION OF  AMOUNT].  Railroad  corporations  may  borrow,  on 
the  credit  of  the  corporation  and  under  such  regulations  and 
restrictions  as  the  board  of  directors  thereof,  by  unanimous 
concurrence,  may  impose,  such  sums  of  money  as  may  be 
necessary  [1]  for  constructing  and  completing  their  railroad 
with  its  equipment,  and  [2]  for  the  purchase  of  all  necessary 
rolling  stock  and  [3]  all  else  relative  thereto,  and  may  [4] 
issue  promissory  notes  therefor,  or  [5]  may  issue  and  dispose 
of  bonds  to  raise  moneys  necessary  to  pay  therefor,  at  a  rate 
of  interest  not  exceeding  ten  per  cent  per  annum;  and  may 
[6]  also  issue  bonds,  or  promissory  notes,  at  the  same  rate  of 
interest  in  payment  of  any  debts  or  contracts  for  construct- 
ing and  completing  their  road,  with  ifs  equipments  and  roll- 
ing stock,  and  all  else  relative  thereto,  and  [7]  for  the  pur- 
chase of  railroads  and  other  property  within  the  purpose  of 
the  corporation. 

The  amount  of  bonds,  or  promissory  notes,  issued  for  such 
purposes  [1]  must  not  exceed  in  all  the  amount  of  their  capi- 
tal stock;  and  to  secure  the  payment  of  such  bonds,  or  notes, 
they  [2]  may  mortgage  their  corporate  property  and  fran- 
chises, or  [3]  may  secure  the  payments  of  such  bonds,  or 
notes,  by  deed  of  trust  of  their  corporate  property  and  fran- 
chises. [4]  Any  person  or  corporation  formed  under  the 
laws  of  this  state,  or  of  any  other  state  within  the  United 
States,  that  the  directors  of  the  railroad  corporation  may,  by 
unanimous  concurrence,  select,  may  be  trusiees  in  such  deed 
of  trust. 

History:  Enacted  March  21,  1872;  amended  April  15,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  10;  March  9,  1897,  Stats,  and 
Amdts.  1897,  p.  73;  March  4,  1899,  Stats,  and  Amdts.  1899,  pp. 
57-58  (became  a  law,  under  constitutional  provision,  without 
Governor's  approval). 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

109  C.  571,  595,  42  P.  225  (referred  to);  124  C.  321,  328,  329, 
71  A.  S.  68,  57  P.  76  (construed  and  applied);  125  C.  407,  409,  410, 
58  P.  85  (referred  to);  125  C.  453,  454,  455,  58  P.  64  (construed 
with  §359);  64  F.  450,  452   (construed  and  applied). 

302 


Tit.III.Ch.L]  BONDS,   SINKING  FUND.  §§  457,  458 

As  to  many  miscellaneous  matters  as  to  corporations  g-ener- 
allj',    see   note    §  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

§457.    TO   PROVIDE    SINKING   FUND    TO   PAT   BONDS. 

The  directors  must  provide  a  sinking  fund,  to  be  speciallj^ 
applied  to  the  redemption  of  such  bonds  on  or  before  their 
maturity,  and  may  also  confer  on  any  holder  of  any  bond  or 
note  so  issued,  for  money  borrowed  or  in  payment  of  any 
debt  or  contract  for  the  construction  and  equipment  of  such 
road,  the  right  to  convert  the  principal  due  or  owing  thereon 
into  stock  of  such  corporation,  at  any  time  within  eight  years 
from  the  date  of  such  bonds,  under  such  regulations  as  the 
directors  may  adopt. 

History:  Enacted  March  21,  1872.  This  section  is  founded 
upon  §  15  Act  May  20,  1861  (Stats.  1861,  §  15,  p.  607),  as  amended 
by  §  1  Act  May  4,  1862  (Stats.  1862,  §  1,  p.  547). 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

125    C.    453,    454,    58   P.    64    (applied). 

As  to  construction  of  section  original  act,  see  69  C.  606,  609, 
6   P.   748. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,    ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,   ante. 

§458.  CAPITAL  STOCK  TO  BE  FIXED.  When,  at  any 
time  after  filing  the  articles  of  incorporation,  it  is  ascertained 
that  the  capital  stock  therein  set  out  is  either  more  or  less 
than  actually  required  for  constructing,  equipping,  operating, 
and  maintaining  the  road,  by  a  two-third [s]  vote  of  the 
stockholders  the  capital  stock  must  be  fixed,  and  a  certificate 
thereof,  and  of  the  proceedings  had  to  fix  the  same,  must 
be  made  out  and  filed  in  the  office  of  the  secretary  of  state. 

History:     Enacted  March   21,   1872. 

65  C.  193,  209,  3  P.  661,  802  (referred  to  in  discussing  con- 
tention not  material   to  decision). 

As  to  many  miscellaneous  inatters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

303 


§  459  CIVIL  CODE.  [Div.I,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

§  459.  (  EIiriFICATE  OF  PAYMENT  OF  FIXED  CAPITAL 
STOCK.  Within  thirty  days  after  the  payment  of  the  last 
instalment  of  the  fixed  capital  stock  of  any  railroad  corpora- 
tion organized  under  this  title  and  part,  the  [1]  president  and 
secretary  and  [2]  a  majority  of  the  directors  thereof  must  [3] 
make,  subscribe,  and  file  in  the  office  of  the  secretary  of 
state  a  [4]  certificate,  stating  [a]  the  amount  of  the  fixed 
capital  stock,  and  [b]  that  the  whole  thereof  has  been  paid 
in.  The  certificate  must  [5]  be  verified  by  the  affidavit  of  the 
president  and  secretary. 

History:      Enacted  March   21,   1872. 


304 


Tit.III.Ch.II.]  RAILROAD'S   POWERS.  §  465 

CHAPTER  II. 
ENUMERATION   OF   POWERS. 

§  465.     Powers  of  railroad  corporations. 

1.  May   make   survey   for  road — May   enter   upon   lands 

for  that'  purpose. 

2.  May  accept  real  estate. 

3.  May  acquire  real  estate. 

4.  May  lay  out  roads,  how  wide. 

5.  May  construct  road,  where. 

6.  May  cross,   etc.,   other  roads. 

7.  May  purchase  lands,  timber,  stone,  etc. 

8.  May  carry  persons  and  freight. 

9.  May  erect  buildings. 

10.  May  regulate  time  and  tolls,  subject  to  legislation.  . 

11.  May  establish  rules  for  management  of  business. 

12.  May  purchase  other  roads  not  in  competition. 

§  465a.  What  motive  power  may  be  used.  Authority  must  be 
obtained. 

§  466.     Map  and  profile  to  be  filed. 

§  467.     May  change  line  of  road. 

§  468.     Forfeiture  of  franchise.    [Failure  to  operate,  reverter.] 

§  469.     Crossings  and  intersections.     Condemnation. 

§  470.  Not  to  use  streets,  alleys,  or  water,  in  cities  or  towns, 
except  by  a  two-third[s]  vote  of  the  city  or  town 
authorities. 

§  471.     Convej'ance  of  passengers   within   city  limits    [repealed]. 

§  472.  When  crossing  railroads  or  highways,  how  other  lands 
acquired. 

§  473.  Consolidation  of  railroad  corporations.  Proceedings  nec- 
essary thereto. 

§  473a.  Right  to  lease  or  use  another  road  in  common. 

§  474.     State  lands  granted  for  use  of  corporations. 

§  475.     Grant  not  to  embrace  town  lots. 

§  476.     Wood,  stone  and  earth  may  be  taken  from  state  lands. 

§  477.     Lands  to  revert  to  state,  when. 

§  478.     Selections  made,  how  proved  and  certified  to. 

§465.  POWERS  OF  RAILROAD  CORPORATIONS.  Every 
railroad  corporation  has  power: 

1.  [To  make  suney  for  road.]  To  cause  such  examinatlou 
and  surveys  to  be  made  as  may  be  necessary  to  the  selection 
of   the   most   advantageous   route   for   the   railroad;    and   for 

305 


§  465  CIVIL  CODE.  [Div.I,Pt.IV. 

such  purposes  their  officers,  agents  and  employees  may  enter 
upon  the  lands  or  waters  of  any  person,  subject  to  liability 
for  all  damages  which  they  may  do  thereto; 

2.  [To  accept  real  estate.]  To  receive,  hold,  take,  and  con- 
vey, by  deed  or  otherwise,  as  a  natural  person,  such  voluntary 
grants  and  donations  of  real  estate  and  other  property,  which 
may  be  made  to  it  to  aid  and  encourage  the  construction, 
maintenance  and  accommodation  of  such  railroad; 

3.  [To  acquire  real  estate.]  To  purchase,  or  by  voluntary 
grants  or  donations  to  receive,  enter,  take  possession  of,  hold 
and  use  all  such  real  estate  and  other  property  as  may  be 
absolutely  necessary  for  the  construction  and  maintenance  of 
such  railroads,  and  for  all  stations,  depots  and  other  purposes 
necessary  to  successfully  work  and  conduct  the  business  of 
the  road; 

4.  To  lay  out  its  road,  not  exceeding  ten  rods  wide,  and  to 
construct  and  maintain  the  same,  with  one  or  more  tracks, 
and  with  such  appendages  and  adjuncts  as  may  be  necessary 
for  the  convenient  use  of  the  same; 

5.  To  construct  their  roads  across,  along  or  upon  any 
stream  of  water,  watercourse,  roadstead,  bay,  navigable 
stream,  street,  avenue  or  highway,  or  across  any  railway, 
canal,  ditch  or  flume  which  the  route  of  its  road  intersects, 
crosses  or  runs  along,  in  such  manner  as  to  afford  security 
for  life  and  property;  but  the  corporation  shall  restore  the 
stream  or  watercourse,  road,  street,  avenue,  highway,  railroad, 
canal,  ditch  or  flume  thus  intersected  to  its  former  state  of 
usefulness  as  near  as  may  be,  or  so  that  the  railroad  shall  not 
unnecessarily  impair  its  usefulness  or  injure  its  franchise; 

6.  To  cross,  intersect,  join,  or  unite  its  railroad  witli  any 
other  railroad,  either  before  or  after  construction,  at  any 
point  upon  its  route,  and  upon  the  grounds  of  such  other 
railroad  corporation,  with  the  necessary  turnouts,  sidings  and 
switches,  and  other  conveniences  in  furtherance  of  the  objects 
of  its  connections;  and  every  corporation  whose  railroad  is, 
or  shall  be  hereafter  intersected  by  any  new  railroad,  shall 
unite  with  the  owners  of  such  new  railroad  in  forming  such 

306 


Tit.III.ch.II.]  ENUMERATED    POWERS.  §  465 

intersections  and  connections,  and  grant  facilities  therefor; 
and  if  the  two  corporations  cannot  agree  upon  the  amount 
of  compensation  to  be  made  therefor,  or  the  points  or  the 
manner  of  such  crossings,  intersections  and  connections,  the 
same  sliall  be  ascertained  and  determined  as  is  provided  in 
title  seven,  part  three,  Code  of  Civil  Procedure  (sees.  1237- 
1263); 

7.  To  purchase  lauds,  tiiuber,  stone,  gravel  or  otlier  mate- 
rials to  be  used  in  the  construction  and  maintenance  of  its 
road,  and  all  necessary  appendanges  and  adjuncts,  or  acquire 
them  in  the  manner  provided  in  title  seven,  part  three.  Code 
of  Civil  Procedure,  for  the  condemnation  of  lands;  and  to 
change  the  line  of  its  road,  in  whole  or  in  part,  whenever  a 
majority  of  the  directors  so  determine,  as  is  provided  here- 
inafter; but  no  such  change  must  vary  the  general  route  of 
such  road,  as  contemplated  in  its  articles  of  incorporation; 

8.  To  carry  persous  and  property  on  their  railroad,  and  to 
receive  tolls  or  compensation  therefor; 

9.  To  erect  and  maintain  all  necessary  and  conyeuient 
buildings,  stations,  depots,  fixtures  and  machinery  for  the 
accommodation  and  use  of  their  passengers,  freight  and  busi- 
ness; 

10.  To  regulate  the  time  and  manner  in  which  passengers 
and  property  shall  be  transported,  and  the  tolls  and  co"mpeu- 
sation  to  be  paid  therefor  within  the  limits  prescribed  by  law 
and  subject  to  alteration,  change  or  amendment  by  the  legis- 
lature at  any  time; 

11.  To  regulate  the  force  and  speed  of  their  locomotives, 
cars,  trains  or  other  machinery  used  and  employed  on  their 
roads,  and  to  establish,  execute  and  enforce  all  needful  and 
proper  rules  and  regulations  for  the  management  of  its  busi- 
ness transactions  usual  and  proper  for  railroad  corporations; 

12.  [To  purchase  other  roads.]  To  purchase,  lease  or 
acquire  the  franchises,  rights  and  property,  or  any  part 
thereof,  of  any  railroad  corporation,  leasing  or  owning  any 
railroad  outside  of  the  state  of  California,  and  to  operate  the 
same,  and  to  use  the  franchises  of  any  such  road,  and  to 
build  and  operate  extensions  thereof; 

307 


§  465  CIVIL  CODE.  [Div.I,Pt.IV. 

[Restrictions.]  Provided  that  nothing  herein  shall  author- 
ize any  corporation  to  purchase  the  franchises,  rights,  and 
propert}^  of  any  railroad  operated  in  competition  with  it;  and 
to  purchase,  acquire  and  hold  the  stocks,  bonds  or  other  secu- 
rities of  any  railroad  corporation  organized  under  the  laws 
of  this  state  or  of  any  other  state  or  territory,  with  full  power 
to  sell  the  same;  provided  that  nothing  herein  will  author- 
ize any  corporation  to  purchase  the  stock  of  any  railroad  cor- 
poration operated  in  competition  with  it. 

[In  effect,  -when.]  Sec.  2.  This  act  shall  take  effect  imme- 
diately. 

History:  Enacted  March  21,  1872,  founded  upon  and  is  a  sub- 
stantial re-enactment  of  §  17  of  Act  May  20,  1861,  Stats.  1861, 
pp.  614-616;  amended  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.'  367,  held  unconstitutional,  see  his- 
tory, §  4  ante;  amendment  re-enacted,  and  paragraph  12  added, 
March  20,  1903,  Stats,  and  Amdts.  1903,  pp.  245-246;  amended 
March  4,  1907,  Stats,  and  Amdts.  1907,  p.  99,  Kerr's  Stats,  and 
Amdts.  1906-7,  p.  413.     In  effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  94  pars,  annotation. 

53  C.  223,  227,  228  (construed  and  applied);  67  C.  429,  431, 
432,  7  P.  814,  815  (power  of  railroad  company  to  acquire  advan- 
tageous right  of  way);  69  C.  202,  206,  10  P.  510,  513  (construed 
and  applied);  91  C.  449,  452,  25  A.  S.  201,  27  P.  768,  769,  13  L. 
754  (referred  to);  92  C.  639,  645,  28  P.  676,  677  (construed  and 
applied);  93  C.  263,  265,  28  P.  828,  829,  18  L.  510  (referred  to); 
111  C.  221,  227,  43  P.  602  (construed);  129  C.  8,  10,  11,  61  P. 
947  (construed  and  applied);  134  C.  412,  414,  415  (referred  to), 
66  P.  473;  142  C.  391,  392,  75  P.  1086  (referred  to);  149  C.  83, 
91,  92,  84  P.  771  (section  gives  power  to  lay  out  a  roadway, 
but  does  not  make  "appendages"  and  "adjuncts"  a  part  of  the 
roadway  itself);  152  C.  303,  308,  92  P.  849  (power  of  eminent 
domain  conferred  upon  railroad  companies,  should  include  not 
only  the  actual  right  of  way  but  all  necessary  "appendages 
and  adjuncts");  1  C.  A.  441,  443,  82  P.  640  (construed  with  other 
sections,  as  to  effect  of  consent  of  city  authorities,  to  use 
streets  for  railroad  purposes,  upon  liability  of  company  for 
damages);  2  C.  A.  546,  559,  84  P.  298  (what  branch  road  is  not 
an  "appendage  or  adjunct"  of  the  main  line). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,    ante. 

308 


I 


Tit.III.ch.IL]  MOTIVE  POWER.  §§  465a,  466 

All  railroad  corporations  are  governed  by  the  provisions  of 
this  section.     See  91  C.  449,  452,  25  A.  S.  201,  27  P.  768,  13  L.  754. 

Authority  from  municipal  corporation  to  occupy  street. — See 
Kerr's   Cyc.    C.   C.    §  470    and   note. 

Changing  location  of  route. — See  Kerr's  Cyc.  C.  C.  §  467  and 
note. 

Duties  with  respect  to  time-tables,  stopping  at  stations,  etc. — 
See  Kerr's  Cyc.  C.  C.   §  481  and  note. 

Elevated  railroads — Appropriation  of  easement  by. — See  20 
Encyc.  P.  840-846. 

Middle  of  street — Location  of  track  in. — See  Kerr's  C.  C.  §  498 
and  note. 

Quantity  of  land  which  corporation  may  acquire. — See  Kerr's 
Cyc.   C.   C.    §360   and   note;   also    465,   note   par.    33. 

Rates  of  charges  for  transportation  of  passengers  and 
freight. — See  Const.  1879,  art.  XII,  §  22,  Hen.  G.  L.  p.  xcvi;  see 
also   Kerr's  Cyc.  C.   C.   §  489  and  note. 

§465a.  WHAT  MOTIVE  POWER  MAY  BE  USED. 
AUTHORITY  MUST  BE  OBTAINED.  Every  person  or  cor- 
poration now  or  hereafter  authorized  to  operate  a  railroad 
by  steam  motive  power,  is  also  authorized  to  use  electricity 
or  compressed  air,  or  both,  either  with  or  without  such 
steam,  for  the  purpose  of  propelling  cars  or  trains  on  such 
railroads  or  upon  anj^  portion  thereof.  In  incorporated  cities, 
towns,  or  cities  and  counties  having  more  than  five  thousand 
inhabitants,  authority  must  be  obtained  from  the  legislative 
authority  thereof. 

Hi-story:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  368,  held  unconstitutional,  see  his- 
tory, §4  ante;  re-enacted  March- 21,  1905,  Stats,  and  Amdts.  1905, 
p.  574.  A  codification  of  §  1  Act  March  23,  1893,  Stats,  and 
Amdts.   1893,  p.   208. 

§468.  MAP  AND  PROFILE  TO  BE  FILED.  Every  rail- 
road corporation  in  this  state  must,  [1]  within  a  reasonable 
time  after  its  road  is  finally  located,  [2]  cause  to  be  made  a 
map  and  pi-ofile  thereof,  and  [3]  of  the  land  acquired  for  the 
use  thereof,  and  [4]  the  boundaries  of  the  several  counties 
through  which  the  road  may  run,  and  [5]  file  the  same  in  the 
office  of  the  secretary  of  state;  and  also  [6]  like  maps  of  the 
parts  thereof  located  in  different  counties,  and  file  the  same 

309 


§  467  CIVIL  CODE.  [Div.I,Pt.IV. 

in  the  office  of  the  clerk  of  the  county  in  which  such  parts 
of  the  road  are,  there  to  remain  of  record  forever. 

The  maps  and  profiles  must  be  certified  by  [1]  the  chief 
engineer,  [2]  the  acting  president  and  secretary  of  such  com- 
pany, and  copies  of  the  same,  so  certified  and  filed,  [3]  be 
kept  in  the  office  of  the  secretary  of  the  corporation,  subject 
to  examination  by  all  parties  interested. 

History;  Enacted  March  21,  1872,  founded  iipon  §  43  Act  May 
20,    1861,   Stats.    1861,  pp.   623-624. 

67  C.  429,  432,  7  P.  814  (referred  to  in  discussion  in  connec- 
tion  with   other  sections). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,   ante. 

§407.  MAY  CHAMiE  LI>E  OF  ROAD.  If,  at  any  time 
after  the  location  of  the  line  of  the  railroad  and  the  filing  of 
the  maps  and  profiles  thereof,  as  provided  in  the  preceding 
section,  it  appears  that  the  location  can  be  improved,  the 
directors  may,  as  pi'ovided  in  subdivision  seven,  section  four 
hundred  and  sixty-five,  [1]  alter  or  change  the  same,  and  [2] 
cause  new  maps  and  profiles  to  be  filed,  showing  such 
changes,  in  the  same  offices  where  the  originals  are  of  file, 
and  [3]  may  proceed,  in  the  same  manner  as  the  original 
location  was  acquired,  to  acquire  and  take  possession  of  such 
new  line,  and  [4]  must  sell  or  relinquish  the  lands  owned  by 
them  for  the  original  location,-  within  five  years  after  such 
change. 

[HoAV  new  location  to  be  run.]  No  new  location,  as  herein 
provided,  must  be  so  run  as  to  avoid  any  points  named  in 
their  articles  of  incorporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  18  Act  May 
20,   1861,  Stats.   1861,  p.  616. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

67  C.  429,  432,  7  P.  814,  816   (construed  with  other  sections). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see   note    §  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

310 


TitIII,ch.II.]  FORFEITING   FRANCHISE.  §468 

S46S     FORFEITURE    OF    FRAIVCHISE.      [FAILURE    TO 

OPERATE    REYERTER.]     Every  railroad  corporation  must, 

Wbeu  cmnpleted  must  be  oi.eiated-Forielture  of  r,gl.t  to 
„„e™'e.]  A  er  the  eompletioa  ot  any  railroad,  or  any  part 
thereof   capable  o(  being  operated,  its  owner  must  operate  ■ 

^TZToX  U  as  tbe  case  may  be,  ^^^^^f^^^^^ 

I  -eabo^r --»''— 'rT::s::r  rr 

Lrreoarert^e  «—  ot  0.ober  ot  any  year 

■■  T  ^c  r^^^oQ  Tint  Yield  income  sufficient  to  aeiia-y 
l'e::*se:  o'man\a"l  and  operating  it  in  connection 
tlie  expenbeb  ul  i^  railroad  commissioners 

ficient  to  operate  the  same. 

HLstorr:     Enacted  Marcl.  21.  1^72    founded  upon  §  5^  Aet  May 
20,  1861,  Stats.  1861,  p.  ^^Y" cZcLt^LZ     A^   March    21. 

1869-70.    P.    ^^^-/"rdt:     1900   1     ;.       6^^^^^^^^^    unconstitutional; 
1901,    Stats,    and    Amdts.    IJUU  i,    p 


§§469,470  CIVIL  CODE.  [Div.I,Pt.IV. 

see    history,    §    4    ante;    amendment    re-enacted    March    21,    1905, 
Stats,  and  Amdts.  1905,  p.  574. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

92  C.  639,  646,  28  P.  676,  677,  678  (construed  and  applied); 
3  C.  A.  668,  678,  87  P.  27  (construed  and  applied  with  reference 
to  road  less  than  one  mile  in   length). 

As  to  inany  miscellaneous  matters  as  to  corporations  gen- 
erally, ^see    note    §  283,    ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,    ante. 

Misuser  and  non-user — Forfeiture  for. — See   8  A.  S.   179-202. 

Time  when  corporation  must  organize. — See  Kerr's  Cyc.  C.  C. 
§  358   and   note. 

§469.  (ROSSIXGS  AND  INTERSECTIONS.  CONDEMNA- 
TION. Whenever  the  track  of  one  railroad  intersects  or 
crosses  the  track  of  another  railroad,  whether  the  same  be  a 
street  railroad,  wholly  within  the  limits  of  a  city  or  town, 
or  other  railroad,  the  rails  of  either  or  each  road  must  be  so 
cut  and  adjusted  as  to  permit  the  passage  of  the  cars  on 
each  road  with  as  little  obstruction  as  possible;  and,  in  case 
the  persons  or  corporations  owning  the  railroads  cannot  agree 
as  to  the  compensation  to  be  made  for  cutting  and  adjusting 
the  rails,  the  condemnation  of  the  right  of  way  over  the 
one  for  the  use  of  the  other  road  may  be  had  in  proceedings 
under  title  seven,  part  three.  Code  of  Civil  Procedure,  and 
the  damages  assessed  and  the  right  of  way  granted  as  in 
other  cases. 

History:  Enacted  March  21,  1872,  founded  upon  §  2  Act  May 
6,    1862,   Stats.    1862,   p.    498. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

Eminent  domain — Nature  of  right  and  procedure. — See  Kerr's 
Cyc.   C.   C.   P.   §§  1237-1263   and  notes. 

.Joint  use  of  railroad  property. — See  Kerr's  Cyc.  C.  C.  §  465 
sub.    6   and   note. 

§  470.  NOT  TO  USE  STREETS,  ALLEYS,  OR  WATER,  IN 
(ITIES  OR  TOWNS,  EXCEPT  BY  A  TW0-TH1RD[S]  VOTE 
OF  THE  CITY  OR  TOWN  AUTHORITIES.  No  railroad  corpo- 

312 


Tit.III,ch.II.]         CROSSINGS,   OTHER  LANDS.  §§471,472 

ration  must  use  any  street,  alley,  or  highway,  or  any  of  the 
land  or  water,  within  any  incorporated  city  or  town,  unless 
the  right  to  so  use  the  same  is  granted  by  a  two-third [s]  vote 
of  the  town  or  city  authority  from  which  the  right  must 
emanate. 

History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

69  C.  202,  206,  10  P.  510,  513  (referred  to);  92  C.  639,  645,  28 
P.  676  (construed  with  §465);  105  C.  87,  94,  95,  38  P.  530  (con- 
strued and  applied);  109  C.  315,  319,  41  P.  1093  (construed  with 
other   sections). 

As  to  many  miscellaneous  matters  affecting  corporations  gen- 
erally,  see   note    §  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

Abutting  owner's  right  to  compensation. — See  Kerr's  Cyc.  C. 
C.  §  465  and  note. 

§471.  CONVEYANCE  OF  PASSENGERS  WITHIN  CITY 
LIMITS   (repealed). 

History:  Enacted  March  21,  1872,  founded  upon  §  21  Act  1861, 
Stats.  1861,  p.  618;  amended  April  1,  1876,  Code  Amdts.  1875-6,  p. 
76;   repealed  April   1,   1878,   Code  Amdts.   1S77-S,  p.    84. 


§472.  WHEN  CROSSING  RAILROADS  OR  HIGHWAYS, 
HOW  OTHER  LANDS  ARE  ACQUIRED.  Whenever  the  track 
of  such  railroad  crosses  a  railroad  or  highway,  such  railroad 
or  highway  may  be  carried  under,  over,  or  on  a  level  with 
the  track,  as  may  be  most  expedient;  and  in  cases  where  an 
embankment  or  cutting  necessitates  a  change  in  the  line  of 
such  railroad  or  highway,  the  corporation  may  take  such 
additional  lands  and  material  as  are  necessary  for  the  con- 
struction of  such  road  or  highway  on  such  new  line.  If 
such  other  necessary  lands  cannot  be  had  otherwise,  they 
may  be  condemned  as  provided  in  title  seven,  part  three. 
Code  of  Civil  Procedure;  and  when  compensation  is  made 
therefor,  the  same  becomes  the  property  of  the  corporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  19  Act  May 
20,    1861,    Stats.    1861,    pp.    616-617. 

313 


§  473  CIVIL  CODE.  [Div.I,Pt.IV. 

See  Kerr's  Cyc.   C.  C.  for   10  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see 
note    §  454,    ante. 

Eminent  domain — Nature  of  right  and  procedure. — See  Kerr's 
Cyc.  C.  C.  P.  §§  1237-1263  and  notes. 

§473.  CONSOLIDATION  OF  RAILROAD  CORPORATION. 
PROCEEDINGS  NECESSARY  THERETO.  Any  railroad  cor- 
poration incorporated  under  the  laws  of  this  state  may  con- 
solidate with  one  or  more  railroad  corporations  incorporated 
under  the  laws  of  this  state,  or  under  the  laws  of  any  other 
state  or  territory  of  the  United  States,  its  capital  stock,  prop- 
erties, roads,  equipments,  adjuncts,  franchises,  claims, 
demands,  contracts,  agreements,  obligations,  debts,  liabilities 
and  assets  of  every  kind  and  description,  upon  such  terms 
and  in  such  manner  as  may  be  agreed  upon  by  their  respective 
boards  or  directors;   provided. 

No  such  consolidation  shall  take  effect  until  the  same  shall 
hare  been  ratified  and  coufinned  in  writing  by  stockholders 
of  the  respective  corporations  representing  three-fourths  of 
the  subscribed  capital  stock  of  their  respective  corporations. 
In  case  of  such  consolidation 

"Articles  of  incorporation  and  consolidation"  must  be  pre- 
pared, setting  forth: 

1.  The  name  of  the  new  corporation; 

2.  The  purpose  for  which  it  is  formed; 

3.  The  place  where  its  principal  business  is  to  be  trans- 
acted; 

4.  The  term  for  which  it  is  to  exist,  which  shall  not  exceed 
fifty  years; 

5.  The  number  of  its  directors  (which  shall  not  be  less  than 
five,  nor  more  than  thirteen)  and  the  names  and  residences 
of  the  persons  appointed  to  act  as  such  until  their  successors 
are  elected  and  qualified; 

6.  The  amount  of  its  capital  stock  (which  shall  not  exceed 
the  amount  actually  required  for  the  purposes  of  the  new 
corporation,  as  estimated  by  competent  engineers),  and. the 
number  of  shares  into  which  it  is  divided; 

314 


Tit.III,ch.IT.]  CONSOLIDATION.  §  473 

7.  The  amount  of  stock  actually  subscribed,  and  by  whom; 

8.  The  termini  of  its  road  or  roads  and  branches; 

9.  The  estimated  length  of  its  road  or  roads  and  branches; 

10.  The  names  of  the  constituent  corporations,  and  the 
terms  and  conditions  of  consolidation  in  full. 

[Signing-  articles;  method  of — Memorandum  of  ratification.] 
Said  articles  of  incorporation  and  consolidation  must  be 
signed  and  countersigned  by  the  presidents  and  secretaries 
of  the  several  constituent  corporations  and  sealed  wtih  their 
corporate  seals.  There  must  be  annexed  thereto  memoranda 
of  the  ratification  and  confirmation  thereof  by  the  stockhold- 
ers of  each  constituent  corporation,  which  must  be  respect- 
ively signed  by  stockholders  representing  at  least  three- 
fourths  of  the  capital  stock  of  their  respective  corporations. 
When  completed  as  aforesaid  said 

Articles  must  be  filed  in  the  office  of  the  county  clerk  of 
[1]  the  county  in  which  the  original  articles  of  incorporation 
of  either  of  the  consolidating  corporations  are  filed,  and  [2] 
a  copy  of  the  articles  of  incorporation  and  consolidation 
certified  by  such  county  clerk  must  be  filed  in  the  office  of 
the  secretary  of  state,  and  thereupon  the  constituent  corpora- 
tions named  therein  must  be  deemed  and  held  to  have  become 
extinct  in  all  courts  and  places,  and  said  new  corporation 
must  be  deemed  and  held  in  all  courts  and  places  to  have 
succeeded  to  all  their  several  capital  stocks,  properties,  roads, 
equipments,  adjuncts,  franchises,  claims,  demands,  contracts, 
agreements,  assets,  choses  and  rights  in  action  of  everj'  kind 
and  description,  both  at  law  and  in  equity,  and  to  be  entitled 
to  possess,  enjoy,  and  enforce  the  same  and  every  thereof,  as 
fully  and  completely  as  either  and  every  of  its  constituents 
might  have  done  had  no  consolidation  taken  place. 

[New  corporation  subrogated  to  constituents.]  Said  con- 
solidated or  new  corporation  must  also,  in  all  courts  and 
places,  be  deemed  and  held  to  have  become  subrogated  to  its 
several  constituents  and  each  thereof,  in  respect  to  all  their 
contracts  and  agreements  with  other  parties,  and  all  their 
debts,  obligations,  and  liabilities,  of  every  kind  and  nature, 

315 


§  473a  CIVIL  CODE.  [Div.I.Pt.IV. 

to  any  persons,  corporations,  or  bodies  politic,  wlaomsoever, 
or  whatsoever,  and  said  new  corporation  must  sue  and  be 
sued  in  its  own  name  in  any  and  every  case  in  which  any 
or  either  of  its  constituents  might  have  sued  or  might  have 
been  sued  at  law  or  in  equity  had  no  such  consolidation  been 
made.  Nothing  in  this  section  contained  shall  be  construed 
to  impair  the  obligation  of  any  contract  to  which  any  of  such 
constituents  were  parties  at  the  date  of  such  consolidation. 
All  such  contracts  may  be  enforced  by  action  or  suit,  as  the 
case  may  be,  against  the  consolidated  corporation,  and  satis- 
faction obtained  out  of  the  property  which,  at  the  date  of  the 
consolidation,  belonged  to  the  constituent  which  was  a  party 
to  the  contract  in  action  or  suit,  as  well  as  out  of  any  other 
property  belonging  to  the  consolidated  corporation. 

Hi-story:  Enacted  March  21,  1S72,  founded  upon  §  40  Act  May 
20,  1861,  Stats.  1861,  pp.  622-623;  amended  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  pp.  327-328  (became  a  law,  under  constitu- 
tional provision,  without  g-overnor's  approval).  In  effect  March 
16,    1901. 

See   Kerr's  Cyc.   C.   C.  for   11  pars,  annotation. 

67  C.  59,  61,  7  P.  123  (construed);  76  C.  404,  405,  407,  18  P. 
599,  600  (referred  to);  98  C.  210,  216,  33  P.  53  (applied);  109  C. 
571,  577  (referred  to),  583  (quoted),  584  (construed  and  applied), 
586  (quoted),  593,  601  (construed  and  applied),  42  P.  225,  226, 
119  C.  334,  343,  51  P.  317  (the  provisions  of  this  section  in  rela- 
tion to  consolidation  are  substantially  the  same  as  those  in  tlie 
statute  of  1861);  147  C.  663,  666,  82  P.  319  (applied — distinction 
between  consolidation  of  railroad  corporations  and  of  mining 
corporations). 

As  to  many  miscellaneous  matters  as  to  corporations,  see 
note    §  283,    ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 


§  473a.  RIGHT  TO  LEASE  OB  USE  ANOTHER  ROAD  IN 
COMMON.  Railroad  corporations  doing  business  in  this  state 
and  organized  under  any  law  of  this  state  or  the  United 
States,  or  of  any  state  or  territory  thereof,  have  power  to 
enter  into  contracts  with  one  another,  whereby  the  one  may 
lease  of  the  other  the  whole  or  any  pai't  of  its  railroad,  or 

316 


Tit.III.ch.II.]  CxRANT    OF    STATE    LANDS.  §§474-476 

may  acquire  of  the  other  the  right  to  use,  in  common  with  it, 
the  whole  or  any  part  of  its  railroad. 

Hi.story:  Added  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  369;  re-enacted  March  21,  1905,  Stats, 
and  Amdts.  1905,  p.  575.  A  codification  of  §  2  Act  April  3,  1880, 
Stats.   1880,  p.   21. 

§474.  STATE  LANDS  GKANTED  FOR  USE  OF  COEPO- 
EATIONS.  There  is  granted  to  every  railroad  corporation  the 
right  of  way  for  the  location,  construction,  and  maintenance 
of  their  necessary  works,  and  for  every  necessary  adjunct 
thereto,  over  any  swamp,  overflowed,  or  other  public  lands  of 
the  state  not  otherwise  disposed  of  or  in  use,  not  in  any 
case  exceeding  in  length  or  width  that  which  is  necessary 
for  the  construction  of  such  works  and  adjuncts,  or  for  the 
protection  thereof,  not  in  any  case  to  exceed  two  hundred 
feet  in  width. 

Hi-story:  Enacted  March  21,  1872;  this  and  following  sections 
of  chapter  founded  upon  §§  20-22  Act  May  20,  1861,  Stats.  1861, 
pp.   617-618. 

§475.    GRANT    NOT    TO    EMBRACE    TOWN    LOTS.     The 

grants  mentioned  in  the  preceding  section  do  not  apply  to 
public  lands  of  the  state  within  the  corporate  limits  of  towns 
and  cities,  or  within  three  miles  thereof. 

History:  Enacted  March  21,  1872;  this,  the  preceding  section, 
and  following  sections  of  chapter  founded  upon  §§  20-22  Act 
May  20,  1861,  Stats.  1861,  pp.  617-618. 

§476.  WOOD,  STONE,  AND  EARTH  MAY  BE  TAKEN 
FROM  STATE  LANDS.  The  right  to  take  from  any  of  the 
lands  belonging  to  the  state,  adjacent  to  the  works  of  the 
corporation,  all  materials,  such  as  wood,  stone,  and  earth, 
naturally  appurtenant  thereto,  which  may  be  necessarj'  and 
convenient  for  the  original  construction  of  its  works  and 
adjuncts,  is  granted  to  such  corporations. 

History:  Enacted  March  21,  1872;  this  and  following  sections 
of  chapter  founded  upon  §§  20-22  Act  May  20,  1861,  Stats.  1861. 
pp.   617-618. 

317 


§§  477, 478  CIVIL  CODE.  [Div.I.Pt.IV. 

§477.    LANDS  TO  llEVERT  TO  STATE,  WHEN.     If  any 

corporation  receiving  state  lands  or  appurtenances  there- 
under is  dissolved,  ceases  to  exist,  is  discontinued,  or  the 
route  or  line  ol:  its  works  is  so  changed  as  not  to  cover  or 
cross  the  lands  selected,  or  the  use  of  the  lands  selected  is 
abandoned,  such  selected  lands  revert,  and  the  title  thereto 
is  reinvested  in  the  state  or  its  grantees,  free  from  all  such 
uses. 

History:  Enacted  March  21,  1872;  this  and  following  section 
of  chapter  founded  upon  §§  20-22  Act  May  20,  1861,  Stats.  1861, 
pp.    617-618. 

§  478.  SELECTIONS  MADE,  HOW  PROVED  AND  CERTI- 
FIED TO.  When  any  selection  of  the  right  of  way,  or  land 
for  an  adjunct  to  the  works  of  a  railroad  corporation,  is  made 
by  any  corporation,  the  secretary  thereof  must  transmit  to 
the  surveyor-general,  controller  of  state,  and  recorder  of  the 
county  in  which  the  selected  lands  are  situate,  a  plat  of  the 
lands  so  selected,  giving  the  extent  thereof  and  uses  for 
which  the  same  is  claimed  or  desired,  duly  verified  to  be  cor- 
rect; and,  if  approved,  the  surveyor-general  must  so  indorse 
the  plat,  and  issue  to  the  corporation  a  permit  to  use  the 
same,  unless,  on  petition  properly  presented  to  the  court,  a 
review  is  had  and  such  use  prohibited. 

History:  Enacted  March  21,  1872;  this  and  preceding  four 
sections  founded  on  §§  20-22  Act  May  20,  1861,  Stats.  1861,  pp. 
617-618. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

101    C.    333,    336,    337,   35   P.    993    (construed   and    applied). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,    ante. 


318 


I 


Tit.III,ch.III.l  BAGGAGE,   CHECKS  TO.  §479 

CHAPTER  III. 
BUSINESS.  HOW  CONDUCTED. 

§  479.     Checks  to  be  affixed  to  all  baggage.      [Damages.] 

§  480.     Annual  report  to  be  verified.     Form  of  report. 

§  481.  Duties  of  corporation.  [Time  of  running  to  be  fixed  by 
public  notice.  Sufficient  accommodations  to  be  fur- 
nished.] 

§  482.     Corporation  to  pay  damages  for  refusal. 

§  483.  Furnish  room  inside  passenger  cars,  and  be  responsible 
for  damages  occurring  on  freight  and  other  cars. 

§  484.  Corporations  to  post  printed  regulations,  and  not  respon- 
sible for  damages  in  violation  of  rules. 

§  485.  To  pay  damages.  Not  liable  in  certain  cases.  Corpora- 
tion may  recover  damages,   when. 

§  486.     Regulations  of  trains.     Penalty. 

§  487.     Passenger  refusing  to  pay  fare. 

§  488.     Officers  to  wear  badge. 

§  489.  Rate  of  charges  established  by  railroad  commissioners. 
Notice  served. 

§  490.  Railroad  tickets  entitle  purchaser  to  what.  Penalty  for 
failure  to  provide  such  tickets. 

§  491.     Quality   of   rail   to   be   used. 

§  492.  Elevated  or  underground  railroads.  Who  may  grant 
franchise. 

§  493.     To   what  above  section  applies. 

§  494.  Railroad  corporations  may  sell  property  and  franchises 
to  other  railroads. 

§479.  CHECKS  TO  BE  AFFIXED  TO  ALL  BAGGAGE. 
[DAMAGES.]  A  check  must  be  affixed  to  every  package  or 
parcel  of  baggage  when  taken  for  transportation  by  any 
agent  or  employee  of  such  railroad  corporation,  and  a  dupli- 
cate thereof  given  to  the  passenger  or  person  delivering  the 
same  in  his  behalf;  and  if  such  check  is  refused  on  demand, 
the  railroad  corporation  must  pay  to  such  passenger  the  sum 
of  twenty  dollars,  to  be  recovered  in  an  action  for  damages; 
and  no  fare  or  toll  must  be  collected  or  received  from  such 
passenger,  and  if  such  passenger  has  paid  his  fare,  the  same 
must  be  returned  by  the  conductor  in  charge  of  the  train ; 
and  on  producing  the  check,  if  his  baggage  is  not  delivered 

319 


§  480  CIVIL  CODE.  [Div.I.Pt.IV. 

to  him  by  the  agent  or  employee  of  the  railroad  corporation, 
he  may  recover  the  value  thereof  from  the  corporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  42  Act  May 
20,   1861,  Stats.    1861,  p.   623. 

See   Kerr's  Cyc.   C.  C.   for   28   pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

"Bagg-ag-e"  and  "luggage." — See  Kerr's  Cyc.  C.  C.  §§  2180-2183 
and   notes. 

Baggage-car — Baggage  must  be  carried  in. — See  Kerr's  Cyc. 
C.  C.   §  2183  and  note. 

Common   carrier's  liability   for  baggage. — See  post   §  2182. 

Duty  to  carry   baggage. — See  post   §  2180. 

Lien  on  baggage  for  fare. — See  Kerr's  Cyc.  C.  C.  §  2191  and 
note. 

Ijimitation  in  ticket  of  liability  for  baggage. — See  Kerr's  Cyc. 
C.   C.    §  2176   and   note. 

"Luggage"  defined. — See  Kerr's  Cyc.  C.  C.  §  2182  and  note;  5 
W.    &   P.    4257. 

Notice  limiting  liability. — See  Kerr's  Cyc.  C.  C.  2174  and  note. 

Weight  of  baggage — Limitation  by  statute. — See  Kerr's  Cyc. 
C.   C.    §  2180   and   note. 


§480.  ANNUAL  REPORT  TO  BE  VERIFIED.  FOR^I  OF 
REPORT.  Every  railroad  corporation  must  make  an  annual 
report  to  the  secretary  of  state,  or  other  officer  designated  by 
law,  of  its  operations  for  each  year,  ending  on  the  thirty- 
first  day  of  December,  verified  by  the  oaths  of  the  president 
or  acting  superintendent  of  operations,  the  secretary  and 
treasurer  of  such  corporation,  and  file  it  in  the  office  of  the 
secretary  of  state,  or  such  other  designated  officer,  by  the 
twentieth  day  of  February,  which  must  state: 

1.  The  capital  stock,  and  the  amount  thereof  actually  paid 
in; 

2.  The  amount  expended  for  the  purchase  of  lands  for  the 
construction  of  the  road,  for  buildings,  and  for  engines  and 
cars,  respectively; 

3.  The  amount  and  nature  of  its  indebtedness,  and  the 
amount  due  the  corporation; 

320 


Tit.III,ch.III.]  DUTIES  OF— RUNNING.  §  481 

4.  The  amount  received  from  the  transportation  of  passen- 
gers, property,  mails,  and  express  matter,  and  from  other 
sources; 

5.  The  amount  of  freight,  specifying  the  quantity  in  tons; 

6.  The  amount  paid  for  repairs  of  engines,  cars,  buildings, 
and  other  expenses,  in  gross,  showing  the  current  expenses 
of  running  such  road; 

7.  The  number  and  amount  of  dividends,  and  when  paid; 

8.  The  number  of  engine-houses  and  shops,  of  engines  and 
cars,  and  their  character. 

History:  Enacted  March  21,  1872,  founded  upon  §  44  Act  May 
20.   1861,   Stats.   1861,  pp.    624-625. 

As  to  many  miscellaneous  matters  as  to  corporations,  see 
note   §  283,   ante. 

As   to   many   miscellaneous   matters  as   to    railroads,   see    note 

§  454,   ante. 

§481.  DUTIES  OF  CORPORATION.  [TIME  OF  RUN- 
NING TO  BE  FIXED  BY  PUBLIC  NOTICE.  SUFFICIENT 
ACCOMMODATIONS  TO  BE  FURNISHED.]  Every  such  cor- 
poration must  start  and  run  its  cars,  for  the  transportation 
of  persons  and  property,  at  such  regular  times  as  it  shall 
fix  by  public  notice,  and  must  furnish  sufficient  accommoda- 
tions for  the  transportation  of  all  such  passengers  and  prop- 
erty as,  within  a  reasonable  time  previous  thereto,  offer  or 
are  offered  for  transportation,  at  the  place  of  starting,  at 
the  junction  of  other  railroads,  and  at  siding  and  stopping- 
places  established  for  receiving  and  discharging  way  passen- 
gers and  freight;  and  must  take,  transport,  and  discharge 
such  passengers  and  property  at,  from,  and  to  such  places, 
on  the  due  payment  of  tolls,  freight,  or  fare  therefor. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  369,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  575. 

See  Kerr's  Cyc.  C.  C.  for  79  pars,  annotation. 

134  C.  412,  414,  66  P.  473  (cited  with  other  sections);  142  C.  391, 
392,  75  P.  1086  (referred  to  with  other  sections);  3  C.  A.  668, 
683,   87   P.    27    (referred   to). 

Kerr's    C.    C— 11  321 


§  481  CIVIL  CODE.  [DiV.I,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see   note    §  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

Baggage-checks  must  be  affixed. — See  Kerr's  Cyc.  C.  C.  §  479 
and   note. 

Common  carriers — What  constitute. — See  Kerr's  Cyc.  C.  C. 
§  2168  and  note. 

Contract — Expressed  in  ticket,  bill  of  lading,  etc. — See  Kerr's 
Cyc.  C.  C.  §  2176  and  note. 

Definition  of  baggage. — See  Kerr's  Cyc.  C.  C.  §  2181  and  note; 
1    W.    &    P.    663-670. 

Delay — Liability  for  want  of  ordinary  care. — See  Kerr's  Cyc. 
C.  C.   §  2196  and  note. 

Ejection  of  passengers  for  non-payment. — See  Kerr's  Cyc.  C. 
C.   §  2188  and  note. 

Liability  for  baggage. — See  Kerr's  Cyc.  C.  C.   §  2182  and  note. 

Mode  of  carrying  and  delivery. — See  Kerr's  Cyc.  C.  C.  §  2183 
and  note. 

Obligation  to  carry.- — See  'Kerr's  Cyc.  C.  C.  §  2180  and  note. 

Obligation  to  provide. — See  Kerr's  Cyc.  C.  C.  §  481,  note  pars. 
21,   22;    §  2184   and   note. 

Passengers — Civility  and  proper  attention  n\iist  be  accorded 
to. — See  Kerr's  Cyc.  C.  C.   §  2103  and  note. 

Payment  on  train — Additional  charge. — See  Kerr's  Cyc.  C.  C. 
§  2189   and    note. 

Penalty  for  failure  to  provide — Rights  under. — See  Kerr's 
Cyc.  C.  C.  §  490  and  note. 

Preference  as  to  time,  price,  etc. — Must  not  be  given. — See 
Kerr's  Cyc.   C.   C.   §  2170   and   note. 

Release  from  negligence,  fraud,  etc.,  not  permissible. — See 
Kerr's  Cyc.  C.  C.  §  2175  and  note. 

Rules  for  government  of  passengers  may  be  made. — See 
Kerr's  Cyc.  C.  C.   §  2186  and  note. 

Seats  for  passengers  necessary— Overcrowding  not  permitted. 
— See  Kerr's  Cyc.  C.  C.  §  2185  and  note. 

Stop-over — Right  of  passenger  to. — See  Kerr's  Cyc.  C.  C.  §  490 
and  note  pars.    7-9. 

United  States  and  state  may  be  given  preference. — See  Kerr's 
Cyc.   C.   C.   §  2171  and  note. 

Warehouseman — When  corporation  liable  as. — See  Kerr's  Cyc. 
C.    C.    §  2120    and    note. 

When   payable — See   Kerr's  Cyc.   C.   C.   §  2187  and   note. 

Kditorinl  Note: — Section  founded  upon  Act  May  20,  1861,  §  45 
(Stats.  1861,  p.  625).  The  language  of  the  section  as  it  now 
stands  amended  is  almost  a  verbatim  copy  of  that  section  of 
the  Act  of  1861  which  is  construed  in  23  C.  323,  328.  North 
Carolina   statute    (N.   C.    Code    §  1963)    is  almost   word   for   word 

322 


Tit.III.ch.IIL]   RESPONSIBILITY  FOR  DAMAGES.        §§  482,  483 

the  same  as  this  section,  and  is  construed  in  108  N.  C.  414,  12 
S.  E.  Rep.  954,  12  L.  113.  Oklahoma  statute  (§  1036)  is  identical 
with   this  section,  and  is  construed  in  5  Okla.   616,  49  P.   940. 

§  482.     CORPORATION  TO  PAY  DAMAGES  FOR  REFUSAL. 

In  case  of  refusal  by  such  corporation  or  their  agents  so  to 
take  and  transport  any  passengers  or  property,  or  to  deliver 
the  same,  at  the  regular  appointed  places,  such  corporation 
must  pay  to  the  party  aggrieved  all  damages  which  are  sus- 
tained thereby,  with  costs  of  suit. 

History:  Enacted  March  21,  1872,  founded  u]ion  §  46  Act  May 
20,    1861,   Stats.    1861,   p.    624. 

See  Kerr's  Cyc.   C.   C.   for   4   pars,  annotation. 

134  C.  412,  414,  66  P.  473  (cited  with  other  sections);  142  C. 
391,  392,  75  P.  1086  (referred  to);  3  C.  A.  668,  683,  87  P.  27 
(referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations,  see 
note    §  283,    ante. 

As  to  niany  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

§483.  FURNISH  ROOM  INSIDE  PASSENGER-CARS,  AND 
BE  RESPONSIBLE.  FOR  DAMAGES  OCCURRING  ON 
FREIGHT  AND  OTHER  CARS.  Every  railroad  corporation 
must  furnish,  on  the  inside  of  the  passenger-cars,  sufficient 
room  and  accommodations  for  all  passengers  to  whom  tick- 
ets are  sold  for  any  one  trip  and  for  all  persons  presenting 
tickets  entitling  them  to  travel  thereon;  and  when  fare  is 
taken  for  transporting  passengers  on  any  baggage,  wood, 
gravel,  or  freight  car,  the  same  care  must  be  taken  and  the 
same  responsibility  is  assumed  by  the  corporation  as  for  pas- 
sengers on  passenger-cars. 

History:  Enacted  March  21,  1872,  founded  upon  §§  45,  46  Act 
May   20,    1861,   Stats.   1861,   p.    624. 

See   Kerr's   Cyc.   C.   C.   P.   for   15   pars,   annotation. 

1  C.  A.   343,   347;   82   P.   226. 

As  to  inany  miscellaneous  matters  as  to  corporations,  see 
note    §  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,    ante/ 

Accommodations  must  be  furnished. — See  Kerr's  Cyc.  C.  C. 
§  481  and  note. 

323 


§§484,485  CIVIL  CODE.  [Div.I.Pt.IV. 

§484.  CORPORATIONS  TO  POST  PRINTED  REGULA- 
TIONS,  AND  NOT  RESPONSIBLE  FOR  DAMAGES  IN  VIO- 
LATION OF  RULES.  Every  railroad  corporation  must  have 
printed  and  conspicuously  posted  on  the  inside  of  its  passen- 
ger-cars its  rules  and  regulations  regarding  fare  and  conduct 
of  its  passengers;  and  in  case  any  passenger  is  injured  on  or 
from  the  platform  of  a  ear,  or  on  any  baggage,  wood,  gravel, 
or  freight  car,  in  violation  of  such  printed  regulations,  or  in 
violation  of  positive  verbal  instructions  or  injunctions  given 
to  such  passenger  in  person  by  any  officer  of  the  train,  the 
corporation  is  not  responsible  for  damages  for  such  injuries, 
unless  the  corporation  failed  to  comply  with  the  provisions 
of  the  preceding  section. 

History:  Enacted  March  21,  1872,  founded  upon  §  48  Act  May 
20,    1861,   Stats.    1861,   p.    625. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

78  C.  360,  364,  20  P.  740,  742  (applied);  87  C.  62,  73,  25  P. 
245,  11  L.  130  (construed  and  applied);  1  C.  A.  343,  348,  82  P. 
226  (right  to  eject  passengers  who  are  in  duty  bound  to  leave 
the    train). 

As  to  many  miscellaneous  matters  as  to  corporations,  see 
note   §  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,   ante. 

Provisions  of  this  section  are  made  applicable  to  street  rail- 
road companies   by   §  510   post. 


§485.    TO   PAY  DAMAGES.     NOT  LIABLE   IN   CERTAIN 
CASES.    CORPORATION  MAY  RECOVER  DAMAGES,  WHEN. 

Railroad  corporations  must  make  and  maintain  a  good  and 
sufficient  fence  on  either  or  both  sides  of  their  track  and 
property.  In  case  they  do  not  make  and  maintain  such  fence, 
if  their  engine  or  cars  shall  kill  or  maim  any  cattle  or  other 
domestic  animals  upon  their  line  of  road  which  passes 
through  or  along  the  property  of  the  owner  thereof,  they 
must  pay  to  the  owner  of  such  cattle  or  other  domestic  ani- 
mals a  fair  market  price  for  the  same,  unless  it  occurred 
through  the  neglect  or  fault  of  the  owner  of  the  animal  so 
killed  or  maimed. 

324 


Tit.III,ch.III.]        REGULATION    OF    TRAINS.  §  486 

[Not  liable  in  damages  for  killing  stock,  when.]  Railroad 
corporations  paying  to  the  owner  of  the  land  through  or 
along  which  their  road  is  located  an  agreed  price  for  making 
and  maintaining  such  fence,  or  paying  the  cost  of  such  fence 
with  the  award  of  damages  allowed  for  the  right  of  way  for 
such  railroad,  are  relieved  and  exonerated  from  all  claims 
for  damages  arising  out  of  the  killing  or  maiming  any  ani- 
mals of  persons  who  thus  fail  to  construct  and  maintain  such 
fence; 

[Damages  recoverable  by  company,  when.]  And  the  own- 
ers of  such  animals  are  responsible  for  any  damages  or  loss 
which  may  accrue  to  such  corporation  from  such  animals 
being  upon  their  railroad  track,  resulting  from  the  non-con-  • 
struction  of  such  fence,  unless  it  is  shown  that  such  loss  or 
damage  occurred  through  the  negligence  or  fault  of  the  cor- 
poration, its  officers,  agents,  or  employees. 

History:  Enacted  March  21,  1872,  founded  upon  §  40  Act  May 
20,    1861,   Stats.    1861,   p.    623. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

64  C.  110,  113,  29  P.  511,  512  (applied);  65  C.  316,  318,  4  P.  28 
(construed  and  applied);  86  C.  279,  284,  24  P.  1032,  1033  (re- 
ferred to);  94  C.  568,  570,  29  P.  1110  (cited  as  to  duty  to  fence); 
104  C.  20,  28,  37  P.  859  (construed  with  Code  Civ.  Proc.  §1248); 
110  C.  455,  456,  42  P.  975  (construed  and  applied);  114  C.  501, 
508,  46  P.  604,  605  (construed  and  applied):  126  C.  516,  518, 
58  P.  1055  (the  whole  provision  seems  to  be  in  interest  of 
owner);  126  C.  571,  573,  58  P.  1046  (construed  and  applied);  141 
C.  288,  289,  74  P.  840  (applied);  31  Mont.  238,  78  P.  303,  304 
(adoption  of  section  from  California.  No  such  section  appears 
in  the  New  York   code). 

As  to  many  miscellaneous  matters  as  to  corporations,  see  note 
§  283,    ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,    ante. 


§486.  REGULATIONS  OF  TRAINS.  PENALTY.  [1]  A 
bell,  of  at  least  twenty  pounds  weight,  must  be  placed  on  each 
locomotive  engine,  and  be  rung  at  a  distance  of  at  least 
eighty  rods  from  the  place  where  the  railroad  crosses  any 
street,   road,   or   highway,   and   be   kept   ringing   until   it   has 

325 


§  487  CIVIL  CODE.  [Div.I,Pt.IV. 

crossed  such  street,  road,  or  highway;  or  [2]  a  steam  whistle 
must  be  attached,  and  be  sounded,  except  in  cities,  at  the  like 
distance,  and  be  kept  sounding  at  intervals  until  it  has 
crossed  the  same,  und6r  [3]  a  penalty  of  one  hundred  dollars 
for  every  neglect,  to  be  paid  by  the  corporation  operating  the 
railroad,  [4]  which  may  be  recovered  in  an  action  prosecuted 
by  the  district  attorney  of  the  proper  county,  for  the  use  of 
the  state. 

[Liability  in  damages.]  The  corporation  is  also  liable  for 
all  damages  sustained  by  any  person,  and  caused  by  its  loco- 
motives, train,  or  cars,  when  the  provisions  of  this  section 
are  not  complied  with. 

History:  Enacted  March  21,  1872,  founded  upon  §  41  Act  May 
20,  1861,  Stats.   1861,  p.  623. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

52  C.  602,  604  (construed);  61  C.  326,  328  (construed  and  ap- 
plied); 85  C.  291,  296,  297,  24  P.  661,  662  (construed);  86  C.  374, 
378,  380,  24  P.  1074,  10  L.  139  (construed  and  applied);  98  C. 
309,  311,  33  P.  119  (construed  and  applied);^  122  C.  563,  567,  55  P. 
577  (cited  as  to  how  bell  shall  be  rung);'l32  C.  254,  256,  64  P. 
255  (referred  to);  147  C.  624,  627,  82  P.  306  (this  section  is  not 
limited  to  a  case  where  a  railroad  crosses  a  liighway  at  grade — 
upon  the  same  level  as  the  highway);  150  C.  701,  703,  89  P. 
1093  (this  section  does  not  abrogate  the  doctrine  of  contribu- 
tory  negligence). 

As  to  many  miscellaneous  inatters  as  to  corporations,  see  note 
§  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 


§487.    PASSENGER  REFUSING   TO   PAT   FARE.     If  any 

passenger  refuses  to  pay  his  fare,  or  to  exhibit  or  surrender 
his  ticket,  when  reasonably  requested  so  to  do,  the  conductor 
and  employees  of  the  corporation  may  put  him  and  his  bag- 
gage out  of  the  cars,  using  no  unnecessary  force,  at  any 
usual  stopping  place,  or  near  any  dwelling-house,  on  stopping 
the  train. 

History:     Enacted  March  21,  1872,  founded  upon  §  49  Act' May 
20,    1861,   Stats.   1861,  p.   625. 

326 


Jl 


Tit.III.ch.III.]         BADGES   FOR   OFFICERS.  §  488 

See  Kerr's  Cyc.  C.  C.   for  2S  pars,  annotation. 

65  C.  626,  628,  4  P.  672  (construed  and  applied);  78  C.  360,  365, 
20  P.  740,  741,  743  (citing  erroneously  §  497  instead  of  this 
section);  97  C.  1,  5,  6,  33  A.  S.  157,  31  P.  1112,  1113  (construed 
and  applied);  145  C.  441,  452,  79  P.  420,  68  L.  393  (applied  in 
case  of  retention  of  limited  ticket  by  conductor)  ;  1  C.  A.  343, 
348,  82  P.  226  (right  to  eject  passengers  who  are  in  duty  bound 
to  leave   the   train). 

As  to  duty  to  use  reasonable  care  in  ejecting  passenger,  see 
2  A.   S.   546. 

As  to  ejectment  of  passenger  for  failure  to  show  or  surren- 
der ticket,  see  41  A.  l!>.  476. 

As  to  many  miscellaneous  matters  as  to  corporations,  see  note 
§  283,  ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,   ante. 

Ejection  of  passenger  for  non-payment  of  fare  is  author- 
ized.— See  Kerr's  Cyc.  C.  C.  §  487,  note  pars.  3,  14;  also  §  2188 
and  note. 

Fare — When   payable. — See   Kerr's  Cyc.   C.   C.   §  2187  and   note. 

Seat — Right  of  passenger  to. — See  Kerr's  Cyc.  C.  C.  §  483  and 
note. 

§488.  OFFICERS  TO  WEAR  BADGE.  Every  conductor, 
baggage-master,  engineer,  brakeraan,  or  other  employee  of 
any  railroad  corporation,  employed  on  a  passenger-train  or 
at  stations  for  passengers,  must  wear  upon  his  hat  or  cap,  or 
in  some  conspicuous  place  on  the  breast  of  his  coat,  a  badge, 
indicating  his  oflfice  or  station,  and  the  initial  letters  of  the 
name  of  the  corporation  by  which  he  is  employed.  No  col- 
lector or  conductor,  without  such  badge,  is  authorized  to 
demand  or  to  receive  from  any  passenger  any  fare,  toll,  or 
ticket,  or  exercise  any  of  the  powers  of  his  office  or  station; 
and  no  other  officer  or  employee,  without  such  badge,  has  any 
authority  to  meddle  or  interfere  with  any  passenger  or  prop- 
erty. 

History:  Enacted  March  21,  1872,  founded  upon  §  50  Act  May 
20,    1861,   Stats.    1861,   p.    625. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

109  C.  100,  104,  105,  41  P.  794  (construed  and  applied);  1  C.  A. 
343,  348,  82  P.  226   (cited  as  to  proper  payment  of  fare). 

As  to  many  miscellaneous  matters  as  to  corporations,  see  note 
§  283,   ante. 

327 


§  489  CIVIL  CODE.  [Div.I.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

§  489.  RATE  OF  CHARGES  ESTABLISHED  BY  RAILROAD 
COMMISSIONERS.  NOTICE  SERVED.  Whenever  the  board 
of  railroad  commissioners,  in  the  discharge  of  its  duties, 
establishes  or  adopts  rates  of  charges  for  the  transportation 
of  passengers  and  freight,  pursuant  to  the  provisions  of  the 
constitution,  said  board  must  serve  a  printed  schedule  of 
such  rates,  and  of  any  changes  that  may  be  made  in  such 
rates,  upon  the  person,  copartnership,  company,  or  corpora- 
tion affected  thereby;  and 

[Copies  of  rates  to  be  posted,  where  and  by  whom.]  Upon 
such  service  it  is  the  duty  of  such  person,  copartnership, 
company,  or  corporation  to  immediately  cause  copies  of  the 
same  to  be  posted  in  all  its  offices,  station-houses,  warehouses, 
and  landing  offices  affected  by  such  rates,  or  change  of  rates, 
in  such  manner  as  to  be  accessible  to  public  inspection  dur- 
ing usual  business  hours. 

Said  board  [of  railroad  commissioners]  nmst  also  m.akc 
such  further  publication  thereof  as  it  deems  proper  and  nec- 
essary for  the  public  good.  If  the  party  to  be  served  is  a 
corporation,  such  service  may  be  made  upon  the  president, 
vice-president,  secretary,  or  managing  agent  thereof,  and  if 
a  copartnership,  upon  any  partner  thereof. 

[Rates  go  into  effect,  when.]  The  rates  of  charges  estab- 
lished or  adopted  by  said  board,  pursuant  to  the  constitution 
and  the  laws  of  this  state,  must  go  into  force  and  effect  on 
the  twentieth  day  after  service  of  such  schedule  of  rates,  or 
changes  in  rates,  upon  the  person,  copartnership,  company, 
or  corporation  affected  thereby. 

History:     Enacted  March  21,  1872,  founded  upon  §  51  Act  May 

20,  1861,  Stats.  1861,  p.  625;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  370,  held  uncon- 
stitutional, see  history,  §   4  ante;  amendment  re-enacted  March 

21,  1905,  pp.    575-576. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

105  C.  526,  544,  545  (cited  in  discussion),  546-549,  555  (con- 
strued with  §  490),  38  P.  94,  109,  722,  28  L.  773. 

328 


A 


Tit.III,Ch.III.]       TICKETS,    RIGHTS    UNDER.  §  49O 

As  to  many  miscellaneous  matters  as  to  corporations,  see  note 
§  283,    ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,    ante. 

Street  railroads — Rates  of  charges  on. — See  Kerr's  Cyc.  C.  C. 
§  501  and  note. 

Tolls  and  compensation  may  be  collected. — See  Kerr's  Cyc. 
C.  C.  §  465  subd.  8  and  note. 


§490.  RAILROAD  TICKETS  ENTITLE  PURCHASER  TO 
WHAT.  PENALTY  FOR  FAILURE  TO  PROVIDE  SUCH 
TICKETS.  Every  railroad  corporation  must  provide,  and  on 
being  tendered  the  fare  therefor  fixed,  as  provided  in  the  pre- 
ceding section,  furnish  to  every  person  desiring  a  passage  on 
their  passenger-cars  a  ticket,  which  entitles  the  purchaser  to 
a  ride,  and  to  the  accommodations  provided  on  their  cars, 
from  the  depot  or  station  where  the  same  is  purchased  to  any 
other  depot  or  station  on  the  line  of  their  road.  Every  such 
ticket  entitles  the  holder  thereof  to  ride  on  their  passenger- 
cars  to  the  station  or  depot  of  destination,  or  any  interme- 
diate station,  and  from  any  intermediate  station  to  the  depot 
of  destination  designated  in  the  ticket,  at  any  time  within 
six  months  thereafter.  Any  corporation  failing  so  to  provide 
and  furnish  tickets,  or  refusing  the  passage  which  the  same 
calls  for  when  sold,  must  pay  to  the  person  so  refused  all 
actual  damages  caused  thereby,  with  reasonable  counsel  fees 
expended  in  recovering  same. 

History:  Enacted  March  21,  1872;  amended  March  23,  1901, 
Stats,  and  Amdts.   1900-1,  p.   600. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

105  C.  526,  537  (construed  and  applied),  540  (referred  to  in 
dis.  op.),  542-556  (construed  together  with  §489),  38  P.  94,  109, 
722.  28  L.  773;  132  C.  408,  411,  413,  416,  418,  420,  64  P.  572  (con- 
strued and  applied);  144  C.  182,  188,  77  P.  894  (construed  with 
reference  to  rates  and  limited  tickets). 

As  to  many  miscellaneous  matters  as  to  corporations,  see  note. 
§  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,   ante. 

Scalper's  Ticket. — 45  A.  R.  380;  see  5  Encyc.  L.  490,  to  the 
effect  that  ordinary  scalper's  ticket  is  good. 

329 


§§  491-493  CIVIL  CODE3.  [Div.I.Pt.IV. 

§491.  QUALITY  OF  RAIL  TO  BE  USED.  All  railroads, 
other  than  street  railroads  and  those  used  exclusively  for 
carrying  freight  or  for  mining  purposes,  built  by  corporations 
organized  under  this  chapter,  must  be  constructed  of  the  best 
quality  of  iron  or  steel  rail,  known  as  T  or  H  rail,  or  other 
pattern  of  equal  utility. 

History:  Enacted  March  21,  1872,  founded  upon  §  57  Act  May 
20,  1861,  Stats.  1861,  p.  627;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.    212. 

132  C.  677,  678,  64  P.  1065  (referred  to  by  the  court  in  con- 
nection  with  other  sections). 

See  Kerr's  Cyc.  C.  C.  §  481  and  note  par.  15. 

As  to  many  miscellaneous  matters  as  to  corporations,  see 
note    §  283,   ante. 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

§492.  ELEVATED  OR  UNDERGROUND  RAILROADS. 
WHO  MAY  GRANT  FRANCHISE.  The  legislative  or  other 
body  to  whom  is  intrusted  the  government  of  the  county,  city 
and  county,  city,  or  town,  under  [1]  such  regulations,  restric- 
tions, and  limitations,  and  [2]  upon  such  terms  and  payment 
of  license  tax  as  the  county,  city  and  county,  city,  or  town 
authority  may  provide,  may  grant  franchises  for  the  construc- 
tion of  elevated  or  underground  railroad  tracks  over,  aci-oss, 
or  under  the  streets  and  public  highways  Of  any  such  county, 
city  and  county,  city,  or  town,  for  the  term  not  exceeding 
fifty  years; 

[Petition — By  whom  signed.]  Provided,  that  before  grant- 
ing such  franchise  there  shall  be  presented  to  such  legislative 
or  other  body  a  petition  signed  by  the  owners  of  a  majority 
of  the  landed  property,  other  than  public  property,  on  the  line 
of  said  elevated  portion  applied  for. 

History:  Enacted  March  27,  1895,  Stats,  and  Amdts.  1895,  p. 
241;  repealed  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  370,  held  unconstitutional,  see  history, 
§  4  ante. 

§493.  TO  WHAT  ABOVE  SECTION  APPLIES.  The  pro- 
visions of  section  four  hundred  and  ninety-two  shall  apply 

330 


Tit.III,cll.III.]  SALE    OF    FRANCHISE.  §  494 

to  any  railwaj'  corporation  heretofore  or  hereafter  incorpo- 
rated. 

History:  Enacted  March  27,  1895,  Stats,  and  Amdts.  1895,  p. 
242;  repealed  by  Code  Commission,  Act  March  16,  1901,  Stats, 
and  Amdts.  1900-1,  p.  370,  held  unconstitutional,  see  history,  §  4 
ante;  amended  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  576. 

§494.  RAILROAD  CORPORATIONS  MAY  SELL  PROP- 
ERTY   AND   FRANCHISES   TO   OTHER   RAILROADS.     Any 

railroad  corporation,  person  or  persons,  firm  or  corporation, 
owning  any  railroad  in  this  state,  may  sell,  convey,  and  trans- 
fer its  property  and  franchises,  or  any  part  thereof,  to  any 
other  railroad  corporation,  whether  organized  under  the  laws  • 
of  this  state  or  of  any  other  state  or  territory,  or  under  any 
act  of  congress;  and  any  other  such  railroad  corporation 
receiving  such  conveyance  may  hold  and  operate  such  rail- 
road franchises  and  property  within  this  state,  build  and 
operate  extensions  and  branches  thereof,  and  thereunto  exer- 
cise the  right  of  eminent  domain,  and  do  any  other  business 
in  connection  therewith,  as  fully  and  effectually  to  all  intents 
and  purposes  as  if  such  corporation  were  organized  under 
the  laws  of  this  state; 

[Terms  and  conditions  of  sale.]  Provided,  that  before  such 
sale,  conveyance,  or  transfer  shall  become  operative,  an 
■  agreement  in  writing  must  be  executed  by  the  parties  thereto, 
containing  the  terms  and  conditions  of  the  purchase  and  sale, 
and  its  execution  must  be  authorized  by  the  board  of  direc- 
tors and  ratified  by  three-fourths  of  the  stockholders  of  each 
of  the  railroad  companies  that  are  parties  to  such  conveyance 
and  transfer,  and  said  agreement  or  conveyance  shall  be 
recorded  in  each  county  through  which  said  road  or  roads 
pass  in  this  state;  and 

[Not  relieved  from  debts  inenrred.]  Provided  further,  that 
no  sale,  conveyances,  or  transfer  under  this  act  shall  relieve 
the  franchise  or  property  sold,  conveyed,  or  transferred,  from 
the  liability  of  the  grantor  contracted  or  incurred  in  the  oper- 
ation, use,  or  enjoyment  of  such  franchise  or  any  of  its  priv- 
ileges; 

331 


§  494  CIVIL  CODE.  [Div.I.Pt.IV. 

[Competing  roads  shall  not  be  purchased.]  Provided,  that 
this  section  shall  not  authorize  any  corporation  to  purchase 
any  railroad  property  operated  in  competition  with  it; 

[Fares  and  toll  shall  not  be  increased.  When  lowered  can- 
not be  raised.]  And  provided  further,  that  any  or  all  estab- 
lished rates  for  fares  and  tolls  for  carrying  passengers  or 
freight  between  any  points  upon  any  railroad  purchased  under 
the  provisions  of  this  act,  shall  not  be  increased  without  the 
consent  of  the  governmental  authority  in  which  is  vested  by 
law  the  power  to  regulate  fares  and  freights;  and  provided 
further,  that  whenever  a  railroad  corporation,  which  has 
purchased  any  line  of  road  under  this  act,  shall  for  the  pur- 
poses of  competing  with  any  other  common  carrier  lower  its 
rates  for  transportation  of  passengers  or  freight  from  one 
point  to  another  upon  such  line  purchased,  such  reduced  rates 
shall  not  be  again  raised  or  increased  from  such  standard 
without  the  consent  of  the  governmental  authority  in  which 
shall  be  vested  the  power  to  regulate  fares  and  freights; 
and 

[Penalty  for  violation.  Duty  of  attorney-general.]  Pro- 
vided further,  that  for  every  violation  of  the  provisions  of 
this  act  on  the  part  of  directors  or  governing  officers  of  said 
corporation,  the  state  shall  be  entitled  to  recover  from  such 
offending  railroad  company  the  sum  of  ten  thousand  dollars. 
It  is  hereby  declared  to  be  the  duty  of  the  attorney-general 
of  the  state,  in  the  event  of  any  such  violation,  to  demand  and 
collect  from  such  company  the  said  penalty;  and  he  is  hereby 
authorized  and  empowered  to  prosecute  all  the  necessary 
actions  in  the  name  of  the  people  of  the  state  of  California 
against  such  company  in  the  courts  of  the  state.  All  money 
so  collected  shall  be  paid  into  the  general  fund  of  this  state. 

History:  Enacted  Feb.  27,  1903,  Stats,  and  Amdts.  1903,  pp. 
50-51. 

3  C.  A.  668,  680,  87  P.  27  (this  section  relates  exclusiyely  to 
sales  and  transfers  of  property  of  one  railroad  company  to 
another  railroad  company). 

As  to  many  miscellaneous  matters  as  to  corporations,  see 
note   §  283,  ante. 

332, 


Tit.III,ch.III.]  SALE    OF    FRANCHISE.  §  494 

As  to  many  miscellaneous  matters  as  to  railroads,  see  note 
§  454,  ante. 

Prior  legislation  covering-  the  same  ground,  with  same  num- 
ber to  section,  in  almost  the  same  language,  was  enafcted 
March  22,  1899;  the  latter  enactment  made  no  reference  to  the 
former;  to  remedy  this  anomalous  condition  the  last  session 
of  the  legislature  passed  an  act  repealing  the  former  of  these 
two  sections  494  in  the  following  terms:  "Section  four  hundred 
and  ninety-four  of  the  Civil  Code,  as  approved  March  22,  1899, 
is  hereby  repealed;  provided,  that  nothing  in  this  act  contained 
shall  be  deemed  to  repeal  any  of  the  provisions  of  section  494 
of  said  code  as  approved  February  27,  1903."  See  Stats,  and 
Amdts.    1905,    p.    576. 


333 


§  497  CIVIL  CODE.  [Div.I,Pt.IV. 

TITLE   IV. 
STREET   RAILROAD  CORPORATIONS. 

§  497.  Railway  tracks.  How  authority  is  obtained  to  lay.  Pro- 
pelling- pow'er.     Limitations  and  restrictions. 

§  498.     Limitations  and  restrictions.     Manner  of  laying  tracks. 

§  499.     Two  lines  of  street  railway  may  use  same  tracks. 

§  500.     Crossing  tracks.     Obstructions. 

§  501.  Rates  of  fare  on  street-cars.  [Manner  of  construction 
of  street-cars.]     Penalty. 

§  502.  Time  allowed  for  commencing  and  completing  work. 
Penalty.     Extension   of  time. 

§  503.     May   make  further   regulations  and   rules. 

§  504.     Penalty  for  overcharging. 

§  505.     Street  railroads  must  furnish  tickets.     Penalty. 

§  506.     Proof  of  agency. 

§  507.     Reserved  rights. 

§  508.     License  to  be  paid  to  city  or  town. 

§  509.     Track  for  grading  purposes.     [Time  may  remain.] 

§  510.     Law  governing  street  railroads. 

§  511.  Title  applicable  to  natural  persons  alike  with  corpora- 
tions. 

§497.  RAILWAY  TRACKS.  HOW  AUTHORITY  IS 
OBTAINED  TO  LAY.  PROPELLING  POWER.  LIMITA- 
TIONS AND  RESTRICTIONS.  Authority  to  lay  railroad 
tracks  through  the  streets  and  public  highways  of  any  incor- 
porated city,  city  and  county,  or  town,  may  be  obtained  for  a 
term  of  years  not  exceeding  fifty,  from  the  trustees,  council, 
or  other  body  to  whom  is  intrusted  the  government  of  the 
city,  city  and  county,  or  town,  under  such  restrictions  and 
limitations,  and  upon  such  terms  and  payment  of  license  tax, 
as  the  city,  city  and  county,  or  town  authority  may  provide. 

[Motive  power.]  In  no  case  must  permission  be  granted 
to  propel  cars  upon  such  tracks  otherwise  than  by  electricity, 
horses,  mules,  or  by  wire  ropes  running  under  the  streets 
and  moved  by  stationary  engines,  unless  for  special  reasons 
in  this  title  hereinafter  mentioned;  provided,  however,  that 
such  board  or  body  in  granting  the  right,  or  at  any  time  after 
the  same  is  granted,  to  use  electricity  or  any  other  of  said 
modes,  shall  have  power  to  impose  such  terms,  restrictions, 

334 


Tit.  IV.]  LAYING    TRACKS— POWER.  §  497 

and  limitations  as  to  the  use  of  streets  and  the  construction 
and  mode  of  operating  such  electric  and  other  roads  as  may, 
by  such  board  or  body,  be  deemed  for  the  public   safety  or  _ 
welfare. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  March 
29,  1870,  Stats.  1869-70,  p.  481;  amended  March  3,  1876,  Code 
•Amdts.  1875-6,  p.  76;  Feb.  25,  1891,  Stats,  and  Amdts.  1891,  p.  12; 
amended  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  370,  held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  81  pars,  annotation. 
57  C.  160,  167  (construed  and  applied),  175  (construed),  176 
(construed),  177  (construed  with  §499);  78  C.  360,  365,  20  P. 
740  (miscited  for  §487);  90  C.  37,  38,  39,  27  P.  61  (construed 
and  applied);  91  C.  338,  340,  27  P.  673,  674  (construed);  91  C. 
449,  454,  25  A.  S.  201,  27  P.  768,  770,  13  L.  754  (construed  and 
applied);  105  C.  87,  92-94,  38  P.  530  (construed  and  applied); 
117  C.  604,  611  (construed  and  applied),  616  (cited  in  dis.  op.), 
49  P.  736;  132  C.  677,  678,  64  P.  1065  (cited  by  error  for  §797); 
142  C.  222,  228,  75  P.  575  (a  franchise  can  be  obtained  only 
throug-h  action  of  the  council  or  g-overning-  body  of  the.  mu- 
nicipality). 

As   to    how    far    street-railroad   company    is .  entitled    to    right 
of  way  over  other  vehicles,  see   25  A.  S.   477. 

As  to  license  tax,  see  Kerr's  Cyc.  C.  C.  §  5»8  and  note. 
As  to  many  miscellaneous  matters  as  to  corporations,  see  note 
§  283,  ante. 

Same — As  to  railroads  generally,  see  note  §  454,  ante. 
As   to   municipal   power  to   impose   conditions   on    giving   con- 
sent to  street  railroads,   see  36  L.   33-36. 

As  to  nature  of  interest  of  street-railway  company  in  streets, 
see    25    A.    S.    476. 

As   to   right   of  elevated   railroad   in   street,   see   25   A.   S^    479. 
As   to   railroad  company's   rights   in   streets,   see   34   A.   S.    684. 
As  to  right  to  adopt  new  improvements,   see   25  A.  S.   479. 
As   to   right   to   construct   railway   in    street  without   compen- 
sation  to  abutting  landowners,   see    25   A.   S.    478. 

As   to   right   to   maintain    switches   and    turnouts,    see    25   A.    S. 
478. 

As    to    street-railroad    being    an    additional    servitude,    see    30 
A.    S.    775. 

As    to    street-railroad    corporations,    rig-hts,    duties,    and    obli- 
gations with  respect  to  streets,   see   25  A.   S.   475. 

As  to  street  railroads  being  subject  to  municipal  regulations, 
see     25    A.    S.    479. 

As   to    what   extent   street   railroads   are   public   highways,    see 
25   A.   S.    476. 

335 


§  497  CIVIL  CODE.  [Div.I,Pt,IV. 

STREET-RAILROADS — GENERALLY. 

Abutting  owner — Remedy  of  as  affected  by  his  consent  to 
construction.— See  7  L.  N.  S.  991. 

Same — ^Right  as  affected  by  track  close  to  sidewalk. — See 
1   L.  N.   S.   981. 

Acquiring    right    of    way. — See    2    L.    255. 

Additional  servitude  in  street — What  constitutes. — See  2  A.  C. 
535;  28  A.  S.  235;  47  A.  S.  272;  4  L.  N.  S.  202. 

Allegations  of  negligence  of,  generally,  sufliciency  of. — See 
59   L.   238. 

Authority  to  use  streets. — See  1  L.   493. 

Baggage — Street-railway  as  carrier  of  passenger's  effects. — 
See   9   A.   C.    201. 

Cable  line,  care  in   operation   of  required. — See   7  L.   819. 

Child — What  acts  of,  in  attempting  to  cross  street-car  tracks, 
are  negligence,  as  matter  of  law. — See  11  L.  N.  S.  166. 

Compelling  operation  of. — See  24  L.   564. 

Construction  of  electric  road,  appropriation  of  right  of  way. — 
See   8  L.    173. 

Contributory  negligence — As  affecting  liability  of. — See  34  L. 
486;  9  L.  N.  S.  244;   11  L>.  N.  S.   166;   5  L.  N.  S.  1081. 

Same — As  matter  of  law,  in  walking  with  due  care  upon 
track  laid  in  public  street. — See   9  L.  N.  S.   244. 

Crossing   railroad   without   compensation. — See    29    L.    485. 

Differences  of  degree  of  care  required  of  persons  crossing 
electric  or  street-«ailroad  tracks  in  city  or  country  districts. — 
See  10  A.  C.   336. 

Distinction  between  street-railroads  and  commercial  rail- 
roads.— See   4  A.  S.   449. 

Dogs  on  track,  duties  of  company  as  to. — See  6  L.  N.  S.  911. 

Driver  of  vehicle  has  right  to  assume  that  motorman  will 
give  him  time  to  cross  track. — See  5  L.  N.  S.  1081. 

Duty — And  liability — As  carriers  of  baggage. — See  9  A.  C. 
201. 

Same — Same — As  to  vehicle  moving  along  its  tracks. — See  7 
A.  C.   1127. 

Same — Same — Of  in  reference  to  placing  signal  lights  on 
cars. — See    10   A.   C.    605. 

Same — Of  pedestrian  to  stop,  look  and  listen  before  crossing 
street-railroad  tracks. — See  3  A.  C.  334;  also  note  §  454,  ante. 

Same — ^Of,  with  respect  to  dogs  on  track. — See  6  L.  N.  S.  911. 

Same — Rights  and  obligations  of  with  respect  to  streets. — 
See   25  A.   S.   475. 

Same — To  avoid  children   on   track. — See   25  L.   663. 

Same — To  avoid  interference  with  extinguishment  of  fires. — 
See   12   L.  N.   S.    382. 

Same — To    keep    in    repair    portion    of    street    occupied    by    its 

336 


Tit.  IV.]  STREET-RAILWAYS— GENERALLY.  §  497 

right  of  way  in  absence  of  contract  or  statutory  requirement. — 
See  7.  A.  C.  381. 

Franchise,   nature   and   extent   of. — See    9    A.    C.    683. 

Frightening   of   horses — ^By   street  cars,   generally. — See    34   L. 
482. 

Same — By  bells,  gongs  and  whistles. — See  34  L.  485. 

Headlights    on   street-cars,    necessity   of. — See    26    L.    300. 

Injuries — By  collision  with  vehicle  or  horses. — See   25  L.   508. 

Same — To    children,   as   to   liability   for. — See    7    A.    C.    241. 

Liability  of — For  defect  in  track  or  street. — See  52  L.  448-463. 

Same — For    injury    by    negligence    of    servant    in    charge    of 
cars. — See  'lO  L.  N.  S.   390. 

Same — For    paving    assessment. — See    46    L.    193. 

Same — For  unskillfulness   or  negligence   in  constructing  road 
in   street. — See   3  L.   176. 

Motive  power  that  may   be   used. — See   8  L.    539;    10   L.    176;    2 
L.   N.   S.    138. 

Municipal    control    over — As   a   nuisance. — See    39    L.    609. 

Same — As  to  fares. — See  19  L.   570. 

Same — Effect   of    ordinance   concerning    liability   for    injury    to 
pedestrian. — See    13    L.    74. 

Same — Ordinances — Concerning    liability    for    injury    to    pedes- 
trians,  effect  of. — See   13  L.   74. 

Same — Same — Requiring    conductor,    validity     of. — See     15    L. 
604. 

Same — Power   to    compel    change    of    grade    in    street. — See    70 
L.    850. 

Same — Power    to    impose    conditions    when    giving    consent    to 
railroad   in    street. — See    36   L.    33. 

Same — Power  to  make  and  enforce  regulations  respecting  the 
protection  of  the  public. — See  104  A.  S.  636. 

Same — Regulation    of    carriage    of    passengers    by. — See    19    L. 
570. 

Nature  and  extent  of  franchise.— See   9  A.   C.   683. 

Operation  of  cars  in  violation  of  luunieipal  ordinances  as  neg- 
ligence per  se. — See   9   A.   C.   840. 

Organization  of. — See  9  A.  C.  683. 

Passengers,   duties  and  liabilities   of   to. — See   118   A.   S.    461. 

Power   of   municipality — To   compel    cliange   of   grade    of    rail- 
way in  street. — See   70  L.   850. 

Same — To  impose  conditions  when  giving  consent  to  railroad 
in    street. — See    36    L.    33. 

Privilege    of    using    street,    as    a    contract    within    provision 
against   impairing   obligations. — See   50   L.    143. 

Regulation   and   control    of. — See   10   A.   C.    601. 

Remedy   of   abutting   owners   as   affected   by    consent    to    con- 
struction.— See    7   L.   N.    S.    991. 

337 


§  498  CIVIL  CODE.  [Div.I.PtlV. 

Removal  of  obstruction  from  tracks,  right  to  make. — See  1 
A.   C.    217,   219. 

Right — Of  abutting  owners  as  affected  by  track  close  to  side- 
walk.—See  1   L.  N.   S.   981. 

Same — Of  motorman  to  assume  that  no  one  will  attempt  to 
cross  track  so  close  in  front  of  car  as  to  render  collision  prob- 
able.—See   5   L.   N.   S.    1059. 

Same — To  construct,  as  a  franchise. — See   2  L.   55. 

Same- — To  use  electricity  as  motive  power. — See  5   A.   C.   53. 

Rules  and  regulations,  right  to  make  and  enforce. — See  10  A. 
C.    273. 

Running  car  at  speed  in  excess  of  that  prescribed  by  ordi- 
nance, as  negligence. — See  8  L.  N.  S.   1093. 

Street-car  transfer — As  to  right  of  company  to  limit  time 
or  point  of  transfer. — See  8  L.  N.  S.  287. 

Same — Rights  and  duties  of  passengers  receiving  defective. — 
See  7  L,'.  N.  S.  97;  9  L.  N.  S.  851. 

Same — Validity  of  regulation  of,  requiring  passenger  to  pay 
fare  in  case  of  dispute. — See  2  L.  N.  S.  695. 

Street  improvement — Liability  for  paving  assessment. — See 
46   L.    193. 

Ultra  vires,  defense  of  is  not  available  of  in  favor  of,  in  ac- 
tion for  negligence. — See  52  A.  R.   358. 

Violating  ordinance  as  to  operation,  as  ground  for  private 
action. — See   5  L.  N.  S.   186. 

Walking  on  track  of,  as  contributory  negligence. — See  10  A. 
C.    947. 


§498.  LIMITATIONS  AND  RESTRICTIONS.  MANNER 
OF  LAYING  TRACKS.  The  city  or  town  authorities,  in 
granting  the  right  of  way  to  street-railroad  corporations,  in 
addition  to  the  restrictions  which  they  are  authorized  to 
impose,  must  require  a  strict  compliance  with  the  following 
conditions,  except  in  the  cases  of  prismoidal  or  other  elevated 
railways.  In  such  cases,  said  railway  shall  be  required  to  be 
constructed  in  such  a  manner  as  will  present  the  least 
obstruction  to  the  freedom  of  the  streets  on  which  it  may  be 
erected,  when  allowed  by  the  granting  power: 

1.  To  construct  their  tracks  on  those  portions  of  streets 
designated  in  the  ordinance  granting  the  right,  which  must 
be  as  nearly  as  possible  in  the  middle  thereof. 

2.  To  plank,  pave,  or  macadamize  the  entire  length  of  the 
street,  used  by   their  track,   between   the   rails,   and   for   two 

338 


Tit.  IV.]  TWO   LINES   ON   ONE    TRACK.  §  499 

feet  on  each  side  thereof,  and  between  the  tracks,  if  there  be 
more  than  one,  and  to  keep  the  same  constantly  in  repair, 
flush  with  the  street,  and  with  good  crossings. 

3.  That  the  tracks  must  not  be  more  than  five  feet  wide 
within  the  rails,  and  must  have  a  space  between  them  suffi- 
cient to  allow  the  cars  to  pass  each  other  freely. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  212;  April  3,  1876,  Code  Amdts.  1875-6, 
p.  77;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  371,  held  unconstitutional,  see  history, 
§    4   ante. 

See  Kerr's  Cvc.  C.  C.  for  20  pars,  annotation. 

57  C.  515,  518  (construed);  87  C.  597,  599,  25  P.  765  (con-  • 
strued  and  applied);  89  C.  304,  309,  26  P.  885,  887  (construed); 
91  C.  449,  454,  25  A.  S.  201,  27  P.  768,  770,  13  L.  754  (referred 
to  with  other  sections);  146  C.  635,  638,  SO  P.  1076  (a  resolu- 
tion of  intention  to  improve  a  street  is  not  invalid  because  it 
excepts  such  portion  of  the  street,  occupied  by  a  railroad  com- 
pany, as  the  law  requires  the  company  to  keep  in  order  at  its 
own   expense). 

As  to  duty  of  company  to  keep  tracks  in  repair,  remove 
snow,  and  exercise  care  over  and  pave  streets,  see  25  A.  S. 
477-482. 

As  to  liability  of  street-railway  company  for  defects  in  track 
or  street,   see   52   L.   448-463.      . 

As  to  liability  of  street  railway  company  for  paving  assess- 
ment,  see   46  L.   193-203. 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,  see   note    §  283,   ante. 

Same — As  to   railroads   generally,   see  note   §  454,   ante. 

Same — As  to  street-railroads,  see  note   §  497,  ante. 

As  to  prismoidal  railways,  see  Kerr's  Cyc.  C.  C.  I  498,  intro- 
ductory  note. 

§499.  TWO  LINES  OF  STKEET  RAILWAY  MAY  USE 
SAME  TRACK.  Two  or  more  lines  of  street  railway,  operated 
under  different  managements,  may  by  lease  or  contract,  use 
the  same  street  or  tracks  upon  such  terms  as  may  have  been 
agreed  upon  between  the  companies  operating  such  railways; 
and  two  lines  of  street  railway  operated  under  different  man- 
agements may  be  permitted  to  use  the  same  street  or  tracks 
for  a  distance  of  five  blocks  without  such  lease  or  contract, 

339 


§499  CIVIL  CODE.  [Div.I.Pt.IV. 

upon  payment  of  an  equal  portion  for  the  construction  of 
the  tracks  and  appurtenances  used  by  such  railways  jointly; 

[Extent  to  i^hich  may  be  used.]  But  in  no  case  shall  a 
company  owning  or  operating  one  line  of  street  railway  be 
permitted  to  condemn  the  right  to  occupy  and  use  the  same 
street  or  tracks  for  a  distance  of  more  than  five  blocks  con- 
secutively. 

[Lines  of  different  gage.]  Where  such  portion  of  such 
street  shall  be  occupied  by  a  track  or  tracks  of  a  different 
gage  from  the  track  or  tracks  proposed  to  be  constructed 
thereon  by  a  line  of  street  railway  under  a  different  manage- 
ment, such  last-mentioned  line  of  street  railway  may  never- 
theless construct  its  track  or  tracks,  subject  to  the  limitation 
before  prescribed,  over  the  same  ground  as  may  be  occupied 
by  such  prior  track  or  tracks,  provided  the  same  can  be  so 
constructed  as  not  to  interfere  with  the  operation  of  such 
prior  track  or  tracks  beyond  such  necessary  interference 
therewith  as  shall  be  incident  to  such  construction  with  rea- 
sonable skill,  care  and  diligence. 

HLstory:  Enacted  March  21,  1872;  amended  Feb.  25,  1891, 
Stats,  and  Amdts.  1891,  p.  13;  amended  March  21,  1907,  Stats, 
and  Amdts.  1907,  p.  837,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  415. 
In  effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

54  C.  74,  75  (construed  and  applied);  57  C.  160,  168  (construed 
and  applied),  170,  177  (cited  in  dis.  op.);  91  C.  449,  452,  454,  25  A. 
S.  201,  27  P.  768,  13  L.  754  (construed  and  applied);  115  C.  285, 
297,  47  P.  60  (cited  in  discussion);  129  C.  180,  182,  183,  61  P.  912 
(construed  and  applied);  135  C.  654,  659,  67  P.  1086  (referred 
to  in  discussion);  156  F.  455,  457  (construed  as  to  power  of 
city  to  grant  to  two  companies,  having  railway  tracks  of 
different  width,  the  right  to  operate  their  cars  on  the  same 
street  for  the  distance  limited). 

As  to  joint  use  of  tracks,   see   27   Encyc.   L.   26. 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,  see   note   §  283,  ante. 

Same — As   to   railroads   generally,   see   note   §  454,   ante. 

Same — As   to   street-railroads,   see   note   §  597,  ante. 

As  to  right  of  one  street-railway  company  to  use  tracks  of 
another,  see  25  A.  S.  477. 

340 


Tit.  IV.]  CROSSING  TRACKS — FARE.  §§  50O,  501 

§500.  CROSSIIVG  TRACKS.  OBSTRUCTIOINS.  Any  pro- 
posed railroad  track  may  be  permitted  to  cross  any  track 
already  constructed,  the  crossing  being  made  as  provided  in 
chapter  two,  title  three,  of  this  part.  In  laying  down  the 
track  and  preparing  therefor,  not  more  than  one  block  must 
be  obstructed  at  any  one  time,  nor  for  a  longer  period  than 
ten  working  days. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.  C.   for   6   pars,  annotation. 

As   to    crossing-   other   railroads,    see    27    Encyc.   L.    24,    25. 

Same — Without  compensation,  see  29  L.  367,  29  L.  485,  30  L. 
508;   34  L.    572,   36  L.   839;   44  L.   269. 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,  see    note    §  283,   ante. 

Same — As   to   railroads  generally,   see  note   §  454,   ante. 

Same — As  to  street-railroads,  see  note  §  497,  ante. 

§501.  RATES  OF  FARE  OlV  STREET  CARS.  [MANNER 
OF  CONSTRUCTION  OF  STREET  CARS.]  PENALTY.  The 

rates  of  fare  on  the  cars  must  not  exceed  ten  cents  for  one 
fare  for  any  distance  under  three  miles,  and  in  municipal  cor- 
porations of  the  first  class  must  not  exceed  five  cents  for 
each  passenger  per  trip  of  any  distance  in  one  direction  either 
going  or  coming,  along  any  part  of  "the  whole  length  of  the 
road  or  its  connections.  The  cars  niust  be  of  the  most 
approved  construction  for  the  comfort  and  convenience  of 
passengers,  and  provided  with  brakes  to  stop  the  same,  when 
required. 

[Fine  for  yiolation.]  A  violation  of  the  provisions  of  this 
section  subjects  the  corporation  to  a  fine  of  one  hundred 
dollars  for  each  offense. 

HLstory:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  371, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  16,  1903,  Stats,  and  Amdts.  1903,  pp.   172-173. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

97  C.  553,  563,  33  A.  S.  203,  32  P.  591  (cited,  but  thought  not 
to  apply  since  amendment  of  1903);  134  C.  482,  485,  66  P.  734 
(cited,   but  thought   not   to    apply   since   amendment    of    1903), 

341 


§  502  CIVIL  CODE.  [Div.I.Pt.IV. 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,  see  note   §  283,  ante. 

Same — As   to   railroads  generally,   see   note    §  454,   ante. 

Same — As  to   street-railroads,  see  note   §  497,   ante. 

As  to  ordinance  as  evidence  of  speed,   see   16   A.  S.   247. 

As  to  speed  of  street-railroads,  see  25  L.  663,  57  A.  S.  735, 
60   A.    S.    591;    27   Encyc.   L.    49. 


§502.  TIME  ALLOWED  FOR  COMMENCING  AND  COM- 
PLETING   ^WUK.      PENALTY.      EXTENSION    OF    TIME. 

Work  to  construct  the  railroad  must  be  commenced  in  good 
faith  within  not  more  than  one  year  from  the  date  of  the 
taking  effect  of  the  ordinance  granting  the  right  of  way,  and 
said  work  must  be  completed  within  not  more  than  three 
years  after  the  taking  effect  of  such  ordinance;  provided, 
that  the  governing  body  of  such  municipal  corporation  at  the 
time  of  granting  said  right  of  way  shall  have  the  power  to 
fix  the  time  for  either  the  ooinmeucing  or  completion,  or 
both,  of  said  work;  not,  however,  to  a  time  less  than  six 
months  for  commencing,  and  not  less  than  eighteen  months 
for  completing  the  same. 

[Failure  to  comply — Forfeiture.]  A  failure  to  comply  with 
either  of  the  foregoing  provisions  of  this  section,  or  with 
either  of  the  provisions  of  the  ordinance  granting  said  right 
of  way,  works  a  forfeiture  of  the  right  of  way,  and  also  of 
the  franchise,  unless  the  uncompleted  portion  is  abandoned 
by  the  person  or  corporation  to  whom  said  right  of  way  is 
granted,  with  the  consent  of  the  authorities  granting  the  right 
of  way,  such  abandonment  and  consent  to  be  in  writing. 

[Extension — Who  may  grant — When  and  for  what  term.] 
The  authority  granting  the  right  of  way  shall  have  the  power 
to  grant  an  extension  of  time  for  the  completion  of  said 
work,  if  it  appear  that  the  work  has  been  commenced  within 
the  time  fixed,  and  prosecuted  in  good  faith;  but  no  extension 
of  time  shall  be  granted  for  the  commencement  of  said  work, 
and  shall  not  be  granted  for  more  than  one  year  for  the  com- 
pletion of  the  same.  All  extensions  of  time  shall  be  in  writ- 
ing, and  made  a  matter  of  record  in  the  municipality.    Pro- 

342 


Tit.  IV.]       REGULATIONS,  ETC.— OVER'CHARGES.      §§  503,  504 

vided  further,  that  this  act  shall  not  in  any  way  affect  any 
francliise  or  right  of  way  granted  before  its  passage. 

Hi.story:  Enacted  March  21,  1872;  amended  Feb.  25,  1895, 
Stats,  and  Amdts.  1895,  p.  17.     In  effect  Feb.  25,  1895. 

See  Kerr's  Cyc.  C.  C.  for  46  pars,  annotation. 

57  C.  160,  178  (construed  and  applied);  91  C.  338,  341,  342,  27 
P.  673,  674  (construed  and  applied);  101  C.  333,  337,  35  P.  993 
(cited  in  discussion);  (C.  Jan.  6,  1895),  38  P.  986,  988,  990  (con- 
strued and  applied);  117  C.  604,  611,  612,  616  (cited  in  dis.  op.). 
49  P.  736  (construed  and  applied);  152  C.  242,  244,  245,  92  P. 
490  (the  statute  forms  a  part  of  the  contract,  and  forfeiture  is 
complete  upon  a  failure  to  comply  with  the  conditions  granting- 
a   franchise). 

As  to  forfeiture  of  franchise  of  railroad  companies,  see  30  A. 
S.   774. 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally, see  note   §283,  ante. 

Same — As   to   railroads  generally,   see   note    §  454,   ante. 

Same — As  to  street-railroads,   see  note  §  497,  ante. 

As  to  necessity  of  judicial  act  declaring  forfeiture,  see  5  A. 
S.    803-807. 

As  to  non-performance  of  condition  in  grant  of  franchise,  see 
5   A.   S.    803-807. 

§503.  MAT  MAKE  FURTHER  REGULATIONS  AND 
RULES.  Cities  and  towns  in  or  tlirough  which  street-rail- 
roads run  may  make  such  further  regulations  for  the  govern- 
ment of  such  street-railroads  as  may  he  necessary  to  a  full 
enjoyment  of  the  franchise  and  the  enforcement  of  the  condi- 
tions provided  herein. 

History:  Enacted  March  21,  1872,  founded  upon  §10  Act 
March   29,  1870,  Stats.   1869-70,  p.   483. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 
128   C.   431,  436,   437,  79  A.  S.   47,   61  P.   68,   50  L.   55    (applied). 
As    to   many    miscellaneous    matters — As    to    corporations,    see 
note   §  283,  ante. 

Same — As   to   railroads  generally,  see   note   §  454,  ante. 
Same — As   to   street-railroads,  see   note   §  497,  ante. 

§504.  PENALTY  FOR  OVERCHARGING.  Any  corpora- 
tion, or  agent  or  employee  thereof,  demanding  or  charging  a 
greater   sum   of  money   for  fare   on   the   cars   of   such   street 

343 


§§  505, 506  CIVIL  CODE.  [Div.I.Pt.IV. 

railroad  than  that  fixed,  as  provided  in  this  title,  forfeits  to 
the  person  from  whom  such  sum  is  received,  or  who  is  thus 
overcharged,  the  sum  of  two  hundred  dollars,  to  be  recovered 
in  a  civil  action,  in  any  justice's  court  having  jurisdiction 
thereof,  against  the  corporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
14,  1863,  Stats.  1863,  p.  296;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  371,  held  unconsti- 
tutional, see   history,   §   4  ante. 

§505.  STREET  lUILKOADS  MUST  FURNISH  TICKETS. 
PENALTY.  Every  street-railroad  corporation  must  provide, 
and,  on  request,  furnish  to  all  persons  desiring  a  passage  on 
its  cars,  any  required  quantity  of  passenger  tickets  or  checks, 
each  to  be  good  for  one  ride. 

[Penalty  for  failure  to  comply.]  Any  corporation  failing  to 
provide  and  furnish  tickets  or  checks  to  any  person  desiring 
to  purchase  the  same  at  not  exceeding  the  rate  hereinbefore 
described,  shall  forfeit  to  such  person  the  sum  of  two  hun- 
dred dollars,  to  be  recovered  as  provided  in  the  preceding 
section;  provided,  that  the  provisions  of  this  section  shall 
not  apply  to  such  street-railroad  corporations  as  charge  but 
five  cents  fare. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
14,  1S63,  Stats.  1863,  p.  297;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.  213;  March  13,  1883,  Stats,  and  Amdts.  1883,  p.  84. 
In  force  March  13,  1883. 

§506.  PROOF  OF  AGENCY.  Upon  the  trial  of  an  action 
for  any  of  the  sums  forfeited,  as  provided  in  the  two  preced- 
ing sections,  proof  that  the  person  demanding  or  receiving 
the  money  as  fare,  or  for  the  sale  of  the  ticket  or  check,  was 
at  the  time  of  making  the  demand  or  receiving  the  money, 
engaged  in  an  office  of  the  corporation,  or  vehicle  belonging 
to  the  corporation,  shall  be  prima  facie  evidence  that  such 
person  was  the  agent,  servant,*  or  employee  of  the  corpora- 
tion, to  receive  the  money,  and  give  the  ticket  or  check  men- 
tioned. 

344 


Tit.  IV.]  RESERVED  RIGHTS — LICENSE.  §§  507-509 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  April 
14,  1863,  Stats.  1863,  p.  297;  amended  March  30,  1874,  Code  Amdts. 
1873-4,    p.    213. 

§507.  RESERYED  EIGHTS.  In  every  grant  to  construct 
street  railroads,  the  right  to  grade,  sewer,  pave,  macadamize, 
or  otherwise  improve,  alter,  or  repair  the  streets  or  highways, 
is  reserved  to  the  corporation,  and  cannot  be  alienated  or 
impaired;  such  work  to  be  done  so  as  to  obstruct  the  railroad 
as  little  as  possible,  and,  if  required,  the  corporation  must 
shift  its  rails  so  as  to  avoid  the  obstructions  made  thereby. 

History:  Enacted  March  21,  1872,  founded  upon  §  9  Act  1870, 
Stats.  1869-70,  p.  483;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.  214;  amended  by  Code  Commission,  Act  March  16,- 
1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconstitutional, 
see  history,  §  4  ante. 

§  508.  LICENSE  TO  BE  PAID  TO  CITY  OR  TOWN.  Each 
street-railroad  corporation  must  pay  to  the  authorities  of  the 
city,  town,  county,  or  city  and  county,  as  a  license  upon  each 
car,  such  sum  as  the  authorities  may  fix,  not  exceeding  fifty 
dollars  per  annum  in  the  city  of  San  Francisco,  nor  more 
than  twenty-five  dollars  per  annum  in  other  cities  or  towns. 
Where  any  street  railroad  connects  or  runs  through  two  or 
more  cities  or  towns,  a  proportionate  or  equal  share  of  such 
license  tax  must  be  paid  to  each  of  the  cities  or  towns;  and 
no  such  license  tax  is  due  the  county  authorities  where  the 
same  is  paid  to  any  city  or  town  authority. 

History:  Enacted  March  21,  1872,  founded  upon  §  10  of  Act 
March   29,   1870,  Stats.   1869-70,  p.  483. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,  see   note    §  283,    ante. 

Same — As  to  railroads  generally,  see  note   §  454,  ante. 

Same — As    to   street-railroads,    see    note    §  497,    ante. 

As  to  railroads  in  streets,  right  of  municipal  corporation  to 
authorize  same,   see  98  A.   D.    247. 

§509.  TRACK  FOR  GRADING  PURPOSES.  [TIME  MAY 
REMAIN.]     The  right  to  lay  down  a  track  for  grading  pur- 

345 


§§510,511  CIVIL  CODE.  [Div.I.Pt.IV. 

poses,  and  maintain  the  same  for  a  period  not  to  exceed  three 
years,  may  be  granted  by  the  corporate  authorities  of  any 
city  or  town,  or  city  and  county,  or  supervisors  of  any  city 
or  county,  but  no  such  track  must  remain  more  than  three 
years  upon  any  one  street;  and  it  must  be  laid  level  with 
the  street,  and  must  be  operated  under  such  restrictions  as 
not  to  interfere  with  the  use  of  the  street  by  the  public. 

[Motive  power.]  The  corporate  authorities  of  any  city  or 
town,  or  city  and  county,  may  grant  the  right  to  use  steam 
or  any  other  motive  power  in  propelling  the  cars  used  on 
such  grading  track,  when  public  convenience  or  utility 
demands  it,  but  the  reasons  therefor  must  be  set  forth  in  the 
ordinance,  and  the  right  to  rescind  the  ordinance  at  any 
time  reserved. 

History:  Enacted  March  21,  1872,  founded  upon  §  11  of  Act 
March   29,  1870,  Stats.   1869-70,  p.   483. 

§510.  LAW  GOVERNING  STREET  RAILROADS.  Street 
railroads  are  governed  by  the  provisions  of  title  three  of 
this  part,  so  far  as  they  are  applicable,  unless  such  railroads 
are  therein  specially  excepted. 

History:  Enacted  March  21,  1872;  amended  Marcli  30,  1874, 
Code  Amdts.   1873-4,  p.   214. 

See  Kerr's  Cyc.  C.   C.  for  5   pars,  annotation. 

109  C.  571,  577  (construed  and  applied),  583,  584  (construed), 
42  P.  225,  226;   125  C.  453,  454,  58  P.  64   (construed  and  applied). 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,   see   note    §  283,   ante. 

Same — As   to   railroads   generally,   see   note   §  454,  ante. 

Same — As  to   street-railroads,   see   note   §  497,  ante. 


§511.  TITLE  APPLICABLE  TO  NATURAL  PERSONS 
ALIKE  WITH  CORPORATIONS.  When  a  street  railroad  is 
constructed,  owned,  or  operated  by  any  natural  person,  this 
title  is  applicable  to  such  person  in  like  manner  as  it  is 
ai)plicable  to  corporations. 

History:     Enacted  March   21,   1872. 
346 


il 


Tit.  v.]  WAGON  ROADS— COMMISSIONERS.  §  512 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

98  C.  311,  314,  33  P.  199,  200  (construed  with  otlier  sections); 
132  C.  677,  678,  64  P.  1065    (construed  witli  other  sections). 

As  to  many  miscellaneous  matters — As  to  corporations  gen- 
erally,  see  note   §  283,  ante. 

Same — As  to   railroads   generally,   see   note   §  454,   ante. 

Same — As   to   street-railroads,  see  note   §  497,  ante. 


TITLE   V. 
WAGON    ROAD    CORPORATIONS. 

§  512.     Three  commissioners  to  act  with   surveyor. 

§  513.     Survey  and  map  to  be  filed  and  approved. 

§  514.  Bridges  or  ferries  on  line.  Tolls,  limits  of.  Franchise- 
forfeited,  when. 

§  515.     No  tolls  to  be  charged  on  highways  or  public  roads. 

§  516.     Rates  of  toll  must  be  posted. 

§  517.      Persons   detained  until   toll   is  paid. 

§  518.     Persons  unnecessarily  detained  or  overcharged,  damages. 

§  519.     Persons  avoiding  tolls  to  pay  five  dollars. 

§  520.     Penalties  for  trespasses   on  property  of  corporation. 

§  521.     Revenue,  how  appropriated.     [Reduction  of  tolls,  when.] 

§  522.     Property  may  be  mortgaged  or  hypothecated. 

§  523.  This  title  applies  to  natural  persons  as  well  as  corpora- 
tions. 

§  524.  Franchises  granted  for  construction  of  roads  for  use  of 
horseless   vehicles. 

§512.  THREE  COMMISSIONERS  TO  ACT  WITH  SUR- 
VEYOR. Where  a  corpoi'ation  is  formed  for  the  construc- 
tion and  maintenance  of  a  wagon  road,  the  road  must  be  laid 
out  as  follows:  Three  commissioners  must  act  in  conjunc- 
tion with  the  sui'veyor  of  the  corporation,  two  to  be  appointed 
by  the  board  of  supervisors  of  the  county  through  which  the 
road  is  to  run,  and  one  by  the  corporation,  who  must  [1] 
lay  out  the  proposed  road  and  [2]  report  their  proceedings, 
together  [3]  with  the  map  of  the  road,  to  the  supervisors,  as 
provided  in  the  succeeding  section. 

History:  Enacted  March  21,  1872,  founded  on  §  2  Act  April 
22,  1853,  Stats.  1853,  p.  114;  amended  March  30,  1874,  Code 
Amdts.  1873-4,  p.   214. 

347 


§  513  CIVIL  CODE.  [Div.I,Pt.IV. 

See   Kerr's   Cyc.   C.   C.   for   37   pars,    annotation. 

95  C.  78,   86,   30  P.   129,  131    (construed). 

As  to  many  miscellaneous  matters  as  to  corporations  gren- 
erally,  see  note  §  283,  ante. 

Facts  necessary  to  be  stated  in  articles  of  incorporation  of 
wagon    road  company. — See   Kerr's  Cyc.   C.   C.    §  291   and   note. 

Provisions  relating  to  toll  roads  in  general,  their  construc- 
tion, use,  obstruction,  inspection  and  repair. — See  Kerr's  Cyc. 
Pol.  C.^8§  2779,  2832  and  notes. 

Right  to  sell  franchise  of  toll  road  under  execution. — See 
Kerr's  Cyc.  C.  C.   §  388  and  note. 

Subscribed  capital  stock  required  of  wagon  road  companies. — 
See  Kerr's  Cyc.  C.  C.  §  293  subd.  3. 

§513.  SURVEY  AND  MAP  TO  BE  FILED  AND  AP- 
PItOVED.  When  the  route  is  surveyed  a  map  thereof  must 
be  submitted  to  and  filed  with  the  board  of  supervisors  of 
each  county  through  or  into  which  the  road  runs,  giving  its 
general  course,  and  the  principal  points  to  or  by  which  it 
runs,  and  its  width,  which  must  in  no  case  exceed  one  hun- 
dred feet,  and  the  supervisors  must  either  approve  or  reject 
the  survey.  If  approved,  it  must  be  entered  of  record  on  the 
journal  of  the  board,  and  such  approval  authorizes  the  use 
of  all  public  lands  and  highways  over  which  the  survey  runs; 
but  the  board  of  supervisors  must  require  the  corporation, 
at  its  own  expense,  and  the  corporation  must  so  change  and 
open  the  highways  so  taken  and  used  as  to  make  the  same  as 
good  as  before  the  appropriation  thereof;  and  must  so  con- 
struct all  crossings  of  public  highways  over  and  by  its  road 
and  toll-gates,  as  not  to  hinder  or  obstruct  the  use  of  the 
same. 

History:  Enacted  March  21,  1872,  founded  on  §  1  Act  1854, 
Stats.  1854,  p.  74;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconstitutional,  see 
history,  §4  ante;  amendment  re-enacted  March  21,  1905,  Stats, 
and  Amdts.  1905,  p.  577. 

See  Kerr's  Cyc.  C.  C.  for  43  pars,  annotation. 
As  to  franchise  being  subject  to  execution,  see  27  A,  R.  84. 
As  to  grant  not  preventing  subsequent  grant,  see  26  A..  R.  294. 
As  to  judicial  sale  of  franchise,  see  20  L.  737-740. 
As   to   location   and   construction    of   turnpike   and   toll    roads, 
see    29    Encyc.    L.    8-13. 

348 


Tit.  v.]  BRIDGES  AND  FERRIES— TOLLS.  §  514 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  nature  and  powers  of  turnpike  and  toll  roads,  see  29 
Encyc.    L.    3-7. 

§  514.  BRIDGES  OR  FERRIES  ON  LINE.  TOLLS,  LIMIT 
OF.  FRANCHISE  FORFEITED,  WHEN.  All  wagon  road 
corporations  may  bridge  or  keep  ferries  on  streams  on  the 
line  of  their  road,  and  must  do  all  things  necessary  to  keep 
the  same  in  repair.  They  may  take  such  tolls  only  on  their 
roads,  ferries,  or  bridges,  as  are  fixed  by  the  board  of  super- 
visors of  the  proper  county  through  which  the  road  passes,  or 
in  which  the  ferry  or  bridge  is  situate. 

[Amount  of  toHs  permissible.]     But  in  no  case  must  the 
tolls  be  more  than  sufficient  to  pay  fifteen  per  cent,  nor  less  ' 
than  ten  per  cent  per   annum,   on  the   cost  of  construction, 
after  paying  for  repairs  and  other  expenses  for  attending  to 
the  roads,  bridges,  or  ferries. 

[Penalty  for  yiolation.]  If  tolls,  other  than  as  herein  pro- 
vided, are  charged  or  demanded,  the  corporation  forfeits  its 
franchise,  and  must  pay  to  the  party  so  charged  one  hundred 
dollars  as  liquidated  damages. 

Hi.story:  Enacted  March  21,  1872,  founded  on  §  1  Act  1857, 
Stats.  1857,  p.  280;  amended  March  28,  1874,  Code  Amdts.  1873-4, 
p.  272;  March  30,  1874,  Code  Amdts.  1873-4,  pp.  214-215;  amended 
by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  372,  held  unconstitutional,  see  history,  §  4  ante; 
amendment  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905; 
p.    577. 

See  Kerr's  Cyc.   C.  C.   for  61   pars,  annotation. 

80  C.  338,  341  (applied — forfeiture  of  franchise  for  toll  road 
by  collecting  illegal  toll;  erroneously  cited  as  §  2799),  22  P. 
254,  255  (correct  citation);  88  C.  632,  633,  26  P.  513  (construed 
and  applied);  122  C.  335,  338,  55  P.  10    (applied). 

As  to  inspection   of  public  toll-books,  see   27  L.   82-85. 

As  to  legislative  regulation   of  toll,  see   20   L.   177-189. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

As  to  rights  over  existing  public  highways  and  fixing  of  toll 
thereon,  see  Kerr's  Cyc.  C.  C.   §  515  and  note. 

As  to  right  to  take  tolls  without  franchise,  see  37  L.  711-719. 

As  to  toll  roads,  see  Kerr's  Cyc.  Pol.  C.  §§  2779-2832  and 
notes. 

349 


§§  515-517  CIVIL  CODE.  [Div.I,Pt.IV. 

§515.  NO  TOLLS  TO  BE  CHARGED  ON  HIGHWAYS  OR 
PUBLIC  ROADS.  When  any  highway  or  public  road  is  taken 
and  used  by  any  wagon  road  corporation  as  a  part  of  its 
road,  the  corporation  must  not  place  a  toll-gate  on  or  take 
tolls  for  the  use  of  such  highway  or  public  road  by  team- 
sters, travelers,  drovers,  or  any  one  transporting  property 
over  the  same. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  April 
22,   1853,  p.   115. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 
As    to    many    miscellaneous    matters   as    to    corporations    gen- 
erally,  see    note   §  283,    ante. 

§  516.  RATES  OF  TOLL  MUST  BE  POSTED.  The  corpo- 
tion  must  affix  and  keep  up,  at  or  over  each  gate,  or  in  some 
conspicuous  place,  so  as  to  be  conveniently  read,  a  printed 
list  showing,  first,  the  date  when  the  franchise  or  privilege 
under  which  the  right  to  collect  tolls  is  claimed,  was  granted 
and  the  term  of  duration  of  said  franchise;  second,  the  date 
upon  which  rates  of  tolls  were  last  fixed  by  the  board  of 
supervisors;  and,  third,  the  rates  of  tolls  levied  and  demanded. 
Failure  to  comply  with  the  provisions  of  this  act  shall  work 
an  immediate  forfeiture  of  franchise. 

History:  Enacted  March  21,  1872,  founded  upon  §  30  Act  May 
12,  1853,  Stats.  1853,  p.  176  amended  Feb.  14,  1901,  Stats,  and 
Amdts.  1900-1,  p.  5.     In  force  Feb.  14,  1901. 

§  517.  PERSONS  DETAINED  UNTIL  TOLL  IS  PAID.  Each 
toll-gatherer  may  prevent  from  passing  through  his  gate  any 
person,  animal,  or  vehicle,  subject  to  toll,  until  the  toll  author- 
ized to  be  collected  for  such  passing  has  been  paid. 

History:  Enacted  March  17,  1872,  founded  on  §  29  Act  May 
12,  1853,  Stats.  1853,  p.  176;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.   577. 

57  C.  594,  602  (cited  with  other  sections,  apparently  by  error). 
As    to    many   miscellaneous    matters    as    to    corporations    gen- 
erally,  see   note    §  283,   ante. 

350 


I 


Tit.  v.]  DETENTION— AVOIDING  TOLLS.  §§.518-520 

§518.  PERSONS  UNNECESSARILY  DETAINED  OR 
OVERCHARGED,  DAMAGES.  Every  toll-gatherer  who,  at  any 
gate,  unreasonably  hinders  or  delays  any  traveler  or  passenger 
or  any  vehicle  or  animal  liable  to  the  payment  of  toll,  or 
demands  or  receives  from  any  person  more  than  he  is  author- 
ized to  collect,  for  each  offense  forfeits  the  sum  of  twenty-five 
dollars  to  the  person  aggrieved. 

History:  Enacted  March  21,  1872,  founded  upon  §  31  Act  May 
12,  1853,  Stats.  1853,  p.  176;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  372,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.,  1905,  p.  578. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation.  ' 

51   C.   489,   490    (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note    283,  ante. 

§  519.  PERSONS  AVOIDING  TOLLS  TO  PAY  FIVE  DOL- 
LARS.  Every  person  who,  to  avoid  the  payment  of  the  legal 
toll,  with  his  team,  vehicle,  or  horse,  turns  out  of  a  wagon, 
turnpike,  or  plank  road,  or  passes  any  gate  theveon  on  ground 
adjacent  thereto,  and  again  enters  upon  such  road,  for  each 
offense  forfeits  the  sum  of  five  dollars  to  the  corporation 
injured. 

History:  Enacted  March  21,  1872,  founded  upon  §  33  Act  May 
12,   1853,  Stats.   1853,  p.   176. 

§  520.  PENALTIES  FOR  TRESPASSES  ON  PROPERTY 
OF  CORPORATION.    Every -person  who: 

1.  Wilfully  breaks,  cuts  down,  defaces,  or  injures  any  mile- 
stone or  post  on  any  wagon,  turnpike,  or  plank  road;  or, 

2.  Wilfully  breaks  or  throws  down  any  gate  on  such  road; 
or, 

3.  Digs  up  or  injures  any  part  of  such  road  or  anything 
thereunto  belonging;   or, 

4.  Forcibly  or  fraudulently  passes  any  gate  thereon  with- 
out having  paid  the  legal  toll; 

For    each   offense   forfeits   to   the    corporation    injured    the 

351 


§§521,522  CIVIL  CODE.  [Div.I,Pt.IV. 

sum  of  twenty-five  dollars,  in  addition  to  the  damages  result- 
ing from  his  wrongful  act. 

History:  Enacted  March  21,  1872,  founded  on  §  32  Act  May 
12,    1853,   Stats.    1853,   p.    176. 

As  to  breaking  down  toll-gate  on  road  out  of  repair,  see 
Kerr's  Cyc.  C.   C.   §  520,  note. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 


§  521.  REVENUE,  HOW  APPROPRIATED.  [REDUCTIOI^ 
OF  TOLLS,  WHEN.]  The  entire  revenue  derived  from  the 
road  shall  be  appropriated:  first,  to  repayment  to  the  corpo- 
ration of  the  costs  of  its  construction,  together  with  the  inci- 
dental expenses  incurred  in  collecting  tolls  and  keeping  the 
road  in  repair;  and,  second,  to  the  payment  of  the  dividend 
among  its  stockholders,  as  provided  in  section  five  hundred 
and  fourteen.  When  the  repayment  of  the  cost  of  construc- 
tion is  completed,  the  tolls  must  be  so  reduced  as  to  raise 
no  more  than  an  amount  sufficient  to  pay  said  dividend,  and 
incidental  expenses,  and  to  keep  the  road  in  good  repair. 

History:  Enacted  March  21,  1872,  founded  on  §  4  Act  April 
22,  1853,  p.  115;  amended  Marcli  30,  1874,  Code  Amdts.  1873-4, 
p.   215. 

§522.  PROPERTY  MAT  BE  MORTGAGED  OR  HYPOTH- 
ECATED. The  corporation  may  mortgage  or  hypothecate  its 
road  and  other  property  for  funds  with  which  to  construct 
or  repair  its  road,  but  no  mortgage  or  hypothecation  is  valid 
or  binding  unless  at  least  twenty-five  per  cent  of  the  capital 
stock  subscribed  has  been  paid  in  and  invested  in  the  con- 
struction of  the  road  and  appurtenances,  and  then  only  after 
an  affirmative  vote  of  two-thirds  of  the  capital  stock  sub- 
scribed. 

Hi.story:  Enacted  March  21,  1872,  founded  on  §  19  Act  May 
12,  1853,  Stats.  1853,  p.  173;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  373,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.   578. 

352 


I 


Tit.  v.]  FRANCHISES— HORSELESS  VEHICLES.     §§523,524 

See   Kerr's  C^'C.  C.   C.  for   7  pars,  annotation. 
SO  C.   338,  341,  22  P.   254,  255    (construed  and  applied). 
As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally,   see    note    §  283,    ante. 

§523.  THIS  TITLE  APPLIES  TO  NATURAL  PERSOIVS 
AS  WELL  AS  CORPORATIONS.  When  a  wagon,  turnpike,  or 
plank  road  is  constructed,  owned,  or  operated  by  any  natural 
person  this  title  is  applicable  to  such  person  in  like  manner 
as  it  is  applicable  to  corporations. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.  C.   C.   for  11  pars,   annotation. 
79  C.  166,  168,  21  P.  538   (construed  and  applied);   80  C.   338,  341, 
22   P.   254,  255    (applied);   98   C.   311,   313,    33   P.    199,    200    (referred' 
to   in   discussion). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

§524.  FRANCHISES  GRANTED  FOR  CONSTRUCTION 
OF  ROADS  FOR  USE  OF  HORSELESS  VEHICLES.  The  leg- 
islative or  other  body  to  whom  is  intrusted  the  government 
of  any  county,  city  and  county,  city,  or  town,  may,  under  such 
regulations,  restrictions,  and  limitations  as  it  may  provide, 
subject  to  existing  laws,  grant  franchises  for  the  construction 
of  paths  and  roads,  either  on  the  surface,  elevated,  or 
depressed,  on,  over,  across,  or  under  the  streets  and  public 
highways  of  any  such  county,  city,  or  town,  for  the  use  of 
bicycles,  tricycles,  motorcycles,  and  other  like  horseless  vehi- 
cles, for  a  term  not  exceeding  fifty  years. 

Ill  incorporated  eities  no  francliise  must  be  granted  for  the 
purpose  herein  expressed,  unless  the  consent  in  writing  of 
the  owners  of  a  majot-ity  of  the  frontage  upon  the  road  or 
street  along  which  said  path  or  road  is  sought  to  be  con- 
structed, is  first  had  and  obtained,  and  iiled  with  such  legisla- 
tive or  governing  body. 

History:  Enacted  by  Code  Commission,  Act.  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  373,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    578. 

Kerr's    C.    C. — 12  353 


§  528  CIVIL  CODE.  [Div.I,Pt.IV. 


TITLE   VI. 

BRIDGES,   FERRY,   WHARF,   CHUTE,  AND   PIER   CORPO- 
RATIONS. 

§  528.     Toll   not  to  be  collected  without  authority. 

§  529.     Corporate  existence  ceases,  when. 

§  530.  President  and  secretary  to  make  annual  report  to  super- 
visors; what  report  must  contain.  Damages  for  failure 
to   report. 

§  531.  This  title  to  apply  to  natural  persons  alike  with  corpo- 
rations. 

§528.  TOLL  NOT  TO  BE  COLLECTED  WITHOUT 
AUTHORITY.  No  corporation  must  construct,  or  take  tolls 
on,  a  bridge,  ferry,  wharf,  chute,  or  pier  until  authority  is 
granted  therefor  by  the  supervisors,  or  other  governing  body 
having  authority  in  that  behalf. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
8,  1858,  Stats.  1858,  p.  120,  as  amended  by  §  1  Act  1870,  Stats. 
1869-70,  p.  526;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  373,  held  unconstitutional, 
see  history,  §  4  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  579. 

See  Kerr's  Cyc.  C.   C.  for  6  pars,  annotation. 

136  C.  36,  49,   68  P.   308    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

Public  ferries  and  toll-bridges — General  provisions  governing. 
—See  Kerr's  Cyc.  Pol.  C.  §§  2843-2858,  2870-2881,  2892-2895  and 
notes. 

Wharves,    chutes   and   piers — General    provisions    governing. — 
S^e  Kerr's   Cyc.   Pol.   C.    §§  2906-2921   and   notes. 
FERRIES — GENERALLY. 

Assignability  of. — See  23  Cent.   Dig.   col.  902,   §  43. 

Boats,  buildings  and  landings. — See  23  Cent.  Dig.  col.  920, 
§  67-69. 

Contracts    of. — See    59    L.    543-545. 

Establishment — And  maintenance  of. — See  23  Cent.  Dig.  col. 
863,  §§ 1-73. 

Sam,e — Regulation  and  protection  of. — See  59  L.  513-555. 

Exclusiveness   of   right. — See   59   L.   538-540. 

Extent  and  exclusiveness  of  franchise. — See  23  Cent.  Dig.  col. 
896,    §§  38-40. 

354 


) 


Tit.  VI.]  FERRIES— GENERALLY.  §  528 

Exting-uishment  of,  by  abandonment  and  other  means. — See 
59    L.    554,   555. 

Ferries  between   states. — See    1   A.   C.    110;    27   A.   S.    555. 

Ferryman — As  common  carrier. — See  68  L.  153-160. 

Same — Rights  and  duties  of. — See   59  L.   546-553. 

Same — Same — Right  to  tolls. — See  59  L.   546. 

Forfeiture  of  purpose  for  infringement. — See  23  Cent.  Dig. 
col.    908,    §  52. 

Franchises  and  privileg-es  of. — See  .23  Cent.  Dig',  col.  871, 
§§9-66. 

Grant  or  leave  by  public  authority. — See  23  Cent.  Dig-,  col. 
892,    §§  34-37. 

Imputing  carrier's  negligence  to  passenger  on. — See  8  L.  N. 
S.    622. 

Infringement  and  disturbance  of  rights. — See  23  Cent.  Dig. 
col.    904,    §§  46-59. 

Injunction  against  infringement  of  or  injury  to  rights. — See 
23    Cent.    Dig.    col.    912,    §  59. 

Injuries  to  ferry  property. — See  23  Cent.  Dig.  col.   927,  §  72. 

Landings — Acquisition  and  rig^ht  to  use. — See   59  L.   535. 

Legislative  regulation   of  rates  of  toll. — See   33  L.   180. 

Mode  of  transfer  of. — See  23  Cent.  Dig.  col.  903,   §  44. 

Nature — And  construction  of  franchise  of. — See  23  Cent.  Dig. 
col.    871,    §§  9,   10. 

Same — And  extent  of  right  of  franchises. — See  1  A.  C.  104. 

Necessity  of  franchises  for. — See  37  L.   712. 

Offenses  in  maintaining  or  discontinuing. — See  23  Cent.  Dig. 
col.    927,    §  73. 

Over  interstate  streams,  state  grant  of  franchises  for. — See 
2   A.   C.    691;    27   A.   S.    555. 

Persons  who  may  acquire  franchise. — See  59  L.  528;  23  Cent. 
Dig.    col.    879,    §§  18-21. 

Power  to  grant  franchise  for. — See  23  Cent.  Dig.  col.  874, 
§§  11-17. 

Same — Of  municipality. — See  59  L.   521. 

Prescription. — See   23   Cent.   Dig.   col.   883,   §  22. 

Proceedings  to  acquire  franchise  for. — See  23  Cent.  Dig.  col. 
884,    §§  23-33. 

Regulation — And  operation  of.— See  23  Cent.  Dig.  col.  925, 
§§  74-95. 

Same — And  supervision  of. — See  59  L.  542. 

Rights — And  duties  of  ferrymen. — See   59  L.   546. 

Same — And  liabilities  of  transferee  of. — See  23  Cent.  Dig.  col. 
903,    §  45. 

Same — Of  landing  and  embarking. — See  23  Cent.  Dig.  col. 
900,    §  41. 

Sale  and  transfer  of. — See   23  Cent.  Dig.  col.   921,   922,  §§  70,  71. 

355 


§§  529,  530  CIVIL,  CODE.  [Div.I.Pt.IV. 

Termination  and  removal  of. — See  23  Cent.  Dig.  col.  915, 
§§60-66. 

Tolls — Right    to. — See    59    L.    546. 

Transferability  and  descendibility  of  ferry  franchises  or 
licenses. — See   2   A.   C.   693;    59  L.   543. 

Transfer  of. — As  to  generally,  see  23  Cent.  Dig.  col.  902, 
§§  42-45. 

Same — Method  of  making.— See   2   A.   C.    691. 

Same-^— Of  contracts  of. — See   59  L.   543. 

Who  are  customers. — See  23  Cent.  Dig.  col.   906,  §  49. 

Who    entitled    to    receive    franchise. — See    59    L.    528. 

Who  may  grant.— See  59  L.   521-526. 

§  529.  CORPORATE  EXISTENCE  CEASES,  WHEN.  Every 
such  corporation  ceases  to  be  a  body  corporate : 

1.  If,  within  six  months  from  filing  its  articles  of  incorpo- 
ration, it  has  not  obtained  such  authority  from  the  board  of 
supervisors,  or  other  governing  body  having  authority  in  that 
behalf;  and  if,  within  one  year  thereafter,  it  has  not  com- 
menced the  construction  of  the  bridge,  wharf,  chute,  or  pier, 
and  actually  expended  thereon  at  least  ten  per  cent  of  the 
capital  stock  of  the  corporation; 

2.  If,  within  three  years  from  filing  the  articles  of  incor- 
poration, the  bridge,  wharf,  chute,  or  pier  is  not  completed; 

3.  If,  when  the  bridge,  wharf,  chute,  or  pier  of  the  corpo- 
ration is  destroyed,  it  is  not  reconstructed  and  ready  for  use 
within  three  years  thereafter; 

4.  If  the  ferry  of  any  such  corporation  is  not  in  running 
order  within  three  months  after  authority  is  obtained  to 
establish  it,  or  if  at  any  time  thereafter  it  ceases  for  a  like 
term  consecutively  to  perform  the  duties  imposed  by  law. 

History:  Enacted  March  21,  1872,  founded  upon  §  169  Act 
April  22,  1850,  Stats.  1850,  p.  373;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  373,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.   1905,  p.   579. 

§530.  PRESIDENT  AND  SECRETARY  TO  MAKE 
ANNUAL  REPORT  TO  SUPERVISORS;  WHAT  REPORT  TO 
CONTAIN.     DAMAGES   FOR   FAILURE   TO   REPORT.     The 

president  and  secretary  of  every  bridge,  ferry,  wharf,  chute, 

356 


Tit.  VI.]  ANNUAL  REPORT.  §  53O 

or  pier  corporation  must  annually,  under  oath,  report  to  the 
board  of  supervisors,  or  other  governing  body  having  author- 
ity in  that  behalf,  of  the  county  in  which  the  articles  of  incor- 
poration are  filed: 

1.  The  cost  of  constructing  and  providing  all  necessary 
appendages  and  appurtenances  for  its  bridge,  ferry,  wharf, 
chute,  or  pier; 

2.  The  amount  of  all  moneys  expended  thereon,  since  its 
construction,  for  repairs  and  incidental  expenses; 

3.  The  amount  of  its  capital  stock,  how  much  paid  in,  and 
how  much  actually  expended  thereof; 

4.  The  amount  received  during  the  year  for  tolls,  and  from 
all  other  sources,  stating  each  separately; 

5.  The  a,mount  of  dividends  made,  and  the  indebtedness  of 
the  corporation,  specifying  for  what  it  was  incurred; 

6.  Such  other  facts  and  particulars  respecting  the  business 
of  the  corporation,  as  the  board  of  supervisors  or  other  gov- 
erning body  having  authority  in  that  behalf  may  require. 

[Publication  of  report.]  This  report  the  president  and 
secretary  must  cause  to  be  published  for  four  weeks  in  a 
daily  newspaper  published  nearest  the  bridge,  ferry,  wharf, 
pier,  or  chute,  if  required  by  order  of  the  board  of  supervisors 
or  other  governing  body  having  authority  in  that  behalf. 
A  failure  to  make  such  report  subjects  the  corporation  to  a 
penalty  of  two  hundred  dollars,  and  for  every  week  per- 
mitted to  elapse  after  such  failure  an  additional  penalty  of 
fifty  dollars,  payable  in  each  case  to  the  county  from  which 
the  authority  of  the  corporation  was  derived. 

[Duty  of  district  attorney  or  city  attorney.]  All  such 
cases  must  be  reported  by  the  board  of  supervisors,  or  other 
governing  body  having  authority  in  that  behalf,  to  the  dis- 
trict attorney  or  city  attorney,  who  must  commence  an  action 
therefor. 

History:  Enacted  March  21,  1872,  founded  upon  §§  170-173 
Act  April  22,  1850,  Stats.  1850,  p.  373;  amended  by  Code  Com- 
mission, Act  March  6,  1901,  Stats,  and  Amdts.  1900-1,  p.  374, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted   March    25,   1905,    Stats,   and   Amdts.    1905,   pp.    579-580. 

357 


§  531  CIVIL  CODE.  [Div.I,Pt.IV. 

§531.  THIS  TITLE  TO  APPLY  TO  NATUK AL  PERSONS 
ALIKE  WITH  CORPORATIONS.  When  a  bridge,  ferry,  wharf, 
chute,  or  pier  is  constructed,  operated,  or  owned  by  a  natural 
person,  this  title  is  applicable  to  such  person  in  like  manner 
as  it  is  applicable  to  corporations. 

IliMtury:     Enacted  March   21,   1872. 

98  C.  311, -314,  33  P.  199,  200  (referred  to  in  connection  with 
§  511    in    discussion). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note  §  283,  ante. 


358 


Tit.  VII.]  TELEGRAPH,  ETC. — USE  OF  WAY.  §  535 

TITLE  VII. 

TELEGRAPH  AND  TELEPHONE  CORPORATIONS. 

[The  former  Title  VII,  including  §§  536-541,  was  repealed  by- 
Act  March  20,  1905,  and  the  following  sections  substituted  there- 
for. Stats,  and  Amdts.  1905,  p.  491.  Prior  legislation  upon 
which  original  Title  VII  was  founded  will  be  found  in  Stats. 
1850,  p.   347,   §  152;   1857,  p.   117,   §  2;   1862,  p.   290,   §  8.] 

§  536.  May  use  right  of  way  along  waters,  roads,  and  highways. 
§  537.  Liability  for  damaging  telegraph  or  telephone  property. 
§  538.     Penalty  for  wilfully  or  maliciously  injuring  telegraph  or 

telephone  property. 
§  539.     Conditions  on  which  damage  to  subaqueous  cable  may  be  . 

recovered. 
§  540.     May  dispose  of  certain   rights. 

§536.  MAY  USE  RIGHT  OF  WAY  ALO^G  WATERS, 
ROADS,  AND  HIGHWAYS.  Telegraph  or  telephone  corpora- 
tions may  construct  lines  of  telegraph  or  telephone  lines 
along  and  upon  any  public  road  or  highway,  along  or  across 
any  of  the  waters  or  lands  within  this  state,  and  may  erect 
poles,  posts,  piers,  or  abutments  for  supporting  the  insulators, 
wires,  and  other  necessary  fixtures  of  their  lines,  in  such 
manner  and  at  such  points  as  not  to  incommode  the  public 
use  of  the  road  or  highway  or  interrupt  the  navigation  of 
the  waters. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;   see  introductory  note  to  this  title. 

See   Kerr's  Cyc.   C.  C.   for   20  pars,   annotation. 

149  C.  744,  750,  87  P.  1023  (cited,  with  act  of  Congress,  as  to 
right   of  telegraph   company). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Common  carriers — Telegraph  and  telephone  companies  as. — 
See    Kerr's   Cyc.    C.    C.    §§  2207-2209    and   notes. 

Compensation — Abutting  owner. — See   28  A.  S.   229-236. 
TELEGRAPH    AND    TELEPHONE    COMPANIES — GENERALLY. 

Abutting  owners  entitled  to  compensation  for  additional 
servitude. — See    28    A.   S.    329-336. 

Additional   servitudes,  poles  and  wire  of,  whether  constitutes 

359 


§  536  CIVIL  CODE.  [Div.I,Pt.IV. 

on  the  public  streets  and  highways. — See   49   A.  R.   14;   54  A.  R. 
290;  3  L.  N.  S.  323;   7  L.  N.  S.  87. 

As  common  carriers. — See  Kerr's  Cyc.  C.  C.  §§  2207-2209  and 
notes;   10  A.  C.  855. 

Are  agents  of  the  party  employing,  and  he  must  suffer  for 
mistakes  in  transmission. — See   39   A.   R.   359. 

Blanks,  conditions  in  limiting  liability  for  damages. — See  11 
A.    R.    168. 

Character  of  telegraph  property. — See  9  A.   C.   1190. 

Cipher  messages,  liability  for  mistakes  in  transmitting. — See 
46    A.    R.    731. 

Compensation  to  abutting  owners. — See  28  A.  S.  329-336. 

Conditions — As  to  repeating  messages,  mistakes,  delays,  etc., 
when  valid. — See  45  A.   R.   488. 

Same — Exempting  company  from  liability  for  errors  in  trans- 
mission unless  messages  are  repeated. — See  24  A.  R.   283. 

Same — Which  may  impose  on  senders  of  messages. — See  71 
A.    D.    463. 

Contingency  of  possible  action  of  sendee,  or  of  some  third 
person,  as  affecting  liability  for  failure  properly  to  transmit 
and  deliver  telegram. — See  12  L.  N.  S.  748. 

Contract  by  telegraph,  and  the  admissibility  of  telegrams  as 
evidence. — See  110  A.  S.  742. 

Contract  in  blank  telegram — Conflict  of  law  as  to. — See  63 
L.    532. 

Same — For  presentation  of  claim. — See  3  L.  224. 

Same — For  claiming  damages. — See  11  L.  102. 

Same — Limiting  liability,  reasonableness  of. — See  2  L.  601; 
4  L.  611;  13  L.  510. 

Damages,  what  are  proper  elements  of  in  action  for  failure 
to   deliver  messages. — See   10   A.   S.    778;    117   A.   S.    286. 

Delay  in  applying  for  injunction  against  maintenance  of,  in 
highway. — See  8  L.  N.  S.   1091. 

Discrimination,  duty  of  to  serve  the  public  without. — See  59 
A.    R.    172. 

Duty  of  telegraph  company — And  liability  of,  as  to  delivery 
of  message  addressed  to  person  "in  care  of  another." — See  7 
A.   C.    734. 

Same — To  ascertain  identity  or  authority  of  sender  of  mes- 
sage.^See   4  L.  N.   S.    181. 

Same — To  find  the  person  addressed. — See  27  A.  S.  923. 

Same — To  notify  sender  of  message  where  it  can  not  be 
promptly  transmitted  or  delivered. — See  67  L.   153. 

Evidence — Admissibility  of  telegram  in  behalf  of  person  re- 
ceiving same   in   reply  to  another. — See   44   L.   438. 

Same — Of  conversation  by  telephone. — See  1  A.  C.  802;  8  A.  C. 
447;    17   L.    440. 

360 


Tit.  VII.]     TELEGRAPHS  AND  TELEPHONES.         §  536 

Same — Same — Necessity  and  sufficiency  of  identification  as 
foundation  for  admission  of  conversation  or  communication  by 
teleplione. — See    6   L.   N.   S.   1180. 

Same — Telegrams  left  for  transmission  or  message  delivered, 
as  primary  or  best. — See  8  A.  C.  270. 

General  duties  and  liabilities  of. — See   81   A.   D.   613. 

Imposing  license  fee  for  use  of  streets. — See  1  L.  N.  S.  581. 

Injunctions  against  poles  and  wires  as  public  nuisance. — See 
44   L.   577. 

Injury  to  feelings  as  element  of  damages  for  failure  to  trans- 
mit or  deliver  message. — See  2  L.   767;  9  L.  669;   13  L.   859. 

Law  governing  liability  of  telegraph  company. — See  5  L.  N. 
S.    751. 

Law   of  the   telephone. — See   10   A.   S.    128. 

Liability  of  telegraph  company — For  delivery  of  false,  forged 
or   fraudulent   message. — See    1    A.    C.    578. 

Same — For  failure  to  transmit  telegram. — See  10  L.  515. 

Same — For  frauds  of  fraudulent  messages. — See  1  A.  C.  573; 
5  A.  C.   515. 

Same — For  neglect  to  deliver  telegram. — See  10  L.  515. 

Same — For  receiving  and  sending  libelous  message. — See  9 
A.    C.    695;    9    L.   N.    S.    140. 

Same — For  receiving  and  transmitting  libelous  message. — 
See  9  A.  C.   697. 

Same — For  transmission  or  delivery  of  forged  message. — See 
65   L.    803. 

Same — Sending  message  to  office  after  closing  hours. — See 
53    L.    732. 

Same — To  undisclosed  principal  of  sendee. — See   4  L.  N.  S.   678. 

Limits  for  delivery  of  telegrams. — See   34  L.   431. 

Loss  or  profits  as  element  of  damage  for  breach  of  contract, 
as   to. — See    53   L.    91. 

Mandamus  to  compel  performance  of  duties  of. — See  38  A.  R. 
587;   44  A.   R.   241. 

Measure  of  damage  for  negligence — As  to,  generally,  1  A.  C. 
346;    1   A.    C.    359. 

Same — Failure  to  transmit  money — As  to,  generally,  7  A.  C. 
531. 

Same — Same — ^Measure  of  damages  recoverable  against  com- 
pany for. — See   7  A.   C.   535. 

Same — Liability  of  telegraph  company  for  erroneous  trans- 
mission of  message  announcing  prices  of  market. — See  3  A. 
C.    429. 

Same— Loss  of  professional  fees. — See  5  A.  C.   730. 

Same — Mental  anguish^-Doctrine  of  in  telegraph  cases. — See 
1    A.    C.    355. 

Same- — Same — Conflict  of  laws  as  to  recovery  of. — See  7  A. 
C.    1068. 

361 


§  536  CIVIL  CODE.  [Div.I.Pt.IV. 

Same — Necessity  that  damages  for  failure  to  ti'ansmit  but 
contemplated. — See  1  A.  C.  361;   10  A.  C.  479. 

Same — Right  of  person  whose  name  or  interest  does  not 
appear  on  face  of  telegram  or  otherwise  to  recover  damages 
for.— See  10  A.  C.   648. 

Same — Same — Evidence  of  mental  suffering. — See  2  A.  C.  55; 
10   A.    C.    476. 

Same — Same — Excessive  damages  for. — 'See  1  A.  C.  346. 

Same — Telegram  quoting  selling  price  or  offering  bid. — See 
3   A.   C.    424;    3   A.   C.    712. 

Same — To  deliver  message. — See  7  L.  581;  9  L.  669;  10  L. 
515;    53   L.    738;    63   L.   532. 

Municipal   regulations  of. — See   1   A.   C.   110. 

Necessity  and  sufficiency  of  identification  as  a  foundation  for 
the  admission  of  the  conversation  or  communication  by  tele- 
phone.—See   6   L.  N.   S.    1180. 

Notices  limiting  liability  of  unless  the  message  is  repeated. — 
See    9    A.    R.    149. 

Poles  and  wires — As  additional  burden  in  highway. — See  17 
L.    480;    24   L.    721. 

Same — As  nuisance  in  street  subject  to  municipal  control. — 
See  39  L.   619. 

Same — As  personalty   or  realty. — See   9  A.   C.   1192. 

Same — Injunction  against   as   public   nuisance. — See    44   L.    577. 

Same — In  streets  and  highways  and  across  private  property. — 
See   28  A.   S.   229. 

Privilege  of  using  streets  for  as  contract  within  provision 
impairing  obligations. — See  5  L.   146. 

Right  of  addressee  of  telegram  to  sue  for  failure  to  deliver 
same. — See    2   A.   C.    398. 

Right  of  person  not  mentioned  in  telegram  whose  interest  is 
not  communicated  to  the  company,  to  recover  for  mental  an- 
guish.—See   8  L.   N.   S.    249. 

Right  of  way  of. — See  2  A.  C.   152;   10  A.   C.   464. 

Right  to  damage  against  telegraph  company  for  mental 
anguish  on  account  of  business  affairs.- — See   12  L.  N.  S.  886. 

Right  to  transfer  or  mortgage  privilege  to  use  street  for 
purposes    of. — See    47    L.    87. 

Servitudes,  additional,  when  constitute. — See  106  A.  S.  260. 

Statutes  penalize  negligent  handling  of  telegrams,  as  regula- 
tion  of   interstate   commerce. — See   2   A.   C.    513. 

Statutory  penalty  for  neglect  to  receive  or  transmit  mes- 
sage.— See    7   L.    584. 

Stipulations  in  blanks,  whether  bind  receivers  of  messages. — 
See   61   A.   S.   214. 

Sufficiency  of  message  to  charge  with  notice  of  importance. — 
See    10   L.    515. 

362 


Tit.  VII.]     TELEGRAPHS  AND  TELEPHONES.         §  536 

Telegrams— Admissibility  of  in  evidence  on  behalf  of  person 
receiving  in  reply  to  another. — See  44  L.  438. 

Same — Given   by  telephone. — See   56   L.    745. 

Same — In  writing-  to  make  contract  within  statute  of  frauds. 
— See   50   L.   240. 

Same — Interstate  as  interstate  commerce. — See  24  L.  161. 

Same — Not  written  on  company's  blank. — See  56  L.  741. 

Same — Validity   of   notice   sent  by. — See   61   L.    933. 

Telephone  companies — As  to  legislative  control  of. — See  2  L. 
278;   5  L.   161;   24  L.  161. 

Same — Same — Of  rates  of. — See  33  L.   181. 

Same — As  a  common  carrier,  discriminations. — See  5  L.   161. 

Same — Compulsory  service. — See   15  L.  321. 

Same — Control  over — Foreign  company. — See  13  L.  454;  15 
L.   322;   24  L.   161;   24  L.   311,   327;   33   L.   181. 

Same — Evidence  of  conversation  by. — See  17  L.   440. 

Same — Franchise,  right  in  street,  poles  and  wires. — See  7  L. 
200;   17  L.  480;   24  L.  721;  39  L.  619;   47  L.   87;   50  L.   146;   66  L.   56. 

Same — Same — As  additional  burden  on  easement. — See  7  L. 
200. 

Same — Same — Injvmction  against  poles  and  wires  as  public 
nuisance. — See  44  L.  577. 

Same — Poles  and  wires— As  nuisance  in  street  subject  to 
municipal   control. — See   39   L.   619. 

Same — Same — As  additional  burden  in  highway. — See  17  L. 
480;   24  L.   721. 

Same — Same- — Injunction  against  as  such  nuisance. — See  44 
L.  577. 

Same — Privilege  of  using  street  for  telephone  line,  as  con- 
tract within  provision  impairing  obligations. — See  50  L.  146. 

Same — Rights   of. — See   1   L.   799. 

Same — Same — To  transfer  or  mortgage  privilege  to  street  for 
purposes   of. — See   47   L.    87. 

Same — Statutes  regulating  prices  and  requiring  service  on 
equal   terms   to  all. — See   31   L.    807. 

Same — Telegrams  given  by. — See   56  L.   745. 

Same — Validity  of  notice  sent  by. — See   61  L.   933. 

Time  and  place  of  consummation  of  contract  when  offer  by 
letter  is  accepted  by  telegram,  or  vice  versa. — See  6  L.  N.  S. 
1016. 

Transmission  and  delivery  of  messages — Duty  of  company. — 
See   8  A.   C.    469;    10   A.   C.    855. 

Same — Duty  and  liability  of  telegraph  company  as  to  delivery 
of  message  addressed  to  person  "in  care  of  another." — See  5 
A.   C.    734. 

Same — Place  of  performance. — See  7  A.  C.    1065. 

Same — Time  of  delivery.-— See  8  A.  C.   469. 

363 


§§  537, 538  CIVIL  CODE.  [Div.I,Pt.IV. 

Same — To   hold  delivery  must  be  made. — See  5  A.  C.   730,  734. 

Same — Who  may  recover  for  failure  to  deliver. — See  2  A.  C. 
396. 

Validity  of  limitation  of  liability  of  telegraph  company  for 
unrepeated  messages. — See   11   L.   N.   S.    560. 

Validity  of  stipulation  on  telegraph  blank — Requiring  claim 
for  damages  or  statutory  penalty  to  be  presented  within  cer- 
tain   time. — See    4    A.    C.    613. 

Same-T-Limiting  liability  of  company  unless  message  is  re- 
peated.— See   10  A.  C.   857. 

Whether  are  common  carrier. — See  45   A.  R.   487. 

Who  may  recover  damages  for  delay  in  delivering  telegram. 
— See  9  L.  669. 


§537.  LIABILITY  FOR  DAMAGING  TELEGRAPH  OR 
TELEPHONE  PROPERTY.  Any  person  who  injures  or 
destroys,  through  want  of  proper  care,  any  necessary  or  use- 
ful fixture  of  any  telegraph  or  telephone  corporation,  is  liable 
to  the  corporation  for  all  damages  sustained  thereby.  Any 
vessel  which,  by  dragging  its  anchor,  or  otherwise,  breaks, 
injures,  or  destroys  the  subaqueous  cable  of  a  telegraph  or 
telephone  corporation,  subjects  its  owner  to  the  damages 
hereinbefore  specified. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;   see   introductory   note   to   this   title. 

82  C.  600,  602,  erroneously  cited,  and  in  23  P.  134,  135,  §  331  is 
erroneously  cited  to  take  the  place  of  §  537.  A  corporation 
may  give  credit  for  its  stock  as  well  as  for  any  other  prop- 
erty sold  by  it,  but  there  is  no  lien,  in  this  state,  in  favor  of 
a  corporation,  for  unpaid  instalments  of  subscriptions  for  stock. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

Criminal  prosecution  for  malicious  injury  to  telegraph  lines, 
etc. — See  Kerr's  Cyc.  Pen.  C.  §591  and  note  where  the  authorities 
will    be    found    fully    collected. 

§538.  PENALTY  FOR  WILFULLY  OR  MALICIOUSLY 
INJURING     TELEGRAPH     OR     TELEPHONE     PROPERTY. 

Any  person  who  wilfully  and  maliciously  does  any  injury  to 
any  telegraph  or  telephone  property,  mentioned  in  the  pre- 
ceding section,  is  liable  to  the  corporation  for  one  hundred 

364 


rpi^.   VII.]  DAMAGES    TO   CABLE.  §§539,540 

times  the  amount  of  actual  damages  sustained  thereby,  to  be 
recovered  in  any  court  of  competent  jurisdiction. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdt.s.  190.5,  p. 
492;   see  introductory  note  to  this  title. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

Criminal  prosecution  for  malicious  injury  to  telegraph  lines, 
etc. See  Kerr's  Cyc.  Pen.  C.  §  591  and  note  where  the  authori- 
ties will  be  found  fully  collected. 

§539.  CONDITIONS  ON  WHICH  DAMAGES  TO  SUBA- 
QUEOUS  CABLE  MAY  BE  RECOVEKED.  No  telegraph  or 
telephone  corporation  can  recover  damages  for  the  breaking 
or  injuring  of  any  subaqueous  telegraph  or  telephone  cable, 
unless  such  corporation  has  previously  erected  on  either  bank 
of  the  waters  under  which  the  cable  is  placed,  a  monument, 
indicating  the  place  where  the  cable  lies,  and  publishes  for 
one  month  in  some  newspaper  most  likely  to  give  notice  to 
navigators,  a  notice  giving  a  description  and  the  purpose  of 
the  monuments,  and  the  general  course,  landings,  and  termini 
of  the  cable. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;  see  introductory  note  to  this  title. 

§540.  MAY  DISPOSE  OF  CERTAIN  RIGHTS.  Any  tele- 
graph or  telepl^one  corporation  may  at  any  time,  with  the 
consent  of  the  persons  holding  two-thirds  of  the  issued  stock 
of  the  corporation,  sell,  lease,  assign,  transfer,  or  convey  any 
rights,  privileges,  franchise,  or  property  of  the  corpora- 
tion, except  its  corporate  franchise. 

History:  Enacted  March  20,  1905,  Stats,  and  Amdts.  1905,  p. 
492;    see   introductory   note   to   this  title. 


865 


§  548  CIVIL  CODE.  [Div.I,Pt.IV. 

TITLE  VIII. 

WATER  AND  CANAL  CORPORATIONS. 

§  548.     Corporation  may  obtain  contract  to  supplj-  city  or  town. 
§  549.     Must  furnish  water  for  family  use  upon  demand.     Rules 

may  be  prescribed. 
§550.     Right  to  use  streets,  ways,  alloys,  and  roads    [repealed]. 
§  551.     Construction    of   canal,   etc.      Construction    and   repair    of 

bridges.       Supervisors     may      constrvict     bridges     and 

recover  therefor. 
§  552.     Right  of  purchasers  to  use  water  for  irrigating. 

§548.  CORPOKATION  MAY  OBTAIN  COXTRACT  TO 
SUPPLY  CITY  OR  TOWX.  No  corporation  formed  to  supply 
any  city,  city  and  county,  or  town  with  water  must  do  so 
unless  previously  authorized  by  an  ordinance  of  the  authori- 
ties thereof,  or  unless  it  is  done  in  conformity  with  a  con- 
tract entered  into  between  the  city,  city  and  countJ^  or  town 
and  the  corporation. 

[Reiriilatiiif;  rates — Term  of  g:rant.]  Contracts  so  made  are 
valid  and  binding  in  law,  but  do  not  take  from  the  city,  city 
and  county,  or  town  the  right  to  regulate  the  rates  for  water, 
nor  must  any  exclusive  right  be  granted.  No  contract  or 
grant  must  be  made  for  a  term  exceeding  fifty  years. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  May 
3,   1852,  Stats.   1852,   p.    171. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 
As    to    many   miscellaneous    matters    as    to    corporations    gen- 
erally,  see   note   §  283,   ante. 

WATER  COMPANIES  IN  GENERAL. 

Acquisition  of  water  supply  by  right  of  eminent  domain. — 
See  58  L.  240. 

As  appurtenances. — See   15  L.   653. 

Compelling  property  owner  to  pay  for  water  furnished  to 
former  occupant  of  premises. — See  1  L.  N.  S.   771. 

Compulsory  service. — See  15  L.  322. 

Consumer's  right  to  maintain  suit  to  compel  water  company 
to  furnish  water  at  rates  stipulated  in  contract  with  municipal- 
ity.—See  1  L.  N.  S,  956. 

366 


II 


Tit.  VIII.]  WATER    COMPANIES.  §  548 

Effect  of  limitation  of  municipal  indebtedness  upon  the 
acquisition   of  water  supply. — See  59  L.  604. 

Establishment  and  regulation  of  municipal  water  supply. — 
See   61  L.  34-119. 

Exclusiveness  of  right  of  water  company. — See  9  L.   195. 

Injunction  by  municipality  against  water  company  for  main- 
taining nusiance. — See  42  L.   821. 

Laying  water  mains  at  expense  of  abutting  property. — See 
3  L.  N.  S.   817. 

Legislative   regulation   of  rates. — See   33  L.    181. 

Liability — Of  landlord — As  to  water  pipes  and  water  supply 
on  leased  premises. — See  23  L.   160. 

Same — Same — For  injuries  caused  by  water  brought  upon 
premises. — See  7  A.  C.  1015. 

Same — Same — Tenant  for  injuries  caused  by  water  brought 
upon  premises. — See  10  A.  C.  257. 

Same — Of  municipality — For  change  of  street  grade,  in 
absence  of  statute  allowing  compensation,  but  under  constitu- 
tional provisions  against  "damaging"  property. — See  10  A.  C. 
849. 

Same — Same — ^For  failure  to  organize  and  regulate  water 
works. — See   11  L.  729. 

Same — Same — To  water  company  for  interfering  with  pipe  in 
making  public  improvements. — See  6  A.  C.  388;  8  A.  C.  1021. 

Liability — For  loss  by  Are  due  to  the  lack  of  adequate  water 
supply.— See  23  L.  147. 

Same — In  tort  for  loss  to  one  sustaining  no  contract  relation 
with  it,  by  its  failure  to  comply  with  its  contract  with  the 
municipality. — See   6   L.  N.   S.   1171. 

Same — Under  contract  with  municipality  for  fire  loss  sus- 
tained by  private  citizens. — See   2  A.  C.   579;   9  A.  C.   1070. 

Mandamus  to  compel  water  company  to  supply  individual 
applicant  with  water  at  reasonable  rates. — See  1  L.  N.  S.  963. 

Municipal  regulation  of  water  pipes  in  highway. — See  10  A. 
C.    1098,   1100. 

Pipe-line  as  additional  servitude  upon  highway. — See  9  A.  C. 
1030,    1033;    17   L.   480. 

Privilege  of  laying  water  pipes  and  mains  in  streets  as  a 
contract  within  provision  against  impairing  obligation  of  con- 
tract.— See    50   L.    145. 

Property  of  company  as  real  estate  for  purposes  of  taxation. — 
See    15   L.    299. 

Right  of  private  consumer  to  enforce  contract  of  munici- 
pality  with   water   company. — See   5  A.   C.   507. 

Right  of  water  company  as  against  municipality  interfering 
with   pipes  in  making  public  improvements. — See  6  A.  C.   390. 

Right  to  stop  supply  of  water  for  default  of  payment. — See 
14  L.  669. 

367 


§  549  CIVIL  CODE.  [Div.I.Pt.IV. 

Statutory  protection  for  water  used  for  supplying  munici- 
pality.—See  41  L.  177. 

Taxation  of  water  company  belonging  to  municipality. — See 
1  L.  N.  S.  766. 

Validity  of  statute  holding  property  owner  liable  for  water 
furnished  tenant. — ^See  6  L.  N.  S.  198. 

Validity  of  statute,  ordinance  or  regulation  making  owner 
of  premises  liable  for  water  furnished  to  tenant  or  former 
owner.— See  7  A.  C.   1017. 

Water-rates — As  taxes. — See   21   L.    519. 

Same — As  taxes  or  rates  w^itliin  meaning  of  covenant  in  lease. 
—See   8  A.  C.   111. 

Same — Grant  of  franchise  upon  condition  as  to  price  at  which 
water  shall  be  supplied  not  exceeding  a  specific  rate,  valid. — 
See   5   A.   C.   504;    8   A.   C.   1130. 

What  are  dwellings  within  the  meaning  of  the  water  com- 
pany's obligation  to  supply  water  at  specified  rates  for  dwelling. 
—See    11    L.    N.    S.    613. 

What  may  be  covered  by  contract  of  water  supply. — See  15  L. 
268. 


§549.  MUST  FIKMSH  WATER  FOR  FA3IIL\  USE  UPON 
DEMAND.  RULES  3IAY  BE  PRESCRIBED.  All  corpora- 
tions formed  to  supply  water  to  cities  or  towns  must  furnish 
pure  fresh  water  to  the  inhabitants  thereof,  for  family  uses, 
so  long  as  the  supply  permits,  at  reasonable  rates  and  with- 
out distinction  of  persons,  upon  proper  demand  therefor; 
and  must  furnish  water  to  the  extent  of  their  means,  in  case 
of  fire  or  other  great  necessity,  free  of  charge.  The  board 
of  supervisors,  or  the  proper  city  or  town  authorities,  may 
prescribe  proper  rules  relating  to  the  delivery  of  water,  not 
inconsistent  with  the  laws  of  the  state. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  April 
22,  1858,  Stats.  1858,  p.  219;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.  216;  amended  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  375,  held  unconstitutional, 
see  history,  §  4  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.   1905,  p.   580. 

See  Kerr's  Cyc.  C.  C.  for  117  pars,  annotation. 

52  C.  13-2,  134  (cited  in  discussion),  141  (construed  and 
applied);  152  C.  579,  588,  93  P.  490,  491  (persons  to  whose  use 
water  is  appropriated  or  dedicated  are  vested  with  a  right  to 
have    the    supply    continued). 

368 


I 


Tit  VITI.]  CONSTRUCTION   OF   CANAL.  §§550,551 

As   to   assumption    of  public   duty   by   water   company,   see    63 

A.  S.  844. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

As  to  right  of  irrigation  company  to  refuse  to  supply  and 
shut  off  water,  see  Kerr's  Cyc.  C.  C.  §  552  and  note. 

As  to  right  of  water  company  to  enforce  rules,  see  63  A. 
S.    844. 

§  550.  RIGHT  TO  USE  STREETS,  WAYS,  ALLEYS,  AND 
ROADS   (repealed). 

History:  Enacted  March  21,  1872;  repealed  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  375,  held 
unconstitutional,  see  history,  §  4  ante;  re-repealed  March  21, 
1905,  Stats,  and  Amdts.   1905,   p.   580. 

See  Kerr's  Cyc.   C.   C.   for   12   pars,  annotation. 

152  C.  579,  588,  93  P.  490,  491  (persons  to  whose  use  water 
is  appropriated  or  dedicated  are  vested  with  a  right  to  have 
the    supply    continued). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

§55L  CONSTRUCTION  OF  CANAL,  ETC.  CONSTRUC- 
TION AND  REPAIR  OF  BRIDGES.  SUPERVISORS  MAY 
CONSTRUCT  BRIDGES  AND  RECOVER  THEREFOR.  No 

canal,  flume,  or  other  appliance  for  the  conducting  of  water 
must  be  so  laid,  constructed,  or  maintained  as  to  obstruct 
any  public  highway;  and  every  person  or  corporation  owning, 
maintaining,  operating,  or  using  any  such  canal,  flume,  or 
appliance,  crossing  or  running  along  any  public  highway, 
must  construct,  maintain,  and  keep  in  repair  such  bridges 
across  the  same  as  may  be  necessary  to  the  safe  and  conven- 
ient use  of  such  highway  by  the  public;  and  on  failure  so  to 
do,  the  board  of  supervisors  of  the  county,  after  seven  days' 
notice  in  writing  to  said  person  or  corporation,  may  construct 
or  repair  such  bridge  or  bridges,  and  recover  of  such  person 
or  corporation  the  amount  of  the  expenditure  made  in  so 
doing.  , 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  May 
14,  1862,  Stats.  1862,  p.  541;  amended  March  21,  1905,  Stats,  and 
Amdts.   1905,  pp.   580-581. 

369 


§  552  CIVIL  CODE.  [Div.I.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

68  C.  359,  360,  9  P.  309  (has  not  been  repealed  by  §  2737 
Pol.  C);  98  C.  179,  183,  32  P.  943  (cited  in  discussion);  152  C. 
579,  588,  93  P.  490,  491  (persons  to  whose  use  water  is  appro- 
priated or  dedicated  are  vested  with  a  right  to  have  the 
supply   continued). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see   note    §  283,   ante. 


§552.  KK^HT  OF  rURCHASERS  TO  USE  WATER  FOR 
IRRIGATING.  Whenever  any  corporation,  organized  under 
the  laws  of  this  state,  furnishes  water  to  irrigate  lands  which 
said  corporation  has  sold,  the  right  to  the  flow  and  use  of 
said  water  is  and  shall  remain  a  perpetual  easement  to  the 
land  so  sold,  at  such  rates  and  terms  as  may  be  established 
by  said  corporation  in  pursuance  of  law. 

[Person  funiisbin^  water  entitled  to  continuance,  when.] 
And  whenever  any  person  who  is  cultivating  land  on  the 
line  and  within  the  flow  of  any  ditch  owned  by  such  corpora- 
tion, has  been  furnished  water  by  it,  with  which  to  irrigate 
his  land,  such  person  shall  be  entitled  to  the  continued  use 
of  said  water,  upon  the  same  terms  as  those  who  have  pur- 
chased their  land  of  the  corporation. 

History:  Enacted  April  3,  1876,  Code  Amdts.  1875-6,  p.  77. 
In   effect  April   3,   1876. 

See  Kerr's  Cyc.  C.  C.  for  29  pars,  annotation. 

56  C.  431,  440,  441  (construed  and  applied);  90  C.  27a,  286,  27 
P.  216,  219  (construed  and  applied  with  §801);  112  C.  426, 
434,  435,  436,  44  P.  720  (construed  and  applied);  129  C.  437,  448,  62 
P.  87  (construed);  130  C.  309,  313,  62  P.  562,  1058  (cited  as  to 
duty  of  irrigation  company  to  supply  water  to  previous  cus- 
tomers); 2  C.  A.  404,  413,  84  P.  342  (what  conditions  must  exist 
before  companies  can  be  compelled  to  supply  water);  152  C.  579, 
588,  93  P.  490,  491  (persons  to  whose  use  water  is  appropriated  or 
dedicated  are  vested  with  a  right  to  have  the  supply  con- 
tinued); 152  C.  596,  597,  93  P.  498  (right  to  receive  water  is 
appurtenant  to  land  when);  86  F.  975,  976  (no  land  is  appur- 
tenant to  water  rights,  when);  97  F.  394,  396,  398  (applied 
where  appellee  had  acquired  a  public  use  to  water  necessary 
to  irrigate  his  lands). 

As  to  contract  as  to  rates,  see  Kerr's  Cyc.  C.  C.  §  552 
note   pars.    19-22. 

370 


I 


Tit.  VIII.]  PURCHASE  AND  USE  OF  WATER.  |  552 

As  to  duty  of  company  to  furnish  water  for  irrigation,  see 
81   A.   S.    488,    492. 

As  to  entire  diversion  for  irrigation  purposes,  see  98  A. 
D.    543. 

As  to  many  miscellaneous  inatters  as  to  corporations  gen- 
erally,   see   note    §  283,   ante. 

As  to  irrigation,  see  17  Encyc.  L.  485. 

As  to  liability  of  company  for  failure  to  supply,  see  81 
A.    S.    488-492. 

As  to  mandamus  to  compel  furnishing  of  water  for  irrigation, 
see   81   A.   S.    488. 

As  to  necessity  of  written  contract,  see  Kerr's  Cyc.  C.  C. 
§  552,  note  pars.  13,  14. 

As  to  right  of  riparian  proprietor  to  divert  for  irrigation 
purposes,  see  98  A.  D.   543. 

As  to  right  to  contract  as  to  rates,  see  Kerr's  Cyc.  C.  C. 
§  552,  note   pars.    19-22. 

Parties  entitled  to  use,  see  Kerr's  Cyc.  C.  C.  §  552,  note 
par.    16   this   note. 

Purchaser. — .See  Kerr's  Cyc.  C.  C.  §  552,  note  pars.  22,  25  this 
note. 

As  to  what  is  reasonable  use  for  irrigation  purposes,  see 
98   A.   D.   543. 


371 


§§  557, 558  CIVIL  CODE.  [Div.I.Pt.IV. 

TITLE  IX. 
HOMESTEAD  CORPORATIONS. 

§  557.     Time   of  corporate   existence. 

§  558.  By-laws  must  specify  time  for  and  amount  of  payment 
of  instalments,  and  penalty  for  failure  to  pay.  By- 
laws to  be  furnislied  to  any  member  on  demand. 

§  559.  Advertisement  and  sale  of  delinquent  and  forfeited 
shares. 

§  560.     May  borrow  and  loan  funds,  how,  and  for  what  time. 

§  561.  Minor  children,  wards,  and  married  women  may  own 
stock. 

§  562.  Forfeiture  for  speculating  in  or  owning  lands  exceeding 
two   hundred   thousand   dollars. 

§  563.      When   corporation   is  terminated,  and   how. 

§  564.     Payment  of  premiums. 

§  565.      Annual    report  to   be   published. 

§  566.     Publication  in  certain  cases. 

§  557.  TIME  OF  t  OKPORATE  EXISTENCE.  Corporations 
organized  for  the  purpose  of  acquiring  lands  in  large  tracts, 
paying  off  encumbrances  thereon,  improving  and  subdividing 
them  into  homestead  lots  or  parcels,  and  distributing  them 
among  the  shareholders,  and  for  the  accumulation  of  a  fund 
for  such  purposes,  are  known  as  homestead  corporations,  and 
must  not  have  a  corporate  existence  for  a  longer  period  than 
ten  years. 

History:  Enacted  March  21,  1872,  founded  upon  §§  1,  3,  Act 
May  20,  1861,  Stats.  1861,  p.  567;  §  1  Act  March  30,  1868,  Stats. 
1867-8,   p.   539. 

§558.  BY-LAWS  MUST  SPECIFY  TIME  FOR  AND 
AMOUNT  OF  PAYMENT  OF  INSTALMENTS,  AND  PENALTY 
FOR  FAILURE  TO  PAY.  BY-LAWS  TO  BE  FURNISHED 
TO  ANY  MEMBER  ON  DEMAND.  Such  corporations  must 
specify  in  their  by-laws  the  time  when  the  instalments  of  the 
capital  stock  are  payable,  the  amount  thereof,  and  the  fines, 
penalties,    or    forfeitures    incurred    in    case    of    default.     A 

372 


Tit.  IX.]  DELINQUENT,   ETC.,   SHARES.  §§  559^  56O 

printed    copy    of   the    articles    of    incorporation    and    by-laws 
must  be  furnished  to  any  shareholder  on  demand. 
History:     Enacted  March   21,   1872. 

§559.  ADVERTISEMENT  AND  SALE  OF  DELINQUENT 
AND  FORFEITED  SHARES.  Whenever  any  shares  of  stock 
are  declared  forfeited  by  resolution  of  the  board  of  directors, 
the  directors  may  advertise  the  same  for  sale,  giving  the 
name  of  the  subscriber  and  the  number  of  shares,  by  notice 
of  not  less  than  three  weeks,  published  at  least  once  a  week 
in  a  newspaper  of  general  circulation  in  the  city,  town,  or 
county  where  the  principal  place  of  business  of  such  corpo- 
ration is  located.  Such  sale  must  be  made  at  auction,  under 
the  direction  of  the  secretary  of  the  company.  The  corpora- 
tion may  be  a  bidder,  and  the  shares  must  be  disposed  of  to 
the  highest  bidder  for  cash.  No  defect,  informality,  or  irreg- 
ularity in  the  proceedings  respecting  the  sale  invalidates  it, 
if  notice  is  given  as  herein  provided.  After  the  sale  is  made 
the  secretary  must,  on  receipt  of  the  purchase  money,  trans- 
fer to  the  purchaser  the  shares  sold,  and  after  deducting  from 
the  proceeds  of  such  sale  all  instalments  then  due,  and  all 
expenses  and  charges  of  sale,  must  hold  the  residue  subject 
to  the  order  of  the  delinquent  subscriber. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  May 
20,  1861,  Stats.  18fil,  p.  268,  as  amended  April  4,  1864,  Stats. 
1863-4,  p.  492,  as  amended  by  §  2  Act  March  30,  1868,  Stats. 
1867-8,  p.   540. 

§560.  MAY  BORROW  AND  LOAN  FUNDS,  HOW,  AND 
FOR  WHAT  TIME.  Homestead  corporations  may  borrow 
money  for  the  purposes  of  the  corporation,  not  exceeding  at 
any  one  time  one-fourth  of  the  aggregate  amount  of  the 
shares  or  parts  of  shares  actually  paid  in,  and  the  income 
thereof;  no  greater  rate  of  interest  must  be  paid  therefor 
than  twelve  per  cent  per  annum.  For  the  purpose  of  complet- 
ing the  purchase  of  lands  intended  to  be  divided  and  distrib- 
uted, they  may  borrow  on  the  security  of  their  shares  on  the 
land  thus  purchased,  or  that  owned  by  the  corporation  at  the 

373 


§§  561,  562  CIVIL  CODE.  [Div.I.Pt.IV. 

time  of  procuring  the  loan,  any  sum  of  money  which,  together 
with  the  interest  contracted  to  become  due  thereon,  will  not 
exceed  ninety  per  cent  of  the  unpaid  amount  subscribed  by 
the  shareholders;  but  no  loan  must  be  made  to  the  corpora- 
tion for  a  term  extending  beyond  that  of  its  existence. 

History:  Enacted  March  21,  1872,  founded  upon  §  5  Act  May 
20,  1861,  Stats.  1861,  p.  569,  as  amended  Act  March  29,  1870, 
Stats.   1869-70,   p.    474. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see   note    §  283,   ante. 

§561.  MI\<)1{  nilLDKEX,  WAKDS,  A>D  MARRIED 
>y()ME>'  MAY  ()»■>■  STOCK.  Such  shares  of  stock  in  home- 
stead cor])orations  as  may  be  acquired  by  children,  the  cost 
of  which,  and  the  deposits  and  assessments  on  which  are  paid 
from  the  personal  earnings  of  the  children,  or  with  gifts 
from  persons  other  than  their  male  parents,  may  be  taken 
and  held  for  them  by  their  parents  or  guardians.  Married 
woiMon  may  hold  such  shares  as  they  acquire  with  their  per- 
sonal earninjjs,  or  those  of  their  children,  voluntarily  bestowed 
therefor,  or  from  property  bequeathed  or  given  to  them  by 
persons  other  than  their  husbands. 

Hi.«itory:  Enacted  March  21,  1872,  founded  upon  §  6  Act  May 
20,  1861,  Stats.   1861,  p.   567. 

§562.  FORFEITIRE  FOR  SPECILATING  I>  OR  OWN- 
ING LANDS  EXCEEDING!  TWO  HUNDRED  THOUSAND 
DOLLARS.  Homestead  corporations  must  not  purchase  and 
sell,  or  otherwise  acquire  and  dispose  of  real  property,  or  any 
interest  therein,  or  any  personal  property,  for  the  sole  pur- 
pose of  speculation  or  profit.  Nor  must  any  such  corporation 
at  any  one  time  own  or  hold,  in  trust  or  otherwise,  for  its 
purposes,  real  property,  or  any  interest  therein,  which  in 
the  aggregate  exceeds  in  cash  value  the  sum  of  two  hundred 
thousand  dollars. 

[Penalty  for  violation.]  For  any  violation  of  the  provis- 
ions of  this  section,  corporations  forfeit  their  corporate  rights 

374 


I 


rpj^jX]  TERMINATION— PREMIUMS.  §§563,564 

and  powers.  On  the  application  of  any  citizen  to  a  court  of 
competent  jurisdiction  such  forfeiture  may  be  adjudged,  and 
the  judgment  carries  with  it  costs  of  the  proceedings. 

History:     Enacted  March   21,  1872. 

§563.    >VHEN    COKPORATIOX    IS    TERMINATED,    AND 
HOW.     Except  for   the   purpose   of   winding  up   and   settling 
its   affairs,   every   homestead   corporation   must   terminate   at 
the  expiration  of  the  time  fixed  for  its  existence  in  the  arti- 
cles of  incorporation,  or  when  dissolved  as  provided  in  this 
part.     No  dividend  of  funds  must  be  made  on  termination  of 
its  corporate  existence,  until  its  debts  and  liabilities  are  paid; 
and  upon  the  final  settlement  of  the  affairs  of  the  corpora-, 
tion,  or  upon  the  termination  of  its  corporate  existence,  the 
directors,  in  such  manner  as  they  may  determine,  must  divide 
its   property   among-  its   shareholders  in   proportion  to  their 
respective   interests,   or,   upon   the   application  of   a  majority 
in  interest  of  the  stockholders,  must  sell  and  dispose  of  any 
or  all  of  the  real  estate  of  the  corporation  upon  such  terms 
as  may  be  most  conducive  to  the  interests  of  all  the  stock- 
holders, and  must  convey  the  same  to  the  purchaser,  and  dis- 
tribute the  proceeds  among  the  shareholders,  or  may  at  any 
time    when   best   for    the    interests    of    all    the    shareholders, 
cause  the  lands  of  the  corporation  to  be  subdivided  into  lots 
and  distributed,  by  sale  for  premiums,  at  auction  or  other- 
wise, among  the  shareholders. 

HUtorr:  Enacted  March  21,  1872,  founded  upon  §  7  Act  May 
20,  1861.  Stats.  1861,  p.  569;  §  1  Act  March  29,  1870,  Stats.  1869--0. 
p.   474. 

§  564.  PAYMENT  OF  PREMIUMS.  Such  premiums  on  lots 
may  be*  made  payable  at  the  time  they  are  bid  off,  and,  if  not 
so  paid  on  any  lot  of  land,  the  directors  may  immediately  offer 
the  same  for  sale  again.  If  made  payable  at  a  future  day. 
and  any  shareholder  fails  to  pay  his  bid  on  the  day  the 
same  is  made  due  and  payable,  the  directors  may  advertise 
and  sell  the  shares  of  stock  representing  the  lots  of  land  on 
which  the  premiums  remain  unpaid,  in  the  manner  provided 

375 


§§  565, 566  CIVIL  CODE.  [Div.T,Pt.IV. 

in  the  by-laws  for  the  sale  of  shares  on  account  of  delinquent 
instalments  and  premiums. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  March 
29,    1870,   Stats.    1869-70,   p.    474. 

§565.  ANNUAL  KEPOKT  TO  BE  PUBLISHED.  The  act- 
ual financial  condition  of  all  homestead  corporations  must, 
by  the  directors  thereof,  be  published  annually  in  the  [a] 
newspaper  published  at  the  principal  place  of  business  of  the 
corporation,  for  four  weeks,  if  published  in  a  weekly,  and 
two  weeks,  if  published  in  a  daily.  The  statement  must  be 
made  up  to  the  end  of  each  year,  and  must  be  verified  by  the 
oath  of  the  president  and  secretary,  showing  the  items  of 
property  and  liabilities. 

History:  Enacted  March  21,  1872,  founded  upon  §  8  Act  May 
20,   1861,  Stats.  1861.  p.   569. 

§566.    PUBLICATION  IN  CERTAIN  CASES.     In  any  case 
in  which  a  publication  is  required,  and  no  newspaper  is  pub- 
lished at  the  principal  place  of  business,  the  publication  may 
be  made  in  a  paper  published  in  an  adjoining  county. 
History:     Eaacted  March   21,  1872. 


376 


d 


Tit.  X.]  SAVINGS    AND    LOAN.  §  571 

TITLE   X. 
SAVINGS  AND  LOAN  CORPORATIONS. 

§  571.     May  loan  money,  on  what  terms,  how,  and  to  whom,  and 

how  long. 
§  572.     Capital  stock,  and  rights  and  privileges  thereof. 
§  573.     No   dividends,   except   from   surplus   profits.      To   contract 

no  liability,  except  for  deposits. 
§  574.     Property    which    may    be    owned    by    corporation.      What 

may  not  hold,  etc. 
§  575.     Married  women  and  minors  may  own  stock  in   their  own 

right. 
§  576.     May    issue    transferable    certificates    of    deposit.      Special 

certificates. 
§  577.     To  provide  a  reserve  fiind  for  the  payment  of  losses. 
§  578.     Prohibition    on    director    and    officer,    and    what    vacates 

office.  • 

§  579.      Definition   of  phrase   "create  debts." 

§  580.     Banks,   amount   of   capital   stock    required    [repealed]. 
§  581.     Restrictions  on  savings  banks. 
§  582.      True  names  of  persons  engaged  in  banking  business  must 

be  shown. 
§  583.     Dividends.     Surplus  funds. 

§  583a.  Capital   actually  paid  up  must  be  published. 
§  583b.  Biennial    report    to    bank    commissioners    of    unclaimed 

deposits. 

§  571.  MAT  LOAN  MONET,  ON  WHAT  TERMS,  HOW,  AND 
TO  WHOM,  AND  HOW  LONG.  Corporations  organized  for 
the  purpose  of  accumulating  and  loaning  the  funds  of  their 
members,  stockholders,  and  depositors,  may  loan  and  invest 
the  funds  thereof,  receive  deposits  of  money,  loan,  invest, 
and  collect  the  same,  with  interest,  and  may  repay  depositors 
with  or  without  interest.  No  such  corporation  must  loan 
money,  except  on  adequate  security  on  real  or  personal  prop- 
erty, and  such  loan  must  not  be  for  a  longer  period  than  ten 
years. 

History:  Enacted  March  21,  1872,  founded  upon  §§  4,  5  Act 
April  11,  1862,  Stats.  1862,  p.  199,  as  amended  Act  April  12, 
1864,  Stats.  1863-4,  p.  158;  amended  March  15,  1901,  Stats,  and 
Amdts.   1900-1,   p.   295.      In   force  March   15,   1901. 

377 


/ 


§§572,573  CIVIL  CODE.  [Div.I,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

64  C.  117,  123,  28  P.  110,  112  (referred  to);  97  C.  214, 
222,  32  P.  3  (section  expressly  authorizes  what);  126  C. 
413,  415,  58  P.  914  (distinction  between  "loan"  and  "invest"); 
136  C.  432,  442,  89  A.  S.  153,  64  P.  692,  69  P.  77  (loans  must  be  on 
adequate  security). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 


§  572.  CAPITAL  STOCK,  AND  RIGHTS  AND  PRIVILEGES 
THEREOF.  When  savings  and  loan  corporations  have  a 
capital  stock  specified  in  their  articles  of  incorporation,  cer- 
tificates of  the  ownership  of  shares  may  be  issued;  and  the 
rights  and  privileges  to  be  accorded  to,  and  the  obligations 
to  be  imposed  upon,  such  capital  stock,  as  distinct  from 
those  of  depositors,  must  be  fixed  and  defined,  either  in  the 
articles  of  incorporation  or  jn  the  by-laws. 

History:  Enacted  March  21,  1872,  founded  upon  §  17  Act 
April  11,  1862,  Stats.   1862,  p.   203. 

See  Kerr's  Cyc.  C.  C.   for  6  pars,  annotation. 

64  C.  117,  123,  28  P.  110,  112  (referred  to);  109  C.  396,  401,  42  P. 
149  (construed  and  applied);  117  C.  157,  160,  162,  59  A.  S.  162 
48  P.   1090,   37  L.   619    (referred  to  in  discussion). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§  573.  NO  DIVIDENDS,  EXCEPT  FROM  SURPLUS  PROF- 
ITS. TO  CONTRACT  NO  LIABILITY,  EXCEPT  FOR  DEPOS- 
ITS.  The  directors  of  savings  and  loan  corporations  may, 
at  such  times  and  in  such  manner  as  the  by-laws  prescribe, 
declare  and  pay  dividends  of  so  much  of  the  profits  of  the 
corporation,  and  of  the  interest  arising  from  the  capital  stock 
and  deposits,  as  may  be  appropriated  for  that  purpose  under 
the  by-laws  or  under  their  agreements  with  depositors. 

The  directors  must  not  contract  any  debt  or  liability  against 
the  corporation  for  any  purpose  whatever,  except  for  depos- 
its. The  capital  stock  and  the  assets  of  the  corporation  are  a 
security  to  depositors  and  stockholders,  depositors  having 
the  priority  of  security  over  the  stockholders,  but  the  by-laws 

378 


Tit.  X.]  PROPERTY  MAY  OWN  AND  HOLD.  §  574 

may  provide  that  the  same  security  shall  extend  to  deposits 
made  by  stockholders. 

History:  Enacted  March  21,  1872,  founded  upon  §  10,  Act 
April  11,  1862,  Stats.  1862,  p.  201,  as  amended  Act  March  4, 
1870,  Stats.  1869-70,  p.   130. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 
64   C.   117,   123,   28   P.    110,   112    (referred  to   with   other  sections); 
109    C.    396,    401,   42    P.    149    (construed   and   applied);    117    C.    157, 
160,    59   A.   S.    162,    48   P.    1090,    37   L.    619    (referred   to   with    other 
sections);  119  C.  334,  343,  51  P.  317   (construed). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§  574.  PROPERTY  >VHICH  MAY  BE  0>Y>ED  BY  CORPO- 
RATION. WHAT  MAY  NOT  HOLD,  ETC.  Savings  and  loan 
corporations  may  purchase,  hold  and  convey  real  and  personal 
property  as  follows: 

1.  The  lot  and  building  iu  which  the  business  of  the  corpo- 
ration is  carried  on,  the  cost  of  which  must  not  exceed  one' 
hundred  thousand  dollars;  except,  on  a  vote  of  two-thirds  of 
the  stockholders  the  corporation  may  increase  the  sum  to  an 
amount  not  exceeding  two  hundred  and  fifty  thousand  dol- 
lars ; 

2.  Such  as  may  have  been  mortgaged,  pledged  or  conveyed 
to  it  in  trust,  for  its  benefit  in  good  faith,  for  money  loaned 
in  pursuance  of  the  regular  business  of  the  corporation; 

3.  Such  as  may  have  been  purchased  at  sales  under  pledges, 
mortgages  or  deeds  of  trust  made  for  its  benefit,  for  money 
so  loaned,  and  such  as  may  be  conveyed  to  it  by  borrowers 
in  satisfaction  and  discharge  of  loans  made  thereon; 

4.  No  such  corporation  must  purchase,  hold  or  convey  real 
estate  in  any  other  case  or  for  any  other  purpose;  and  all 
real  estate  described  in  subdivision  three  of  this  section  must 
be  sold  by  the  corporation  within  ten  years  after  the  title 
thereto  is  vested  in  it  by  purchase  or  otherwise; 

5.  No  such  corporation  must  purchase,  oivn,  or  sell  per- 
sonal property,  except  such  as  may  be  requisite  for  its  imme- 
diate accommodation  for  the  convenient  transaction  of  its 
business,  mortgages  on  real  estate,  bonds,   securities  or  evi- 

379 


§  575  CIVIL  CODE.  [Div.I.Pt.IV. 

dences  of  indebtedness,  public  or  private,  gold  and  silver 
bullion  and  United  States  mint  certificates  of  ascertained 
value  and  evidences  of  debt  issued  by  the  United  States; 

6.  No  such  corporation  must  purchase,  hold  or  convey 
bonds,  securities  or  evidences  of  indebtedness,  public  or  pri- 
vate, except  bonds  of  the  United  States,  of  the  state  of  Cali- 
fornia, and  of  the  counties,  cities,  or  cities  and  counties,  or 
towns,  or  school  districts  of  the  state  of  California,  or  bonds 
of  railroad  or  street-railroad  corporations  owning  property 
and  having  their  principal  place  of  business  in  the  state  of 
California,  unless  such  corporation  has  a  capital  stock  or 
reserve  fund  paid  in  of  not  less  than  one  hundred  thousand 
dollars. 

History:  Enacted  March  21,  1872,  founded  upon  §  13  Act 
April  n,  1862,  Stats.  1862,  p.  202,  as  amended  by  Act  March 
12,  1864,  Stats.  1863-4,  p.  158,  and  by  Act  March  31,  1866,  Stats. 
1865-6,  p.  626;  amended  March  30,  1874,  Code  Amdts.  1873-4,  p. 
.273;  amended  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  375,  held  unconstitutional,  see  history, 
§  4  ante;  amended  March  23,  1901,  Stats,  and  Amdts.  1900-1, 
p.  659.     In  force  March   23,  1901. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

64  C.  117,  123,  28  P.  110,  112  (referred  to  with  other  sections); 
109  C.  396,  401,  42  P.  149  (referred  to  with  other  sections);  117 
C.  157,  160,  59  A.  S.  162,  48  P.  1090,  37  L.  619  (referred  to  with 
other  sections);  126  C.  413,  416,  417,  58  P.  914  (subds.  4,  5  con- 
strued and  applied);  133  C.  611,  613,  85  A.  S.  225,  65  P.  1078 
(subds.  3,  4  construed);  136  C.  432,  442,  89  A.  S.  153,  64  P.  692, 
69  P.  77  (subd.  6  construed  with  §571);  149  C.  122,  124,  84  P. 
835  (subd.  4  of  section  applied);  3  C.  A.  706,  710,  86  P.  991 
(referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§575.  MAERIED  WOMEN  AND  MINORS  MAY  OWN 
STOCK  IN  THEIR  OWN  RIGHT.  Married  women  and  min- 
ors may,  in  their  own  right,  make  and  draw  deposits  and 
draw  dividends,  and  give  valid  receipts  therefor. 

History:  Enacted  March  21,  1872,  founded  upon  §§  14,  15  Act 
April  11,  1862,  Stats.  1862,  p.  202,  as  amended  Act  March  12, 
1864,  Stats.  1863-4,  p.  160,  and  amendatory  Act  March  4,  1870, 
Stats.    1869-70,   p.    132. 

380 


Tit.  X.]  CERTIFICATES — RESERVE.  §§576,577 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

64  C.  117,  123,  28  P.  110,  112  (referred  to  with  other  sections); 
117  C.  157,  16.0,  59  A.  S.  162,  48  P.  1090,  37  L.  619  (referred  to 
with  other  sections);  134  C.  403,  405,  66  P.  569  (construed  and 
applied). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Separate  property  of  wife  in  deposits. — See  Kerr's  Cyc.  C. 
C.  §  164  and  note  pars.  18-20. 

§  576.  MAY  ISSUE  TRA^fSFERABLE  CERTIFICATES  OF 
DEPOSIT.  SPECIAL  CERTIFICATES.  Savings  and  loan 
corporations  may  issue  general  certificates  of  deposit,  which 
are  transferable,  as  in  other  cases,  by  indorsement  and  deliv- 
ery; may  issue,  when  requested  by  the  depositor,  special 
certificates,  acknowledging  the  deposit  by  the  person  therein 
named  of  a  specified  sum  of  money,  and  expressly  providing 
on  the  face  of  such  certificate  that  the  sum  so  deposited  and 
therein  named  may  be  transferred  only  on  the  books  of  the 
corporation;  payment  thereafter  made  by  the  corporation  to 
the  depositor  named  in  such  certificate,  or  to  his  assignee 
named  upon  the  books  of  the  corporation,  or,  in  case  of 
death,  to  the  legal  representative  of  such  person,  of  the  sum 
for  which  such  special  certificate  was  issued,  discharges  the 
corporation  from  all  further  liability  on  account  of  the 
moneys  so  paid. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act 
March   28,   1868,   Stats.    1867-8,  p.    459. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

64  C.  117,  123,  28  P.  110,  112  (referred  to  with  other  sections); 
109  C.  396,  403,  42  P.  149  (construed  and  applied);  117  C.  157,  160, 
59  A.  S.  162,  48  P.  1090,  37  L.  619  (referred  to  with  other  sec- 
tions); 119  C.  334,  341,  51  P.  317  (construed  and  applied); 
136  C.   510,   512,   69  P.   257    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§577.  TO  PROVIDE  RESERVE  FUND  FOR  THE  PAT- 
MEKT  OF  LOSSES.  Savings  and  loau  corporations  may  pre- 
scribe by  their  by-laws  the  time  and  conditions  on  which 
repayment  is  to  be  made  to  depositors;   but  whenever  there 

381 


§  578  CIVIL  CODE.  [Div.I.Pt.IV. 

is  any  call  by  depositors  for  repayment  of  a  greater  amount 
than  the  corporation  may  have  disposable  for  that  purpose, 
the  directors  or  officers  thereof  must  not  make  any  new 
loans  or  investments  of  the  funds  of  the  depositors,  or  of  the 
earnings  thereof,  until  such  excess  of  call  has  ceased. 

[Corporations  without  capital — Keserve  fund.]  The  direc- 
tors of  any  such  corporation  having  no  capital  stock  must 
retain,  on  each  dividend  day,  at  least  five  per  cent  of  the  net 
profits  of  the  corporation,  to  constitute  a  reserve  fund,  which 
must  be  invested  in  the  same  manner  as  other  funds  of  the 
corporation,  and  must  be  used  toward  paying  any  losses  which 
the  corporation  may  sustain  in  pursuing  its  lawful  business. 

[Excess  of  reserve  fund — Disposition  on  dissolution.]  The 
corporation  may  provide  by  its  by-laws  for  the  disposal  of 
any  excess  in  the  reserve  fund  over  one  hundred  thousand 
dollars,  and  the  final  disposal,  upon  the  dissolution  of  the 
corporation,  of  the  reserve  fund,  or  of  the  remainder  thereof, 
after  payment  of  losses. 

History:  Enacted  March  21,  1872,  founded  upon  §  11  Act 
April  11,  1862,  Stats.  1862,  p.  201;  Acts  March  31  and  April  4, 
1870,  Stats.   1869-70,  pp.  523,  822. 

See  Kerr's  Cyc.  C.  C.   for  2  pars,  annotation. 

57  C.  594,  602  (applied);  64  C.  117,  123,  28  P.  110  (referred  to 
with  other  sections);  109  C.  396,  401,  42  P.  149  (referred  to  with 
other  sections). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,- see  note  §  283,  ante. 

Deposits  and  net  profits — Trust  funds. — See  Kerr's  Cyc.  C.  C. 
§  573    and    note. 

§  578.   PROHIBITION  ON  DIRECTOR  AND  OFFICER,  AND 

WHAT  VACATES  OFFICE.  No  director  or  officer  of  any 
savings  and  loan  corporation  must,  directly  or  indirectly,  for 
himself  or  as  the  partner  or  agent  of  others,  borrow  any 
of  the  deposits  or  other  funds  of  such  corporation,  nor  must 
he  become  an  indorser  or  surety  for  loans  to  others,  nor  in 
any  manner  be  an  obligor  for  moneys  borrowed  of  or  loaned 
by   such   corporation.     The   office   of   any   director   or   officer 

382 


I 


'        Tit.  X.]       "CREATE  DEBTS,"  DEFINITION  OF.  §§  579^  58O 

who  acts  in   contravention  of  the  provisions  of  this   section 
immediately  thereupon  becomes  vacant. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

64  C.  117,  123,  28  P.  110,  112  (referred  to  with  other  sections); 
104  C.  473,  476,  480,  38  P.  102  (construed  and  applied);  117  C.  157, 
160,  59  A.  S.  162,  48  P.  1090,  37  L.  619  (referred  to  with  other 
sections);  124  C.  282,  291.  71  A.  S.  58,  57  P.  84,  85  (construed  and 
applied);  130  C.  245,  257,  62  P.  466,  467,  600  (referred  to  with 
other  sections);  136  C.  432,  442,  89  A.  S.  153,  64  P.  692,  69  P. 
77   (applied). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 


§579.    DEFINITION     OF     PHRASE     "CREATE     DEBTS." 

Receiving  deposits,  issuing  certificates  of  deposit,  checlts,  and 
bills  of  exchange  and  the  like,  in  the  transaction  of  the  busi- 
ness of  savings  and  loan  corporations,  must  not  be  construed 
to  be  the  creation  of  debts  within  the  meaning  of  the  phrase 
"create  debts,"  in  section  309. 

HLstory:     Enacted  March   21,   1872. 

57  C.  594,  602  (referred  to  with  other  sections);  64  C.  117,  123, 
28  P.  110,  112  (referred  to  with  other  sections);  117  C.  157, 
160,  59  A.  S.  162,  48  P.  1090,  37  L.  619  (referred  to  with  other 
sections);  17  Nev.  146,  30  P.  703,  705  (there  is  no  such  statute 
in  Nevada.  In  that  state  the  relation  of  debtor  and  creditor 
does  exist  between  general  depositors  and  banks). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note   §  283,  ante. 


§  580.    BANKS,  AMOUNT  OF  CAPITAL  STOCK  REQUIRED 

(repealed). 

History:  Original  section  enacted  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  376,  held  unconsti- 
tutional, see  history,  §  4  ante;  an  entirely  different  provision 
with  sectional  number  enacted  March  5,  1903,  Stats,  and  Amdts. 
1903,  p.  87;  re-enacted  almost  verbatim  March  20,  1905,  Stats, 
and  Amdts.  1905,  p.  507;  repealed  March  18,  1907,  Stats,  and 
Amdts.  1907,  p.  576,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  415. 

383 


§§  581-583  CIVIL  CODE.  [Div.I.Pt.IV. 

§  581.  RESTRICTIONS  ON  SAVINGS  BANKS.  No  savings 
bank  shall  lend  to  exceed  sixty  per  cent  of  the  market  value 
of  any  piece  of  real  estate  to  be  taken  as  security,  except 
for  the  purpose  of  facilitating  the  sale  of  property  owned 
by  the  corporation.  And  it  shall  be  unlawful  for  any  sav- 
ings and  loan  society,  or  savings  bank,  to  purchase,  invest, 
or  loan  its  capital,  or  the  money  of  its  depositors,  or  any 
part  of  either,  in  mining  shares  or  stocks.  Any  president 
or  managing  officer  who  knowingly  consents  to  a  violation 
of  the  above  provision  shall  be  deemed  guilty  of  a  felony. 

History:  Enacted  Marcli  21,  1903,  Stats,  and  Amdts.  1903, 
p.   352.     In   force   March   21,    1903. 

§  582.  TRUE  NAMES  OF  PERSONS  ENGAGED  IN  BANK- 
ING  BUSINESS  MUST  BE  SHOWN.  Every  person  or  num- 
ber of  persons  not  being  incorporated,  engaged  in  the  busi- 
ness of  banking,  or  publicly  receiving  money  on  deposit  must 
conduct  such  business  under  a  name  which  shows  the  true 
names  of  all  persons  engaged  therein,  unless  such  person 
or  persons  have  complied  with  the  provisions  of  article  seven 
of  chapter  two  of  title  ten  of  part  four  of  division  third  of 
said  Civil  Code. 

[Penalty  for  violatioii.]  Every  person  violating  any  of  the 
provisions  of  this  section  is  guilty  of  a  misdemeanor,  and 
is  punishable  by  imprisonment  in  the  county  jail  for  not 
less  than  ninety  days  nor  more  than  six  months,  or  by  fine 
of  not  less  than  one  hundred  dollars  nor  more  than  five 
hundred  dollars,  or  by  both  such  fine  and  imprisonment. 

HLstory:  Enacted  March  21,  1903,  Stats,  and  Amdts.  1903,  pp. 
352-353.     In  force  March  21,  1903. 

§  583.  DIVIDENDS.  SURPLUS  FUNDS.  The  directors  of 
any  savings  bank,  bank,  or  banking  corporation  having  a 
capital  stock,  may  semi-annually  declare  a  dividend  of  so 
much  of  the  net  profits  of  the  stockholders  as  they  shall  judge 
expedient;  but  every  such  corporation  shall,  before  the 
declaration  of  such  dividend,  carry  at  least  one-tenth  (1-10) 
part  of  the  net  profits  of  the  stockholders  for  the  preceding 

384 


Tit.  X.]  PAID    IN    CAPITAL— REPORT.  §§  583a,  583b 

half  year  to  its  surplus  or  reserve  fund  until  the  same  shall 
amount  to  twenty-five  per  centum  of  its  paid-up  capital  stock. 
But  the  whole  or  any  part  of  such  surplus  or  reserve  fund, 
if  held  as  the  exclusive  property  of  stockholders,  may  at 
any  time  be  converted  into  paid-up  capital  stock,  in  which 
event  such  surplus  or  reserve  fund  shall  be  restored  in  man- 
ner as  above  provided  until  it  amounts  to  twenty-five  per 
centum  of  the  aggregate  paid-up  capital  stock.  A  larger 
surplus  or  reserve  fund  may  be  created,  and  nothing  herein 
contained  shall  be  construed  as  prohibitory  thereof. 

History:  Enacted  March  21,  1903,  Stats,  and  Amdts.  1903,  p. 
353.     In  effect  March  21,  1903. 

134  C.  603,  605,  65  P.  321,  66  P.  860    (miscited  for  §  853). 
As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally,  see   note   §  283,   ante. 

§583a.  CAPITAL  ACTUALLY  PAID  UP  MUST  BE  PUB- 
LISHED. No  banker,  nor  officer  of  any  bank  or  corporation 
doing  a  banking  business,  shall  advertise  in  any  manner,  or 
publish  any  statement  of  the  capital  stock  authorized  or 
subscribed,  unless  he  advertise  and  publish  in  connection 
therewith,  the  amount  of  capital  actually  paid  up.  Any  officer, 
or  the  officers  of  any  bank  or  corporation  doing  a  banking 
business,  advertising  in  any  manner,  or  publishing,  a  state- 
ment of  the  capital  stock  of  such  bank  or  banking  corpora- 
tion, authorized  or  subscribed,  without  the  statement  in  con- 
nection therewith  of  the  stock  actually  paid  up,  shall  be 
guilty  of  a  misdemeanor. 

History:  Enacted  March  21,  1903,  Stats,  and  Amdts.  1903,  p. 
353.      In    effect   March    21,    1903. 

§  5S3b.    BIENNIAL  REPORT  TO  BANK  COMMISSIONERS 

OF  UNCLAIMED  DEPOSITS.  The  president  of  every  savings 
bank,  savings  and  loan  society,  and  every  other  bank,  deposi- 
tory, society,  or  institution  in  which  deposits  of  money  are 
made,  whether  any  interest  or  dividend  is  paid,  or  agreed 
to  be  paid,  thereon  or  not,  must,  within  fifteen  days  after 
the  first  day  of  January  of  every  odd-numbered  year,  return 
Kerr's    C.    C. — 13  385 


§  583b  CIVIL  CODE.  [Div.I,Pt.IV. 

to  the  board  of  bank  commissioners  a  sworn  statement  show- 
ing the  amount  placed  to  his  credit,  the  last  known  place  of 
residence  or  post-office  address,  and  the  fact  of  death,  if 
known  to  such  president,  of  every  depositor  who  has  not 
made  a  deposit  therein  or  withdrawn  therefrom  any  part 
of  his  deposit,  or  any  part  of  the  interest  or  dividends 
thereon,  for  a  period  of  more  than  ten  years  next  preceding. 
Such  president  must  give  notice  of  these  deposits  in  one 
or  more  newspapers  published  in  or  nearest  the  town,  city, 
or  city  and  county  where  such  bank,  society,  or  other  insti- 
tution is  situated  or  has  its  principal  place  of  business,  at 
least  once  a  week  for  four  successive  weeks,  the  cost  of 
such  publication  to  be  paid  pro  rata  out  of  such  unclaimed 
deposits.  This  section  does  not  apply  to  any  deposit  made 
by  or  in  the  name  of  a  person  known  to  the  president  to 
be  living,  or  which,  with  the  accumulation  thereon  is  less 
than  fifty  dollars.  The  board  of  bank  commissioners  must 
incorporate  in  their  subsequent  report  each  return  made  to 
them  as  provided  in  this  section.  Any  president  of  any  of 
the  institutions  mentioned  in  this  section  who  neglects  or 
refuses  to  make  the  sworn  statement  required  thereby  is 
guilty  of  a  misdemeanor. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp. 
580-581.  The  act  contains  two  repealing  sections  as  follows: 
§2.  The  act  entitled  "An  act  to  compel  savings  hanks  to  pub- 
lish a  sworn  statement  of  all  unclaimed  deposits,"  approved 
March  23,  1893,  is  hereby  repealed.  §  3.  The  act  entitled  "An 
act  to  compel  all  depositories  of  money  and  commercial  banks 
to  publish  a  sworn  statement  of  all  unclaimed  deposits,"  ap- 
proved February  25,   1897,  is  hereby  repealed. 

See  Kerr's  Cyc.  C.  C.  for  3   pars,  annotation. 
Bank  Commissioners. — See  Hen.  G.  L.  p.  65,  and  note  p.  72. 
As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally,  see  note  §  283,   ante. 


386 


Tit.  XI.]-  MINING  COMPANIES— AGENCIES.  §  586 

TITLE   XI. 
MINING   CORPORATIONS. 

[The  original  Title  XI,  embracing'  §§  584-587,  repealed  March 
21,  1905,  and  a  new  Title  XI  substituted  therefor,  embracing  §§ 
586-590,  Stats,  and  Amdts.  1905,  pp.  584-587,  and  is  substantially 
the  codification  of  Act  1880  (Stats.  1880,  p.  134),  as  amended  by 
Act  1897  (Stats,  and  Amdts.  1897,  p.  38),  and  amendments  pro- 
posed by  Code  Commission,  Act  March  16,  1901  (Stats,  and 
Amdts.  1900-1,  p.  377),  held  unconstitutional,  see  history,  §  4 
ante.] 

§  586.     Transfer  agencies.      [May  establish   in  other  states.] 

§  587.  Stock  issued  at  transfer  agencies.  [Surrender  of  cer-- 
tificate.] 

§  587a.  Consolidation  of  mining  corporations.  [Written  consent 
of   stockholders.] 

§  588.  Books  and  balance-sheet  to  be  kept  by  secretary.  Stock- 
holders' right  to  inspect. 

§  589.  Right  of  stockholder  to  visit  mine  with  expert.  [Duty 
of   superintendent.] 

§  590.  Liability  of  president  and  directors.  [Refusal  to  per- 
mit examination;  damages.] 

§586.  TRANSFER  AGENCIES.  [MAY  ESTABLISH  IN 
OTHER  STATES.]  Any  corporation  organized  in  tliis  state 
for  tlie  purpose  of  mining  or  carrying  on  mining  operations 
in  or  without  this  state,  may  establish  and  maintain  agencies 
in  other  states  of  the  United  States,  for  the  transfer  and 
issuing  of  their  stock;  and  a  transfer  or  issue  of  the  same 
at  any  such  transfer  agency,  in  accordance  witli  the  provi- 
sions of  its  by-laws,  is  valid  and  binding  as  fully  and 
effectually  for  all  purposes  as  if  made  upon  the  books  of 
such  corporation  at  its  principal  office  within  this  state.  The 
agencies  must  be  governed  by  the  by-laws  and  the  directors 
of  the  corporation. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.   584-585;    see   introductory   note   to   this   title. 

See  Kerr's  Cyc.   C.   C.  for   2   pars,   annotation. 
142  C.  391,   392,   75  P.   1086    (referred  to  with  other  sections). 

387 


§§  587,  587a  CIVIL  CODE.  [Div.I.Pt.IV. 

As  to  locating  mining  claims,  tunnel  riglits,  mill  sites,  etc., 
see   post   §§ 1426-1426S. 

As  to  many  niiscellaneous  matters  of  corporations  generally, 
see   note   §  283,  ante. 

§  587.  STOCK  ISSUED  AT  TRANSFER  AGENCIES.  [SUR- 
RENDER OF  CERTIFICATE.]  All  stock  of  any  such  corpora- 
tion, Issued  at  a  transfer  agency,  must  be  signed  by  the 
president  and  secretary  of  the  corporation,  and  countersigned 
at  the  time  of  its  issue  by  the  agent  having  charge  of  the 
transfer  agency.  No  stock  must  be  issued  at  a  transfer 
agency  unless  the  certificate  of  stock,  in  lieu  of  which  the 
same  is  issued,  is  at  the  time  surrendered  for  cancelation. 

HLstory:  Enacted  March  21,  1905,  Stats,  and  Anulls.  lltos,  p. 
585;  see  introductory  note  to  this  title. 

See  Kerr's  Cyc.  C.   C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Consolidation  of  railroad  corporations. — See  Kerr's  Cyc.  C.  C. 
§  473  and  note. 

§587a.  CONSOLIDATION  OF  MINING  CORPORATIONS. 
[WRITTEN  CONSENT  OF  STOCKHOLDERS.]  It  is  lawful 
for  two  or  more  corporations  formed,  or  that  may  hereafter 
be  formed,  under  the  laws  of  this  state,  for  mining  pur- 
poses, which  own  or  possess  mining  claims  or  lands  adjoin- 
ing each  other,  or  lying  in  the  same  vicinity,  to  consolidate 
their  capital  stock,  debts,  property,  assets,  and  franchises, 
in  such  manner  and  upon  such  terms  as  may  be  agreed 
upon  by  the  respective  boards  of  directors  or  trustees  of 
such  corporations  so  desiring  to  consolidate  their  interests; 
but 

No  such  consolidation  must  take  place  without  the  written 
consent  of  the  stockholders  representing  two-thirds  of  the 
capital  stock  of  each  corporation,  and  no  such  consolidation 
can,  in  any  way,  relieve  such  corporations,  or  the  stock- 
holders thereof,  from  any  and  all  just  liabilities;  and  in  case 
of  such  consolidation. 

Due  notice  of  the  same  must  be  given,  by  advertising,  for 

388 


Tit.  XL]  BOOKS  AND  BALANCE-SHEETS.  §  588 

one  month,  in  at  least  one  newspaper  in  the  county  where 
the  said  mining  property  is  situated,  if  there  is  one  pub- 
lished therein,  and  also  in  one  newspaper  published  in  the 
county  where  the  principal  place  of  business  of  any  of  said 
corporation  is. 

[Certificate  of  consolidation — Filed,  where.]  And  when  the 
consolidation  is  completed,  a  certificate  thereof,  containing 
the  manner  and  terms  of  such  consolidation,  must  be  filed 
in  the  office  of  the  county  clerk  of  the  county  in  which  the 
original  certificate  of  incorporation  of  each  of  said  corpora- 
tions is  filed,  and  a  copy  thereof  must  be  filed  in  the  office 
of  the   secretary   of   state. 

[Same] — To  be  signed  by  boards — Calling  meeting  of 
stockholders — Notice.]  Such  certificate  must  be  signed  by  a 
majority  of  each  board  of  trustees  or  directors  of  the  origi- 
nal corporations,  and  it  is  their  duty  to  call,  within  thirty 
days  after  the  filing  of  such  certificate,  a  meeting  of  the 
stockholders  of  all  of  said  corporations  so  consolidated,  to 
elect  a  board  of  trustees  or  directors  for  the  consolidated 
corporation,  for  the  year  thence  next  ensuing;  and  to  cause 
notice  of  the  time  and  place  fixed  for  such  meeting  to  be 
mailed  to  each  stockholder  of  each  of  such  corporations  at 
his  last  known  place  of  residence  or  business  at  least  ten 
days  before  the  time  fixed  for  such  meeting.  The  said  cer- 
tificate must  also  contain  all  the  requirements  prescribed  by 
section  two  hundred  and  ninety. 

Bistory:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
585;   see   introductory  note   to   this   title. 

§588.  BOOKS  AND  BALANCE-SHEET  TO  BE  KEPT  BY 
SECRETARY.     STOCKHOLDERS'  RIGHT  TO  INSPECT.     It 

is  the  duty  of  the  secretary  of  every  corporation  formed  for 
the  purpose  of  mining,  or  conducting  mining  in  California, 
whether  such  corporation  be  formed  and  organized  under 
the  laws  of  the  state  of  California  or  of  any  other  state, 
territory,  or  foreign  country,  to  keep  at  some  place  within 
the  state  of  California  an  office  and  in  such  office  to  keep 

889 


§  588  CIVIL  CODE.  [Div.I,Pt.IV. 

a  complete  set  of  books  showing  all  receipts  and  expendi- 
tures of  such  corporation,  the  sources  of  such  receipts,  and 
the  objects  of  such  expenditures,  and  also  all  transfers  of 
stock.  All  books  and  papers  must,  at  all  times  during  busi- 
ness hours,  be  open  to  the  inspection  of  any  stockholder. 
He  is  ^titled  to  be  accompanied  by  an  expert,  and  to  make 
copies  or  extracts  from  any  such  books  or  papers. 

[Stockholder  may  examine  mining  property.]  He  may,  at 
reasonable  hours,  examine  such  mining  property,  accom- 
panied by  an  expert,  take  samples,  and  make  such  other 
examination  as  he  may  deem  necessary. 

[Xontlily  ))alance-slieet — Verified  by  oath,  of  whom.]  It  is 
the  duty  of  the  directors,  on  the  second  Monday  of  each  and 
every  month,  to  cause  to  be  made  an  itemized  account  or 
balance-sheet  for  the  previous  month,  embracing  a  full  and 
complete  statement  of  all  disbursements  and  receipts,  show- 
ing from  what  sources  such  receipts  were  derived,  and  to 
whom  and  for  what  object  or  purposes  such  disbursements 
or  payments  were  made;  also  all  indebtedness  or  liabilities 
incurred  or  existing  at  the  time,  and  for  what  the  same  were 
incurred,  and  the  balance  of  money,  if  any,  on  hand.  Such 
account  or  balance-sheet  must  be  verified  under  oath  by  the 
president  and  secretary,  and  posted  in  some  conspicuous 
place  in  the  office  of  the  company. 

[Superintendent  to  file  monthly  account;  what  must  show.] 
It  is  the  duty  of  the  superintendent,  on  the  first  Monday  of 
each  month,  to  file  with  the  secretary  an  itemized  account, 
verified  under  oath,  showing  all  receipts  and  disbursements 
made  by  him  for  the  previous  month,  and  for  what  said  dis- 
bursements were  made.  Such  account  must  also  contain  a 
verified  statement  showing  the  number  of  men  employed 
under  him,  and  for  what  purpose,  and  the  rate  of  wages  paid 
to  each. 

[Same — Report  attached  to  account — Open  to  Inspection.] 
He  must  attach  to  such  account  a  full  and  complete  report, 
under  oath,  of  the  work  done  in  said  mine,  the  amount  of 
ore   extracted,   from   what  part  of   mine   taken,   the   amount 

390 


I 


Tit.  XI.]  VISITING    MINE— EXPERT.  §  589 

sent  to  mill  for  reduction,  its  assay  value,  the  amount  of 
bullion  received,  the  amount  of  bullion  shipped  to  the  office 
of  the  company  or  elsewhere,  and  the  amount,  if  any,  retained 
by  the  superintendent.  It  is  his  duty  to  forward  to  the  office 
of  the  company  a  full  report,  under  oath,  of  all  discoveries 
of  ores  or  mineral-bearing  quartz  made  in  said  mine,  whether 
by  boring,  drifting,  sinking,  or  otherwise,  together  with  the 
assay  value  thereof.  All  accounts,  reports,  and  correspond- 
ence from  the  superintendent  must  be  kept  in  some  conspicu- 
ous place  in  the  office  of  said  company,  open  to  the  inspec- 
tion  of  all   stockholders. 

History:     Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp.. 
585-586;  see  introductory  note  to  this  title. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 
As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note   §  283,  ante. 

§  589.  RIGHT  OF  STOCKHOLDER  TO  VISIT  MINE  WITH 
EXPERT.  [DUTY  OF  SUPERIIVTEXDEiVT.]  Any  stock- 
holder of  a  corporation  formed  under  the  laws  of  this  state 
for  the  purpose  of  mining,  is  entitled  to  visit,  accompanied 
by  his  expert,  and  examine  the  mine  or  mines  owned  by  such 
corporation,  and  every  part  thereof,  at  any  time  he  may 
see  fit;  and  when  such  stockholder  applies  to  the  president 
of  such  corporation,  he  must  immediately  cause  the  secretary 
thereof  to  issue  and  deliver  to  such  applicant  an  order, 
under  the  seal  of  the  corporation,  directed  to  the  superin- 
tendent, commanding  him  to  show  and  exhibit  such  parts 
of  said  mine  or  mines  as  the  party  named  in  said  order  may 
desire  to  visit  and   examine. 

It  is  the  duty  of  the  superiiiteudent,  on  receiving  such 
order,  to  furnish  such  stockholder  every  facility  for  making 
a  full  and  complete  inspection  of  said  mine  or  mines,  and 
of  the  workings  therein,  and  to  accompany  said  stockholder 
either  in  person,  or  to  furnish  some  person  familiar  with 
said  mine  or  mines  to  accompany  him  in  his  visit  to  and 
through  such  mine  or  mines,  and  every  part  thereof. 

[Failure   of  superintendent  to   obey  orders— Removal.]     If 

391 


§  590  CIVIL  CODE.  [Div.I,Pt.IV. 

the  superintendent  fails  to  obey  such  order,  such  stockholder 
is  entitled  to  recover,  in  any  court  of  competent  jurisdiction, 
against  the  corporation,  a  sum  of  one  thousand  dollars,  and 
traveling  expenses  to  and  from  the  mine,  as  liquidated  dam- 
ages, together  with  costs  of  suit.  In  case  of  such  refusal, 
it  is  the  duty  of  the  directors  of  the  corporation  forthwith 
to  remove  the  officer  so  refusing,  and  thereafter  he  must  not 
be  employed  directly  or  indirectly  by  the  corporation,  nor 
must  any  salary  be  paid  to  him. 

History;  Enacted  March  21,  1905,  pp.  586-587;  see  introduc- 
tory  note   to   this   title. 

§590.  LIABILITY  OF  PRESIDENT  AND  DIRECTORS. 
[REFUSAL   TO   PERMIT  EXAMINATION;   DAMAGES.]      In 

case  of  the  refusal  or  neglect  of  the  president  to  cause  to 
be  issued  by  the  secretary  the  order  mentioned  in  section 
five  hundred  and  eighty-nine,  such  stockholder  is  entitled  to 
recover  against  said  president  the  sum  of  one  thousand  dol- 
lars and  costs,  as  provided  in  the  last  section. 

If  the  directors  fail  to  have  the  reports  and  accounts  cur- 
rent made  and  posted  as  provided  in  section  five  hundred  and 
eighty-eight,  they  are  liable,  either  severally  or  jointly,  to 
an  action  by  any  stockholder  complaining  thereof,  and  on 
proof  of  such  refusal  or  failure,  he  may  recover  judgment 
for  actual  damages  sustained  by  him,  with  costs  of  suit. 

[Removal  of  directors.]  Each  of  such  defaulting  directors 
is  also  liable  to  removal  for  such  neglect. 

History:  Enacted  March  21,  1905,  p.  587;  see  introductory 
note  to  this  title. 

See  Kerr's  C5'c.  C.  C.  for  13  pars,  annotation. 
As    to   many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note  §  283,  ante. 


392 


1 


Tit.  XIa.]  CHAMBERS   OF  COMMERCE,   ETC.  §  591 


TITLE  XIa. 

CORPORATIONS  FOR  THE  FORMATION  OF  CHAMBERS  OF 
COMMERCE.  BOARDS  OF  TRADE,  MECHANICS'  INSTI- 
TUTES, AND  OTHER  KINDRED  ASSOCIATIONS. 

[This  title  was  added  by  Act  March  21,  1905,  Stats,  and  Amdts. 
1905,  pp.  587-589;  verbatim  re-enactment  of  similarly  numbered 
sections  of  the  Code  Commission,  Act  March  16,  1901  (Stats,  and 
Amdts.  1900-1,  pp.  380,  381),  held  unconstitutional,  see  history, 
§  4  ante.  This  added  title  is  a  codification  of  Act  1866  (Stats. 
1865-6,  p.  469,  as  amended  by  Act  1868  (Stats.  1867-8,  p.  15),  and 
Act  1885  (Stats,  and  Amdts.  1885,  p.  76).  See  Stats,  and  Amdts. 
1900-1,  p.   429.] 

§  591.     Formation,  organization  and  powers  of. 

§  592.     Capital  stock  and  certificates  of. 

§  592a.  Power  which  may  be  conferred  on  the  trustees,  direc- 
tors, or  the  executive  committee. 

§  592b.  Power  to  acquire,  sell,  possess,  and  use  property. 

§  592c.  The  by-laws.      [Meeting-s,  how  called  and  conducted.] 

§  592d.  Power  to  levy  and  collect  assessments. 

§  592e.  Pre-existing  corporations  may  become  entitled  to  the 
benefit  of  this  title. 


§591.     FORArATIO,   ORGANIZATION    AND    POWER    OF. 

Corporations  for  tlie  formation  and  organization  of  cliambers 
of  commerce,  boards  of  trade,  mechanics'  institutes,  and 
other  associations  formed  for  the  extension  and  promotion 
of  trade  and  commerce,  or  the  advancement,  protection,  and 
improvement  of  the  mechanic  arts,  may  be  formed  by  twenty 
or  more  persons,  who  must  execute' and  file  articles  of  incor- 
poration as  prescribed  in  chapter  one  of  title  one  of  part 
four  of  this  code.  Upon  receiving  from  the  secretary  of 
state  a  certificate  of  the  filing  with  him  of  a  certified  copy 
of  its  articles  of  incorporation,  such  corporation  becomes 
a  body  corporate,  and  by  its  corporate  name  has  succession 
for  the  period  limited  in  its  articles,  and  power:  (1)  To  sue 
and  be  sued  in  any  court;  (2)  to  make  and  use  a  common 
seal,  and  alter  it  at  pleasure;  (3)  to  lease,  purchase,  hold, 
sell,  mortgage,  convey  in  trust,  convey,  release  from  trust  or 

393 


§  592  CIVIL  CODE.  [Div.I.Pt.IV. 

mortgage,  such  real  and  personal  property  as  hereinafter 
provided;  (4)  to  elect  and  appoint  such  officers,  agents,  and 
servants  as  the  business  of  the  corporation  may  require;  and 
(5)  to  make  by-laws,  not  inconsistent  with  the  laws  of  this 
state,  providing  for  the  organization  of  the  corporation  and 
the  management  of  its  affairs. 

[Business.]  No  corporation  formed  under  this  title  must 
engage  in  any  mercantile,  commercial,  or  mechanical  busi- 
ness. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    588. 

See  Kerr's  Cyc.  C.  C.  for  133  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  arbitration  clause  and  jurisdiction  of  arljitration  com- 
mittee, see  26  Encyc.  L.  805. 

As  to  conclusiveness  of  decisions  of  tribunals  of  association 
or  corporations,  see  49  L.  353-401. 

As  to  remedy  of  members,  see  59  A.  S.  198-209. 

As  to  right  to  resort  to  courts,  see  53  A.  S.  319,  48  A.  S. 
316,  18  A.  S.  301. 

As  to  rules  and  regulations  of  exchanges,  boards  of  trade, 
(•hambers  of  commerce  and  commercial  associations,  see  26 
Encyc.   L.    803. 

As  to  stock  and  produce  exchanges,  see  26  Encyc.  L.  788. 

As  to  validity  of  constitution,  by-laws  and  proceedings  of 
voluntary  associations,  see  69  A.  D.  670-678. 

Arbitration  clause. — See  26  Encyc.  L.   805. 


§592.  CAPITAL  STOCK  A>D  CERTIFICATES  OF.  Every 
corporation  formed  under  this  title  may  have  a  capital  stock 
and  issue  certificates  to  represent  the  shares  thereof,  if  the 
articles  of  incorporation  contain  a  statement  of  the  amount 
of  its  capital  stock  and  the  number  of  shares  into  which 
it  is  divided. 

[Rights  and  privileges  of  stockholders.]  The  rights  and 
privileges  to  be  accorded  to  stockholders  are  distinct  from 
those  to  be  accorded  to  members  at  large  of  the  corpora- 
tion,  and   the   obligations   to   be   imposed   upon   stockholders 

394 


Tit.  XIa.]  POWERS— BY-LAWS.  §§  592a-592c 

in   the   same   relation   must   be   fixed   and   established   in   the 
by-laws  of  the  corporation. 

History:      Enacted  March    21,   1905,   Stats,   and   Amdts.    1905,   p. 
588. 

§  592a.  POWER  WHICH  3IAY  BE  CONFERRED  OX  THE 
TRUSTEES,  DIRECTORS,  OR  THE  EXECUTIYE  COMMIT- 
TEE. The  corporation  may  confer  upon  a  board  of  trustees 
or  directors,  or  upon  a  body  to  be  styled  the  executive  com- 
mittee of  the  corporation,  the  right  to  exercise  all  or  any  of 
the  corporate  powers,  if  the  articles  of  incorporation  state 
that  the  right  to  exercise  the  corporate  powers  is  to  be  con- 
fided to  such  board  of  trustees  or  directors  or  to  such  execu-. 
tive  committee,  and  the  number  of  trustees,  directors,  or 
committee,  and  the  names  of  those  selected  to  take  charge 
of  the  affairs  of  the  corporation  for  the  first  six  months. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.    588-589. 

See  Kerr's  Cyc.  C.  C.  §  591  note  pars.  67-71. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§592b.  POWER  TO  ACQUIRE,  SELL,  AND  USE  PROP- 
ERTY. Every  corporation  formed  under  this  title  may  lease, 
purchase,  have,  hold,  use,  take  possession  of,  and  enjoy  in 
fee  simple  or  otherwise  any  personal  or  real  property  within 
the  state  necessary  for  the  uses  and  purposes  of  the  corpora- 
tion, and  may  sell,  lease,  deed  in  trust,  alien,  or  dispose  of 
the   same  at  its  pleasure. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    589. 

§592c.  THE  BY-LAWS.  [MEETINGS,  HOW  CALLED 
AND  CONDUCTED.]  The  by-laws  of  any  corporation  formed 
under  this  title  without  capital  stock  must  prescribe  how 
members  of  the  corporation  shall  be  admitted  and  how  ex- 
pelled,   and    how    officers,     agents,    and     servants     shall     be 

395 


§§  592d,  592e  CIVIL  CODE.  [Div.I,Pt.IV. 

appointed.  Such  provisions  in  the  by-laws  have  force  and  effect 
as  between  private  parties  and  the  corporation. 

[3Iaiiiicr  of  calling  and  conducting  meetings.]  All  corpora- 
tions formed  under  the  provisions  of  this  title  must  deter- 
mine, by  their  by-laws,  the  manner  of  calling  and  conducting 
their  meetings,  the  number  of  members  that  constitute  a 
quorum,  the  manner  of  levying  and  collecting  assessments, 
the  officers  of  the  corporation,  the  manner  of  their  election 
or  appointment  and  their  tenure  of  office,  and  may  prescribe 
suitable  penalties  for  the  violation  of  such  by-laws,  not 
exceeding  in  any  case  one  hundred  dollars  for  any  one 
offense. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    589. 

See  Kerr's  Cyc.  C.  C.  §  691  note  pars.   80-109. 
As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note  §  283,  ante. 

§592d.  POWER  TO  LEVY  AND  COLLECT  ASSESS- 
MENTS.  Every  corporation  formed  under  the  provisions  of 
this  title  has  power  to  levy  and  collect,  from  the  members 
thereof,  for  the  purpose  of  paying  the  proper  and  legal 
expenses  of  the  corporation,  assessments  in  such  manner  as 
may  be  prescribed  by  its  by-laws,  but  not  otherwise. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   589. 

§592e.  PRE-EXISTING  CORPORATIONS  MAY  BECOME 
ENTITLED  TO  THE  BENEFIT  OF  THIS  TITLE.  Every  cor- 
poration, association,  or  institution  formed  prior  to  the  enact- 
ment of  this  title,  for  any  of  the  purposes  contemplated 
thereby,  may,  by  a  vote  of  the  majority  of  its  members  vot- 
ing at  a  meeting  called  for  that  purpose,-  become  entitled 
to  the  benefit  thereof  on  filing  the  certificate  hereinafter 
required. 

Notice  of  such  meeting  and  of  its  object  mnst  be  published 
in  a  newspaper  of  general  circulation  in  the  county  in  which 

396 


I 


Tit.  XIa.]  CERTIFICATE — CONTENTS.  §  592e 

the  principal  place  of  business  of  the  corporation,  associa- 
tion, or  institution  is  located,  for  at  least  two  weeks  before 
the  day  on  which  the  meeting  is  to  be  held. 

[Certificate,  execution  and  contents.]  Such  certificate  must 
be  signed  and  acknowledged  by  at  least  five  members  of  the 
corporation,  association,  or  institution,  must  contain  a  list 
of  the  members  who  desire  to  become  members,  and  must 
be  filed  with  the  county  clerk  of  such  county,  and  a  copy 
thereof,  certified  by  him,  must  be  filed  with  the  secretary  of 
state.  Thereupon  such  corporation,  association,  or  institu- 
tion possesses  all  the  powers  and  privileges  conferred  by 
this  title. 

Hi.story:      Enacted    March    21,    1905,    Stats,    and    Amdts.    1905,. 
p.    589. 


397 


§  593  CIVIL  CODE.  [Div.I,Pt.IV. 

TITLE  XII. 

RELIGIOUS,  SOCIAL,  AND  BENEVOLENT  CORPORATIONS. 

§  593.  [Corporations  not  for  profit.]      Number  of  directors. 

§  594.  Additional  facts  articles  of  incorporation  to  set  out. 

§  595.  -"Amount  of  real  estate  to  be  owned  by  such  corporations. 

§  596.  How  much   land  friendly,   etc.,  societies  may  hold. 

§  597.  Directors  to  make  verified  report  annually. 

§  598.  Sale,  mortgage,  and  bond  of  real  property. 

§  599.  What  by-laws,  etc.,  may  provide  for. 

§  600.  Members  admitted  after  incorporation. 

§  601.  No  member  to  transfer  membership,  etc. 

§  602.  Religious  society  may  become  a  corporation   sole. 

§  602a.   Corporation    sole,    continuous    existence. 

§  603.  Religious    society    may    elect    directors    and    incorporate. 

Procedure. 

§  604.  Same. 

§  605.  Consolidation    of    corporations. 

§  593.     [COKPO RATIONS  NOT  FOR  PROFIT.]       NUMBER 

OF  DIRECTORS.  Any  number  of  persons  associated  together 
for  any  purpose,  where  pecuniary  profit  is  not  their  object, 
and  for  which  individuals  may  lawfully  associate  themselves, 
may,  in  accordance  with  the  rules,  regulations,  or  discipline 
of  the  association,  elect  directors,  the  number  thereof  to  be 
not  less  than  three  nor  more  than  twenty-one,  and  may 
incorporate  themselves  as  provided  in  this  title. 

History:  Enacted  March  21,  1872,  founded  upon  Stats.  1869- 
70,  p.  46,  and  p.  420,  §  1;  amended  April  3,  1880,  Code  Amdts. 
1880  (C.  C.  pt.),  p.  6;  amended  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  381,  held  unconstitutional, 
see  history,  §  4  ante;  amendment  re-enacted  March  18,  1905, 
Stats,  and  Amdts.  1905,  p.  113;  amended  March  18,  1907,  Stats. 
and  Amdts.  1907,  p.  579.  Kerr's  Stats,  and  Amdts.  1906-7,  p.  415. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

114  C.  295,  300  (referred  to  with  other  sections,  301  (construed 
with  other  sections),  46  P.  2;  119  C.  477,  483  (applied,  but  er- 
roneously cited  as  §595),  51  P.  841,  843  (same  error);  121  C. 
317,  321,  53  P.  901  (referred  to);  128  C.  257,  260,  262,  60  P.  865 
(construed). 

398 


Tit.  XII.]       ADDITIONAL  FACTS— REAL  ESTATE.       §§  594,  595 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Expulsion  and  suspension  of  members. — See  Kerr's  Cyc.  C.  C. 
§■  599  and  note. 

Insurance  laws — Exemption  of  fraternal  societies  from. — See 
Kerr's  Cyc.  C.  C.   §  451  and  note. 

Jurisdiction  of  courts  over. — See  Kerr's  Cyc.  C.  C.  §  599  and 
note. 

§  594.    ADDITIONAL  FA(  TS  ARTICLES  OF  INCORPORA- 

TIOIV  TO  SET  OUT.  In  addition  to  the  requirements  of  sec- 
tion two  hundred  and  ninety,  the  articles  of  incorporation  of 
any  association  mentioned  in  the  preceding  section  must  set 
forth  the  holding  of  the  election  for  directors  in  accordance 
with  a  resolution  adopted  at  the  last  prior  regular  meeting, 
the  time  and  place  where  the  same  was  held,  and  that  notice 
of  such  meeting  was  given  to  the  members  of  said  associa- 
tion; that  a  majority  of  the  members  of  such  association  who 
were  present  voted  at  such  election,  and  the  result  thereof; 
which  facts  must  be  verified  by  the  officers  conducting  the 
election. 

History:  Enacted  March  21,  1872,  founded  upon  §  176,  Act 
April  22,  1850,  Stats.  1850,  p.  374,  as  amended  Act  April  8,  1862, 
Stats.  1862,  p.  125;  amended  March  19,  1909,  Stats,  and  Amdts. 
1909,    p.    467. 

See  Kerr's  Cyc.   C.   C.   for   4   pars,   annotation. 

52  C.  331,  333  (construed  and  applied);  128  C.  257,  260,  261, 
262,  60  P.  865  (construed  and  applied);  130  C.  27,  39,  62  P.  386, 
390   (construed — requirement  as  to  verification  is  mandatory). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note   §  283,  ante. 

§595.  AMOUNT  OF  REAL  ESTATE  TO  BE  OWNED  BY 
SUCH  CORPORATIONS.  All  such  corporations  may  hold  all 
the  property  of  the  association  owned  prior  to  incorporation, 
or  acquired  thereafter  in  any  manner,  and  transact  all  busi- 
ness relative  thereto;  but  no  such  corporation  must  own  or 
hold  more  real  estate  than  may  be  necessary  for  the  business 
and  objects  of  the  association,  and  providing  burial-grounds 
for  its  deceased  members,  not  to  exceed  six  (6)  whole  lots 
in  any  city  or  town,  nor  more  than  fifty  (50)  acres  in  the 
country,  the  annual  increase,  income  or  profit,  whereof  must 

399 


§  595  CIVIL  CODE.  [Div.T,Pt.IV. 

not  exceed  fifty  thousand  ($50,000)  dollars;  provided,  that 
any  such  corporation  now  or  hereafter  having,  and  having 
had  continuously,  for  the  next  preceding  three  (3)  years, 
the  care,  custody,  control,  and  maintenance  each  year,  upon 
an  annual  average  of  not  less  than  one  hundred  (100) 
orphans,  half  orphans,  and  indigent  minor  children,  at  any 
one  orphan  asylum,  shall  be  entitled  and  allowed  to  own 
and  possess  any  number  of  acres  not  exceeding  one  hundred 
and  sixty  (160)  acres  of  land  in  the  country,  outside  of  any 
incorporated  city  or  town,  and  the  annual  income  or  profit 
of  which  does  not  exceed  fifty  thousand  ($50,000)  dollars; 
and  provided  further,  that  the  limitations  herein  provided 
for  shall  not  apply  to  corporations  formed,  or  to  be  formed, 
under  section  six  hundred  and  two  (602)  of  the  Civil  Code, 
when  the  land  is  held  or  used  for  churches,  hospitals,  schools, 
colleges,  orphan  asylums,  parsonages,  or  cemetery  purposes 
or  to  corporations  organized  for  social  purposes  and  pur- 
poses of  recreation  and  not  for  profit;  and  provided  further, 
that  the  limitations  herein  provided  for  shall  not  apply  to 
corporations  organized  other  than  for  profit,  when  the  land 
is  timber  land,  and  not  exceeding  one  hundred  and  sixty 
(160)  acres  in  extent,  and  is  held  or  used  for  the  purposes 
of  the  organizations,  in  which  case  said  land  shall  be  subject 
to  all  laws  regulating  the  preservation  of  forests. 

History:  Enacted  March  21,  1872,  founded  upon  §  182,  Act 
April  22,  1850,  Stats.  1850,  p.  374;  amended  Act  May  3,  1852, 
Stats.  1852,  p.  168;  Act  May  3,  1853,  Stats.  1853,  pp.  140-141; 
Act  March  6,  1863,  Stats.  1863,  p.  34;  amended  April  6,  1881, 
Stats,  and  Amdts.  1881,  p.  9;  April  19,  1899,  Stats,  and  Amdts. 
1899,  p.  10;  by  Code  Commission,  Act  March  16,  1901,  Stats,  and 
Amdts.  1900-1,  p.  382,  held  unconstitutional,  see  history,  §  4 
ante;  amendment  re-enacted  substantially  in  form  passed  in 
1901,  March  13,  1903,  Stats,  and  Amdts.  1903,  p.  136;  amended 
February  21,  1905,  Stats,  and  Amdts.   1905,  p.  18. 

See   Kerr's  Cj'c.  C.   C.   for  2   pars,  annotation. 

114  C.  295,  300,  301,  46  P.  2  (referred  to  with  other  sections); 
119  C.  477,  483  (erroneously  cited  for  §593),  51  P.  841,  843  (same 
error). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

400 


Tit.  XII.]  HOLDING — REPORT— SALE.  §§  596-598 

§596.  HOW  MUCH  LAND  FRIENDLY,  ETC.,  SOCIETIES 
MAY  HOLD.  In  addition  to  that  provided  for  in  the  preced- 
ing section,  friendly  societies  and  pioneer  associations  may 
liold  such  real  estate  as  may  be  necessary  to  carry  out  their 
charitable  purposes,  or  for  the  establishment  and  endowment 
of  institutions  of  learning  connected  therewith.  In  case  any 
such  corporation  is  the  owner,  by  donation  or  purchase, 
of  more  lands  than  herein  or  in  preceding  section  provided 
for,  such  surplus  must  be  sold  and  conveyed  by  the  corpora- 
tion within  five  years  after  its  acquisition.  Such  sale  may 
be  made  without  the  order  or  decree  of  the  superior  court 
as  hereinafter  provided. 

History:  Enacted  March  21,  1872;  amended  Act  Jan.  25,  1878,- 
Code  Amdts.  1877-8,  p.  84;  Act  April  6,  1880,  Code  Amdts.  1880 
(C.   C.   pt.),   p.    6. 

§597.  DIRECTORS  TO  MAKE  VERIFIED  REPORT  AN- 
NUALLY.  The  directors  must  annually  make  a  full  report 
of  all  property,  real  and  personal,  held  in  trust  for  their 
corporation  by  them,  and  of  the  condition  thereof,  to  the 
members  of  the  association  for  which  they  are  acting. 

History:  Enacted  March  21,  1872,  founded  upon  §  183,  Act 
April  22,  1850,  Stats.  1850,  p.  374;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  382,  held  un- 
constitutional,  see   liistory,   §    4   ante. 

§598.  SALE,  MORTGAGE,  AND  BOND  OF  REAL  PROP- 
ERTY. Corporations  of  the  character  mentioned  in  section 
five  hundred  and  ninety-three  may  mortgage  or  sell  the  real 
property  held  by  them,  and  may  secure  the  payment  of  indebt- 
edness by  deed  of  trust  or  mortgage  upon  their  real  property, 
upon  obtaining  an  order  for  that  purpose  from  the  superior 
court  held  in  the  county  in  which  the  property  is  situated. 
The  corporations  above  mentioned  may  also  issue  bonds, 
payable  at  any  time  within  twenty  years,  as  evidence  of  the 
indebtedness  secured  by  mortgage  or  deed  of  trust. 

[Notice  by  publication.]  Before  making  the  order,  proof 
must  be   made   to   the   satisfaction   of   the    court   that   notice 

401 


§  599  CIVIL  CODE.  [Div.I,Pt.IV. 

of  the  application  for  leave  to  sell  or  mortgage  or  execute 
a  deed  of  trust  has  been  given,  by  publication  in  such  man- 
ner and  for  such  time  as  the  court  or  the  judge  has  directed, 
and  that  it  is  to  the  interest  of  the  corporation  that  leave 
should  be  granted  as  prayed  for.  The  application  must  be 
made  by  petition,  and  any  member  of  the  corporation  may 
oppose  the  granting  of  the  order,  by  affidavit  or  otherwise. 

[Not  to  apply  to  burial  plots.]  But  nothing  herein  con- 
tained shall  prohibit  or  prevent  the  trustees  or  directors  of 
such  corporation,  under  such  rules  and  regulations  as  they 
may  adopt,  from  disposing  of  burial  plots  situated  in  grounds 
of  such  corporation  dedicated  for  burial  purposes,  without 
making  such  application  to  or  obtaining  an  order  from  court. 

History:  Enacted  March  21,  1872,  founded  upon  §  179,  Act 
April  22,  1850,  Stats.  1850,  p.  374,  a.s  amended  March  7,  1859, 
Stats.  1859,  p.  87;  amended  March  30,  1874,  Code  Amdts.  1873-4, 
p.  216;  April  6,  1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  6;  March 
16,  1889,  Stats,  and  Amdts.  1889,  p.  230;  March  20,  1891,  Stats, 
and  Amdts.   1891,  p.  179.     In  force  March  20,  1891. 

§  599.  AVHAT  BY-LAWS,  ETC.,  MAT  PROVIDE  FOR.  Cor- 
porations now  organized  or  that  may  hereafter  be  organized 
for  purposes  other  than  profit,  may,  either  in  their  by-laws, 
ordinances,  constitutions,  or  articles  of  incorporation,  pro- 
vide for: 

1.  The  qualification  of  members,  mode  of  election  or 
appointment,  and  terms  of  admission  to  membership; 

2.  The  fees  of  admission  and  dues  to  be  paid  to  their 
treasury  by  members: 

3.  The  number  of  persons  that  shall  constitute  a  quorum 
at  any  meeting  of  the  corporation,  and  that  an  election  of 
officers  of  the  corporation  by  a  meeting  so  constituted,  or  the 
appointment  or  selection  of  such  officers,  or  any  of  them,  in 
any  manner  required  by  the  rules,  regulations,  or  discipline 
of  any  specified  religious  denomination,  society,  or  church, 
shall  be  as  valid  as  if  made  at  an  election  at  which  a  major- 
ity of  the  members  of  the  corporation  were  present  and  voted; 

4.  The  expulsion  and   suspension  of  members  for  miscon- 

402 


Tit.  XII.]  MEMBERS — TRANSFER.  §§  600,  601 

duct  or  non-payment  of  dues,  also  for  restoration  to  mem- 
bership ; 

5.  A  special  method  of  organizing  the  board  of  directors, 
and  a  special  method  of  increasing  or  diminishing  the  num- 
ber of  directors  within  the  limits  as  to  number  prescribed 
by  section  five  hundred  and  ninety-three  of  this  code: 

6.  Contracting,  securing,  paying,  and  limiting  the  amount 
of  their  indebtedness; 

7.  That  the  rules,  regulations,  or  discipline,  for  the  time 
being,  of  any  specified  religious  denomination,  society,  or 
church,  shall  always  be  a  part  of  their  by-laws,  ordinances, 
constitutions,  or  articles  of  incorporation; 

8.  Other  regulations  not  repugnant  to  the  constitution  or. 
laws  of  the  state  and  consonant  with  the  objects  of  the  cor- 
poration. 

History:  Enacted  March  21,  1872,  founded  upon  §§  8,  9,  Act 
April  27,  1863,  Stats.  1863,  p.  627;  amended  March  14,  1885,  Stats, 
and  Amdts.  1885,  p.  136:  March  31,  1897,  Stats,  and  Amdts.  1897, 
pp.    246,    247. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

90  C.  240,  243,  244,  27  P.  191,  192  (applied);  142  C.  489,  495, 
76  P.  238    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

By-laws  of  ordinary  corporations. — See  Kerr's  Cyc.  C.  C.  §  303 
and   note. 

§600.    ME^IBEKS  ADMITTED  AFTER  I>C()RPORATIO>. 

Members  admitted  after  incorporation  have  all  the  rights  and 
privileges,  and  are  subject  to  the  same  responsibilities,  as 
members  of  the  association  prior  thereto. 

m.story:  Enacted  Marcli  21,  1872,  founded  upon  §  8,  Act  April 
27,   1863,  Stats.   1863,   p.   627. 

§  601.    NO  MEMBER  TO  TRANSFER  3IE3mERSniP,  ETC. 

No  member,  or  his  legal  representative,  must  dispose  of  or 
transfer  any  right  or  privilege  conferred  on  him  by  reason 
of  his  membership  of  such  corporation,  or  be  deprived  thereof, 
except  as  herein  provided. 

History:     Enacted  March    21,   1872. 
403 


§  602  CIVIL,  CODE.  [Div.I.Pt.IV. 

§602.  RELIGIOUS  SOCIETY  MAY  BECOME  A  CORPO- 
RATION  SOLE.  Whenever  the  rules,  regulations,  or  disci- 
pline of  any  religious  denomination,  society,  or  church  so 
require,  for  the  administration  of  the  temporalities  thereof, 
and  the  management  of  the  estate  and  property  thereof,  it 
shall  be  lawful  for  the  bishop,  chief  priest,  or  presiding  elder 
of  such  religious  denomination,  society,  or  church  to  become 
a  sole  corporation,  in  the  manner  prescribed  in  this  title,  as 
nearly  as  may  be,  and  with  all  the  powers  and  duties,  and 
for  the  uses  and  purposes  in  this  title  provided  for  religious 
incorporations,  and  subject  to  all  the  conditions,  limitations, 
and  provisions  in  said  title  prescribed. 

[Powers.]  Every  corporation  sole  shall,  however,  for  the 
purposes  of  the  trust,  have  power  to  contract  in  the  same 
manner  and  to  the  same  extent  as  a  natural  person,  and  may 
sue  and  be  sued,  and  may  defend,  in  all  courts  and  places,  in 
all  matters  and  proceedings  whatever,  and  shall  have  author- 
ity to  borrow  money,  and  give  promissory  notes  therefor,  and 
to  secure  the  payment  thereof  by  mortgage  or  other  lien  upon 
property,  real  or  personal;  to  buy,  sell,  lease,  mortgage, 
and  in  every  way  deal  in  real  and  personal  property  in  the 
same  manner  that  a  natural  person  may,  and  without  the 
order  of  any  court;  to  receive  bequests  and  devises  for  its 
own  use  or  upon  trusts  to  the  same  extent  as  natural  per- 
sons may;  and  to  appoint  attorneys  in  fact. 

[Articles  of  ineorporation  to  set  forth,  what.]  The  articles 
of  incorporation  to  be  filed  shall  set  forth  the  facts  author- 
izing such  incorporation,  and  declare  the  manner  in  which 
any  vacancy  occurring  in  the  incumbency  of  such  bishop, 
chief  priest,  or  presiding  elder  is  required  by  the  rules,  regu- 
lations, or  discipline  of  such  denomination,  society,  or  church 
to  be  filled,  which  statement  shall  be  verified  by  affidavit, 
and  for  proof  of  the  appointment  or  election  of  such  bishop, 
chief  priest,  or  presiding  elder,  or  of  any  succeeding  incum- 
bent of  such  corporation,  it  shall  be  sufficient  to  record  with 
the  clerk  of  the  county  in  which  such  bishop,  chief  priest, 
or  presiding   elder   resides,   the  originals  or   a   copy   of  his 

404 


il 


Tit.  XII.]  CORPORATION  SOLE.  §  602a 

commission,  or  certificate,  or  letters  of  election  or  appoint- 
ment, duly  attested;  provided,  all  property  held  by  such 
bishop,  chief  priest,  or  presiding  elder  shall  be  in  trust  for 
the  use,  purpose,  and  behoof  of  his  religious  denomination, 
society,  or  church. 

[Certain  limitation  does  not  apply.]  The  limitation  in  sec- 
tion five  hundred  and  ninety-five  shall  not  apply  to  corpora- 
tions formed  under  this  section,  when  the  land  is  held  or 
used  for  churches,  hospitals,  schools,  colleges,  orphan 
asylums,  parsonages,  or  cemetery  purposes.  Any  judge  of 
the  superior  court  in  the  county  in  which  any  corporation 
is  formed  under  this  chapter  shall  at  all  times  have  access 
to  the  books  of  such  incorporation. 

[Continuation  of  corporation  sole.]  Any  corporation  sole 
heretofore  organized  and  existing  under  the  laws  of  this 
state  may  elect  to  continue  its  existence  under  this  title  by 
filing  a  certificate  to  that  effect,  under  its  corporate  seal  and 
the  hand  of  its  incumbent,  or  amended  articles  of  incorpora- 
tion, in  the  form  required  by  this  title,  and  as  prescribed 
by  section  two  hundred  and  eighty-seven  of  this  code;  and 
from  and  after  the  filing  of  such  certificate  or  amended 
articles,  such  corporation  shall  be  entitled  to  the  privileges 
and  subject  to  the  duties,  liabilities,  and  provisions  in  this 
title  expressed. 

History:  Enacted  March  30,  1878,  Code  Amdts.  1877-8,  p.  84; 
amended  April  6,  1880,  Code  Amdts.  1880  (C.  C.  pt.),  p.  6;  March 
11,  1897,  Stats,  and  Amdts.  1897,  pp.  101,  102. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
94  C.   159,  161,   29  P.   623,  624    (applied). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§602a.  CORPORATIOX  SOLE,  CONTINUOUS  EXIST- 
ENCE.  Every  corporation  sole  shall  have  continued  succes- 
sion and  continuous  existence  during  the  term  for  which  it 
is  organized  to  exist,  notwithstanding  vacancies  in  the  incum- 
bency thereof,  and  during  the  period  of  any  such  vacancy 
such  corporation  sole  shall  have  the  same  capacity  and  right 

405 


§  603  CIVIL  CODE.  [Div.I.PtJV. 

to  receive  and  take  any  gift,  bequest,  devise  or  conveyance 
of  property,  either  as  grantee  for  its  own  use,  or  as  trustee, 
and  to  be  or  be  made  the  beneficiary  of  a  trust,  as  though 
there  were  no  vacancy.  No  agency  created  by  a  corporation 
sole  by  a  written  instrument  which  in  express  terms  provides 
that  the  agency  thereby  created  shall  not  be  terminated  by 
a  vacancy  in  the  incumbency  of  such  corporation,  shall  be 
terminated  or  affected  by  the  death  of  the  incumbent  of  such 
corporation  or  by  a  vacancy  in  the  incumbency  thereof,  how- 
ever caused. 

History:  Enacted  March  21,  1907,  Stats,  and  Amdts.  1907,  p. 
836,  Korr's  Stats,  and  Amdts.  1906-7,  p.  415.  In  effect  imme- 
diately. 

§603.  RELIGIOUS  S0(  lETY  MAY  ELECT  DIRECTORS 
AND  INCORPORATE.  PROCEDURE.  Whenever  the  regula- 
tions, rules,  or  discipline  of  any  church  or  religious  society 
require,  for  the  administration  of  the  temporalities  thereof, 
or  for  the  management  of  the  property  or  estate  thereof,  any 
diocese,  synod,  or  district  organization  of  such  church  or 
religious  society  may  elect  directors  and  become  an  incorpo- 
ration in  the  manner  prescribed  in  this  title,  and  with  all  the 
powers  and  duties,  and  for  the  uses  and  purposes  in  this 
title  provided  for  benevolent  or  religious  incorporations,  and 
subject  to  all  the  conditions,  limitations,  and  provisions  in 
said  title  prescribed,  except  as  otherwise  provided  in  this 
section ; 

[Convention,  etc.,  to  elect  directors.]  Provided,  that  direct- 
ors of  such  incorporation  may  be  elected,  and  that  the  by- 
laws for  its  government  may  be  made  and  amended  by  the 
convention,  synod,  or  other  representative  body  of  such 
church  or  religious  society,  in  and  for  such  district,  in 
accordance  with  the  constitution,  by-laws,  discipline,  or  regu- 
lation thereof,  at  any  regular  meeting,  or  special  meeting 
called  for  that  purpose;   and. 

[Certificates  of  incori»oration  to  be  filed.]  Provided,  the 
certificate  of  incorporation  and  of  the  election  of  directors 
to  be  filed  shall  be  sufficiently  signed  and  attested  by  the 

406 


'I 

J 


Tit.  XII.]  INCORPORATING   CHURCH,    ETC.  §  604 

signature  of  the  presiding  officer  and  secretary  of  tlie  repre- 
sentative convention,  synod,  or  otlier  sucli  body,  in  which 
such  election  is  held;  and, 

[Property  in  trust  for  the  society — Section  595  not  to  apply 
to  these  corporations.]  Provided,  all  property  held  by  such 
incorporation  shall  be  in  trust  for  the  use,  benefit,  and  pur- 
pose of  the  church  or  religious  society,  by  and  for  which  such 
incorporation  was  formed,  and  in  and  of  which  such  diocese, 
synod,  or  other  district  is  an  organized  or  constituent  part; 
and  that  the  limitation  in  section  five  hundred  and  ninety- 
five  shall  not  apply  to  corporations  formed  under  this  sec- 
tion, when  the  land  is  held  or  used  for  churches,  hospitals, 
schools,  colleges,  asylums,  parsonages,  or  cemetery  purposes. 

History:  Enacted  March  12,  1885,  Stats,  and  Amdts.  1885, 
pp.  109,  110.  It  is  thought  the  legislature  sought  to  repeal  this 
provision  by  the  act  given  in  next  section,  but  it  is  manifestly 
inadequate   for  that  purpose. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

114  C.  295,  300,  301,  46  P.  2  (referred  to  with  other  sections); 
128  C.  257,  262,  60  P.  865    (held  not  applicable). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§  604.  SAME.  Any  church  or  other  religious  association 
in  this  state,  composed  of  two  or  more  constituent  parishes, 
missions,  congregations,  or  societies,  having  a  common  con- 
vention, synod,  council,  or  other  representative  legislative 
body,  may  be  incorporated  by  such  representative  body  under 
this  part  and  subject  to  the  provisions  of  this  title,  except 
as  otherwise  provided  in  this  section. 

[Name;  purpose,  term,  etc.]  The  representative  body  of 
such  religious  association  electing  to  incorporate  the  same, 
shall  determine  the  name  of  the  proposed  corporation,  the 
purpose  for  which  it  is  formed,  the  place  where  its  principal 
business  is  to  be  transacted,  the  term  for  which  it  is  to 
exist,  and  the  number  of  its  directors,  and  shall  elect  its 
directors  for  the  first  year. 

[Signed  by  secretary  and  president.]  The  articles  of  incor- 
poration   need    only    be    signed    and    acknowledged    by    the 

407 


§  604  CIVIL  CODE.  [Div.T.Pt.IV. 

presiding  officer  and  secretary  of  such  representative  body, 
and  in  addition  to  the  requirements  of  section  two  hundred 
and  ninety,  shall  set  forth  the  proceedings  herein  prescribed 
for  said  representative  body,  and  that  the  same  were  duly 
had  in  accordance  with  the  constitution,  canons,  rules,  or 
regulations  governing  the  other  proceedings  of  said  repre- 
sentative body,  and  the  time  and  place  thereof. 

[Election  of  directors.]  The  directors  of  such  corporation 
shall  be  elected  annually  by  the  representative  body  of  the 
association. 

[liy-laws;  repeal,  aniendnient,  etc.]  The  representative 
body  providing  for  such  incorporation  shall  frame  by-laws 
for  the  corporation,  and  such  by-laws  may  be  repealed  or 
amended,  or  new  by-laws  may  be  adopted  by  any  subsequent 
representative  body  in  accordance  with  the  constitution, 
canons,  rules,  or  regulations  governing  the  other  proceedings 
of  such  representative  body.  Such  corporation  may  hold  and 
administer  not  only  the  common  property,  funds,  and  money 
of  such  association,  but  also  the  property,  funds,  and  money 
of  any  constituent  parish,  mission,  congregation,  or   society. 

The  limitation  in  section  five  hundred  and  ninety-five  shall 
not  apply  to  corporations  formed  under  this  section  when 
the  land  is  held  or  used  for  churches,  hospitals,  schools,  col- 
leges, asylums,  parsonages,  or  cemetery  purposes. 

History:  Enacted  March  11,  1887,  Stats,  and  Amdts.  1887,  p. 
104-105.      In    force    March    11,    1887. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Kditorial  Note:  It  was  manifestly  the  intention  of  legislature, 
in  passing  the  above  act,  to  repeal  the  act  given  in  §  603  ante; 
but  the  effort  is  manifestly  insufficient  for  that  purpose;  the 
repealing  clause  l)eing:  "An  act  entitled  'An  act  to  amend  an 
act  entitled  "An  act  to  establish  a  Civil  Code,"  approved  March 
twenty-first,  eighteen  hundred  and  seventy-two,  by  adding  a 
new  section  thereto,  to  be  known  as  six  hundred  and  four, 
relating  to  the  formation  of  religious  incorporations  for  hold- 
ing and  administering  church  property,'  approved  March  twelfth, 
eighteen  hundred  and  eighty-fiv^e,  being  inconsistent  herewith, 
is  hereby  repealed." 

408 


Tit.  XII.]  CONSOLIDATION.  §  605 

§605.  CONSOLIDATION  OF  CORPORATIONS.  Any  cor- 
poration now  or  hereafter  organized  for  purposes  other  than 
profit,  may  consolidate  with  any  other  like  association  or 
associations,  or  corporation  or  corporations,  created  either 
under  the  laws  of  the  State  of  California,  or  under  the  laws 
of  any  other  state  or  territory,  so  as  to  form  a  new  or  con- 
solidated corporation,  in  such  manner  as  may  be  author- 
ized by  the  respective  boards  of  directors  or  trustees  of  such 
associations  or  corporations  by  resolution  adopted  at  meet- 
ings of  the  respective  boards  called  for  that  purpose. 

The  resolution  to  be  adopted  by  each  of  the  respective 
boards  shall  state  the  names  of  all  the  corporations  or  asso- 
ciations to  be  united  by  the  consolidation,  the  name  of  the' 
state  or  territory  under  the  laws  of  which  they  are  created 
or  organized,  and  the  dates  of  their  respective  incorporation, 
the  name  by  which  the  new  or  consolidated  corporation  is  to 
be  called  or  known,  the  purposes  for  which  it  is  to  be  formed, 
the  place  where  its  principal  business  is  to  be  transacted, 
the  term  for  which  it  is  to  exist,  the  number  of  its  directors 
or  trustees,  and  the  names  and  residences  of  those  who  are 
appointed  to  act  as  such  for  the  first  year,  and  shall  designate 
three  or  more  persons  by  whom  articles  of  incorporation  of 
the  new  or  consolidated  corporation  shall  be  subscribed  and 
filed  in  compliance  with  this  section. 

Articles  of  incorporation  of  the  new  or  consolidated  cor- 
poration shall  be  subscribed  and  acknoweldged  by  the  persons 
so  designated  as  last  aforesaid  in  the  manner  required  by 
section  two  hundred  and  ninety-two  of  this  code.  Said  articles 
shall  contain  and  set  forth  all  the  matters  required  by  section 
two  hundred  and  ninety  of  this  code,  and  in  addition  thereto 
there  shall  be  attached  to  said  articles  copies  of  the  afore- 
said resolution  of  the  several  associations  or  corporations 
uniting  in  the  consolidation,  certified  by  the  respective  secre- 
taries of  such  associations  or  corporations  under  the  corpo- 
rate seals  thereof;  and  the  said  articles  of  incorporation  shall 
in  the  body  thereof  refer  to  the  said  resolutions  and  to  the 
certified  copies  thereof  so  attached,  and  by  such  reference 
make  the  said  certified  copies  a  part  of  the  said  articles. 

409 


§  605  CIVIL  CODE.  [Div.I.Pt.IV. 

The  said  articles  of  incorporation  shall  be  filed  in  the  office 
of  the  county  clerk  of  the  county  where  the  principal  business 
of  the  new  or  consolidated  corporation  is  to  be  transacted,  and 
a  certified  copy  thereof  in  the  office  of  the  secretary  of  state, 
in  the  manner  required  by  this  code  for  the  filing  of  original 
articles  of  incorporation;  and  thereupon  the  secretary  of  state 
shall  issue  to  the  corporation,  over  the  great  seal  of  the  state, 
a  certificate  in  manner  and  form  as  provided  by  section  two 
hundred  and  ninety-six  of  this  code. 

Fronfc  and  after  the  filing  of  such  certified  copy  of  the 
articles  of  incorporation  with  the  secretary  of  state  the  former 
associations  or  corporations  uniting  in  the  consolidation  and 
comprising  the  component  parts  of  the  new  or  consolidated 
corporation  shall  cease  to  exist,  and  the  new  or  consolidated 
corporation  shall  succeed  to  all  the  rights,  duties  and  powers 
of  the  component  associations  or  corporations,  and  shall  be 
possessed  of  all  the  rights,  duties  and  powers  set  forth  in  its 
articles  of  incorporation  not  inconsistent  with  this  title,  and 
shall  be  subject  to  all  the  liabilities  and  obligations  of  the 
former  component  associations  or  corporations,  and  shall  suc- 
ceed to  and  become  vested  with  all  the  property  thereof,  both 
real  and  personal,  of  every  name  and  nature,  and  may  make 
by-laws  and  do  all  things  permitted  by  this  title. 

History:  Original  section  providing  for  consolidation  of 
debts,  enacted  Marcti  20,  1903, ' Stats,  and  Amdts.  1903,  p.  252; 
present  section  enacted  as  an  amendment  April  26,  1909,  Stats, 
and    Amdts.    1909,    p.    1094. 


410 


II 


Tit.  Xlla.]  HUMANE    SOCIETIES.  §  607 


TITLE  Xlla. 

SOCIETIES  FOR  THE  PREVENTION  OF  CRUELTY  TO  CHIL- 
DREN   AND    ANIMALS. 

[This  is  a  new  title  added  by  Act  Marcli  21,  1905  (Stats,  and 
Amdts.  1905,  pp.  590-592),  and  is  a  re-enactment  of  a  new 
title  added  by  Code  Commission,  Act  Marcli  16,  1901  (Stats, 
and  Amdts.  1900-1,  pp.  382-384,  429),  whicli  was  held  unconsti- 
tutional, see  history,  §  4  ante.  The  title  is  a  codification  of  Act 
1874,  Stats.  1873-4,  p.  499,  and  Act  1876,  Stats.  1875-6,  p.  830.] 
§  607.     Formation   of    [humane]    corporations. 

§  607a.  Power  to    receive    and  dispense  of  property.      [Amount.] 
§  607b.  Complaints    for   violating   any    law   relating   to    children 

or  aniinals. 
§  607c.  Magistrates  and  police  officers  to  aid  the  corporation  and 

its  officers. 
§  607d.  Pre-existing  corporations.     [Title  extends  to.] 
§  607e.  Fines,   penalties,  and   forfeitures,   and   the   disposition    to 

be  made  thereof. 
§  607f.    Members  and  agents  may  be  authorized  to  act  as  police 

officers. 
§  607g.   Children    who    may    be    arrested    and    brought    before    a 

court  or  magistrate  for  examination. 


§607.     FORMATION     OF      [HUMANE]      CORPORATIONS. 

Corporations  may  be  formed  by  any  number  of  persons  not 
less  than  five,  a  majority  of  whom  must  be  citizens  and  resi- 
dents of  this  state,  under  the  general  provisions  of  this  code, 
for  the  purpose  of  the  prevention  of  cruelty  to  children  or 
animals,  or  both. 

History:      Enacted    March    21,    1905,    Stats,    and    Amdts.    1905, 
p.    590;    see    introductory    note    to    this    title. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note  §  283,  ante. 

Formation    of    corporations — General    provisions    governing. — 
See   Kerr's   C.    C.    §§  285-321a   and   notes. 

Juvenile  courts. — See  Hen.  G.  L.,  tit.  Juvenile  Court  and  notes. 

Killing,    maiming,    or    torturing   animals — Penal    provisions. — 
See  Kerr's  Cyc.  Pen.  C.   §  597  and  notes. 

411 


§§  607a-607d  CIVIL  CODE.  [Div.I.Pt.IV. 

§  607a.  POWER  TO  RECEIVE  AND  DISPOSE  OF  PROP- 
ERTY.  [AMOUNT.]  Every  such  corporation  may  take  and 
hold,  by  gift,  purchase,  devise,  or  bequest,  any  property,  real 
or  personal,  and  dispose  of  the  same  at  its  pleasure;  but  it 
must  not  hold  real  property  the  annual  income  of  which 
exceed*. fifty'  thousand  dollars. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
590;   see  introductory   note  to   this  title. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Powers  of  corporations  in  general. — See  Kerr's  Cyc.  C.  C.  §  354 
and  note. 

§607b.  COMPLAINTS  FOR  VIOLATING  ANY  LAW  RE- 
LATING  TO  CHILDREN  OR  ANIMALS.  Any  such  corpora- 
tion, or  any  member  or  officer  thereof,  may  prefer  a  com- 
plaint against  any  person  or  persons,  before  any  court  or 
magistrate  having  jurisdiction,  for  the  violation  of  any  law 
relating  to  or  affecting  children  or  animals,  and  may  aid  in 
the  prosecution  of  any  such  offender  before  such  court  or 
magistrate  in  any  proceeding  taken. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
590;    see    introductory    note    to    this    title. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

Arrest  without  warrant. — See  post  §  607f. 

§(U)7c.  MAGISTRATES  AND  POLICE  OFFICERS  TO 
AID  THE  CORPORATION  AND  ITS  OFFICERS.  All  magis- 
trates, constables,  sheriffs,  and  officers  of  police  must,  as 
occasion  may  require,  aid  any  such  corporation,  its  officers, 
members,  and  agents,  in  the  enforcement  of  all  laws 
which  are  now  or  may  be  hereafter  enacted  relating  to  or 
affecting  children  or  animals. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    590;   see   introductory   note   to   this   title. 

§607d.  PRE-EXISTING  CORPORATIONS.  [TITLE  EX- 
TENDS TO.]     The  provisions  of  this  title  extend  to  all  cor- 

412 


Tit.  Xlla.]  FINES,  ETC.— DISPOSITION  OF.  §  607e 

porations  heretofore  formed  and  existing  for  the  prevention 
of  cruelty  to  children  or  animals,  but  do  not  extend  or  apply- 
to  any  association,  society,  or  corporation  which  uses  or 
specifies  a  name  or  style  the  same,  or  substantially  the 
same,  as  that  of  any  previously  existing  society  or  corpora- 
tion in  this  state  organized  for  a  like  purpose. 

History:      Enacted  March    21,    1905,   Stats,   and   Amdts.    1905,   p. 
590;   see  introductorj^   note  to   this   title. 


§  607e.  FINES,  PEIVALTIES,  AND  FORFEITURES  AND 
THE  DISPOSITION  TO  BE  MADE  THEREOF.  All  fines,  pen- 
alties and  forfeitures  imposed  and  collected  in  any  city  or. 
county,  or  city  and  county,  of  this  state  under  the  provisions 
of  any  law  of  this  state,  now  or  hereafter  enacted,  relating  to 
or  affecting  children  or  animals,  in  every  case  where  the 
prosecution  was  instituted,  aided,  or  conducted  by  any  cor- 
poration or  society  now  or  hereafter  existing,  incorporated  or 
organized  for  the  prevention  of  cruelty  to  animals  or  to  chil- 
dren must,  except  where  otherwise  provided,  inure  to  such 
corporation  or  society  in  aid  of  the  purposes  for  which  it  was 
incorporated  or  organized. 

[Compensation  from  city  or  county.  Amonnt.]  In  addition 
to  said  fines,  penalties  and  forfeiture,  every  such  society  incor- 
porated and  organized  for  the  prevention  of  cruelty  to  ani- 
mals, or  for  the  prevention  of  cruelty  to  children,  may,  in 
each  city,  or  city  and  county  or  county  where  such  society 
exists,  while  actively  engaged  in  enforcing  the  provisions  of 
the  laws  of  this  state,  now  or  hereafter  enacted,  for  the  pre- 
vention of  cruelty  to  animals  or  children,  or  arresting,  or 
prosecuting  offenders  thereunder,  or  preventing  cruelty  to 
animals  or  children  be  paid,  as  compensation  therefor,  from 
the  county,  or  city  and  county  general  fund  by  the  board  of 
supervisors,  a  sum  not  exceeding  one  hundred  and  fifty  dol- 
lars per  month,  in  the  same  manner  as  other  claims  against 
said  county,  or  city  and  county,  are  paid. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
591;  amended  March  20,   1909,  Stats  and  Amdts.  1909,  p.  574. 

413 


§§607f,  607g  CIVIL  CODE.  [Div.I.Pt.IV. 

§  607f.    MEMBERS  AND  AGENTS  MAY  BE  AUTHORIZED 

TO  ACT  AS  POLICE  OFFICERS.  All  members  and  agents, 
and  all  officers  of  each  or  any  of  such  corporations  or  socie- 
ties, as  may  by  the  trustees  thereof  be  duly  authorized  in 
writing,  approved  by  a  judge  of  the  superior  court  of  the 
county?- in  which  such  corporation  or  society  was  organized, 
and  sworn  in  the  same  manner  as  are  constables  or  peace 
officers,  have  power  lawfully  to  interfere  to  prevent  the  per- 
petration of  any  act  of  cruelty  upon  any  child  or  dumb 
animal,  and  may  use  such  force  as  is  necessary  to  prevent 
the  same,  and  to  that  end  may  summon  to  their  aid  any 
bystander. 

[Make  arrests.  Weapons  and  badge.]  They  may  make  ar- 
rests for  the  violation  of  any  penal  law  relating  to  or  affect- 
ing children  or  animals  in  the  same  manner  as  a  constable 
or  other  peace  officer;  and  may  carry  the  same  or  similar 
weapons  that  such  officers  are  authorized  to  carry;  provided, 
however,  that  in  cities  of  the  first  class  no  such  member, 
officer  or  agent  of  such  societies  shall  carry  such  weapon 
until  permission  in  writing  has  been  first  granted  to  him  so 
to  do  by  the  board  of  police  commissioners  of  said  city  or 
cities.  All  such  members  and  agents  must,  when  making 
such  arrests,  exhibit  and  expose  a  suitable  badge  to  be 
adopted  by  such  corporation  or  society. 

[Resisting.  Penalty.]  All  persons  resisting  such  specially 
appointed  officers,  when  performing  any  duty  under  this  sec- 
tion, are  guilty  of  a  misdemeanor. 

HLstory:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p 
591;  amended  February  20,   1909,  Stats,  and  Amdts.   1909,  p.   33. 

§607g.  CHILDREN  >VHO  MAY  BE  ARRESTED  AND 
BROUGHT  BEFORE  A  COURT  OR  MAGISTRATE  FOR  EX- 
AMINATION. Any  child  under  the  age  of  sixteen  years 
that  comes  within  any  of  the  following  descriptions  named: 

1.  Who  is  found  begging  or  receiving  or  gathering  alms 
(whether  actually  begging,  or  under  the  pretext  of  selling 
or  offering  for  sale  anything),  or  being  in  any  street,  road, 

414 


J 


Tit.  Xlla.]  AUTHORITY— POLICE   POWER.  §  607g 

or  public  place  for  the  purpose  of  so  begging,  gathering,  or 
receiving  alms; 

2.  "VYlio  is  found  wandering  and  not  having  any  home  or 
settled  place  of  abode,  or  proper  guardianship,  or  visible 
means  of  subsistence; 

3.  Who  is  found  destitute,  either  being  an  orphan,  or  hav- 
ing a  vicious  parent  who  is  undergoing  penal  servitude  or 
imprisonment; 

4.  Who  frequents  the  company  of  reputed  thieres  or  pros- 
titutes, or  houses  of  prostitution  or  assignation,  or  dance- 
houses,  concerts,  saloons,  theaters,  or  variety  halls,  or  other 
places  of  amusement  where  spirituous,  malt,  or  vinous  liquors, 
are  sold,  without  parent  or  guardian; 

5.  Who  is  engaged  or  used  for  or  in  any  business,  exhibi- 
tion, vocation,  or  purpose,  in  violation  of  any  law  of  this 
state; — 

Must  be  arrested  and  brought  before  a  court  or  magistrate, 
and  when,  upon  examination  before  such  court  or  magistrate, 
it  appears  that  any  such  child  has  been  engaged  in  any  of 
the  aforesaid  acts,  or  comes  within  any  of  the  aforesaid 
descriptions;  or  when,  upon  the  examination  or  conviction 
of  any  person  having  the  custody  of  a  child,  of  a  criminal 
assault  upon  it,  the  court  or  magistrate  before  whom  such 
examination  or  conviction  is  had  deems  it  desirable  for  the 
welfare  of  such  child  that  the  person  so  examined  or  con- 
victed should  be  deprived  of  its  custody  thereafter; 

[Order  of  court  upon  examination — Commitment  of  child.] 
Such  court  or  magistrate,  when  it  deems  it  expedient  for  the 
welfare  of  such  child,  may  commit  such  child  to  an  orphan 
asylum,  corporation,  or  society  for  the  prevention  of  cruelty  to 
children,  charitable  or  other  institution,  or  make  such  other 
disposition  thereof  as  now  is  or  hereafter  may  be  provided 
by  law  in  cases  of  vagrant,  truant,  disorderly,  pauper,  or  desti- 
tute children. 

[Power  to  institute  proceedings.]  Any  corporation,  organ- 
ized under  this  title,  or  now  existing,  for  the  prevention  of 
cruelty  to   children,   or  any  officer   or   member   thereof,   may 

415 


§  608  CIVIL  CODE.  [Div.I,Pt.IV. 

institute   proceedings   under   this   section   for   the    welfare   of 
any  such  child. 

History:      Enacted    March    21,    1905,    Stats,    and    Amdts.    1905, 
pp.  591-592;   see  introductory  note  to  this  title. 

See  Kerr's" Cyc.  C.  C.  for  6  pars,  annotation. 
As    to   many    miscellaneous    matters    as    to    corporations    gen- 
erally, Bee  note  §  283,  ante. 


TITLE  XIII. 
CEMETERY   CORPORATIONS. 

§  608.     How  much  land  may  be  held  and  how  disposed  of. 

§  609.     Who  are  members  eligible  to  vote  and  hold  office. 

§  610.  May  hold  personal  property,  to  what  amount.  How  dis- 
posed of. 

§611.  May  issue  bonds  to  pay  for  grounds.  Proceeds  of  sale, 
how  disposed  of. 

§  612.     May  take  and  hold  title  to  what,  and  how. 

§  613.  When  burial  lot  inalienable.  Who  may  not  be  buried 
in   lot. 

§  614.  Lot-owners  previous  to  purchase  to  be  members  of  the 
corporation. 

§  615.     May  sell  lands,  when. 

§  616.  May  take  and  hold  property  in  trust.  Application  of 
income. 


§608.  HOW  MUCH  LAND  MAY  BE  HELD  AND  HOW 
DISPOSED  OF.  Corporations  organized  to  establish  and 
maintain  cemeteries  may  take,  by  purchase,  donation,  or 
devise,  land,  not  ftxcee(lin^  three  Inindred  and  twenty  acres 

in  extent,  [1]  in  the  county  wherein  their  articles  of  incorpo- 
ration are  filed,  or  [2]  in  an  adjoining  county,  and  [3]  may 
employ  any  surplus  moneys  in  the  treasury  thereof  for  such 
purpose;  such  lands  to  be  held  and  occupied  exclusively  as  a 
cemetery  for  the  burial  of  the  dead. 

The  lands  must  be  surveyed  and  subdivided  into  lots  or 
plats,  avenues,  and  walks,  under  order  of  the  directors,  and 
a  map  thereof  filed  in  the  office  of  the  recorder  of  the  county 
wherein  the  lands  are  situated. 

416 


Tit.  XIII.]        VOTING — PERSONAL  PROPERTY.  §§609,610 

[Sale,  conditions,  and  restrictions.]  Thereafter,  upon  such 
terms  and  subject  to  such  conditions  and  restrictions,  to  be 
inserted  in  the  conveyances,  as  the  by-laws  or  directors  may 
prescribe,  the  directors  may  sell  and  convey  the  lots  or  plats 
to  purchasers. 

HLstory:  Enacted  March  21,  1872,  founded  upon  §  4,  Act 
April  18,  1859,  Stats.  1859,  p.  282;  amended  March  20,  1891. 
Stats,  and  Amdts.  1891,  p.   180.     In  effect  March  20,  1891. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 
140   C.   226,   232,    73   P.   987    (construed   and   applied). 
As  to  devise  of  burial  lot,  see  67  L.  121. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note   §  283,  ante. 

§609.  WHO  AEE  MEMBERS  ELIGIBLE  TO  VOTE  AND 
HOLD  OFFICE.  Every  person  of  full  age  who  is  proprietor 
of  a  lot  or  plat  in  the  cemetery  of  the  corporation,  containing 
not  less  than  two  hundred  square  feet  of  land,  or,  if  there  be 
more  than  one  proprietor  of  any  such  lot,  then  such  of  the 
proprietors  as  the  majority  of  joint  proprietors  designate, 
may,  in  person  or  by  proxy,  cast  one  vote  at  all  elections 
had  by  the  corporation  for  directors  or  any  other  purpose, 
and  is  eligible  to  any  office  of  the  corporation.  At  each 
annual  meeting  or  election,  the  directors  mnst  make  a  report 
to  the  proprietors  of  all  their  doings,  and  of  the  management 
and  condition  of  the  property  and  concerns  of  the  corporation. 

History:  Enacted  March  21,  1872,  founded  upon  §  5,  Act 
April   18,   1859,   Stats.    1859,   pp.    282-283. 

140  C.  226,  232,  73  P.  987   (referred  to  with  other  sections). 
As    to    many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note  §  283,  ante. 

§610.  MAY  HOLD  PERSONAL  PROPERTY,  TO  WHAT 
AMOUNT.  HOW  DISPOSED  OF.  Such  corporations  rtiay 
hold  personal  property  to  an  amount  not  exceeding  five  thou- 
sand dollars,  in  addition  to  the  surplus  remaining  from  the 
sales  of  lots  or  plats  after  the  payments  required  in  the  suc- 
ceeding section.  Such  surplus  must  be  disposed  of  in  the 
improvement,  embellishment,  and  preservation  of  the  ceme- 
Kerr's    C.    C— 14  417 


§  611  CIVIL  CODE.  [Div.I,Pt.IV. 

tery,  and  paying  incidental  expenses  of  the  corporation,  and 
in  no  other  manner. 

History:     Enacted  March  21,  1872,  founded  upon  §  4,  Act  April 
18,   1859,   Stats.   1859,  p.   282. 

140  C.  226,  232,  73  P.  987   (referred  to  with  other  sections). 
As    to   many    miscellaneous    matters   as    to    corporations    gen- 
erally, see  note  §  283,  ante. 


§  611.  MAY  ISSUE  BONDS  TO  PAT  FOR  GROUNDS.  PRO- 
CEEDS OF  SALE,  HOW  DISPOSED  OF.  Such  corporations 
may  issue  their  bonds,  bearing  interest  not  exceeding  twelve 
per  cent  per  annum,  for  the  purchase  of  lands  for  their  ceme- 
teries, payable  out  of  the  proceeds  of  the  cemetery  and  not 
otherwise;  sixty  per  cent  of  the  proceeds  of  sales  of  lots, 
plats,  and  graves  must  be  applied  at  least  every  three  months 
to  the  payment  of  the  bonds  and  interest.  Such  corporations 
may  also  agree  with  the  person  or  persons  from  whom  ceme- 
tery lands  shall  be  purchased,  to  pay  for  such  lands,  as  the 
purchase  price  thereof,  any  specified  share  or  portion,  not 
exceeding  one-half,  of  the  proceeds  of  all  sales  of  lots  or  plats 
made  for  such  lands;  such  payment  to  be  made  at  such  inter- 
vals as  may  be  agreed  upon.  In  all  cases  where  cemetery 
lands  shall  be  purchased  and  agreed  to  be  paid  for  in  the 
manner  last  provided,  the  prices  for  lots  or  plats  specified  in 
the  by-laws,  rules,  or  regulations  first  adopted  by  such  asso- 
ciation, or  prescribed  in  the  agreement  between  the  cemetery 
and  the  person  or  persons  from  whom  the  cemetery  lands 
were  purchaser,  shall  not  be  changed  without  the  written  con- 
sent of  a  majority  in  interest  of  the  persons  from  whom  such 
lands  were  purchased,  their  heirs,  representatives,  or  assigns. 

History:  Enacted  March  21,  1872,  founded  upon  §  7,  Act 
April  18,  1859,  Stats.  1859,  p.  281,  as  amended  Act  January  13, 
1864,  Stats.  1863-4,  p.  12,  and  Act  April  16,  1880,  Code  Amdts. 
1880    (C.   C.   pt.),  p.   12.      In   effect  April    16,   1880. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
140  C.   226,  232,  73  P.  987   (referred  to  with  other  sections). 
As    to   many    miscellaneous    matters   as    to    corporations    gen- 
erally, see  note  §  283,  ante. 

418 


Tit.  XIII.]  BURIAL  LOT   INALIENABLE.  §  613 

§612.  MAY  TAKE  AND  HOLD  TITLE  TO  WHAT,  AND 
HOW.  Any  corporation  organized  to  establisli  and  maintain, 
or  to  improve,  a  cemetery,  may  take  and  hold  title  to  any 
cemetery  lot,  plot  or  grave,  devised  or  given  to  it  in  trust 
for  the  specific  purpose  of  perpetually  caring  for  the  same. 

History:  Enacted  March  21,  1872,  founded  upon  §  9,  Act 
April  18,  1859,  Stats.  1859,  p.  284;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  384,  held 
unconstitutional,  see  history,  §  4  ante;  amended  March  26, 
1901,   Stats,   and   Amdts.    1900-1,   p.    814. 

140  C.  226,  232,  73  P.   987    (referred  to  with   other  sections). 
As    to   many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note   §  283,  ante. 

§613.  WHEN  BURIAL  LOT  INALIENABLE.  WHO  MAY 
NOT  BE  BURIED  IN  LOT.  Whenever  an  interment  is  made 
in  any  lot  or  plat  transferred  to  individual  owners  by  the 
corporation,  the  same  thereby  becomes  forever  inalienable, 
and  descends  in  regular  line  of  succession  to  the  heirs  at 
law  of  the  owner.  When  there  are  several  owners  of  interests 
in  such  lot  or  plat,  one  or  more  may  acquire  by  purchase  the 
interest  of  others  interested  in  the  fee  simple  title  thereof, 
but  no  one  not  an  owner  acquires  interest  or  right  of  burial 
therein  by  purchase;  nor  must  any  one  be  buried  in  any  such 
lot  or  plat  not  at  the  time  owning  an  interest  therein,  or 
who  is  not  a  relative  of  such  owner,  or  of  his  wife,  except  by 
consent  of  all  jointly  interested; 

[Alienability  revived,  how.]  Provided,  however,  that  when 
all  the  bodies  buried  in  any  such  lot  shall  have  been  removed 
therefrom,  with  the  consent  of  the  owners  of  such  lot,  it  shall 
be  lawful  for  the  then  owners  of  such  lot  to  sell  and  transfer 
the  same  by  deed;  and  any  such  sale  and  transfer  heretofore 
made  is  hereby  declared  to  be  valid  and  effectual  to  transfer 
the  title  to  the  purchaser,  any  law  to  the  contrary  thereof 
notwithstanding. 

History:  Enacted  March  21,  1872,  founded  upon  §  11,  Act 
April  IS,  1859,  Stats.  1859,  p.  284;  amended  February  10,  1885, 
Code   Amdts.    1885,   pp.    1-2;    amended   by   Code   Commission,   Act 

419 


§§  614, 615  CIVIL  CODE.  [Div.I.Pt.IV. 

March'  16,    1901,    Stats,    and    Amdts.    1900-1,    p.    385,    held    uncon- 
stitutional, see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

115  C.  372,  375,  47  P.  55,  36  L.  618  (construed  and  applied); 
140  C.  226,  232,  73  P.  987   (referred  to  with  other  sections). 

As  to  character  of  estate  or  property  of  owner  in  burial  lot, 
see  67  L.  118-126. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

§614.  L()T-OW>ERS  PREVIOUS  TO  PURCHASE  TO  BE 
MEMBERS  OF  THE  CORPORATION.  When  grounds  pur- 
chased or  otherwise  acquired  for  cemetery  purposes  have  been 
previously  used  as  a  burial-ground,  those  who  are  lot-owners 
at  the  time  of  the  purchase  continue  to  own  the  same,  and  are 
members  of  the  corporation,  with  all  the  privileges  a  purchase 
of  a  lot  from  the  corporation  confers. 

History:  Enacted  March  21,  1872,  founded  upon  §  12,  Act 
April   18,   1859,  Stats.   1859,  p.   285. 

140  C.   226,   232,  73  P.   987    (referred  to  with   other  sections). 
As    to   many    miscellaneous    matters    as    to    corporations    gen- 
erally, see  note  §  283,  ante. 

§  615.  MAY  SELL  LANDS,  WHEN.  Cemetery  corporations 
may  sell  lands  held  by  them  upon  obtaining  an  order  for  that 
purpose  from  the  superior  court  of  the  county  where  the 
lands  are  situated.  Before  making  the  order,  proof  must  be 
made  to  the  satisfaction  of  the  court  that  notice  of  the  appli- 
cation for  leave  to  sell  has  been  given  by  publication  in  such 
manner  and  for  such  time  as  the  court  has  directed,  and  that 
the  lands  are  not  required  for  and  are  not  in  use  for  burial 
purposes,  and  that  it  is  for  the  interest  of  the  corporation 
that  such  lands  be  sold.  The  application  must  be  made  by 
petition,  and  any  member  of  the  corporation  may  oppose  the 
granting  of  the  order  by  affidavit  or  otherwise. 

History:  Enacted  March  4,  1889,  Stats,  and  Amdts.  1889,  p. 
61.     In  effect  March   4,   1889. 

140   C.   226,  232,  73  P.  987    (referred  to  with   other  sections). 
As    to   many    miscellaneous    matters   as    to    corporations    gen- 
erally, see  note   §  283,  ante. 

420 


Tit.  XIII.]  PROPERTY  IN   TRUST— INCOME.  §  616 

§616.  MAY  TAKE  A>D  HOLD  PROPERTY  IX  TRUST. 
APPLICATION  OF  INCOME.  Any  corporation  organized  to 
establish  and  maintain,  or  to  improve,  a  cemetery,  may  take 
and  hold  any  property  bequeathed,  granted,  or  given  to  it  in 
trust,  to  apply  the  proceeds  or  income  thereof  to  any  and  all 
of  the  following  purposes: 

[Purposes  for  which  may  hold.]  To  [1]  the  improvement 
or  embellishment  of  such  cemetery  or  of  any  lot  therein;  or 
to  [2]  the  erection,  renewal,  repair,  or  preservation  of  any 
monument,  fence,  or  other  structure  in  such  cemetery;  or  to 
[3]  the  planting  or  cultivation  of  trees,  shrubs,  or  plants  in 
or  around  such  cemetery,  or  any  lot  therein;  or  to  [4]  the 
improving,  ornamenting,  or  embellishing  of  such  cemetery, 
or  any  lot  therein,  in  any  other  mode  or  manner  not  incon- 
sistent with  the  purposes  for  which  such  cemetery  was  estab- 
lished or  is  being  maintained. 

[Inyestmeut  of  proceeds  and  income,  in  what.]  Such  prop- 
erty and  the  proceeds  or  income  thereof  shall  be  invested  and 
reinvested  in  bonds  of  the  United  States,  or  of  this  state,  or  of 
any  municipality  of  this  state  or  in  first  mortgages  on  real, 
estate,  or  in  centrally  located  income-producing  improved  real 
estate  in  any  city,  or  city  and  county  in  this  state,  if  such 
investment  is  not  repugnant  to  the  terms  of  the  bequest, 
grant  or  gift. 

History:  Enacted  March  26,  1895,  Stats,  and  Amdts.  1895,  p. 
162;  amended  March   25,  1901,  Stats,  and  Amdts.  1900-1,  p.   814. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

138  C.  552,  557,  94. A.  S.  70,  71  P.  707  (construed  and  applied); 
140   C.   226,   232,   73   P.    987    (referred   to   with    other   sections). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 


421 


§§  620-622  CIVIL  CODE.  [Div.I,Pt.IV. 

TITLE  XIV. 

AGRICULTURAL  FAIR  CORPORATIONS. 

§  620.     May  acquire  and  hold  real  estate,  how  much. 

§  621.     Shall  not  contract  debts  or  liabilities  exceeding  amount 

in  treasury. 
§  622.     Not  for  profit.     May  fix  fee,  etc.,  for  membership. 

§  620.  MAY  ACQUIRE  AND  HOLD  REAL  ESTATE,  HOW 
MUCH.  Agricultural  fair  corporations  may  purchase,  hold, 
or  lease  any  quantity  of  land,  not  exceeding  in  the  aggregate 
one  hundred  and  sixty  acres,  with  such  buildings  and  improve- 
ments as  may  be  erected  thereon,  and  may  sell,  lease,  or  other- 
wise dispose  of  the  same,  at  pleasure.  This  real  estate  must 
be  held  for  the  purpose  of  erecting  buildings  and  other  improve- 
ments thereon,  to  promote  and  encourage  agriculture,  horti- 
culture, mechanics,  manufactures,  stockraising,  and  general 
domestic  industry. 

History:  Enacted  March  21,  1872,  founded  upon  §  2,  Act 
March    12,    1859,    Stats.    1859,   p.    105. 

§  621.  SHALL  NOT  CONTRACT  DEBTS  OR  LIABILITIES 
EXCEEDING  AMOUNT  IN  TREASURY.  Such  corporation 
must  not  contract  any  debts  or  liabilities  in  excess  of  the 
amount  of  money  in  the  treasury  at  the  time  of  contract, 
except  for  the  purchase  of  real  property,  for  which  they  may 
create  a  debt  not  exceeding  five  thousand  dollars,  secured  by 
mortgage  on  the  property  of  the  corporation.  The  directors 
who  vote  therefor  are  personally  liable  for  any  debt  con- 
tracted or  incurred  in  violation  of  this  section. 

History:  Enacted  March  21,  1872,  founded  upon  §  5,  Act 
March   12,  1859,  Stats.   1859,  p.  105. 

§622.  NOT  FOR  PROFIT.  MAY  FIX  FEE,  ETC.,  FOR 
MEMBERSHIP.  Agricultural  fair  corporations  are  not  con- 
ducted for  profit,  and  have  no  capital  stock  or  income  other 
than   that   derived   from   charges   to   exhibitors   and   fees   for 

422 


Tit.  XIV.]  PROFIT — MEMBERSHIP    FEE.  §  622 

membership,  which  charges,  together  with  the  term  of  mem- 
bership and  mode  of  acquiring  the  same,  must  be  provided 
for  in  their  by-laws.  Such  fees  must  never  be  greater  than 
to  raise  sufficient  revenue  to  discharge  the  debt  for  the  real 
estate  and  the  improvements  thereon,  and  to  defray  the  cur- 
rent expenses  of  fairs. 

History:      Enacted    March    21,    1872,    founded    upon    §    4,    Act 
March    12,    1859,    Stats.    1859,    p.    105. 

As    to   many    miscellaneous    matters   as    to    corporations    gen- 
erally, see  note  §  283,  ante. 


428 


§  629  CIVIL  CODE.  tDiv.T,Pt.IV. 

TITLE  XV. 

CORPORATIONS   TO  FURNISH  LIGHT   FOR   PUBLIC   USE. 

[Title  XV.  was  repealed  by  Act  March  21,  1905  (Stats,  and 
Amdts.  1905,  p.  592),  and  a  new  title  substituted  therefor,  Stats, 
and  Amdts.  1905,  pp.  593-594.  This  substituted  title  is  an  exact 
reproduction,  with  the  addition  of  §  630a,  of  the  substitution  by 
the  Code  Commission,  Act  March  16,  1901  (Stats,  and  Amdts. 
1900-1,  pp.  385-386,  429),  held  unconstitutional,  see  history,  %4 
ante.] 

§  629.      Duty  to  furnish   gas  or  electricity. 

§  630.     When  corporations  may  refuse  to  supply  gas. 

§  630a.  When  corporations  may  refuse  to  supply  electric  current 

for   light. 
§  631.     Right  to   enter   buildings  for   inspection. 
§  632.      Right   to  shut  off   supply   of  gas  or  electricity. 

§629.    DUTY     TO     FURNISH     GAS     OR     ELECTRICITY. 

Upon  the  application  in  writing  of  the  owner  or  occupant  of 
any  building  or  premises  distant  not  more  than  one  hundred 
feet  from  any  main,  or  direct  or  primary  wire,  of  the  corpora- 
tion, and  payment  by  the  applicant  of  all  money  due  from 
him,  the  corporation  must  supply  gas  or  electricity  as  required 
for  such  building  or  premises,  and  cannot  refuse  on  the 
ground  of  any  indebtedness  of  any  former  owner  or  occupant 
thereof,  unless  the  applicant  has  undertaken  to  pay  the  same. 
If,  for  the  space  of  ten  days  after  such  application,  the  corpo- 
ration refuses  or  neglects  to  supply  the  gas  or  electricity 
required,  it  must  pay  to  the  applicant  the  sum  of  fifty  dollars 
as  liquidated  damages,  and  five  dollars  per  day  as  liquidated 
damages  for  every  day  such  refusal  or  neglect  continues 
thereafter. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   593;   see  introductory  note  to  this  title. 

See    Kerr's    Cyc.    C.    C.    for    48    pars,    annotation. 

109  C.  140,  144,  41  P.  869,  29  L.  463  (construed  and  applied); 
132  C.  209,  211,  212,  64  P.  258,  54  L.  769  (construed  and  applied); 
141  C.  699,  706,  75  P.  329  (referred  to  with  other  sections);  141 
C.   710,   711.   712,   75  P.   342    (construed  and  applied). 

424 


Tit.  XV.]  LIGHTING  COMPANIES — ELECTRIC.  §  629 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note   §  283,  ante. 

LIGHTIXG   COMPAIVIES — GENERALLY. 

As  to  right  of  municipality  to  confine  gas-works  within 
designated  district. — See  Kerr's  Cyc.  Pol.  C.  §19  par.  20;  and 
Hen.   G.   L.,  tit.   Gas  Companies,  act   April    4,    1870. 

Inspector  of  gas  meters — ^Appointment  by  governor. — See 
Kerr's  Cyc.  Pol.  C.  §  368  par.   1  and  note. 

Same — Provisions  as  to  duties,  compensation,  etc. — See  Kerr's 
Cyc.   Pol.   C.   §§»577-584   and   notes. 

Same — Term  of  office.^ — See  Kerr's  Cyc.  Pol.  C.   §  369  and  note. 

Liability  of  municipal  corporations — In  operation  of  electric 
lighting  plant.— See   9  A.  C.  850;   5  L.  N.  S.  536. 

Same — To  gas  company  for  interfering  with  pipes  in  making 
public    improvements. — See    6   A.    C.    388. 

Municipal  corporation — Power  of  to  own  and  operate  lighting 
plant. — See    10   L.    194;    14   L.    268. 

Nature  of  business. — See   10   A.   C.   667. 

Regulation  of  business,  light  furnished  at  reasonable  rate. — 
See    9    A.    C.    819. 

1.   Electric    Ligliting    Company. 

Control  and  regulation  of — As  to,  generally,  24  L.  163;  31  L. 
798-802;   39   L.   609-621;    44   L.    577. 

Damages  for  injury  or  destruction  of  trees. — See  2  A.  C.  639, 
642. 

Degree    of   care    required. — See    31    L.    568. 

Duty  and  liability  of — As  to  generally,  see  100  A.  S.  515;  31 
L.   566-589;   32  L.   351;   32   L.    400. 

Same — In    reference   to   children. — See    10   A.    C.    925. 

Same — In  stringing  wires  to  guard  against  danger  to  chil- 
dren.— See   11   L.   N.    S.    449. 

Ejectment  to  remove  wires  of. — See   11   L.  N.   S.   920. 

Exercise  of  right  of  eminent  domain  by. — See  4  A.  C.  987;  5 
A.  C.  526,  531;  7  A.  C.  748;  7  A.  C.  1182;  10  A.  C.  1055. 

Grant  of  franchise  to  electrical  subway  company. — See  34  L. 
369. 

Liability — As   to   wires   charged   with   lighting. — See   31    L.    588. 

Same — For  broken,  fallen   or  sagging  wire. — See   31   L.   573. 

Same — For  failure  to  guard  wires  from  fallen  wires  of  an- 
i  other   owner. — See    31    L.    582. 

Same — For  injuries  by  wire   in   highways. — See   31   L.   366. 

Same — To  traveler  on  liighway  coming  in  contact  with  live 
wire. — See   4   A.   C.    709. 

Measure  of  duty  of  company  maintaining  wires  on  another's 
premises,  toward  trespasser  or  licensee  on  such  premises. — See 
3   L.  N.  S.   988. 

425 


§  629  CIVIL  CODE.  [Div.I,Pt.lV. 

Municipal  corporation  operating  lig-liting  plant  liable  for  neg- 
ligence.—See   9  A.  C.  850;   5  L.  N.  S.   536. 

Negligence — As  to  wire  on  or  in  building. — See  32  L.   400. 

Same — In  removing  or  repairing  broken,  fallen  or  sagging 
wires. — See  31  L.  579. 

Poles — And  wires  of,  as  personalty  or  realty. — See  9  A.  C.  1192. 

Same. — As  additional  burden  on  highwaj'. — See  24  L.  721:  also 
17   L.    480. 

Power  house  of  electric  light  company  as  nuisance. — See  8 
A.    C.    558,    567. 

Power  of  city  to  own  plant  and  manufacture*  electricity  for 
lighting  purposes. — See  10  L.  194;  14  L.  268. 

Privilege  of  using  street  for  poles  and  wires  as  contract 
within  provision   impairing  obligations. — See  50  L.   147. 

Right  to  place  electric  conduits  under  streets  under  general 
charter,  authority  to  enter  upon  same. — See  9  L.  N.  S.  407. 

Stringing  electric  wires  above  ground  as  negligence. — See  9 
A.  C.   751. 

Violating  ordinance  as  to  electric  wires  as  ground  for  private 
action. — See   5   L.  N.   S.   260. 

Wires  as  additional  servitude  on  highway. — See  10  L.  497. 
2.  Gas  Llg^litingr  CompnnieN. 

As  manufacturer. — See   10   A.   C.    668. 

Compulsory    service   by. — See    15    L.    322. 

Gas  pipes  in  street — As  additional  burden  on  easement. — See 
17  L.   480;   7  L.  N.  S.  506. 

Same — As  a  nuisance. — See  39  L,.  680. 

Same — 'Injunction  to  restraining  laying. — See   8  L.   488. 

Same — Nature  of  right,  generally,  8  L.  487. 

Same — Privilege  of  laying,  as  a  contract  within  provisions 
against  impairing  obligation. — See  50  L.   146. 

Injunction  by  municipality  against  for  maintaining  nuisance. 
—See    42    L.    821. 

Legislative  regulation  of  rates  charged  by. — See  33  L.  181. 

Liability — For  injury  to  trees  by  gas  escaping  from  pipes  on 
mains. — See   10   L.   N.   S.    890. 

Same — For  negligence  in  escape  and  explosion. — See  29  L. 
337-359. 

Same — Not  insurer  of  safety  of  lighting  company,  what  con- 
stitutes negligence  on  part  of  gas  company. — See  1  A.  C.  66. 

Same — To,  of  municipality  for  change  of  street  grade,  in 
absence  of  statute  allowing  compensation,  but  under  constitu- 
tional provisions  against  "damaging  property." — See  10  A.  C. 
849. 

Period  covered  by  contract  to  supply  municipality  with  gas. — 
See   20   L.    726. 

Pipe  lines  for  gas  as  additional  servitude  on  highways. — See 
9   A.   C.   1030,   1033. 

426 


Tit.  XV.]  REFUSE  TO  SUPPLY.  WHEN.  §§  630,  631 

Property  as  real  estate  for  purposes  of  taxation. — See  15  L. 
299. 

Rights — Against  municipality  interfering  with  pipes  in  mak- 
ing public   improvements. — See   6   A.  C.   390. 

Same — To  stop  supply  of  gas  for  default  payment. — ^See  14 
L.    669. 

§  630.  ^VHEJf  COKPOEATIOKS  MAT  REFUSE  TO  SUPPLY 
GAS.  No  corporation  is  required  to  lay  service  pipe  where 
serious  obstacles  exist  to  laying  it,  unless  the  applicant,  if 
required,  deposits  in  advance,  with  the  corporation,  a  sum  of 
money  sufficient  to  pay  the  cost  of  laying  such  service  pipe, 
or  his  proportion  thereof. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
593;    see   introductory   note   to   this   title. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  security  for  gas  to  be  consumed,  see  Kerr's  Cyc.  C.  C. 
§  630,   note. 

§630a.  WHEN  CORPORATIONS  MAT  REFUSE  TO  SUP- 
PLT  ELECTRIC  CURRENT  FOR  LIGHT.  No  corporation  is 
required  to  construct  lines  for  the  supply  of  electric  current 
for  light  where  serious  obstacles  exist,  nor  shall  such  corpo- 
ration be  I'equired  to  supply  such  current  from  a  direct  wire 
at  a  distance  too  remote  from  the  generating  station,  to  insure 
a  sufficient  supply;  nor  is  such  corporation  required  to  supply 
electric  current  for  light  from  a  primary  wire  carrying  cur- 
rent of  high  voltage,  unless  the  applicant  deposit,  in  advance, 
a  sum  of  money  sufficient  to  pay  the  actual  costs  of  such  con- 
struction and  for  the  appliances  required  to  supply  electric 
current  with  safety  at  the  proper  voltage. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    593;    see   introductory   note   to  this   title. 

§  631.    RIGHT  TO  ENTER  BUILDINGS  FOR  INSPECTION. 

Any  owner,  manager  or  superintendent  of  gas  or  electric  light 
works,  or  agent  of  such  owner,  manager,  or  superintendent, 
exhibiting  written  authority,  signed  by  such  owner,  manager 

427 


§  632  CIVIL  CODE.  [Div.I.Pt.IV. 

or  superintendent,  or  any  agent  of  a  gas  or  electric  light  cor- 
poration exhibiting  written  authority  signed  by  the  president 
or  secretary  thereof  for  such  purpose,  may  enter  any  building 
or  premises  lighted  with  gas  or  electricity  supplied  by  such 
owner  or  corporation,  to  inspect  the  gas  meters  or  electric 
meters  therein  to  ascertain  the  quantity  of  gas  or  electricity 
supplied  or  consumed.  Every  owner  or  occupant  of  such 
building  who  hinders  or  prevents  such  entry  or  inspection 
must  pay  to  the  owner  or  corporation  the  sum  of  fifty  dollars 
as  liquidated  damages. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   593;    see   introductory   note   to   this   title. 

As  to  constitutionality  of  above  section,  see  Kerr's  Cyc.  C.  C. 
§  631,   note. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note   §  283,   ante. 

§  632.  RIGHT  TO  SHIT  OFF  SUPPLY  OF  GAS  OR  ELEC- 
TRICITY.  All  gas  or  electric  light  corporations  may  shut  off 
the  supply  of  gas  or  electricity  from  any  person  who  neglects 
or  refuses  to  pay  for  the  gas  or  electricity  supplied,  or  the 
rent  of  any  meter,  pipes,  wires,  fittings  or  appliances,  pro- 
vided by  the  corporation,  as  required  by  his  contract;  and 
for  the  purpose  of  shutting  off  the  gas  or  electricity  in  such 
case  any  employee  of  the  corporation  may  enter  the  building 
or  premises  of  such  person,  between  the  hours  of  eight  o'clock 
in  the  forenoon  and  six  o'clock  in  the  afternoon,  of  any  day 
and  remove  therefrom  any  property  of  the  corporation  used  in 
supplying  gas  or  electricity. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.-  1905, 
p.    594;   see   introductory  note   to   this   title. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

132  C.  209,  212,  64  P.  258,  54  L.  769  (cited);  141  C.  699,  706 
(referred  to  with  other  sections),  708  (construed  and  applied), 
75   P.    329. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 


428 


Tit.  XVI.]  BUILDING   AND   LOAN — POWERS.  §  633 

TITLE  XVI. 

BUILDING    AND    LOAN    ASSOCIATIONS. 

[Title  XVI,  of  Part  IV,  of  Division  I,  of  the  Civil  Code  of  the 
state  of  California,  and  each  and  every  part  and  section  thereof, 
is  liereby  repealed,  and  a  new  title  XVI  is  hereby  enacted  and 
substituted  to  take  the  place  thereof  in  said  code,  to  read  as 
follows:] 

§  633.      Formation,    powers,    and    organization. 
§  634.     Capital   stock.      [Dues,    shares,   etc.] 
§  635.      Retiring'  free  shares. 
§  636.     Maturity   of  stock. 
§  637.     Loans — Prohibitions — Penalties. 
§  638.     Interest- — Securities — Repayment   of  loans. 
§  638a.  Witlidrawal  or  surrender  of  stock,  notice   [repealed]. 
§  639.     Arrears  in  payments — Defaults — Forfeitures. 
§  640.     Purchase  of  real  estate. 
§  641.     Profits  and  losses. 
§  642.     Withdrawals. 
§  643.      Membership. 

§  644.     State   supervision   and   control. 
§  645.      Annual    report. 

§  646.     Foreign   corporations— Deposit  by. 
§  647.      Investment   in   and    loans   upon    bonds. 
§  648.      Building  and  loan  association.      Definition   of  term. 
§  648%.  Taxation  of.     Act  taxing  stocks  not  applicable  [repealed]. 
§  648a.  Building  and  loan  association.    Formation   with   or  with- 
out guarantee. 

§633.      FORMATION,     POWERS,    AXD    ORGANIZATION. 

Building  and  loan  associations  as  hereinafter  in  this  title 
defined,  shall  have  power  to  receive  money  and  accumulate 
funds  to  be  loaned,  and  to  loan  the  same  to  their  shareholders, 
investors  and  others;  to  permit  shareholders  and  investors  to 
withdraw  part  or  all  of  their  payments,  investments  or  stock 
deposits,  and  to  prescribe  the  terms  and  conditions  of  such 
withdrawal;  to  cancel  shares  of  stock,  the  payments  on  which 
have  been  withdrawn;  to  receive  deposits  of  money  and  to 
execute  certificates  therefor,  which  must  specify  the  date, 
amount,  rate  of  interest,  and  when  the  principal  and  interest 

429 


§  633  CIVIL  CODE.  [Div.I,Pt.IV. 

are  payable,  and  also  the  withdrawal  value  thereof  at  the  end 
of  each  year;  to  borrow  money  for  the  purpose  of  making 
loans  and  of  paying  withdrawals  and  maturities;  and  shall 
have  such  further  powers  as  may  be  specifically  set  forth 
under  this  title. 

[Wliut  articles  of  incorporation  must  state.]  Every  such 
corporation  hereafter  formed,  in  setting  forth  the  purposes 
for  which  it  is  formed,  shall  state,  in  its  articles  of  incorpora- 
tion, that  it  is  formed  to  encourage  industry,  frugality,  home 
building,  and  savings  among  its  shareholders  and  members; 
the  accumulation  of  savings;  the  loaning  to  its  shareholders 
and  members  of  the  moneys  or  funds  so  accumulated,  with 
the  profits  and  earnings  thereon,  and  the  repayment  to  each, 
of  his  savings  and  profits,  whenever  they  have  accumulated 
to  the  full  par  value  of  the  shares,  or  at  any  time  when  he 
shall  desire  the  same  or  when  the  corporation  shall  desire  to 
repay  the  same,  as  may  be  provided  in  the  by-laws;  and  shall 
also  state  that  it  is  formed  for  all  the  purposes  specified  in 
this  title. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  189],  pp.  252-253;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  923,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  416.  In  effect  after  July  1,  1907.  Repealing  clause  post 
§  648. 

See   Kerr's  Cyc.   C.   C.   for  8   pars,   annotation. 

Former  section. — 136  C.  525,  69  P.  225   (referred  to). 

As  to  estoppel  generally  to  deny  corporate  existence,  see 
Kerr's  Cyc.  C.  C.  §  285  and  note. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally, see  note  §  283,  ante. 

As  to  provisions  of  Stats.  1893,  see  Hen.  G.  L.,  tit.  Building 
and   Loan   Associations. 

Commissioners  of  Building  and  Loan  Associations — Powers 
and  duties  of. — See  Hen.  G.  L.,  Tit.  Building  and  Loan  Asso- 
ciations. 

BUIIiDING  AND   L,OAN    ASSOCIATIONS — GENERALLY. 

As  to  province  of  statute  of  1893. — See  Hen.  G.  L.  tit.  Building 
and  Loan  Association, 

As  a  co-partnership. — See   1  W.  &  P.   901. 
As  a  savings  institution. — See  1  TV.  &  P.   901. 
Borrowing  members,  withdrawal  of. — See  35  L.  296. 

430 


Tit.  XVI.]         BUILDING  AND  LOAN— GENERALLY.  §  633 

Building  and  loan  stock,  what  is. — See  1  W.  &  P.  901. 

Commissioners  of  Building  and  Loan  Association. — Powers  and 
duties. — See  Hen.  G.  L.  tit.  Building  and  Loan  Association. 

Conflict  of  laws  as  to  usury  in  contracts  of. — See  62  L.  64. 

Constitutionality    of    statute    exempting    from    usury    laws. — 
See   2  A.  C.   996. 

Contracts  of,   whether  and   when  usurious.^See  83  A.   D.   612. 

Definition   of  building  and   loan  association. — See   Kerr's   Cyc. 
C.  C.  §  648  and  note;  1  W.  &  P.  899. 

Fines — As  to  generally,  see  35  L.  215-224. 

Same — Amount  and  reasonableness   of. — See   35   L.    217. 

Same — Cumulative  and  successive. — See  35  L.  219. 

Same — Fines  and   interest  on. — See   35  L.   220. 

Same — Nature  and  validity  o-f. — See  35  L.   215. 

Fixed  premiums   or  fixed  minimums  of  premiums  in    building 
and  loan  association. — See   35   L.   244. 

History,    objects    and    powers    of,    and    membership    and    its 
rights  and  obligations. — See  69  A.  D.  158. 

Insolvency    of,    effect    of    upon    the    riglits    and    liabilities    of 
members. — See  61  A.  S.  24. 

Liability   of   advanced   member   of   building  and   loan   associa- 
tion to  assessments  for  losses. — See  29  L.   177. 

Loans — How  far  usurious. — See  18  L.  129. 

Membership  in,  what  constitutes. — See  1  A.  C.  796. 

Mode  of  settlement  with  borrowing  members  upon  premature 
dissolution. — See  4  A.  C.   1080;   10  A.  C.   391. 

Power — To  borrow  money. — See  11  L.  847. 

Same — To   issue   negotiable   paper. — See   43   L.    419. 

Priorities   in   payment   of  withdrawals. — See   35   L.    294. 

Receivers  for,  when  may  be  appointed. — See  72  A.  S.   47. 

Recovery   of  usury  voluntarily   paid. — See   1   A.   C.    421. 

Right  to  apply  payments  made  on  stock  upon  mortgage  given 
for  a   loan   by   the  same   member. — See   29   L.    120. 

Savings  and  loan  corporations. — See  Kerr's  Cyc.   C.   C.   §§  571- 
580  and   notes. 

Status   of   present  contracts. — See   post   §  648. 

Termination  of  liability  by  withdrawal. — See  35  L.   300. 

Usury — Conflict  of  laws  as  to  in  contracts  of. — See  62  L.  64. 

Same- — Constitutionality    of    statutes    exempting    from. — See    2 
A.    C.    996. 

Same^ — How  far  loans  are  usurious. — See  18  L.  129. 

Same — Law  governing  contracts  of. — See  1  A.  C.   241. 

Same — Recovery  of  voluntarily  paid. — See  1  A.  C.  421. 

Waiver   by,   of  by-laws  specifying  person   to   whom  and   time 
and  place  at  which  dues  are  to  be  paid. — See  3  A.  C.  731. 

Withdrawal — As  to  generally. — See  35  L.   289-296. 

431 


§  634  CIVIL  CODE.  [Div.I.Pt.IV. 

Same — Right  to,  from. — See  8   A.   C.   835. 

Same — When  association  is  insolvent  or  being  wound  up. — See 
35  L.  298. 

§634.  CAPITAL  STOCK.  [DUES,  SHARES,  ETC.]  The 
capital  stock  of  every  such  corporation  shall  be  divided  into 
shares 'of  the  matured  or  par  value  of  one  hundred  or  two 
hundred  dollars  each,  as  provided  by  the  articles  of  incorpora- 
tion, and  shall  be  paid  in  by  the  stockholders  in  the  manner 
provided  by  the  by-laws.  All  such  payments  shall  be  called 
dues.  The  shares  shall  be  issued  in  such  amounts  and  at  such 
times  as  the  board  of  directors  shall  determine,  and  certificates 
of  stock  shall  be  issued  to  each  shareholder  on  the  first  pay- 
ment of  dues  by  him.  Shares  pledged  as  security  for  the 
repayment  of  a  loan  shall  be  called  pledged  shares,  and  all 
others,  free  shares.  All  stock  matured  and  surrendered  or 
canceled,  shall  become  the  property  of  the  corporation  and 
may  be  re-issued.  The  capital  stock  shall  consist  of  the  accu- 
mulated dues  together  with  the  apportioned  profits  of  the  cor- 
poration. 

[Finos.]  Any  such  corporation  shall  have  power,  by  its 
by-laws,  to  impose  and  collect  a  fine  from  each  stockholder, 
not  exceeding  five  per  cent  of  the  defaulted  amount,  for  every 
neglect  or  refusal  to  make  his  payment  when  payable.  Such 
fines  shall  not  be  cumulative. 

[Foes.]  Every  such  corporation  shall  also  have  power,  by 
its  by-laws,  to  charge  an  entrance  or  withdrawal  fee,  for  each 
share  of  stock  it  may  issue,  not  exceeding  one  dollar  on  each 
share,  and  also  to  charge  a  transfer  fee,  not  exceeding  ten 
cents  on  each  share,  all  of  which  fees  shall  be  accounted  for 
by  the  corporation  like  other  funds  of  the  association.  No 
other  fee,  charge  or  deduction  shall  ever  be  made,  or  per- 
mitted to  be  made  against  any  shareholder,  or  against  any 
of  his  shares  hereafter  issued,  or  the  dues  paid  in  thereon 
for  the  purpose  of  creating  a  fund  to  be  used  in  the  payment 
of  current  or  running  expenses. 

[Forms  of  stock.]  The  capital  stock  may  be  issued  in  any 
or  all  of  the  following  forms:  instalment  stock,  paid-up  stock, 
and  guarantee  stock. 

432 


I 


Tit  XVI.]         STOCK— INSTALLMENT,  PAID  UP.  §  634 

Instalment  stock  shall  be  stock  on  which  the  member  or 
holder  must  pay  to  the  corporation  on  each  share  held  by  him, 
dues  in  such  amounts  and  at  such  times  as  the  by-laws  may 
provide  and  on  which  the  payment  of  dues  must  continue  on 
each  share  until,  with  the  profits  allotted  thereto,  it  reaches 
its  matured  value  or  is  withdrawn  or  canceled.  Such  stock 
may  be  issued  in  series,  and  when  so  issued,  payment  of  dues 
on  shares  in  each  series  shall  commence  with  the  issue  of 
shares  in  such  series.  No  share  of  a  prior  series  shall  be 
issued  after  the  issue  of  shares  of  a  new  series,  except  by 
way  of  transfer. 

Paid-up  stock  shall  be  stock  for  and  upon  which  the  owner 
shall  have  paid  to  the  corporation,  the  full  par  value  thereof 
in  cash  at  the  time  of  subscription  therefor,  and  upon  which 
he  shall  be  entitled  either  to  full  participation  in  the  net 
profits  of  the  corporation,  or  to  an  agreed  rate  of  interest  or 
dividend  to  be  specified  in  the  stock  certificate,  but  not  to 
exceed  six  per  cent  per  annum.  All  such  stock  shall  be 
issued  under  such  regulations  as  may  be  provided  in  the  by- 
.  laws  and  fully  set  forth  in  each  certificate. 

Guarantee  stock  shall  be  stock,  provided  by  the  by-laws,  to 
be  set  apart  and  sold  as  a  fixed,  permanent  or  guarantee  capi- 
tal. When  any  such  stock  has  been  once  so  set  apart,  sold 
and  issued,  it  shall  thereafter  remain  as  a  fixed,  permanent 
and  guarantee  capital,  and  shall  be  subject  to  all  the  condi- 
tions and  liabilities  attaching  to  the  paid-in  capital  stock  of 
other  classes  of  corporations.  Such  guarantee  stock  shall  pro- 
tect and  guarantee  all  other  stockholders  and  creditors 
against  any  loss,  and  when  once  paid  it  must  be  kept  unim- 
paired. 

[Directors  from  holders  of  guarantee  stock,  when.]  Corpo- 
rations specified  in  this  title,  issuing  guarantee  stock,  may 
provide  in  their  by-laws  that  a-  majority  of  the  board  of 
directors  shall  be  selected  from  the  holders  of  such  stock. 

History:  Original  section  enacted  Marcli  21,  1891,  Stats,  and 
Amdts.  1891,  pp.  253-254;  see  introductory  note  to  this  title; 
former    section    repealed    and    present    enacted    March    23,    1907, 

433 


§§  635, 636  CIVIL  CODE.  [Div.I,Pt.IV. 

Stats,  and  Amdts.   1907,  p.   924,   Kerr's  Stats,  and  Amdts.   1906-7, 
p.  417.     In  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

Former  section. — 136  C.  525,  69  P.  225  (referred  to);  143  C. 
253,  258,  76  P.  1034   (what  charge  is  not  an  "entrance  fee"). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note   §  283,   ante. 

Status- of  present  contracts,   see  post   §648. 

§635.  RETIRING  FREE  SHARES.  The  directors  may  in 
their  discretion,  under  the  regulations  prescribed  by  the  by- 
laws, retire  any  free  shares  of  stock,  other  than  those  of  the 
guarantee  stock,  by  enforcing  the  withdrawal  thereof,  but 
whenever  the  withdrawal  of  any  shares  is  to  be  enforced,  the 
holders  thereof  must  be  paid  the  amount  actually  paid  in,  and 
the  full  amount  of  earnings  at  the  date  of  retirement;  pro- 
vided that  shares  of  instalment  stock  shall  not  be  forced  out 
until  after  they  shall  have  become  four  years  old. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  254;  see  introductory  note  to  this  title;  amended 
by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  386,  held  unconstitutional,  see  history,  §  4  ante;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats, 
and  Amdts.  1907,  p.  925,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  418. 
In  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

Former  .section. — 136  C.  525,  69  P.  225  (referred  to  in  general 
way   in  connection  with  other  sections). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,   ante. 

Status  of  present  contracts,  see  post  §  648. 

§  636.  MATURITY  OF  STOCK.  When  any  stock  shall  have 
reached  its  matured  value,  payment  of  dues  thereon  shall 
cease.  Borrowing  stockholders  whose  loans  are  fully  paid 
shall  have  their  securities  released  and  returned  to  them. 
Holders  of  free  shares  of  stock  shall  be  paid  the  matured 
value  thereof  out  of  the  funds  of  the  corporation,  with  inter- 
est at  such  rate  as  the  by-laws  shall  provide,  from  the  time 
the  board  of  directors  shall  declare  such  shares  to  have  been 
matured,  until  paid;  but  at  no  time  shall  more  than  one-half 

434 


Tit.  XVI.]  LOANS,    ETC. — PENALTIES.  §  637 

of  the  receipts  of  the  corporation  be  applicable  to  the  pay- 
ment of  matured  shares  without  the  consent  of  said  board. 
The  order  of  the  payment  of  matured  shares,  if  not  otherwise 
determined  by  the  by-laws,  shall  be  in  the  numerical  order 
of  issuance. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  254;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats,  and 
Amdts.  1907,  p.  925,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  418.  In 
effect  after  July  1,   1907.     Repealing-  clause  post  §  648. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

Former   section. — 136   C.    525,    526,    69    P.    225    (referred   to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note   §  283,   ante. 

As  to  power  to  make,  repeal,  and  amend  by-laws,  see  Kerr's 
Cj'c.  C.  C.  §§  301,  303,  304  and  notes. 

Status  of  present  contracts,   see  post  §  648. 

§  637.  LOANS— PROHIBITIONS— PENALTIES.  Loans  may 
be  made  on  such  terms  and  conditions  as  may  be  prescribed 
by  the  board  of  directors  or  the  by-laws.  Loans  may  be  made 
for  a  definite  time  on  the  instalment  plan.  The  number  of 
instalments  in  which  a  loan  with  agreed  interest  is  to  be 
repaid,  must  be  stated  in  the  note  or  obligation  evidencing 
the  loan,  and  when  the  payments  have  been  made  in  accord- 
ance with  the  contract,  the  borrower  shall  receive  a  release 
of  the  security  given  by  him. 

[Unlawful  borrowings.]  It  shall  be  unlawful  for  any 
director  or  officer  of  any  corporation  governed  by  this  title, 
directly  or  indirectly,  for  himself,  or  as  a  partner  or  agent 
for  others,  to  borrow  any  of  the  funds  of  such  corporation, 
and  any  officer  or  director  violating  the  provisions  of  this 
section  shall  be  guilty  of  a  felony.  Any  officer  or  director  of 
any  such  corporation  who  consents  on  behalf  of  such  corpora- 
tion to  make  a  loan  to  any  officer  or  director  of  such  corpora- 
tion shall  be  guilty  of  a  felony,  and  shall  also  be  personally 
liable  to  the  corporation  for  the  full  amount  thereof. 

[Unlawful  to  loan  on  own  guarantee  stock.]  It  shall  be 
unlawful  for  any  building  and  loan  association  to  loan  any 

435 


§  638  CIVIL  CODE.  [Div.I.Pt.IV. 

of  its  funds  upon  any  of  its  own  guarantee  stock  as  security. 
Any  officer  or  director  of  an  association  who  shall  make  any 
such  loan  for  and  on  behalf  of  any  such  association  shall  be 
personally  liable  to  the  corporation  for  the  full  amount 
thereof,  and  shall  also  be  deemed  guilty  of  a  felony. 

[Unlawful  to  invest  in  or  loan  funds  on  mines.]  It  shall  be 
unlawful  for  any  such  corporation  to  invest  any  of  its  funds 
in,  or  loan  any  of  its  funds  upon,  any  mining  shares  or  min- 
ing stocks  or  the  stocks  or  bonds  of  any  corporation,  except 
as  in  this  title  provided.  Every  officer  or  director  who,  on 
behalf  of  any  such  corporation  shall  make  any  such  invest- 
ment or  loan,  or  who  shall  consent  thereto,  shall  be  person- 
ally liable  to  the  corporation  for  the  whole  amount  expended 
by  the  corporation  in  such  investment  or  upon  such  loan, 
and  shall  also  be  deemed  guilty  of  a  felony. 

HLstory:  Orig-inal  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  pp.  254-255;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  926,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  418.     In  effect  after  .July  1,  1907.     Repealing  clause  post  §  648. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

PoniuT  sectiou. — 136  C.  525,  526,  69  P.  225  (construed  and 
held    not   applicable). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see  note   §  283,   ante. 

Status   of  present  contracts,  see  post   §  648. 

§  638.  INTEREST  —  SECURITIES  —  REPAYMENT  OF 
LOANS.  The  board  of  directors  may  fix  from  time  to  time 
the  rate  of  interest  on  loans.  For  every  loan  made,  a  note  or 
obligation,  secured  by  a  first  mortgage  or  deed  of  trust  upon 
unencumbered  real  estate,  shall  be  given,  accompanied  by  a 
pledge  to  the  association  of  shares  of  stock,  as  collateral 
security  for  the  repayment  of  the  loan,  the  matured  value  of 
which  shall  equal  the  amount  of  the  loan,  except  that  there 
need  be  no  such  pledge  in  loans  made  to  others  than  mem- 
bers; or,  in  lieu  of  a  mortgage  or  deed  of  trust,  there  may  be 
pledged  to  the  association,  for  the  payment  of  the  loan,  free 
shares,  but  any  such  loan  must  not  exceed  ninety  per  cent 

436 


Tit.  XVI.]  ARREARS,  ETC. — ^FORFEITURE.  §§  638a,  639 

of  the  withdrawal  value  of  such  shares  under  the  by-laws,  at 
the  time  of  such  borrowing. 

[Repaynient.]  At  the  discretion  of  the  board  of  directors, 
a  borrower  may  repay,  at  any  time,  the  loan  with  all  interest 
and  arrears  thereon,  upon  the  surrender  of  the  shares  pledged 
to  secure  the  loan. 

HLstory:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  255;  amended  February  25,  1897,  Stats,  and 
Amdts.  1897,  p.  30;  March  11,  1901,  Stats,  and  Amdts.  1900-1,  p. 
268;  see  introductory  note  to  this  title;  former  section  repealed 
and  present  enacted  March  23,  1907,  Stats,  and  Amdts.  1907,  p. 
926,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  419.  In  effect  after  July 
1,   1907.     Repealing-   clause   post   §  648. 

See   Kerr's  Cyc.   C.   C.   for   3   pars,   annotation. 

Former  »$eotioii. — 136   C.    525,   69   P.    225    (referred   to). 

As  to  illegality  of  usurious  rate  of  interest,  see  34  L.  201; 
35    L.    244. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Interest — General  provisions  as  to. — See  Kerr's  Cyc.  C.  C. 
§§  1914-1920  and  notes. 

Usurious  rate  of  interest. — See  4  Encyc.  L.   1071-1074. 

Status  of  present  contracts,   see  post   §  648. 

§638.1.  WITHDRAWAL  OK  SURRENDER  OF  STOCK, 
NOTICE   (repealed). 

History:  Original  section  enacted  March  22,  1905,  Stats, 
and  Amdts.  1905,  p.  753;  repealed  March  23,  1907,  Stats,  and 
Amdts.   1907,  p.   923.     In   effect  July   1,   1907. 

§639.  ARREARS  IN  PAYMENT— DEFAULTS— FORFEIT- 
URES.  Whenever  any  non-borrowing  member  shall  be  six 
months  in  arrears  in  the  payment  of  his  dues  upon  free 
shares,  the  secretary  may  give  him  notice  thereof  in  writing, 
and  a  statement  of  his  arrearages,  by  mailing  the  same  to 
him  at  his  last  post-office  address  given  by  him  to  the  associa- 
tion; and  if  he  shall  not  pay  all  arrearages  within  two  months 
thereafter,  the  board  of  directors  may,  at  their  option,  declare 
his  shares  forfeited,  and  at  the  time  of  such  forfeiture,  the 
withdrawal  value  thereof  shall  be  determined  and  stated, 
and  the  defaulting  member  shall  be  entitled  to  withdraw  the 

437 


§  640  CIVIL  CODE.  [Div.I,Pt.IV. 

same  without  interest,  upon  such  notice  as  shall  be  required 
of  a  withdrawing  shareholder.  Whenever  a  borrower  shall 
be  three  months  in  arrears  in  the  payment  of  his  dues  or 
interest  or  loan  instalments,  the  whole  loan  shall  become  due 
at  the  option  of  the  board  of  directors,  and  they  may  proceed 
to  enforce  collection  upon  the  securities  held  by  the  associa- 
tion. The  withdrawal  value,  at  the  time  of  exercising  such 
option,  of  all  shares  pledged  as  collateral  security,  shall  be 
applied  to  the  payment  of  the  loan,  and  said  shares  from  that 
time  shall  be  deemed  surrendei'ed  to  the  association  and 
canceled. 

Hi-story:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  255;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats,  and 
Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  419.  In 
effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

Former  section. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116  C.  410,  414,  48  P.  375  (construed);  131  C.  336,  341,  63  P.  670 
(referring  to  §639,  as  it  stood  originally);  136  C.  525,  526,  69 
P.   225    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note    §  283,   ante. 

Status  of  present  contracts,  see  post  §  648. 

§  640.  PURCHASE  OF  REAL  ESTATE.  Any  such  associa- 
tion may  purchase  at  any  sale,  public  or  private,  any  real 
estate  upon  which  it  may  have  a  mortgage,  judgment,  lien,  or 
other  encumbrance,  or  in  which  it  may  have  an  interest,  and 
may  sell,  convey,  lease,  or  mortgage  the  same  at  pleasure  to 
any  person  or  persons. 

Hliiitory:  Original  section  enacted  March  31,  1891,  Stats,  and 
Anidts.  1891,  p.  255;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats, 
and  Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  420. 
Repealing  clause  post  §  648. 

Former  section. — 93  C.  300,  309,  28  P.  1049,  1050,  1051  (referred 
to);  116  C.  410,  414,  48  P.  375  (referred  to):  131  C.  336,  341,  63 
P.  670  (referring  to  §640,  as  it  stood  originally);  136  C.  525, 
69  P.  225   (referred  to), 

438 


Tit.  XVI.]  PROFIT  AND  LOSS — DIVIDENDS.  §  641 

As   to   many    miscellaneous   matters   as    to    corporations    gen- 
erally,   see    note    §  283,    ante. 

Status  of  present  contracts,  see  post  §  648. 


§  641.  PKOFITS  A?fD  LOSSES.  Profits  and  losses  shall  be 
apportioned  at  least  annually,  and  shall  he  apportioned  to  all 
shares  in  each  class  at  the  time  of  such  apportionment,  accord- 
ing to  the  actual  or  book  value  thereof.  If  the  guarantee  capi- 
tal herein  provided  for,  if  any  there  be,  together  with  the 
reserve  fund,  or  if  the  reserve  fund,  where  there  be  no  guar- 
antee capital,  shall  not  equal  five  per  cent  of  the  out- 
standing loans  at  the  time  of  each  apportionment  of  profits, 
the  directors  shall  set  aside,  as  a  reserve  fund,  not  less  than, 
five  per  cent  of  the  net  profits  accruing  since  the  last  prior 
apportionment,  and  shall  continue  so  to  do  until  said  fund 
shall  amount  to  at  least  five  per  cent  of  the  loans  in  force,  at 
which  figure  said  fund  shall  thereafter  be  maintained.  Said 
reserve  fund  shall  at  all  times  be  available  to  meet  losses 
arising  from  any  source  not  heretofore  provided  to  be  assumed 
by  the  guarantee  capital. 

[Dividend  fund — Reserve.]  Every  such  corporation  having 
a  paid-in  guarantee  capital  stock,  may  provide  in  their 
by-laws,  that  an  amount  not  exceeding  one  per  cent  per 
annum  on  the  average  loans  in  force,  shall  be  set  aside  from 
and  out  of  the  net  profits,  at  each  annual  distribution  thereof, 
— or  a  proportionate  amount  at  each  semi-annual  distribution, 
— from  which  to  declare  dividends  on  and  provide  a  reserve 
fund  that  shall  be  specially  applicable  thereto.  At  least  one- 
tenth  of  the  amount  so  set  aside  shall  be  carried  to  such 
reserve  fund  until  the  same  shall  amount  to  at  least  fifty 
per  cent  of  the  paid-in  guarantee  stock. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  255;  see  introductory  note  to  this  title;  amended 
by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  387,  held  unconstitutional,  see  liistory,  §  4  ante;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats, 
and  Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  420. 
In  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

439 


§  642  CIVIL  CODE.  [Div.I.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

Former  Meetion. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116  C.  410,  414,  48  P.  375  (referred  to);  131  C.  336,  341,  63  P. 
670  (referring-  to  §641,  as  it  stood  originally);  136  C.  525,  69  P. 
225    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

StatiMB.  of  present  contracts,   see   post  §  648. 

§  642.  ^VITHDRAWALS.  A  stockholder  or  investor,  desir- 
ing to  withdraw  from  any  such  corporation  or  to  surrender  a 
part  or  all  of  his  stock,  or  investment  certificate,  may  do  so 
by  giving  thirty  days  notice,  in  writing,  of  his  intention  or 
desire  so  to  do.  On  the  expiration  of  such  notice,  he  is  enti- 
tled to  receive  the  full  amount  paid  in  upon  the  stock  or 
investment  certificate  surrendered,  exclusive  of  the  entrance 
or  withdrawal  fee,  together  with  such  proportion  of  the  earn- 
ings thereon  as  the  by-laws  may  provide,  or  as  may  be  fixed 
by  the  board  of  directors;  but  not  more  than  one-half  of  the 
monthly  receipts  in  any  one  month  must  be  applied  to  with- 
drawals for  that  month,  without  the  consent  of  the  board  of 
.directors,  and  no  stockholder  must  be  permitted  to  withdraw 
whose  stock  is  pledged  to  the  corporation  as  security  for  a 
loan,  until  such  loan  is  fully  paid.  All  withdrawals  must  be 
paid  in  succession  in  the  order  that  the  notices  of  intention 
are  given.  Whenever  the  demands  of  withdrawing  stock- 
holders or  investors  exceed  the  money  applicable  to  their  pay- 
ment, the  notices  of  intention  to  withdraw  must  be  registered 
in  the  order  of  filing  and  payments  thereon  must  be  made  in 
succession,  in  the  order  that  such  notices  were  filed  and 
registered.  The  board  of  directors  may  permit  the  with- 
drawal of  a  part  of  the  accumulations  to  the  credit  of  a  stock- 
holder or  member,  on  shares  of  instalment  stock  not  issued 
in  serial  form,  without  thereby  reducing  the  number  of  shares 
held  by  him. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  pp.  255-256;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  927,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  421.     In  effect  after  July  1,  1907.     Repealing-  clause  post  §  648. 

440 


Tit.  XVI.]  MEMBERSHIP— SUPERVISION.  §§  643,  644 

Former  section. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116  C.  410,  414,  48  P.  375  (held  not  applicable);  131  C.  336,  342, 
63  P.  670  (referring  to  §642,  as  it  stood  originally);  136  C.  525, 
69  P.  225   (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Status   of  present  contracts,   see  post  §  648. 


§  643.  MEMBERSHIP.  Any  person  of  full  age  and  sound 
mind  may  become  a  member  of  an  association  by  taking  one 
or  more  shares  therein  and  subscribing  to  the  by-laws,  and 
annexing  to  his  signature  his  post-ofRce  address.  A  minor 
may  hold  shares  in  the  name  of  a  parent,  guardian,  or  next 
friend,  as  trustee.  The  shares  of  stock  in  any  such  corporation 
held  by  any  person,  to  the  extent  of  one  thousand  dollars, 
shall  be  exempt  from  execution. 

Hiistory:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  256;  see  introductory  note  to  this  title;  amended 
by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  387,  held  unconstitutional,  see  history,  §  4  ante; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  928,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.   421.     In  effect  after  July  1,  1907.     Repealing  clause  post  §  648. 

Former  section. — 93  C.  300,  306,  28  P.  1049,  1050  (referred 
to);  116  C.  410,  414,  48  P.  375  (held  not  applicable);  131  C.  336, 
341,  342,  63  P.  670  (referring  to  §643,  as  it  stood  originally); 
136  C.   525,   69   P.   225    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see    note    §  283,    ante. 

Status   of  present  contracts,   see  post   §  648. 


§  644.  STATE  SUPERVISION  AND  CONTROL.  All  build- 
ing and  loan  associations,  as  in  this  title  defined,  doing  busi- 
ness in  this  state,  shall  be  under  the  supervision  and  control 
of  such  official  or  officials  as  are  by  law  vested  therewith; 
and  except  in  the  manner  provided  in  this  title,  no  corpora- 
tion, firm,  or  association  shall  conduct  or  carry  on  the  busi- 
ness of  accumulating  the  savings  of  its  shareholders,  mem- 
bers, or  investors,  and  loaning  such  accumulations  to  them,  in 
the  manner  of  building  and  loan  associations. 

441 


§  645  CIVIL  CODE.  [Div.LPt.IV. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amrlts.  1891,  p.  256;  see  introductory  note  to  tills  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats, 
and  Amdts.  1907,  p.  928.  In  effect  after  Julj'  1,  1907.  Repealing 
clause  post   §    648. 

Former  section. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116  C.  410.  414,  48  P.  375  (held  not  applicable):  131  C.  336,  341, 
342,  344,  63  P.  670  (referring  to  §  644,  as  it  stood  originally);  136 
C.  525,  69  P.  225   (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Status  of  present  contracts,   see  post   §  648. 

§645.  ANNUAL  REPORT.  Every  association  organized 
under  the  provisions  of  this  title,  and  every  other  association 
doing  a  similar  business,  shall  annually  make  a  full  report,  in 
writing,  of  the  affairs  and  condition  of  such  corporation, 
within  thirty  days  after  its  annual  meeting,  to  the  official  or 
officials  vested  with  powers  of  state  supervision  and  license. 
Such  reports  shall  be  verified  by  the  oath  of  the  officers  mak- 
ing the  same,  and  a  copy  of  the  same  shall  be  delivered  to 
every  stockholder,  from  the  office  of  the  corporation,  who  may 
call  for  such  report. 

[Further  reports.]  Every  association  shall  make  any  fur- 
ther reports  which  the  said  officials  may  require,  and  in  such 
form  and  as  to  such  matters  relating  to  the  conduct  of  the 
business  of  the  association  as  such  official  or  officials  may 
designate. 

[False  statements  iu  reports  perjury,  when.]  Any  wilfully 
false  statement  in  making  and  verifying  said  report  shall  be 
perjury.  Any  such  association  which  shall  fail  to  furnish  the 
said  official  or  officials  any  such  report  required,  within  thirty 
days  after  demand,  shall  forfeit  the  sum  of  ten  dollars  per 
day  for  every  day  such  report  shall  be  delayed  or  withheld, 
which  may  be  recovered  in  an  action  brought  by  the  attorney- 
general  in  the  name  of  the  people  of  this  state;  and  all 
moneys  so  recovered  shall  be  paid  to  the  treasurer  of  this 
state,  who  shall  pay  the  same  into  such  fund  as  may  be  pro- 
vided by  law,  for  the  purposes  of  the  official  or  officials  vested 
with  power  of  supervision  and  license. 

442 


Tit.  XVI.]  FOREIGN — DEPOSIT    BY.  §  646 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  pp.  256-257;  see  introductory  note  to  this  title; 
former  section  repealed  and  present  enacted  March  23,  1907, 
Stats,  and  Amdts.  1907,  p.  928,  Kerr's  Stats,  and  Amdts.  1906-7, 
p.  421.     In  force  after  July  1,  1907.     Repealing  clause  post  §  648. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

Former  section. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116  C.  410,  414,  48  P.  375  (held  not  applicable);  131  C.  336,  341, 
342,  63  P.  670  (referring  to  §645,  as  it  stood  originally);  136  C. 
525,  69  P.  225  (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Status   of  present  contracts,   see  post   §  648. 

§646.     FOREIGN     CORPORATION— DEPOSIT      BY.        No 

building  and  loan  association,  oi-  company,  association,  or  cor- 
poration, organized  under  the  laws  of  any  otlier  state  or  ter- 
ritory, to  carry  on  a  business  of  a  like  character  to  that 
authorized  by  this  title,  shall  be  allowed  to  do  business,  or  to 
sell  their  stock  in  this  state,  without  first  having  deposited 
with  the  state  controller  or  treasurer  the  sum  of  fifty  thousand 
dollars  in  money,  or  in  United  States  bonds  or  municipal  bonds 
of  this  state,  or  in  mortgages  upon  real  estate  located  within 
this  state,  as  a  guarantee  fund  for  the  protection  and  indem- 
nity of  residents  of  the  State  of  California,  with  whom  such 
companies,  associations,  or  corporations  shall  do  business; 
the  fund  so  deposited  to  be  paid  by  the  custodian  thereof,  to 
the  residents  of  California  only,  and  not  then  until  proof  of 
claim  by  final  judgment  has  been  filed  with  the  custodian  of 
said  fund  against  such  foreign  company,  association,  or  cor- 
poration. Any  of  the  securities  so  deposited  may  be  with- 
drawn at  any  time  upon  others  herein  provided  for,  of  like 
amount,  being  substituted  therefor. 

[Agents  of  foreign  corporations.]  Any  person  or  persons 
who  shall  be  found  in  this  state  as  agent,  or  in  any  other 
capacity,  representing  such  foreign  company,  association,  or 
corporation,  which  has  not  complied  with  the  provisions 
of  this  section,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
upon  conviction  shall  be  punished  by  a  fine  not  exceeding 
one  thousand  dollars,  or  by  imprisonment  in  the  county  jail, 

443 


§§  647,  648  CIVIL  CODE.  [Div.I.Pt.IV. 

not  exceeding  twelve  months,  or  by  both  such  fine  and  impris- 
onment. 

History:  Original  section  enacted  Marcli  31,  1891,  Stats,  and 
Amdts.  1891,  p.  257;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats,  and 
Amdts.  1907,  p.  929,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  422.  In 
effect  after  July  1,   1907.     Repealing  clause  post  §  648. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

Former  section. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116  C.   410,   414,   48  P.   375    (held  not  applicable);    131   C.   336,   339, 

341,  342,  63  P.  670  (construed  and  applied);  136  C.  525,  69  P.  225 
(referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Status   of  present   contracts,    see   post   §  648. 

§  647.    IlVYESTIttENT  IN  AND  LOANS  UPON  BONDS.    Any 

building  and  loan  association  may  invest  in  or  loan  upon  bonds 
of  the  United  States,  of  the  State  of  California,  or  of  the  coun- 
ties or  municipalities  or  school  districts  of  said  state,  but 
not  to  exceed  twenty-five  per  cent  of  its  capital. 

History:  Original  section  enacted  March  31,  1891,  Stats,  and 
Amdts.  1891,  p.  257;  see  introductory  note  to  this  title;  former 
section  repealed  and  present  enacted  March  23,  1907,  Stats, 
and  Amdts.  1907,  p.  929,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  423. 
In  effect  after  July   1,   1907.     Repealing  clause  post   §  648. 

Former  seetiou. — 93  C.  300,  306,  28  P.  1049,  1050  (referred  to); 
116   C.   410,   414,   48  P.    375    (held   not  applicable);    131   C.    336,   341, 

342,  63  P.  670  (referring  to  §  647,  as  it  stood  originally);  136  C. 
525,  69  P.  225   (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Status   of  present   contracts,    see   post   §  648. 

§648.  BUILDING  AND  LOAN  ASSOCIATION.  DEFINI- 
TION  OF  TERM.  The  name  "building  and  loan  association" 
as  used  in  this  title  shall  include:  — 

First.  Corporations  formed  for  the  purpose  of  receiving 
money  from,  and  loaning  money  to,  their  members  Only. 

Second.  Corporations,  associations,  companies,  copartner- 
ships, and  individuals  transacting  the  business  of  issuing  or 

444 


Tit.  XVI.]  FORMATION — GUARANTEE.         §§  6481/^,  648a 

selling  bonds,  debentures,  certificates,  shares  of  stock,  or 
other  papers,  by  whatever  names  said  instruments  may  be 
designated,  whether  said  instruments  are  issued  for  money 
paid  in  advance  or  for  money  to  be  paid  in  installments,  but 
with  an  intent,  either  implied  or  expressed,  that  the  proceeds 
or  accumulated  installments  thereof  and  thereon  are  to  be 
withdrawable  or  repayable,  with  accumulated  profits,  at  some 
future  fixed,  or  indefinite  date  of  maturity;  provided  always, 
that  this  section  does  not  include  persons,  copartnerships  or 
corporations  engaged  in  any  kind  of  banking  business. 

[In  effect  when.]  Sec.  2.  This  act  shall  take  effect  and 
be  in  force  from  and  after  its  passage. 

Hi.story:  Enacted  March  31,  1891,  Stats,  and  Amdts.  1891,  p 
257;  former  section  repealed  and  present  section  enacted  March 
23,  1907,  Stats,  and  Amdts.  1907,  p.  929,  Kerr's  Stats,  and 
Amdts.  1906-7,  p.  423;  amended  March  22,  1909,  Stats,  and 
Amdts.    1909,    p.    609. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

Former  isectiun. — '127  C.  37,  39  (erroneously  cited  for  §  648 
C.  C.  P.),  59  P.  206  (correct  citation);  131  C.  336,  342,  63  P.  670 
(referring  to  §648  of  original  code  as  liaving  been  repealed); 
64  P.  1000,  1007  (erroneously  cited  in  dis.  op.  of  Temple,  J.,  for 
§  864);  136  C.  525,  69  P.  225    (referred  to). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

Definition  of  building  and  loan  association. — See  1  W.  &  P. 
899-901. 

§648^^.  TAXATION  OF.  ACT  TAXING  STOCKS  NOT 
APPLICABLE    (repealed). 

History:  Enacted  March  31,  1891,  Stats,  and  Amdts.  1891, 
pp.  257-258;  see  introductory  note  to  this  title;  repealed  March 
22,    1905,    Stats,    and   Amdts.    1905,    p.    759. 

136  C.  525,  69  P.  225  (referred  to  with  other  sections  in  gen- 
eral way). 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

§  648a.  BUILDING  AND  LOAN  ASSOCIATIONS.  FORMA- 
TION  WITH  OR  WITHOUT  GUARANTEE.  Building  and  loan 
associations  may  be  formed  under  this  title  with  or  without 

445 


§  648a  CIVIL  CODE.  [Div.I.Pt.IV. 

guarantee  or  other  capital  stock,  with  all  the  rights,  powers 
and  privileges  and  subject  to  all  the  restrictions  and  lia- 
bilities set  forth  in  this  title.  If  formed  without  any  capital 
stock  or  with  guarantee  capital  stock  only,  the  working  capi- 
tal may  be  accumulated  by  the  issue  of  membership  shares, 
units  or  certificates  having  a  paid  up  or  ultimate  matured 
installment  value  of  one  hundred  or  two  hundred  dollars 
each,  and  entitled  to  all  the  rights,  powers  and  privileges 
and  subject  to  all  the  restrictions  and  liabilities  provided  in 
this  title  for  shares  of  authorized  capital  stock  of  a  similar 
class.  Any  building  and  loan  association  heretofore  formed 
may  re-incorporate  under  the  provisions  of  this  section  and 
may  substitute  membership  shares,  units  or  certificates  of 
similar  classes  for  its  outstanding  or  authorized  shares  of 
capital  stock,  other  than  guarantee  capital  stock,  by  the 
unanimous  vote  of  its  board  of  directors  and  by  a  vote  or 
written  assent  of  the  stockholders  representing  at  least  two- 
thirds  of  the  subscribed  capital  stock  and  by  filing  amended 
articles  of  incorporation  with  the  county  clerk  of  the  county 
in  which  the  corporation's  principal  place  of  business  is 
located  and  a  copy  of  said  amended  articles,  certified  by  such 
county  clerk,  in  the  office  of  the  secretary  of  state. 

Hi.st«»ry:     Enacted  March    25,   1909,   Stats,  and  Amdts.    1909,   p. 
721. 


446 


Tit.  XVII.]  COLLEGES    AND    SEMINARIES.  §§649,6-50 

TITLE  XVII. 

COLLEGES  AND  SEMINARIES  OF  LEARNING. 

[This  is  a  new  title  added  by  Act  March  14,  1885,  Stats,  and 
Amdts.   1885,  p.  132.] 

§  649.     Articles   of    incorporation.      Contents    of. 

§  650.     Board  of  trustees;  term;  quorum;  powers. 

§  651.     Existing-  corporations  may  reincorporate  under  this  act. 

§  649.    ARTICLES  OF  I>C(>RPORATIO>.    (  OXTEXTS  OF. 

Any  number  of  persons  who  may  desire  to  establish  a  col- 
lege or  seminary  of  learning  may  incorporate  themselves  as 
provided  in  this  part,  except  that  in  lieu  of  the  requirements 
of  section  two  hundred  ninety,  the  articles  of  incorporation 
shall  contain: 

1.  The  name   of   the   corporation. 

2.  The  purpose  for  which  it  is  organized. 

3.  The  place  where  the  college  or  seminary  is  to  be  con- 
ducted. 

4.  The  number  of  its  trustees,  which  shall  not  be  less  than 
five  nor  more  than  twenty-five,  and  the  names  and  residences 
of  the  trustees.  The  term  for  which  the  trustees  named  and 
their  successors  are  to  hold  office  may  also  be  stated.  If  it 
is  desired  that  the  trustees,  or  any  portion  of  them,  shall 
belong  to  any  organization,  society,  or  church,  such  limita- 
tion shall  be  stated. 

5.  The  names  of  those  who  hare  subscribed  money  or  prop- 
erty to  assist  in  founding  the  seminary  or  college,  together 
with  the  amount  of  money  and  description  of  property  .sub- 
scribed. 

History:  Enacted  March  14,  1885,  Stats,  and  Amdts.  1885,  p. 
133;  amended  February  20,  1909,  Stats,  and  Amdts.  1909,  p.  30. 

§650.  BOARD  OF  TRUSTEES;  TERM;  QU0RU3I;  POW- 
ERS. Unless  otherwise  provided  in  the  articles  of  incorpora- 
tion the  board  of  trustees  shall,  as  soon  as  organized,  so 
classify   themselves   that  one-fifth   of   their   number   shall   go 

447 


§  650  CIVIL  CODE.  [Div.I.Pt.IV. 

out  of  ofBce  every  year,  and  thereafter  the  trustees  shall  hold 
office  for  five  years. 

[Quorum.]  A  majority  of  the  trustees  shall  constitute  a 
quorum  for  the  transaction  of  business,  and  the  office  of  the 
corporation  shall  be  at  the  college  or  seminary. 

[Powers  of  trustees.]     The  trustees  shall  have  power: 

1.  [To  elect  i)resl(leiit.]  To  elect,  by  ballot,  annually  one  of 
their  number  as  president  of  the  board. 

2.  [To  fill  vacancies.]  Upon  the  death,  removal  out  of  the 
state,  or  other  vacancy  in  the  office,  or  expiration  of  the  term 
of  any  trustee,  to  elect  another  in  his  place;  provided,  that 
where  there  are  graduates  of  the  institution,  such  graduates 
may,  under  such  rules  as  the  board  shall  prescribe,  nominate 
persons  to  fill  vacancies  in  the  board  of  trustees.  Such  nomi- 
nations shall  be  considered  by  the  board,  but  it  may  reject 
any  or  all  such  nominations,  and  of  its  own  motion  appoint 
others. 

3.  To  elect  additional  trustees;  provided,  the  whole  number 
elected  shall  never  exceed  twenty-five  at  any  one  time. 

4.  To  declare  vacant  the  seat  of  any  trustee  who  shall 
absent  himself  from  eight  succeeding  meetings  of  the  board. 

5.  [To  hold  i>roi>erty.]  To  receive  and  hold,  by  purchase, 
gift,  devise,  bequest,  or  grant,  real  or  personal  property  for 
educational  purposes  connected  with  the  corporation,  or  for 
the  benefit  of  the  institution. 

6.  To  sell,  niortg:age,  lease  and  otherwise  use  and  dispose 
of  the  property  of  the  corporation  in  such  manner  as  they 
shall  deem  most  conducive  to  the  prosperity  of  the  corpora- 
tion. 

7.  To  direct  and  prescribe  the  course  of  study  and  disci- 
pline to  be  observed  in  the  college  or  seminary. 

8.  To  appoint  a  president  of  the  college  or  seminary,  who 
shall  hold  his  office  during  the  pleasure  of  the  trustees. 

9.  To  a|)p<»int  sucli  jtrofessors,  tutors,  and  other  officers  as 
they  shall  deem  necessary,  who  shall  hold  their  offices  during 
the  pleasure  of  the  trustees. 

10.  To  grant  such  literary  honors  as  are  usually  granted 
by   any   university,   college,   or   seminary   of   learning   in    the 

448 


Tit.XVII.]  REINCORPORATING.  §  651 

United  States  and  in  testimony  thereof  to  give  suitable 
diplomas  under  their  seal,  and  the  signature  of  such  officers 
of  the  corporation  and  the  institution  as  they  shall  deem 
expedient. 

11.  To  fix  salaries  of  the  president,  professors,  and  other 
officers  and  employees  of  the  college  or  seminary. 

12.  To  make  all  by-laws  and  ordinances  necessary  and 
proper  to  carry  into  effect  the  preceding  powers  and  neces- 
sary to  advance  the  interests  of  the  college  or  seminary; 
provided,  that  no  by-laws  or  ordinances  shall  conflict  with 
the  constitution  or  laws  of  the  United  States,  or  of  this  state. 

History:  Enacted  March  14,  1885,  Stats,  and  Amdts.  1885,  p. 
133;   amended  March   20,   1909,  Stats,   and   Amdts.   1909,   p.    588. 

§651.  EXISTING  CORPORATIONS  MAY  REINCORPO- 
RATE UNDER  THIS  ACT.  Any  educational  corporation,  or 
body  claiming  to  be  such,  now  existing,  may,  by  a  unanimous 
vote  of  those  of  its  trustees  present  at  a  special  meeting  called 
for  that  purpose,  and  of  which  due  notice  shall  be  given  to 
each  trustee,  convey  all  its  property,  rights,  and  franchises, 
to  a  corporation  organized  under  this  title.  The  fact  that  due 
notice  of  the  meeting  was  given  to  each  trustee  shall  be  con- 
clusively proven  by  the  entries  in  the  minutes  of  the  corpora- 
tion or  body  making  the  conveyance.  Said  minutes  shall  be 
certified  to  be  correct  by  the  president  and  secretary. 

History:  Enacted  March  14,  1885,  Stats,  and  Amdts.  1885,  p. 
134.  In  effect  March  14,  1885;  amended  March  20,  1909,  Stats, 
and   Amdts.    1909,   p.    588. 


Kerr's    C.    C. — 15  449 


§  652  CIVIL  CODE.  [Div.I.Pt.IV. 


TITLE  XVIII. 

CONSOLIDATION    OF   COLLEGES   AND    INSTITUTIONS   OF 
HIGHER  EDUCATION. 

§  652.     Societies  and  organizations  autliorized  to  consolidate. 
§  653.     Specific  grants,  etc.,  must  not  be  diverted. 

§652,  SOCIETIES  AND  ORGANIZATIONS  AUTHORIZED 
TO  CONSOLIDATE.  Whenever  any  benevolent,  religious  or 
fraternal  organization  or  society,  having  a  grand  lodge,  assem- 
bly, conference  or  other  legislative  or  representative  head  in 
the  State  of  California,  having  two  or  more  colleges  or  insti- 
tutions of  higher  education  under  its  patronage,  shall,  for  the 
purpose  of  greater  efficiency  and  simplicity  in  the  administra- 
tion of  its  educational  interests,  desire  to  consolidate  such 
institutions  under  one  management,  such  organization  or 
society  shall  be  and  is  hereby  authorized  to  consolidate  such 
institutions  under  one  management  by  complying  with  the 
following  provisions: 

[New  Corporation — Trustees — Term  of  office.]  Such  grand 
lodge,  assembly,  conference  or  other  legislative  or  representa- 
tive head  having  authorized  a  consolidation  of  its  institutions, 
a  new  corporation  shall  be  formed.  The  board  of  trustees 
of  the  new  corporation  shall  at  first  consist  of  the  persons 
constituting  the  boards  of  trustees  of  the  several  institutions, 
respectively  thus  consolidating,  and  others;  provided  the 
number  of  trustees  shall  not  exceed  forty-five.  The  board  of 
trustees  shall  be  so  classified  that  the  term  of  office  of  one- 
third  of  its  number  shall  expire  each  year;  the  successors  of 
such  trustees,  as  their  terms  expire,  shall  be  elected  by  such 
grand  lodge,  assembly,  conference  or  other  legislative  or  rep- 
resentative head,  at  its  annual  meeting. 

The  said  hoard  of  trustees  shall  report  annually  to  the  grand 
lodge,  conference,  assembly  or  other  legislative  or  representa- 
tive head  controlling  it,  the  condition  of  affairs  of  such  cor- 
poration, and  the  amount  and  manner  of  its  receipts  and 
expenditures. 

450 


Tit.XVIII.]  GRANTS— DIVIDING.  §  653 

[Reduction  of  board  of  trustees— Limitation.]  After  the  two 
or  more  colleges  or  institutions  of  higher  education  under  the 
patronage  of  any  benevolent,  religious  or  fraternal  organiza- 
tion or  society,  having  a  grand  lodge,  assembly,  conference 
or  other  legislative  or  representative  head  in  the  State  of 
California  shall  have  become  consolidated  as  hereinabove 
directed  or  specified,  the  board  of  trustees  of  the  new  corpora- 
tion, consisting  at  first  of  the  persons  constituting  the  boards 
of  trustees  of  the  several  institutions,  respectively  thus  con- 
solidated, may  be  reduced  in  number  after  said  board  of  trus- 
tees shall  have  transacted  the  business  of  said  corporation 
for  a  period  of  five  years  after  such  consolidation.  Said  num- 
ber shall  be  reduced  by  the  grand  lodge,  assembly,  conference 
or  other  legislative  or  representative  head  of  said  colleges  or 
institutions  of  higher  education  in  the  following  manner,  viz.: 
At  any  annual  session  of  such  grand  lodge,  assembly,  confer- 
ence or  other  legislative  or  representative  head,  there  shall  be 
dropped  from  the  number  of  trustees  to  be  elected  at  that  ses- 
sion of  such  grand  lodge,  assembly,  conference  or  other  legis- 
lative or  representative  head  such  a  number  of  trustees  as 
those  present  at  such  session  shall  determine,  provided  how- 
ever, that  at  no  time  shall  the  number  of  trustees  composing 
such  board  be  less  than  fifteen. 

History:  Enacted  Feb.  23,  1893,  Stats,  and  Amdts.  1893,  p.  4; 
amended  March  9,  1895,  Stats,  and  Amdts.  1895,  p.  40;  March  15, 
1909,   Stats,  and  Amdts.   1909,   p.   385. 

§653.  SPECIFIC  GRAKTS,  ETC.,  MUST  NOT  BE 
DIVERTED.  The  several  boards  of  trustees  of  the  institu- 
tions thus  consolidated  shall  be  and  are  hereby  authorized 
and  directed  to  transfer  all  property,  real  and  personal,  held 
by  them,  to  the  new  corporation,  as  herein  constituted, 
together  with  all  powers,  privileges,  and  authority  conferred 
upon  or  enjoyed  by  them  under  their  respective  charters  or 
acts  of  incorporation.  The  new  corporation  receiving  such 
property  shall  assume  all  indebtedness  and  liabilities  of  such 
institutions  as  are  thus  consolidated,  but  shall  not  transfer 
such  property  from  one   location   to   another,   except  by   an 

451 


§  653  CIVIL  CODE.  [Div.I.Pt.IV. 

affirmative  vote  of  not  less  than  three-fourths  of  the  said 
board  of  trustees  of  the  new  corporation,  nor  divert  specific 
grants,  donations,  or  bequests  from  the  purposes  for  which 
such  grants,  donations,  or  bequests  were  made.  That  after 
the  boards  of  trustees  have  conveyed  the  property,  real  and 
personal,  of  the  various  institutions  to  the  new  corporation, 
as  hereinabove  provided,  and  the  same  has  been  accepted  by 
the  said  new  corporation,  then  the  franchises  held  by  the 
corporations  thus  consolidating  shall  cease,  and  the  said 
corporations  shall  be  thereby  dissolved. 

History:     Enacted  Feb.   23,   1893,  Stats,  and  Amdts.   1893,  p.   4; 
amended  March   9,  1895,  Stats,  and  Amdts.   1895,  p.  40. 


452 


II 


Tit.XIX.]  CO-OPERATIVE  CORPORATIONS.  §  653a 

TITLE  XIX. 

CO-OPERATIVE    BUSINESS    CORPORATIONS. 

[A  new  title  added  by  Act  March  21,  1905,  Stats,  and  Amdts. 
1905,   p.    594.] 

§  653a.  Purposes  for  which  may   be  formed. 

§653a.    PURPOSES    FOR    WHICH    MAY    BE     FORMED. 

Co-operative  business  corporations  may  be  formed  for  doing 
any  lawful  business,  and  dividing  a  portion  of  their  profits 
among  persons  other  than  their  stockholders.  Each  of  such 
corporations  may,  in  its  by-laws,  in  addition  to  the  matters 
specified  in  section  three  hundred  and  three,  provide  the 
amount  of  profits  which  must  be  divided  among  persons  other 
than  its  stockholders,  and  the  manner  in  which  and  the  per- 
sons among  whom  such  division  maj'  be  made. 

Hi-story:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    594. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

As  to  how  private  corporations  may  be  formed,  see  Kerr's 
Cyc.   C.   C.   §  285   and   note. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see   note   §  283,  ante. 

As  to  purposes  for  which  private  corporations  may  be 
formed,   see  Kerr's  Cyc.   C.   C.   §  286   and  note. 

Amount  due  member  of  co-operative  bank  subject  to  trustee 
process. — See   3   L.    416. 


453 


§  653b  CIVIL  CODE.  [Div.I,Pt.IV. 

TITLE  XX. 

CO-OPERATIVE    BUSINESS    ASSOCIATIONS. 

[A  new  title  added  by  Act  March  21,  1905,  Stats,  and  Amdts. 
1905,  pp.   595-599.] 

§  653b.  Formation  and  purposes  of. 

§  653c.  Rights,  interests,  and  liabilities  of  members. 

§  653d.  Tlie  articles   of  association. 

§  653e.  Tlie  by-laws. 

§  653f.  Execution  against  the  association  or  its  members. 

§  653g.  Purpose  of  the  association,  how  may  be  altered. 

§  653h.  Powers  of  the  association. 

§  653i.  Consolidation    of  associations. 

§  653j.  Dissolution  and  winding  up  of  association. 

§  653k.  Quo  warranto  to  inquire  into  the  right  of  an  association 

to  do  business. 

§  6531.  What  corporations   or  associations  are   not  affected   by 

this  title. 

§6531).  FOKMATION  AND  PURPOSE  OF.  Five  or  more 
persons  may  form  a  co-operative  association  for  the  transac- 
tion of  any  lawful  business,  whether  for  profit  or  not,  or  for 
the  promotion  of  any  educational,  industrial,  benevolent, 
social,  or  political  purpose.  Such  association  must  not  have 
any  capital  stock,  but  must  issue  membership  certificates  to 
each  member. 

[Certificate  of  meiiibcrship — Transfer.]  Such  certificate 
cannot  be  assigned,  so  that  the  assignee  can,  by  its  transfer, 
become  a  member  of  the  association,  but,  by  a  resolution  of 
its  board  of  directors,  such  certificate  may  be  transferred, 
and  the  transferee  made  a  member  in  lieu  of  the  last  former 
holder. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    595. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

454 


II 


Tit.XX.]  RIGHTS    AND    LIABILITIES.  §§  653c,  653d 

§  653c.  RIGHTS,  IJfTEEESTS,  AND  LIABILITY  OF  MEM- 
BERS.  In  such  association  the  rights  and  interests  of  all 
members  are  equal,  and  no  member  can  have  or  acquire  a 
greater  interest  therein  than  any  other  member  has.  At  every 
election  held  pursuant  to  the  by-laws  each  member  must  be 
entitled  to  cast  one  vote  and  no  more. 

[Who  are  eligible  to  membersliip.]  All  persons  above  the 
age  of  eighteen  years,  regardless  of  sex,  are  eligible  to  mem- 
bership, if  otherwise  qualified  and  elected  as  the  by-laws  may 
provide.  The  by-laws  must  provide  for  the  amount  of  the 
indebtedness  which  such  association  may  incur. 

[Liability  of  members.]  And  no  member  shall  be  respon- 
sible individually,  or  personally  liable,  for  any  of  the  debts' 
or  liabilities  of  the  association  in  excess  of  his  proportion  of 
such  indebtedness;  but  in  case  of  the  failure  and  insolvency 
of  such  association,  may  be  required  to  pay  any  unpaid  dues 
or  instalments  which  have,  before  such  insolvency,  become 
due  from  such  member  to  the  association,  pursuant  to  its 
by-laws. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    595. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

§653(1.  THE  ARTICLES  OF  ASSOCIATION.  Every  asso- 
ciation formed  under  this  title  must  prepare  articles  of  asso- 
ciation, in  writing,  stating:  The  name  of  the  association,  the 
purpose  for  which  it  is  formed,  the  place  where  its  principal 
business  is  to  be  transacted,  the  term  for  which  it  is  to  exist, 
not  to  exceed  fifty  years,  the  number  of  the  directors  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year,  the  amovmt  which  each  member  is  to  pay  upon  admis- 
sion as  membership  fee,  and  that  each  member  signing  the 
articles  has  actually  paid  in  such  sum,  and  that  the  interest 
and  right  of  each  member  therein  is  to  be  equal. 

[Subscription  and  acknowledgment;  filing.]  Such  articles 
of  association  must  be  subscribed  by  the  original  associates 

455 


§  653e  CIVIL  CODE.  [DivJ.Pt.IV. 

or  members,  and  acknowledged  by  each  before  some  person 
competent  to  take  an  acknowledgment  of  a  deed  in  this  state. 
Such  articles  so  subscribed  and  acknowledged  must  be  filed  in 
the  office  of  the  clerk  of  the  county  wherein  the  principal 
business  of  the  association  is  to  be  transacted,  and  a  copy 
thereof  certified  by  such  clerk,  with  the  secretary  of  state, 
who  must  thereupon  issue  his  certificate  in  the  form,  and 
having  the  effect  prescribed  in  section  two  hundred  and 
ninety-six. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
pp.   595-596. 

As  to  articles  of  association,  what  they  must  set  forth,  and 
number  of  directors,  see  Kerr's  Cyc.  C.  C.  P.  §  290  and  note. 

As  to  filing  articles  of  incorporation  in  the  office  of  the  clerk 
in  tlie  county  in  which  the  principal  office  is  to  be  located,  see 
Kerr's  Cyc.  C.  C.  P.  §  294  and  note. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

As  to  subscription  and  acknowledgment  of  articles  of  incor- 
poration, see  Kerr's  Cyc.  C.  C.  P.  §  292  and  note. 


§  653o.  THE  BY-LAWS.  Every  association  formed  under 
this  title  must,  within  forty  days  after  it  so  becomes  an  asso- 
ciation, adopt  a  code  of  by-laws  for  the  government  and 
management  of  the  association,  not  inconsistent  with  this 
title.  A  inajoritj  of  all  the  associates  is  necessary  to  the 
adoption  of  such  by-laws,  and  the  same  must  be  written  in  a 
book,  and  subscribed  by  the  members  adopting  the  same,  and 
the  same  cannot  be  amended  or  modified  except  by  the  vote 
of  a  majority  of  all  the  members,  after  notice  of  the  proposed 
amendment,  given  as  the  by-laws  may  provide. 

[What  by-laws  may  i>rovide — Number,  terms,  and  compen- 
sation of  officers.]  Such  association  may,  by  its  by-laws,  pro- 
vide for  the  time,  place,  and  manner  of  calling  and  conducting 
its  meetings;  the  number  of  directors,  the  time  of  their  elec- 
tion, their  term  of  office,  the  mode  and  manner  of  their 
removal,  the  mode  and  manner  of  filling  vacancies  in  the 
board  caused  by  death,  resignation,  removal,  or  otherwise,  and 
the   power   and  authority   of   such   directors,   and   how   many 

456 


I 


Tit.XX.]  BY-LAWS— PROVISIONS  OF.  §  653e 

thereof  are  necessary  to  the  exercise  of  the  powers  of  such 
directors,  which  must  be  at  least  a  majority;  the  compensa- 
tion of  any  of  the  directors,  or  of  any  officer;  the  number  of 
the  officers,  if  any,  other  than  the  directors,  and  their  term 
of  office;  the  mode  of  removal,  and  the  method  of  filling  a 
vacancy;  the  mode  and  manner  of  conducting  business;  the 
mode  and  manner  of  conducting  elections,  and  may  provide 
for  voting  by  ballots  forwarded  by  mail  or  otherwise; 

[Manner  of  conducting  election;  qualifications  and  succes- 
sion; expulsion.]  Provided  the  method  secures  the  secrecy 
of  the  ballot;  the  mode  and  manner  of  succession  of  mem- 
bership, and  the  qualifications  for  membership,  and  on  what 
conditions,  and  when  membership  must  cease,  and  the  mode' 
and  manner  of  expulsion  of  a  member,  subject  to  the  right  of 
an  expelled  member  to  have  the  board  of  directors  appraise 
his  interest  in  the  association  in  either  money,  property,  or 
labor,  as  the  directors  may  deem  best,  and  to  have  the  money, 
property,  or  labor  so  awarded  him  paid,  or  delivered,  or  per- 
formed within  forty  days  after  expulsion; 

[Amount  of  membership  fees,  dues,  etc.]  The  amount  of 
membership  fee,  and  the  dues,  instalments,  or  labor  which 
each  member  must  be  required  to  pay  or  perform,  if  any,  and 
the  manner  of  collection  or  enforcement,  and  for  forfeiting 
or  selling  of  membership  interest  for  non-payment  or  non- 
performance; 

[Withdrawal;  ascertainment  of  interest.]  The  method, 
time,  and  manner  of  permitting  the  withdrawal  of  a  member, 
if  at  all,  and  how  his  interest  must  be  ascertained,  either  in 
money  or  property,  and  within  what  time  the  same  must  be 
paid  or  delivered  to  such  member;  the  mode  and  manner  of 
ascertaining  the  interest  of  a  member  at  his  death,  if  his  legal 
representatives  or  none  of  them  desire  to  succeed  to  the  mem- 
bership, and  whether  the  same  must  be  paid  to  his  legal  rep- 
resentatives in  money,  or  property,  or  labor,  and  within  what 
time  the  same  must  be  paid,  or  delivered,  or  performed;  such 
other  things  as  may  be  proper  to  carry  out  the  purpose  for 
which  the  association  was  formed. 

457 


§  653f  CIVIL  CODE.  [Div.I,Pt.IV. 

[Division   of  profits.]      The   by-laws  must  provide  for   the 

time  and  manner  in  whicli  profits  must  be  divided  among  the 
members,  and  what  proportion  of  the  profits,  if  any,  must  be 
added  to  the  common  property  or  funds  of  the  association. 
But  the  by-laws  may  provide  that  the  directors  may  suspend 
or  pass  the  payment  of  any  such  profit,  or  instalment  of  earn- 
ings, at  their  discretion. 

[Recording  and  filing  by-laws.]  The  by-laws  and  all 
amendments  must  be  recorded  in  a  book  and  kept  in  the  office 
of  the  association,  and  a  copy,  certified  by  the  directors,  must 
be  filed  in  the  office  of  the  county  clerk  where  the  principal 
business  is  transacted. 

History;  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    596-597. 

As  to  by-laws,  adoption  of,  etc.,  see  Kerr's  Cyc.  Pol.  C.  §  301 
and  note. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,  see    note    §  283,    ante. 

As  to  recording  and  amending  by-laws,  see  Kerr's  Cyc.  C.  C.  P. 
§  304  and  note. 

As  to  what  by-laws  may  be  adopted,  see  85  A.  D.  617-622. 

As  to  what  by-laws  may  provide  for,  see  Kerr's  Cyc.  C.  C.  P. 
§  303  and  note. 

§653f.  EXECUTION  AGAINST  THE  ASSOCIATION  OR 
ITS  MEMBERS.  The  property  of  such  association  is  subject 
to  attachment  and  execution  for  its  lawful  debts.  The  interest 
of  a  member  in  such  association,  if  sold  upon  execution,  or 
any  judicial  or  governmental  order  whatever,  cannot  authorize 
the  purchaser  to  have  any  right,  except  to  succeed,  as  a  mem- 
ber in  the  association,  with  the  consent  of  the  directors  to  the 
rights  of  the  member  whose  interest  is  thus  sold.  If  the 
directors  choose  to  pay  or  settle  the  matter  after  such  sale, 
they  may  either  cancel  the  membership,  and  add  the  interest 
thus  sold  to  the  assets  or  common  property  of  the  association, 
or  reissue  the  share  or  right  to  a  new  member  upon  proper 
payment  therefor,  as  the  directors  may  determine. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   597. 

458 


Tit.XX.]  PURPOSE    AND    POWERS.  §§  653g-653i 

§  653g:.  PURPOSE  OF  THE  ASSOCIATION,  HOW  MAY  BE 
ALTERED.  The  purpose  of  the  business  may  be  altered, 
changed,  modified,  enlarged,  or  diminished  bj'  a  vote  of  two- 
thirds  of  all  the  members,  at  a  special  election  to  be  called 
for  such  purpose,  of  which  notice  must  be  given  the  same  as 
the  by-laws  provide  for  the  election  of  directors. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905 
p.    597. 

§  653h.  POWERS  OF  THE  ASSOCIATION.  Every  associa- 
tion formed  under  this  title  has  power  of  succession  by  its 
associate  name  for  fifty  years;  in  such  name  to  sue  and  be 
sued  in  any  court;  to  make  and  use  a  common  seal,  and  alter 
the  same  at  pleasure;  to  receive  by  gift,  devise,  or  purchase, 
hold,  and  convey  real  and  personal  property,  as  the  purposes 
of  the  association  may  require;  to  appoint  such  subordinate 
agents  or  officers  as  the  business  may  require;  to  admit  asso- 
ciates or  members,  and  to  sell  or  forfeit  their  interest  in  the 
association  for  default  of  instalments,  or  dues,  or  work,  or 
labor  required,  as  provided  by  the  by-laws;  to  enter  into  any 
and  all  lawful  contracts  or  obligations  essential  to  the  trans- 
action of  its  affairs,  for  the  purpose  for  which  it  was  formed, 
and  to  borrow  money,  and  issue  all  such  notes,  bills,  or  evi- 
dences of  indebtedness  or  mortgage  as  its  by-laws  may  pro- 
vide for;  to  trade,  barter,  buy,  sell,  exchange,  and  to  do  all 
other  things  proper  to  be  done  for  the  purpose  of  carrying 
into  effect  the  objects  for  which  the  association  is  formed. 

HLstory:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905 
pp.    597-598. 

As  to  many  miscellaneous  matters  as  to  corporations  gen- 
erally,   see    note    §  283,    ante. 

As  to  powers  of  association,  see  Kerr's  Cyc.  C.  C.  §  305  and 
note. 

§6o3i.    CONSOLIDATION    OF    ASSOCIATIONS.      Two    or 

more  associations  formed  and  existing  under  this  title,  or 
under  any  pre-existing  law  authorizing  their  formation  for 
the  same  purposes,  may  be  consolidated,  upon  such  terms,  and 

459 


§  653j  CIVIL  CODE.  [Div.I,Pt.IV. 

for  such  purposes,  and  by  such  name,  as  may  be  agreed  upon, 
in  writing,  signed  by  two-thirds  of  the  members  of  each  such 
association. 

[What  agreement  must  state;  filing:;  fee.]  Such  agreement 
must  also  state  all  the  matters  necessary  to  articles  of  asso- 
ciation, and  must  be  acknowledged  by  the  signers  before  an 
officer  competent  to  take  an  acknowledgment  of  deeds  in  this 
state,  and  be  filed  in  the  office  of  the  county  clerk  of  the 
county  wherein  the  principal  business  of  the  association  is 
to  be  transacted,  and  a  certified  copy  thereof  in  the  office 
of  the  secretary  of  state,  and  pay  the  same  fees  for  filing 
and  recording  as  required  by  this  code  for  the  filing  and 
recording  of  the  certified  copy  of  the  original  articles  of  asso- 
ciation; and  from  and  after  the  filing  of  such  certified  copy, 
the  former  associations  comprising  the  component  parts 
cease  to  exist,  and  the  consolidated  association  succeeds  to 
all  the  rights,  duties,  and  powers  of  the  component  associa- 
tions, and  is  possessed  of  all  the  rights,  duties,  and  powers 
prescribed  in  the  agreement  of  consolidated  association  not 
inconsistent  with  this  title,  and  is  subject  to  all  the  liabilities 
and  obligations  of  the  former  component  associations,  and 
succeeds  to  all  the  property  and  interests  thereof,  and  may 
make  by-laws  and  do  all  things  permitted  by  this  title. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   598. 

§653j.  DISSOLUTION  AND  WINDING  UP  OF  ASSOCIA- 
TION.  Any  association  formed  or  consolidated  under  this 
title  may  be  dissolved  and  its  affairs  wound  up  voluntarily  by 
the  written  request  of  two-thirds  of  the  members.  Such 
request  must  be  addressed  to  the  directors,  and  must  specify 
reasons  why  the  winding  up  of  the  affairs  of  the  association 
is  deemed  advisable,  and  must  name  three  persons  who  are 
members  to  act  in  liquidation  and  in  winding  up  the  affairs 
of  the  association,  a  majority  of  whom  must  thereupon  have 
full  power  to  do  all  things  necessary  to  liquidation;  and 
upon  the  filing  of  such  request  with  the  directors,  and  a  copy 
thereof  in  the  office  of  the  county  clerk  of  the  county  where 

460 


Tit.XX.]  QUO  WARRANTO.  §§  653k,  6531 

the  principal  business  is  transacted,  all  power  of  the  directors 
ceases  and  the  persons  appointed  must  proceed  to  wind  up 
the  association,  and  realize  upon  its  assets,  and  pay  its  debts, 
and  divide  the  residue  of  its  money  among  the  members,  share 
and  share  alike,  within  a  time  to  be  named  in  said  written 
request,  or  such  further  time  as  may  be  granted  them  by  two- 
thirds  of  the  members,  in  writing,  filed  in  the  office  of  said 
county  clerk;  and  upon  the  completion  of  such  liquidation  the 
said  association  must  be  deemed  dissolved.  No  receiver  of 
any  such  association,  or  of  any  property  thereof,  or  of  any 
right  therein,  can  be  appointed  by  any  court,  upon  the  appli- 
cation of  any  member,  save  after  judgment  of  dissolution  for 
usurping  franchises  at  the  suit  of  the  state  of  California  by 
its  attorney-general. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.    598. 

§  653k.  QUO  WARRANTO  TO  IIVQITIRE  INTO  THE  RIGHT 
OF  AN  ASSOCIATION  TO  DO  BUSINESS.  The  right  of  any 
association  claiming  to  be  organized  under  this  title  to  do 
business  may  be  inquired  into  by  quo  warranto,  at  the  suit 
of  the  attorney-general  of  this  state,  but  not  otherwise. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   599. 

§  6531.  WHAT  CORPORATIONS  OR  ASSOCIATIONS  ARE 
NOT  AFFECTED  BY  THIS  TITLE.  This  title  is  not  appli- 
cable to  railroads,  telegraph,  telephone,  banking,  insurance, 
building  and  loan,  or  any  other  corporation,  unless  the  special 
provisions  of  this  code,  applicable  thereto,  are  complied  with. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.   599. 


461 


§§  653m,  653n  CIVIL  CODE.  [Div.I.Pt.IV. 


TITLE  XXI. 

NON-PROFIT    CO-OPERATIVE     AGRICULTURAL,    VITICULT- 
URAL    AND    HORTICULTURAL    ASSOCIATIONS. 

[A  new   title   to   be   XXI   of   part   IV   of   division    First   added 
by  Act  February  12,  1909,  to  read  as  follows:] 

§  653m.  Formation   and   Purposes  of. 

§  653n.  Membership. 

§  653o.  Articles  of  Incorporation. 

§  653p.  By-laws. 

§  653q.  Powers  of  Association. 

§  653r.  Amendment    to   Articles    of    Incorporation. 

S  653s.  Quo  Warranto. 


§  653111.  FOKMATIO>  AND  PURPOSES  OF.  Three  or  more 
persons  engaged  in  the  production,  preserving,  drying,  pack- 
ing, shipping,  or  marketing  of  agricultural,  viticultural  or 
horticultural  products,  or  all  of  them,  may  form  a  non- 
profit co-operative  association  under  the  provisions  of  this 
title,  to  carry  on  said  business,  and  such  association  shall 
have,  and  may  exercise,  the  powers  authorized  by  this  title, 
and  the  powers  necessarily  incidental  thereto,  and  all  other 
powers  granted  to  private  corporations  by  the  laws  of  this 
state,  except  such  powers  as  are  inconsistent  with  those 
granted  by  this  title. 

Hlstfjry:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.    16. 

§  65311.  MEMBERSHIP.  Such  association  shall  not  have 
a  capital  stock,  and  its  business  shall  not  be  carried  on  for 
profit.  Any  person  or  any  number  of  persons,  in  addition 
to  the  original  incorporators,  may  become  members  of  such 
association,  upon  such  terms  and  conditions  as  to  member- 
ship, and  subject  to  such  rules  and  regulations  as  to  their, 
and  each  of  their,  contract  and  other  rights  and  liabilities 
between  it  and  the  member,  as  the  said  association  shall  pro- 
vide in  its  by-laws. 

462 


II 


Tit.XXI.]  MEMBERSHIP — ARTICLES.  §  653o 

[Certificate    of   memhersliip.     Right   of    succession.]      The 

association  sliall  issue  a  certificate  of  membership  to  each 
member,  but  the  said  membership,  or  the  said  certificate 
thereof,  shall  not  be  assigned  by  a  member  to  any  other 
person,  nor  shall  the  assigns  thereof  be  entitled  to  member- 
ship in  the  association,  or  to  any  property  rights  or  interest 
therein.  Nor  shall  a  purchaser  at  execution  sale,  or  any 
other  person  who  may  succeed,  by  operation  of  law  or  other- 
wise to  the  property  interests  of  a  member,  be  entitled  to 
membership,  or  become  a  member  of  the  association  by  vir- 
tue of  such  transfer.  The  board  of  directors  may,  however, 
by  motion  duly  adopted  by  it,  consent  to  such  assignment  or 
transfer  and  to  the  acceptance  of  the  assignee  or  transferee 
as  a  member  of  the  association,  but  the  association  shall 
have  the  right,  by  its  by-laws,  to  provide  for  or  against  the 
transfer  of  membership  and  for  or  against  the  assignment 
of  membership  certificates,  and  also  the  terms  and  conditions 
upon  which  any  such  transfer  or  assignment  shall  be 
allowed. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.   17. 

§6530.  ARTICLES  OF  INCORPORATION.  Each  associa- 
tion formed  under  this  title  must  prepare  and  file  articles 
of  incorporation  setting  forth: 

1.  The  name  of  the  association. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  will  be  transacted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

5.  The  number  of  directors  thereof,  which  must  not  be 
less  than  three  and  which  may  be  any  number  in  excess 
thereof,  and  the  names  and  residences  of  those  selected  for 
the  first  year  and  until  their  successors  shall  have  been 
elected,  and  shall  have  accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall   set  forth  a  general   rule  or  rules 

463 


§  653p  CIVIL  CODE.  [Div.I.Pt.IV. 

applicable  to  all  members  by  which  the  voting  power  and 
the  property  rights  and  interests,  respectively,  of  each  mem- 
ber may  and  shall  be  determined  and  fixed,  but  the  associa- 
tion shall  have  power  to  admit  new  members  who  shall  be 
entitled  to  vote  and  to  share  in  the  property  of  the  associa- 
tion with  the  old  members,  in  accordance  with  such  general 
rule.  This  provision  of  the  articles  of  incorporation  shall 
not  be  altered,  amended,  or  repealed  except  by  the  unani- 
mous written  consent  or  the  vote  of  all  the  members. 

7.  Said  articles  must  be  subscribed  by  the  original  mem- 
bers and  acknowledged  by  one  of  them  before  an  officer 
authorized  by  the  law  of  this  state,  to  take  and  certify 
acknowledgments  of  deeds  of  conveyance,  and  shall  be  filed 
in  accordance  with  the  provisions  of  section  two  hundred 
and  ninety-six  of  this  code,  and  when  so  filed  the  said  articles 
of  incorporation  or  certified  copies  thereof  shall  be  received 
in  all  the  courts  of  this  state,  and  other  places,  as  prima 
facie  evidence  of  the  facts  contained  therein. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.   17. 


§  GSSp.  BY-LAWS.  Each  association  incorporated  under 
this  title  must,  within  thirty  days  after  its  incorporation, 
adopt  a  code  of  by-laws  for  its  government  and  management 
not  inconsistent  with  the  provisions  of  this  title.  A  majority 
vote  of  the  members  or  the  written  assent  of  members  rep- 
resenting a  majority  of  the  votes,  is  necessary  to  adopt  such 
by-laws.  The  provisions  of  sections  three  hundred  and 
three  and  three  hundred  and  four  of  this  code,  which  are 
not  inconsistent  with  the  provisions  of  this  title,  shall  apply 
to  the  by-laws  of  the  corporations  provided  for  in  this  title. 
Each  association  may  also,  by  its  by-laws  adopted  as  afore- 
said, provide  for  the  following  matters: 

1.  The  manner  of  removal  of  any  one  or  more  of  its 
directors  and  for  filling  any  and  all  vacancies  in  the  board 
of  directors. 

464 


TitXXI.]  BY-LAWS— PROVISIONS.  §  653q 

2.  The  number  of  directors  and  the  number  of  members 
or  votes  thei-eof  constituting  a  quorum. 

3.  The  conditions  upon  which  and  the  time  when  mem- 
bership of  any  member  in  the  association  shall  cease;  the 
mode,  manner  and  effect  of  expulsion  of  a  member,  subject 
to  the  right  of  the  expelled  member  to  have  the  board  of 
directors  equitably  appraise  his  property  interests  in  the 
association  and  to  fix  the  amount  thereof  in  money,  and  to 
have  the  money  paid  to  him  within  sixty  days  after  such 
expulsion. 

4.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  each  member  shall  be  required  to  pay  annually,  or 
from  time  to  time,  if  at  all,  to  carry  on  the  business  of  the 
association,  and  also  the  compensation,  if  any,  to  be  paid 
by  each  member  for  any  services  rendered  by  the  associa- 
tion to  him,  and  the  time  of  payment  and  the  manner  of 
collecting  the  same,  and  for  forfeiture  of  the  interest  of  the 
member  in  the  association  for  non-payment  of  the  same. 

5.  The  number  and  qualifications  of  members  of  the  asso- 
ciation and  the  conditions  precedent  to  membership  and  the 
method,  time  and  manner  of  permitting  members  to  With- 
draw, and  providing  for  the  assignment  and  transfer  of  the 
interest  of  members,  and  the  manner  of  determining  the 
value  of  such  interest  and  providing  for  the  purchase  of 
such  interest  by  the  association  upon  the  death,  withdrawal 
or  expulsion  of  a  member  or  upon  the  forfeiture  of  his 
membership,  at  the  option  of  the  association. 

6.  Permitting  members  to  vote  by  their  proxies,  and  deter- 
mining the  conditions,  manner,  form  and  effect  thereof. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.    18. 

§653q.  POWERS  OF  ASSOCIATIOIV.  Each  association 
Incorporated  under  this  title  shall  have  the  powers  granted 
by  the  provisions  of  this  code  and  other  laws  of  California 
relating  to  private  corporations,  and  shall  also  have  the 
following   powers: 

465 


§  653q  CIVIL  CODE.  [Div.I,Pt.IV. 

1.  To  appoint  such  agents  and  officers  as  its  business  may 
require,  and  such  appointed  agents  may  be  either  persons 
or  corporations;  to  admit  persons  to  membership  in  the 
association,  and  to  expel  any  member  pursuant  to  the  pro- 
visions of  its  by-laws;  to  forfeit  the  membership  of  any 
member  for  violation  of  any  agreement  between  him  and 
the  association,  or  for  his  violation  of  its  by-laws. 

2.  To  purchase  or  otherwise  acquire,  hold,  own,  sell  and 
otherwise  dispose  of  any  and  every  kind  or  kinds  of  real 
and  personal  property  necessary  to  carry  on  its  business,  and 
to  acquire  by  purchase  or  otherwise  the  interest  of  any 
member   in  the  property  of  the  association. 

3.  Upon  the  written  assent  or  by  a  vote  of  members  repre- 
senting two-thirds  of  the  total  votes  of  all  members  to  co- 
operate with  any  other  co-operative  corporation  or  corpora- 
tions for  the  co-operative  and  moi-e  economical  carrying  on 
of  their  respective  business,  by  consolidation  as  provided 
in  section  six  hundred  and  fifty-three  i  of  this  code,  whereupon 
the  effect  of  such  consolidation  shall  be  the  same  as  declared 
in  said  section;  or  upon  resolution,  adopted  by  its  board 
of  directors,  to  enter  into  all  necessary  and  proper  con- 
tracts and  agreements,  and  to  make  all  necessary  and  proper 
stipulations  and  arrangements  with  any  other  co-operative 
corporation  or  corporations  for  the  co-operative  and  more 
economical  carrying  on  of  its  business,  or  any  part  or  parts 
thereof;  or  any  two  or  more  co-operative  corporations  organ- 
ized under  this  title,  upon  resolutions,  adopted  by  their 
respective  board  of  directors,  may,  for  the  purpose  of  more 
economically  carrying  on  their  respective  businesses,  by 
agreement  between  them,  unite  in  employing  and  using,  or 
several  associations  may  separately  employ  and  use,  the 
same  methods,  means  and  agencies,  for  carrying  on  and 
conducting  their  respective  businesses. 

4.  Any  association  formed  or  consolidated  under  this  title 
may  be  dissolved  and  its  affairs  wound  up  voluntarily  by 
the  written  request  of  members  representing  two-thirds  of 
the  total  votes,  in  the  manner  and  with  the  effect  provided 

466 


Tit.XXI.]  AMENDED   ARTICLES.  §  653r 

in  section  six  hundred  and  fifty-three  j  of  this  code,  except  that 
the  moneys  remaining  after  liquidation  shall  be  divided 
among  the  members  in  proportion  to  their  property  interests 
therein. 

History:      Enacted   February    12,   1909,   Stats,   and  Amdts.    1909, 
p.   19. 


§6o3r.  AME>DME>T  TO  ARTICLES  OF  INCORPORA- 
TION. Any  corporation,  whether  stock  or  membership,  here- 
tofore incorporated  under  the  laws  of  this  state  for  the  pur- 
pose of  engaging  in  and  carrying  on  the  business  specified 
in  section  six  hundred  and  fifty-three  in  of  this  title,  the 
stockholders  or  members  of  which  would  be  entitled  to- 
incorporate  under  the  provisions  of  this  title,  may,  by  the 
unanimous  written  assent  or  vote  of  all  the  stockholders  or 
members,  amend  its  articles  of  incorporation  to  conform  to 
the  provisions  of  this  title  in  the  manner  and  with  the 
effect  provided  in  section  three  hundred  and  sixty-two  of 
the  Civil  Code,  and  from  the  time  of  filing  the  amended 
articles,  such  corporation  shall  have  the  same  powers  as 
if  it  had  originally  incorporated  under  the  provisions  of  this 
title;  provided,  however,  that  the  debts,  obligations,  and 
other  liabilities  against  such  corporation  or  against  the 
members  or  the  stockholders  thereof,  existing  at  the  time  of 
such  amendment,  shall  not  be  discharged  or  their  collection 
or  enforcement  otherwise  impaired;  and  provided  further 
that  the  respective  property  interests  of  the  several  stock- 
holders by  virtue  of  their  ownership  of  shares  of  stock  therein, 
or  the  several  members  by  virtue  of  their  membership 
therein,  and  also  the  voting  power  of  each  of  them,  shall  be 
determined  and  fixed  by  the  amended  articles  of  incorpora- 
tion in  accordance  with  the  provisions  of  subdivision  six  of 
section  six  hundred  and  fifty-three  o,  but  which  rights  shall 
be  subject  to  the  right  of  the  association  to  admit  new 
members. 

History:  Enacted  February  12,  1909,  Stats,  and  Amdts.  1909, 
p.   19. 

467 


§  653s  CIVIL  CODE.  [Div.I,Pt.IV. 

§  6o3s.  QUO  WARRANTO.  The  right  of  an  association 
claiming  to  be  organized  and  incorporated  and  carrying  on 
its  business  under  this  title,  to  do  and  to  continue  its  busi- 
ness, may  be  inquired  into  by  quo  warranto  at  the  suit  of 
the  attorney  general,  but  not  otherwise. 

History:  Enacted  February  12,  1909.  Stats,  and  Amdts.  1909, 
p.   20. 


468 


Tit.XXII.]  NON-PROFIT  CORPORATIONS.  §§  653t,  653u 

TITLE  XXII. 

NON-PROFIT   CO-OPERATIVE   CORPORATIONS. 

[A  new  title  to  be  known  a.s  title  XXII  of  part  IV  of  division 
first  is  hereby  added,   to  read  as  follows:] 

§  653t.  Formation    and   purposes   of. 

§  653u.  Membership. 

§  653v.  Articles    of    incorporation. 

§  653w.  By-laws. 

§  653x.  Powers    of   corporation. 

§  653y.  Amendments    of   articles    of    incorporation. 

§  653z.  Quo   warranto. 

§  653za.  Particular  corporations. 

§  653zb.  Voting-. 

§653t.  FOEMATION  AND  PURPOSE  OF.  Non-profit  co- 
operative corporations  may  be  formed  by  the  voluntary  asso- 
ciation of  any  tliree  or  more  persons  in  the  manner  prescribed 
in  this  title.  A  majority  of  such  persons  must  be  residents 
of  this  state,  and  such  corporation  shall  have  and  may  exer- 
cise the  powers  authorized  by  this  title,  and  the  powers  neces- 
sarily incident  thereto,  and  also  all  other  powers  granted  to 
private  corporations  by  the  laws  of  this  state,  excepting  such 
powers  as  are  inconsistent  with  those  granted  by  this  title. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909.  p. 
854. 

§653n.  MEMBEKSHIP.  Such  corporation  shall  not  have 
a  capital  stock,  and  its  business  shall  not  be  carried  on  for 
profit.  Any  person  or  any  number  of  persons  including  and 
in  addition  to  the  original  incorporators,  may  become  mem- 
bers of  such  corporation  upon  such  terms  and  conditions  as 
to  membership,  and  subject  to  such  rules  and  regulations  as 
to  their,  and  each  of  their,  contract  and  other  rights  and 
liabilities  between  it  and  the  member,  as  the  said  corporation 
shall  prescribe  in  its  by-laws.  The  corporation  shall  issue 
a  certificate  of  membership  to  each  member,  but  the  said  mem- 
bership, or  the  said  certificate  thereof,  shall  not,  except  as 
herein  provided,  be  assigned  by  any  member  to  any  other  per- 

469 


§  653v  CIVIL  CODE.  [Div.I.Pt.IV. 

son,  nor  shall  the  assigns  thereof  be  entitled  to  membership 
in  the  corporation,  or  to  any  property  rights  or  interest 
therein,  nor  shall  a  purchaser  at  execution  sale,  or  any  other 
person  who  may  succeed,  by  operation  of  law  or  otherwise,  to 
the  property  interests  of  a  member,  be  entitled  to  membership, 
or  become  a  member  of  the  corporation  by  virtue  of  such 
transfer.  The  board  of  directors  may,  however,  by  motion  duly 
adopted  by  it,  consent  to  such  assignment  or  transfer,  and  to 
the  acceptance  of  the  assignee  or  transferee  as  a  member  of 
the  corporation.  The  corporation  shall  also  have  the  right,  by 
its  by-laws,  to  provide  for  or  against  the  transfer  of  member- 
ship and  for  or  against  the  assignment  of  membership  certifi- 
cates, and  also  the  terms  and  conditions  upon  which  any  such 
transfer  or  assignment  shall  be  allowed. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdt.s.  1909,  p. 
854. 

§653v.  ARTICLES  OF  IXORPORATION.  Each  corpora- 
tion formed  under  this  title  must  prepare  and  file  articles  of 
incorporation  in  writing  setting  forth: 

1.  The  name  of  the  corporation. 

2.  The  purpose  for  which  it  is  formed. 

3.  The  place  where  its  principal  business  will  be  transacted. 

4.  The  term  for  which  it  is  to  exist,  not  exceeding  fifty 
years. 

.5.  The  number  of  directors  thereof,  which  must  not  be  less 
than  three  and  which  may  be  any  number  in  excess  thereof, 
and  the  names  and  residences  of  those  selected  for  the  first 
year  and  until  their  successors  shall  have  been  elected,  and 
shall  have  accepted  office. 

6.  Whether  the  voting  power  and  the  property  rights  and 
interest  of  each  member  shall  be  equal  or  unequal,  and  if 
unequal  the  articles  shall  set  forth  a  general  rule  or  rules 
applicable  to  all  members  by  which  the  voting  power  and 
the  property  rights  and  interests,  respectively,  of  each  mem- 
ber may  and  shall  be  determined  and  fixed,  but  the  corpora- 
tion shall  have  power  to  admit  new  members  who  shall  be 
entitled  to  vote  and  to  share  in  the  property  of  the  corpora- 

470 


TltXXII.]  BY-LAWS— PROVISIONS.  §  653w 

tion  with  the  old  members,  in  accordance  with  such  general 
rule. 

7.  Said  articles  of  incorporation  shall  be  subscribed  by 
three  or  more  of  the  original  members,  a  majority  of  whom 
must  be  residents  of  this  state,  and  acknowledged  by  each 
before  some  officer  authorized  to  take  and  certify  acknowledg- 
ments of  conveyances  of  real  property,  and  shall  be  filed  in 
all  respects  in  accordance  with  the  provisions  of  section  two 
hundred  and  ninety-six  of  this  code,  and  thereupon  the  secre- 
tary of  state  shall  issue  to  the  corporation,  over  the  great 
seal  of  the  state,  a  certificate  that  a  copy  of  the  articles  con- 
taining the  required  statement  of  facts  has  been  filed  in 
his  office,  and  thereupon  the  persons  signing  the  articles  and 
their  associates  and  successors  shall  be  a  body  politic  and 
corporate  by  the  name  stated  in  the  certificate.  When  so 
filed,  the  said  articles  of  incorporation  or  certified  copies 
thereof  shall  be  received  in  all  the  courts  of  this  state,  and 
other  places,  as  prima  facie  evidence  of  the  facts  contained 
therein. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909,  p. 
855. 


§  653w.  BY-LA">VS.  Each  corporation  incorporated  under 
this  title  must,  within  one  month  after  filing  articles  of  incor- 
poration, adopt  a  code  of  by-laws  for  its  government  and 
management  not  inconsistent  with  the  provisions  of  this  title. 
A  majority  vote  of  the  members  or  the  written  assent  of  mem- 
bers representing  a  majority  of  the  votes  is  necessary  to 
adopt  such  by-laws.  The  provisions  of  section  three  hundred 
and  three  and  three  hundred  and  four  of  this  code,  which  are 
not  inconsistent  with  the  provisions  of  this  title,  shall  apply 
to  the  by-laws  of  the  corporation  provided  for  in  this  title. 
Each  corporation  organized  hereunder  may  also,  by  its  by-laws 
adopted  as  aforesaid,  provide  for  the  following  matters: 

1.  The  manner  of  removal  of  any  one  or  more  of  its  direc- 
tors and  of  filling  any  and  all  vacancies  in  the  board  of  direc- 
tors. 

2.  The  conditions  upon  which  and  the  time  when  member- 

471 


§  653x  CIVIL  CODE.  [Div.I.Pt.IV. 

ship  of  any  member  in  the  corporation  shall  cease;  the  mode, 
manner  and  effect  of  expulsion  of  a  member,  subject  to  the 
right  of  the  expelled  member  to  have  the  board  of  directors 
equitably  appraise  his  property  interests  in  the  corporation 
and  to  fix  the  amount  thereof  in  money,  and  to  have  the 
money  paid  to  him  within  sixty  days  after  such  expulsion. 

3.  The  amount  of  membership  fee,  if  any,  and  the  amount 
which  6ach  member  shall  be  required  to  pay  annually,  or  from 
time  to  time,  if  at  all,  to  carry  on  the  business  of  the  corpora- 
tion, and  also  the  compensation,  if  any,  to  be  paid  by  each 
member  for  any  services  rendered  by  the  corporation  to  him, 
and  the  time  of  payment  and  the  manner  of  collecting  the 
same,  and  may  provide  for  forfeiture  of  the  interest  of  the 
member  in  the  corporation  for  non-payment  of  the  same. 

4.  The  number  and  qualifications  of  members  of  the  cor- 
poration and  the  conditions  precedent  to  membership  and  the 
method,  time  and  manner  of  permitting  members  to  withdraw, 
and  providing  for  the  assignment  and  transfer  of  the  interest 
of  members,  and  the  manner  of  determining  the  value  of  such 
interest  and  providing  for  the  purchase  of  such  interest  by 
the  corporation  upon  the  death,  withdrawal  or  expulsion  of  a 
member  or  upon  the  forfeiture  of  his  membership,  at  the 
option  of  the  corporation. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909,  p. 
855. 

§653x.  POWEKS  OF  CORPORATION.  Each  corporation 
incorporated  under  this  title  shall  have  the  powers  granted 
by  the  provisions  of  this  code  and  other  laws  of  California, 
relating  to  private  corporations,  which  are  not  inconsistent 
with  those  granted  by  this  title,  and  shall  also  have  the  fol- 
lowing powers: 

1.  To  appoint  such  agents  and  officers  as  its  business  may 
require,  and  such  appointed  agents  may  be  either  persons 
or  corporations;  to  admit  persons  and  corporations  to  mem- 
bership in  the  corporation,  and  to  expel  any  member  pursuant 
to  the  provisions  of  its  by-laws;  to  forfeit  the  membership 
of  any  member  for  violation  of  any  agreement  between  him 
and  the  corporation  or  for  his  violation  of  its  by-laws. 

472 


Tit.XXII.]  POWERS— LAWS.  §  653x 

2.  To  purchase,  lease  or  otherwise  acquire,  hold,  own  and 
enjoy,  to  sell,  lease,  mortgage  and  otherwise  encumber  and 
dispose  of  any  and  all  and  every  kind  or  kinds  of  real  and 
personal  property,  also  to  carry  on  any  and  all  operations 
necessary  or  convenient  in  connection  with  the  transaction 
of  any  of  its  business. 

3.  Upon  the  written  assent  of  two-thirds  of  all  the  members 
or  by  a  vote  of  members  representing  two-thirds  of  the  total 
votes  of  all  members  of  each  of  two  or  more  such  non-profit 
co-operative  corporations  to  co-operate  with  each  other  for 
the  more  economical  carrying  on  of  their  respective  businesses 
by  consolidation  as  provided  in  section  six  hundred  and  fifty- 
three  i  of  this  code,  such  consolidation  shall  be  effected,  and 
thereupon  the  effect  of  such  consolidation  shall  be  the  same 
as  declared  in  said  section.  Any  such  corporation  upon  reso- 
lution, adopted  by  its  board  of  directors,  shall  have  the  power 
to  enter  into  contracts  and  agreements,  and  to  make  stipula- 
tions and  arrangements  with  any  other  corporation  or  cor- 
porations for  the  co-operative  and  more  economical  carrying 
on  of  its  business,  or  any  part  or  parts  thereof;  or  any  two 
or  more  co-operative  corporations  organized  under  this  title, 
upon  resolutions  adopted  by  their  respective  boards  of  direc- 
tors, may,  for  the  purpose  of  more  economically  carrying  on 
their  respective  businesses,  by  agreement,  unite  in  adopting, 
employing  and  using,  or  several  such  corporations  may  sep- 
arately adopt,  employ  and  use  the  same  methods,  policy, 
means,  agents,  agencies  and  terms  of  marketing  for  carrying 
on  and  conducting  their  respective  businesses. 

4.  Any  corporation  formed  or  consolidated  under  this  title 
may  be  dissolved,  and  its  affairs  wound  up  voluntarily  by  the 
written  consent  of  members  representing  two-thirds  of  the 
total  votes,  in  the  manner  and  with  the  effect  provided  in  sec- 
tion six  hundred  and  fifty  three  j  of  this  code,  except  that  any 
property  remaining  after  liquidation  shall  be  divided  among 
the  members  in  proportion  to  their  respective  property  inter- 
ests therein. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909,  p. 
856. 

473 


§§  653y-653zb  CIVIL  CODE.  [Div.I.Pt.IV. 

§653y.  AMENDMENT  OF  ARTICLES  OF  INCORPORA- 
TIOX.  Any  such  corporation  may  amend  its  articles  of  incor- 
poration in  any  manner  not  inconsistent  with  the  provisions 
of  this  title,  in  the  manner  provided  for  by  section  three  hun- 
dred and  sixty-two  of  the  Civil  Code  of  this  state. 

History:      Enacted   April    13,    1909,   Stats,   and    Amdts.    1909,    p. 

857. 

§653z.  QUO  WARRAJiTO.  The  right  of  a  corporation 
claiming  to  be  organized  and  incorporated  and  carrying  on 
its  business  under  this  title,  to  do  and  to  continue  its  busi- 
ness, may  be  inquired  into  by  quo  warranto  proceedings  at 
the  suit  of  the  attorney-general,  but  not  otherwise. 

IIi.««tury:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909,  p. 
857. 

§653za.  PARTICULAR  CORPORATIONS.  This  title  is  not 
applicable  to  railroads,  telegraph,  telephone,  banking,  insur- 
ance, building  and  loan,  or  any  other  corporation,  unless  the 
special  provisions  of  this  code  applicable  thereto  are  com- 
plied with. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909,  p. 
857. 

§  653zl).  VOTING.  In  the  event  the  by-laws  shall  provide 
for  unequal  voting  power,  or  unequal  property  rights  of  the 
several  members,  or  both,  the  provisions  of  this  title  with 
reference  to  a  majority,  a  two-thirds,  or  other  vote  of  the 
members,  shall  not  apply,  and  in  lieu  thereof,  there  shall  be 
substituted  a  majority,  or  a  two-thirds  of  the  votes  of  the 
interests  represented  by  the  several  members,  or  otherwise  as 
the  case  may  be. 

History:  Enacted  April  13,  1909,  Stats,  and  Amdts.  1909,  p. 
857. 


474 


DIVISION  SECOND. 

Part  I.  Property  in  General,  §§  654-749. 

II.  Real  or  Immovable  Property,  §§  755-940. 

III.  Personal  or  Movable  Property,  §§  946-995. 

IV.  Acquisition  of  Property,  §§  1000-1425. 


475 


Tit.I.]  PROPERTY— NATURE   OP.  §  554 


PART  I. 

PROPERTY    IN    GENERAL. 

Title  I.     Nature  of  Property,  §§  654-663. 
II.     Ownership,  §§  669-742. 
III.     General  Definitions,  §§  748,  749. 

TITLE   I. 
NATURE   OP   PROPERTY. 
§  654.     Property,    what. 
§  655.     In  what  property  may  exist. 
§  656.     Wild  animals. 
§  657.     Real   and  personal. 
§  658.     Real  property. 
§  659.     Land. 
§  660.     Fixtures. 

§  661.     Fixtures  attached  to  mines. 
§  662.     Appurtenances. 
§  663.     Personal   property. 

§  654.  PROPERTY,  WHAT.  The  ownership  of  a  thing  is 
the  right  of  one  or  more  persons  to  possess  and  use  it  to 
the  exclusion  of  others.  In  this  code,  the  thing  of  which 
there  may  be  ownership  is  called  property. 

History:     Enacted  March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  IS  pars,  annotation. 

109  C.  29,  37,  39,  41  P.  1024  (construed  and  applied);  116  C 
339,  343,  58  A.  S.  170,  48  P.  228,  36  L.  497  (referred  to  in  discus- 
sion); 126  C.  112.  119,  58  P.  462,  45  L.  788  (construed  and 
applied);  131  C.  294,  307,  308,  63  P.  470  (construed  and  applied); 
1  C.  A.  511,  513,  82  P.  562   (cited). 

Alienation  of,  restraint  upon. — See  57  A.  D.  488. 

As  to  mine  being-  real  property,  see  Kerr's  Cyc.  C  C  «  1091 
and  note  par.  10. 

As  to  nature  of  right  of  property.— See  40  Cent.  Dig.  col. 
^"17,   §  1. 

Assault  in  recapture  of. — See  14  L.  317. 

Conditions  and  restrictions  respecting  use,  validity  of.— See 
"5  A.  S.  214. 

477 


§  655  CIVIL  CODE.  [Div.II.Pt.I. 

Consent  to  transfer  of. — See  5  L.  340. 

]:>eflnition   of  property. — See   6   W.   &   P.   593. 

Franchise  as  property,  and  sale  under  execution. — See  Kerr's 
Cyc.  C.  C.   §  388  and  note. 

Gambling  device  as  property  within  constitutional  protec- 
tion.— See  12  L.  N.  S.  394. 

Good  will  of  business. — See  6  W.  &  P.  5710. 

Gross-receipts  of  railroad. — See  6  W.  &  P.  5711. 

Human  life  not  included. — See   6  W.  &  P.  5712. 

In  product  of  skill  and  labor,  distinction  between  common 
law  rig-ht  and  copy  rig-ht. — See  11  L.  267. 

In  secret. — See  13  L.  652. 

Invention  and  patent  right. — See   6  W.   &  P.   5713. 

Knowledge  as. — See  6  W.  &  P.  5714. 

Labor  as. — See  6  W.  &  P.  5715. 

Limitation  of  right  to  use  one's  own  property. — See  9  L.  711. 

Loss  of  right  of. — See  40  Cent.  Dig.  col.  2926,  §  10. 

Ownership  of  and  incidence  thereof. — See  40  Cent.  Dig.  col. 
2924,  §  9. 

"Property"  as  used  in  the  fifteenth  amendment  to  the  con- 
stitution is  a  representative  term  and  with  the  terms  "life," 
"liberty,"  covers  every  right  to  which  a  member  of  the  body 
politic  is  entitled  under  the  law. — See  50  A.  S.  443;  29  L.  257;  6 
W.  &  P.  5693. 

Property  is  numen  generalissimum  and  extends  to  every 
species  of  valuable  right  and  interest,  including  real  and  per- 
sonal property,  easements,  franchises,  and  incorporeal  heredita- 
ments.— See  6  W.  &  P.  5693. 

Property  right  in  market  quotations. — See  7  L.  N.  S.  889. 

Real  property — As  to  what  constitutes,  see  Kerr's  Cyc.  C.  C. 
§  658  and  note;  7  W.  &  P.  5939-5951. 

Ilight  to  use  and  improve. — See  6  L.  449;  8  L.  808. 

Stolen  title  acquired  by  bona  fide  purchaser. — See  13  A.  S. 
977. 

What  law  governs. — See  40  Cent.  Dig.  col.  2919,  §  3. 

"When  passes  in  vessel  or  other  article  to  be  built  or  manu- 
factured.— See  62  A.  D.  65. 


§655.  IN  WHAT  PKOPERTY  MAY  EXIST.  There  may 
be  ownership  of  all  luauimate  things  which  are  capable  of 
appropriation  or  of  manual  delivery;  of  all  domestic  animals; 
of  all  obligations;  of  such  products  of  labor  or  skill  as  the 
composition  of  an  author,  the  good-will  of  a  business,  trade- 
marks and  signs,  and  of  rights  created  or  granted  by  statute. 

History:      Enacted   March    21,    1872. 
478 


II 


Tit.L]  WILD  ANIMALS.  §  656 

See  Kerr's  Cyc.  C.  C.  for  35  pars,  annotation. 

126  C.  112,  119,  58  P.  462,  45  L.  788  (applied);  133  C.  69,  71,  65 
P.  142  (referred  to);  149  C.  575,  598,  87  P.  102  (cited  in'con.  op. 
of  Henshaw,  J. — g-ood  will  of  business  as  property);  1  C.  A.  511, 
513,  82  P.   562    (cited). 

As  to  disinterment. — See  42  L.  721-738. 

As  to  larceny  of  dogs. — See  Kerr's  Cyc.  Pen.  C.  §  484  and  note. 

As  to  rig'ht  of  burial. — See  14  L.  85. 

As  to  right  of  control  and  disposition  of  dead  bodies. — See  14 
L.  85. 

Good  will  as  property,  and  what  it  includes. — See  Kerr's  Cyc. 
C.  C.  §  993  and  note. 

In  what  property  may  exist — As  to  generally. — See  40  Cent. 
Dig.  col.  2918,  §  2. 

Same — Buildings  and  other  structures. — See  40  Cent.  Dig.  col. 
922,  §  5. 

Same — Pews. — See  40  Cent.  Dig.  col.  922,  §  6. 

Mining  claims  as  property. — See  Kerr's  Cyc.  C.  C.  §  654  and 
note  pars.  5,  11. 

Products  of  mind,  how  far  subjects  of  property  or  ownership. 
— See  Kerr's  Cyc.  C.  C.  §  980  and  note. 

Trade-marks  as  property,  and  how  far  may  be  appropriated. — 
See  Kerr's  Cyc.  C.  C.  §  991  and  note;  Kerr's  Pocket  Pol.  C.  §  3196. 

Wild  animals — As  subjects  of  property,  and  as  to  when  private 
proprietary  rights  attach.- — See  Kerr's  Cyc.  C.  C.  §  656  and  note; 
2  Cent.  Dig.   col.   425,   §§  3,    4. 


§  656.  WILD  ANIMALS.  Animals  wild  by  nature  are  the 
subjects  of  ownership,  while  living,  only  when  on  the  land 
of  the  person  claiming  them,  or  when  tamed,  or  taken  and 
held  in  possession,  or  disabled  and  immediately  pursued. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  30  pars,  annotation. 

108  C.  240,  244  (erroneously  cited  for  §  656  C.  C.  P.),  41  P.  299 
(correct  citation);  114  C.  378,  388,  55  A.  S.  74,  46  P.  166  (con- 
strued and  applied);  119  C.  315,  321,  322,  51  P.  684  (construed 
and  applied);  136  C.  527,  531,  89  A.  S.  177,  69  P.   261    (construed). 

As  to  fish  and  the  right  to  fish. — See  60  L.  481-521. 

As  to  right  to  hunt,  and  ownership  of  game  killed  or  taken 
on  such  land.— See  13  A.  S.  416-420;  23  A.  S.  641. 

As  to  wild  animals  and  bees,  see  2  Cent.  Dig.  col.  425.  §§  3,  4. 

Game  laws — As  to. — See   42  A.  S.   138,  144. 

Same — As  affecting  interstate  commerce. — See  13  L.  804. 

Piscatory  rights,  as  to. — See  60  L.  481-525. 

479 


§  657  CIVIL  CODE.  [Div.II.PtJ. 

§657.    REAL  AND  PERSONAL.     Property  is  either: 

1.  Real  or  immovable;   or, 

2.  Personal  or  movable. 

HiMtory:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

113  C.  345,  353,  45  P.  680  (construed);  142  C.  529,  539,  76  P.  243 
(distinction  between  freehold  estates  and  estates  for  years). 

Crops  as  real  or  personal  property. — See  15  Cent.  Dig.  col. 
1120,  §§  2-4. 

Distinction  between^  real  and  personal  property — As  to  gener- 
ally, see  40  Cent.  Dig.  col.  2920,  §  4. 

Same — Buildings  and  other  structures. — See  40  Cent.  Dig.  col. 

2922,  §  5. 

Same — Conversion   or  change  of  form. — See   40  Cent.   Dig.   col. 

2923,  §  7. 

Same — Effect  of  severance  of  trees. — See  40  Cent.  Dig.  col. 
2923,   §  8. 

Same — Pews. — See  40  Cent.  Dig.  col.  2922,  §  6. 

Estate  for  years  as  personal  property. — See  32  Cent.  Dig.  col. 
232,    §  215. 

Incorporeal  chattel. — See  4  W.  &  P.  3514. 

Nature  of  property — As  bringing  contract  within  statute  of 
frauds.— See  23  Cent.  Dig.  col.  2086,  §§116-118;  col.  2135,  §§143- 
146. 

Same — In   corporate  stocks. — See   12  Cent.   Dig.   col.    268,    §  166. 

Same — In  minerals. — See  34  Cent.  Dig.  col.  3068,  §  134. 

Personal  property — As  to  what  constitutes,  and  rights,  see 
Kerr's  Cyc.  C.  C.  §§  633,  953-990  and  notes;  75  A.  D.  592;  4  A.  R. 
81;  59  A.  R.  400;  57  A.  S.  347;  62  A.  S.  436;  75  A.  S.  168;  2  L.  350; 
7  L.  448;  16  L.  729;  37  L.  384;  42  L.  826;  60  L.  476;  6  W.  &  P. 
5346-5358. 

Same — Choses  in  action. — See  6  W.  &  P.  5352. 

Same — Claim  ex  contractu  or  ex  delicto. — See  6  W.  &  P.   5352. 

Same — Claim  for  land  taken  under  eminent  domain. — See  6 
W.  &  P.  5352. 

Same — Contents  of  safe. — See  6  W.  &  P.  5352. 

Same — Corporation  stocks. — See  23  A.  R.  460;  75  A.  S.  168;  6 
W.  &  P.  5352. 

Same — Credits. — See  6  W.  &  P.  5353. 

Same— Crops. — See  75  A.  D.  592;  49  A.  R.  821;  6  W.  &  P.  5353. 

Same — Deposit  in  bank. — See  6  W.  &  P.  5354. 

Same — Domestic  animals,  dog  and  hen. — See  6  W.  &  P.  5354. 

Same — Insurance  policy. — See  6  W.  &  P.  5355. 

Same — Land  certificate. — See  6  W.  &  P.  5355. 

Same — Land  is  when. — See  6  W.  &  P.  5355. 

480 


II 


\i  Tit.I.]  REAL    PROPERTY,    WHAT    IS.  §  658 

Same^Leasehold  estate  for  term  of  years. — See  6  W.  &  P. 
5355. 

Same — Liquor  tax  certificate. — See  6  W.  &  P.   5356. 

Same — Membersliip  in  newspaper  association. — See  6  W.  &  P. 
5356. 

Same — Money. — See  29  A.  R.  707;  37  L.  442;  6  W.  &  P.  5356. 

Same — Promissory  note. — See   6  W.  &  P.   5356. 

Same — Property  attached  to  realty. — See  6  W.  &  P.  5357. 

Same — Railroad  track  and  superstructures. — See  6  W.  &  P. 
5357. 

Same — Right  to  work. — See  6  W.  &  P.  5357. 

Same — Seat  in  stock  exchang-e.— See  6  W.  &  P.  5357. 

Same— Ship. — See  96  A.  S.  1000;  6  W.  &  P.  5357. 

Same — ^Timber  is  when. — See  6  W.  &  P.  5358. 

Same— Water  mains  and  telegraph  wires.— See  16  L.  506;  6 
W.  &  P.  5358. 

Rule  of  descent  dependent  on  whether  property  is  personal  or 
real. — See   16  Cent.  Dig.   col.   1376,  §  79. 

What  constitutes  personal  property  available  for  payment  of 
debts  of  decedent's  estate. — See  2  Church's  New  Probate  Law 
and  Practice,  §§1262,  et  seq.;  22  Cent.  Dig.  col.   1497,   §1056. 


§658.  KEAL  PKOPERTY.  Real  or  immovable  property 
consists  of: 

1.  Land; 

2.  That  which  is  affixed  to  land; 

3.  That  which  is  incidental  or  appurtenant  to  land; 

4.  That  which  is   immovable  by   law. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

60  C.  408,  410  (applied);  62  C.  182,  184  (applied);  77  C.  399,  402, 
19  P.  689,  690  (applied);  80  C.  245,  250,  22  P.  184,  185  (applied): 
86  C.  335,  338,  24  P.  993,  994  (applied);  109  C.  29,  36,  41  P.  1024 
(continuous  flow  of  water  on  land  is  real  property);  118  C.  635, 
636,  50  P.  683  (applied);  126  C.  600,  605,  59  P.  130  (applied);  138 
C.  583,  586,  72  P.  171  (applied);  140  C.  183,  187,  73  P.  826.  827 
(applied);  142  C.  529,  539,  76  P.  243  (distinction  between  freehold 
estates  and  estates  for  years);  144  C.  450,  454,  77  P.  1032  (water 
as  real  property);  147  C.  1,  7,  109  A.  S.  107,  81  P.  121  (timber  as 
part  of  realty);  147  C.  351,  354,  81  P.  1012,  1  L.  N.  S.  1192,  3  A.  C. 
330  (fixtures  attached  by  lessee  to  leasehold  property  as  part  of 
realty). 

Appurtenances  as  to. — See  Kerr's  Cyc.  C.  C.  §  662  and  note; 
also  note  §  662  post. 

Kerr's    C.    C— 16  481 


§  658  Civil.  CODE.  [Div.II.Pt.I. 

Fixtures,  as  to  what  are. — See  note  §  660  post. 

Incorporeal   hereditaments. — See    4   W.   &   P.    3514. 

Incorporeal  real  property. — See  4  W.  &  P.  3515. 

Land,  as  to  what  is. — See  note  §  659  post. 

Real  property — Any  interest  in  land. — See  7  W.  &  P.  5947. 

Same — Buildings  as. — See  7  W.  &  P.  5944. 

Same — Chattels  real. — See  7  W.  &  P.  5945. 

Same — Coal  before  mining. — See   7   W.   &   P.    5945. 

Same — Dams   and   waterways. — See   7    W.    &   P.    5945. 

Same— Definition  of. — See  7  W.  &  P.  5939. 

Same — Electric  light  wires  and  poles. — See  7  W.  &  P.  5945. 

Same — Equitable  interest. — See  7  W.  &  P.   5945. 

Same — Equity  of  redemption. — See  7  W.  &  P.  5946. 

Same — Estate  for  years. — See  7  W.  &  P.  5945. 

Same — Fee  simple  title. — See  7  W.  &  P.  5946. 

Same — Fixtures. — See  note  §  660,  post. 

Same — Franchise  of  corporation  not. — See  7  W.  &  P.  5947. 

Same — Ground  rents. — See  7  W.  &  P.  5947. 

Same — ^Growing  trees. — See  7  W.  &  P.  5947. 

Same — Improvements. — See  7  W.  &  P.  5947. 

Same — Incorporeal  hereditaments. — See  7  W.  &  P.   5947. 

Same — Interest  of  purchaser  at  execution  sale. — See  7  W.  & 
P.   5946. 

Same — Lands  synonymous  with. — See  7  W.  &  P.  5948. 

Same — Manure. — See  7  W.  &  P.  5948. 

Same — ^Mining  claims. — See  7  W.   &   P.   5948. 

Same — Pier. — See  7  W.  &  P.  5948. 

Same — Pipe  line. — See  7  W.  &  P.   5948. 

Same — Railwaj'  property,  houses,  lands,  etc. — See  7  W.  &  P. 
5948. 

Same — Railway  road  bed. — See  7  W.   &  P.   5948. 

Same — Remainder. — See  7  W.  &  P.  5948. 

Same — Right  of  navigation  not. — See  7  W.  &  P.   5950. 

Same— Room  as. — See  31  A.  D.   232;   7  W.  &  P.  5950. 

Same — Several  tracks. — See  7  W.  &  P.  5950. 

Same — Street   railway   track. — See   7   W.    &   P.    5950. 

Same — Toll  bridge.— See  7  W.  &  P.  5950. 

Same — Unlocated  land  certificates  are  not. — See  7  W.  &  P. 
5950. 

Same — Vendor's  lien. — See  7  W.  &  P.  5950. 

Same— Water  and  ice.— See  45  A.  S.  240;  21  L.  333;  7  W.  &  P. 
5951. 

Same — Water  pipes  and  hydrant. — See  35  A.  S.  371;  21  L.  525; 
7  W.  &  P.  5951. 

Same — Water  power. — See  7  W.  &  P.  5951. 

Same — Water  works  plant. — See  15  L.  205;  7  W.  &  P.  5951. 

482 


Tit.L]  LAND— FIXTURES.  §§  659,  660 

§  659.  LAJfD.  Land  is  the  solid  material  of  the  earth, 
whatever  may  be  the  ingredients  of  which  it  is  composed, 
whether  soil,  rock,  or  other  substance. 

History:     Enacted  March  21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

118  C.  635,  636,  50  P.  683  (referred  to  Avith  other  sections  in 
other  discussion);  140  C.  183,  187,  73  P.  826,  827  (referred  to); 
142  C.  529,  539,  76  P.  243  (distinction  between  freehold  estates 
and  estates  for  years). 

Land — Bridge  as. — See   6  W.   &  P.   3979. 

Same — Building-  as. — See   6   W.    &  P.    3979. 

Same — Definition  of. — See  22  A.  D.  236;  16  A.  R.  388;  5  W.  &  P. 
3975. 

Same — Easements  and  incorporeal  hereditaments  as. — See  5 
W.    &   P.    3981. 

Same — Franchise  of  corporation  as. — See  5  W.  &  P.  3981. 

Same — Water  and  water  power  included  in  term.- — See  5  W.  & 
P.    3984. 


§  660.  FIXTURES.  A  thing  is  deemed  to  be  affixed  to  land 
when  it  is  attached  to  it  by  roots,  as  in  the  case  of  trees, 
vines,  or  shrubs;  or  embedded  in  it,  as  in  the  casfe  of  walls; 
or  permanently  resting  upon  it,  as  in  the  case  of  buildings; 
or  permanently  attached  to  what  is  thus  permanent,  as  by 
means  of  cement,  plaster,  nails,  bolts,  or  screws. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  148  pars,  annotation. 

51  C.  594  (applied);  52  C.  385,  394,  395,  396,  28  A.  R.  634 
(applied);  70  C.  3,  6,  11  P.  320,  321  (applied);  77  C.  190,  191,  19 
P.  277,  278  (applied);  80  C.  245,  250,  251,  13  A.  S.  147,  22  P.  184, 
185  (applied);  86  C.  335,  338,  24  P.  993,  994  (applied);  25  P.  688, 
689;  91  C.  377,  379,  27  P.  750,  751,  13  L.  680  (construed);  118  C. 
635,  636,  50  P.  683  (cited);  126  C.  600,  605,  59  P.  130  (applied); 
138  C.  583,  586,  72  P.  171  (referred  to  in  discussion);  139  C.  165, 
167,  72  P.  905  (applied — wharf  structures  become  vested  in 
city  when);  140  C.  183,  187,  73  P.  826,  827  (referred  to  with  other 
sections);  142  C.  529,  539,  76  P.  243  (distinction  between  freehold 
estates  and  estates  for  years);  147  C.  1,  7,  109  A.  S.  107,  81  P. 
121  (timber  as  part  of  realty);  147  C.  351,  354,  81  P.  1012,  1 
L.  N.  S.  1192,  3  A.  C.  330  (fixtures  attached  by  lessee  to  lease- 
hold property  as  part  of  realty). 

483 


§  660  CIVIL  CODE.  [Div.II.Pt.I. 

FIXTURES — GENERALLY. 

As  to  buildings  being  real   estate. — See   16  L.   306. 
*  As   to   character   of   estate   in    mining   claim. — See   Kerr's   Cyc. 
C.  C.  §  654,  note  pars.  5-11. 

As  to  intention  governing. — See  51  A.  S.  633;  10  L.  722. 

As    to    mortgage    on    building   on    leased   premises. — See    21    L,. 
347. 

As  to  right  of  removal,  as  to  generally. — See  21   A.  R.   80;   13 
L.  680;.- 38  L.  628. 

Same — By  mortgagor. — See  Kerr's  Cyc.  C.  C.   §  660,  note  pars. 
46,   47. 

Same — By  tenant. — See  Kerr's  Cyc.  C.  C.  §  660,  pars.  35-38. 

Same — By    vendee. — See    Kerr's    Cyc.    C.    C.    §  660,    note    pars. 
57-59. 

As  to  what  are,  see  14  A.  D.   303;   17  A.  D.   686;   24  A.   D.   726, 
5  K  150;  5  L.  594;  6  L.  249;  10  L.  722. 

Agreement  to  prevent  fixtures  from  becoming  part  of  realty. — 
See  19  L.  441. 

Annexation. — See  11  L.  510;  3  W.  &  P.  2833. 

As  betvpeen — Landlord  and  tenant. — See  10  L.   723. 

Same — Mortgagor  and  mortgagee. — See  1  L.  350;  10  L.  725. 

Same — Representatives  and  heirs. — See  10  L.  721. 

Same — Vendor  and  vendee. — See  10  L.  724. 

Belonging  to  soil,  as  to. — See  11  L.  727. 

Character    as    fixtures    or    personalty,    before    annexation,    of 
articles  brought  on  premises  to  be  annexed. — See  4  A.  C.  1160. 

Cistern  as.— See  3  W.  &  P.  2841. 

Consent  of  owner  to  remove. — See  3  W.  &  P.  2836. 

Definition   of. — See   69  L.   892;   3  W.   «fe  P.   2832-2846. 

Design  or  intention. — See  93  A.  D.  299;  3  W.  &  P.  2836. 

Effect   of   renewing   tenancy   without    reservation    of    riglit    to 
remove.— See  1  L.  N.  S.  1192. 

Efficacy  of  chattel  mortgage  on. — See  15  L.   56. 

Engine  as  fixture  when  placed  upon  land  by  owner  of  realty. — 
See  8  L.  N.  S.  376. 

Fastened  to  building,   as  to  method  and   effect   of. — See   44   L. 
559. 

Fixing  character  of  property  as  realty  or  personalty  by  agree- 
ment.— See  1  A.  C.  312. 

Floating  dock  not  a. — See  3  W.  &  P.  2841. 

Furniture  is  when.— See  92  A.  D.  766;  3  W.  &  P.  2842. 

Gas — Fittings   and   mirrors,   are   when. — See    29   A.    R.    403;    37 
A.  R.  472. 

Same — Pipes    and    other   appliances    when    are. — See    34    A.    R. 
354;  37  A.  R.  472. 

Intention  as  criterion. — See  3  L.  34. 

Machinery — Becomes  when. — See  11  A.  R.  314. 

Same— Is  when.— See  10  L.  724;  3  W^.  &  P.  2843. 

484 


II 


i         Tit.I.]  APPURTENANCES.  |§  661,  662 

Manure  as. — See   14  A.   D.   397. 

Mirrors  as  personalty  or  realty. — See  1  A.  C.  6S7. 

Mortgagee's  right  of  action  against  third  person  removing. — 
See  13  A.  S.  153. 
■  New  lease — As  affecting  right  to  remove. — See  3  A.  C.  331. 

i^  Same — As  implied  surrender  of  right  to  remove  fixtures  under 

I         old  lease. — See  1  L.  N.  S.  1193. 

Removal  by  tenant  in  violation  of  covenant  to  leaving  prem- 
ises in  good  condition. — See  64  L.  662. 

Right — As  between  life  tenant  and  remainderman. — See  2  A.  C. 
405. 

Same — Of  lessee  under  mining  lease  to  remove  machinery  and 
other  appliances. — See  2  A.  C.  738. 

Same — Of  person  claiming  under  tenant  as  to  time  for  removal 
of  fixtures. — See  10  A.  C.  109. 

Tenant  may  remove  when. — See   11  A.  D.  241. 

Tenant's  right  as  to. — See  1  L.  N.  S.   1192;  3  L.  N.  S.   69. 

Trade  fixtures  and  removal  of. — See  3  W.  &  P.  2845. 

When  and  against  whom  may  retain  the  character  of  personal 
property. — See  84  A.  S.  877. 

Whether  personal  property. — See  29  A.  R.  407. 

§  661.  FIXTURES  ATTACHED  TO  MIIVES.  Sluice  boxes, 
flumes,  hose,  pipes,  railway  tracks,  cars,  blacksmith-shops, 
mills,  and  all  other  machinery  or  tools  used  in  working  or 
developing  a  mine,  are  to  be  deemed  affixed  to  the  mine. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

76  C.  578,  582,  583,  585,  18  P.  772,  774  (applied,  cited,  and  con- 
strued);  80  C.  510,  512,  22  P.  217,  218  (applied— lien  in  favor  of 
material-man);  102  C.  134,  142,  34  P.  702,  36  P.  388  (applied  and 
construed);  118  C.  148,  153,  50  P.  378  (construed);  118  C.  635, 
636,  50  P.  683  (cited);  142  C.  529.  539,  76  P.  243  (distinction 
between  freehold  estates  and  estates  for  years). 

§  662.  APPURTEIVANCES.  A  thing  is  deemed  to  be  inci- 
dental or  appurtenant  to  land  when  it  is  by  right  used  with 
the  land  for  its  benefit,  as  in  the  case  of  a  way,  or  water- 
course, or  of  a  passage  for  light,  air,  or  heat  from  or  across 
the  land  of  another. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  53  pars,  annotation. 

52  C.  385,  395,  396,  28  A.  R.  634   (applied);  56  C.  11,  13  (applied); 

485 


§  663  CIVIL  CODE.  [Div.II.Pt.I. 

62  C.  182,  184,  185,  186,  45  A.  R.  659  (applied);  67  C.  493,  497,  8 
P.  29  (applied);  77  C.  399,  402,  403,  19  P.  689  (applied);  79  C. 
587,  590,  21  P.  1099,  1100  (applied) ;  80  C.  310,  315,  316,  22  P.  178,  179 
(applied);  86  C.  335.  338,  24  P.  993,  994  (cited  in  discussion);  91 
C.  146,  155,  27  P.  543,  546  (applied);  91  C.  187,  190,  27  P.  587,  588 
(applied);  93  C.  365,  368,  370,  28  P.  953,  954  (construed);  109  C.  29, 
36,  41  P.  1024  (applied — continuous  flow  of  water  on  land  is  real 
property);  110  C.  582,  585,  42  P.  1091  (construed);  43  P.  611,  612 
(construed);  120  C.  488,  490,  493.  52  P.  843,  40  L.  476  (applied); 
140  C.  183,  187,  73  P.  826,  827  (referred  to);  142  C.  529,  539,  76  P. 
243  (distinction  between  freehold  estates  and  estates  for  years); 
146  C.  398,  400,  81  P.  542  (cited — appurtenance  is  question  of  fact 
— shares  of  stock  as  appurtenance);  146  C.  435,  440,  80  P.  623 
(applied — extension  of  ditch  as  appurtenance);  150  C.  426,  432, 
88  P.  1094  (applied  to  water-right);  4  C.  A.  18,  24,  87  P.  213 
(applied — water  ditch-easement). 

Appurtenant  easements. — See  2  L.  285;  14  L.  300. 

Articles  that  will  pass  as  appurtenances  upon  sale  of  chattels. 
— See  8  L.  N.  S.  793. 

Corporeal  appurtenances  to  realty. — See  15  L.  652. 

Land-owner's  right  to  percolating  waters. — See  99  A.  S.  66-75; 
64  L.   236-239. 

What  are  appurtenances. — See  13  A.  D.  657;  40  A.  R.  381;  81 
A.  S.  764. 

What  articles  will  pass  as  appurtenances  upon  sale  of  chattels. 
—See  8  L.  N.  S.   793. 

§663.  PERSONAL  PROPERTY.  Every  kind  of  property 
that  is  not  real  is  personal. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

57  C.  254,  255  (construed  and  applied);  113  C.  345,  353,  45  P. 
680  (referred  to);  142  C.  529,  539,  76  P.  243  (distinction  between 
freehold  estates  and  estates  for  years);  1  C.  A.  511,  513,  82  P. 
562   (cited). 

As  to  fructus  industriales,  see  1  Kerr's  Benjamine  on  Sales  111, 
note  2. 

As  to  right  of  landlord  where  rent  received  in  part  of  crop, 
see  37  A.  D.  321;  14  A.  S.  166. 

As  to  what  constitutes  personal  property,  see  Kerr's  Cyc.  C.  C. 
§14  subd.  3  and  note;  also  Kerr's  Cyc.  Pol.  C.  §3617  and  note; 
6   W.  &  P.   5346-5358. 


486 


Titll.ch.I.]  PROPERTY  OP  STATE.  §§  669,  670 

TITLE  II. 

OWNERSHIP. 

Chapter  I.  Owners,    §§  669-672. 

II.  Modifications  of  Ownership,   §§  678-726. 

III.  Rights  of  Ownership,  §§  732,  733. 

IV.  Termination   of  Ownership,   §§  739-742. 

CHAPTER  I. 

OWNERS. 
§  669.     Owner. 

§  670.     Property  of  the  state. 
§  671.     Wlio   may   own   property. 
§  672.     Aliens   inheriting  must   claim   within    five  years. 

§  669.  OWNER.  All  property  has  an  owner,  whether  that 
owner  Is  the  state,  and  the  property  public,  or  the  owner 
an  individual,  and  the  property  private.  The  state  may  also 
hold  property  as  a  private  proprietor. 

History:     Enacted  March  21,   1872. 

73  C.  99,  102,  14  P.  394,  396  (cited  in  discussion  with  other 
sections). 

Definition  of  owner. — See  91  A.  S.  331;  8  L.  147;  15  K  263;  6 
W.  &  P.  5134. 

§670.  PROPERTY  OF  THE  STATE.  The  state  is  the 
owner  of  all  land  below  tide-water,  and  below  ordinary  high- 
water  mark,  bordering  upon  tide-water  within  the  state;  of 
all  land  below  the  water  of  a  navigable  lake  or  stream; 
of  all  property  lawfully  appropriated  by  it  to  its  own  use;  of 
all  property  dedicated  to  the  state;  and  of  all  property  of 
which  there  is  no  other  owner. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    217. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

62    C.    250,    259    (applied);    69    C.    122,    126,    127,    10    P.    323,    326 

487 


§§  671,  672  CIVIL  CODE.  [Div.II.Pt.I. 

(applied);  70  C.  206,  209,  11  P.  695,  696  (applied);  138  C.  552,  558, 
94  A.  S.  70,  71  P.  707  (applied);  148  C.  55,  56,  82  P.  672,  2  L.  N.  S. 
643  (applied — non-resident  aliens — contest,  by  state,  of  probate 
of  will);  147  U.  S.  695,  698,  37  L.  ed.  335,  336  (erroneously  cited 
for  §  670  C.  C.  P.). 

§  671.  WHO  MAY  OWN  PEOPERTY.  Any  person,  whether 
citizen  or  alien,  may  take,  hold,  and  dispose  of  property,  real 
or   personal,   within   this  state. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.    218. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

65  C.  593,  594,  595,  4  P.  639,  640  (construed  and  applied);  67 
C.  380,  382,  7  P.  763  (applied);  67  C.  385,  386,  7  P.  766  (applied); 
70  C.  153,  155,  156,  12  P.  121,  123  (cited);  76  C.  294,  296,  18  P. 
407,  408  (cited);  127  C.  431,  434,  435,  436,  437.  59  P.  787  (applied); 
180  U.  S.  333,  336,  45  L.  ed.  557,  560   (cited). 

As  to  right  of  alien  to  inherit. — See  Kerr's  Cyc.  C.  C.  §  1404 
and  note;  1  Church's  New  Probate  Law  and  Practice  38,  52;  also 
note  §  672,  post. 

.§672.  ALIENS  INHERITING  MUST  CLAIM  WITHIN 
FIVE  YEARS.  If  a  non-resident  alien  takes  by  succession, 
he  must  appear  and  claim  the  property  within  five  years  from 
the  time  of  succession,  or  be  barred.  The  property  in  such 
case  is  disposed  of  as  provided  in  title  eight,  part  three,  Code 
of  Civil  Procedure. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391, 
held  unconstitutional,   see   history,   §   4   ante. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

65  C.  593,  594,  4  P.  639,  640  (cited);  67  C.  380,  383,  384,  7  P.  763, 
764  (construed  and  applied);  67  C.  385,  386,  7  P.  766  (construed); 
70  C.  153,  156,  157,  12  P.  121,  123  (construed);  143  C.  135,  140,  76 
P.  962  (property  of  non-resident  aliens,  how  disposed  of);  143 
C.  194,  197,  198,  76  P.  968  (property  of  non-resident  aliens,  how 
disposed  of);  148  C.  55,  56,  82  P.  672,  2  L.  N.  S.  643  (applied- 
contest,  by  state,  of  probate  of  will);  149  C.  208,  210,  85  P.  609 
(applied);  180  U.  S.  333,  336,  45  L.  ed.  557,  560*  (cited). 

As  to  inheritance  by  alien. — See  Kerr's  Cyc.  C.  C.  §  1404  and 
note;  1  Church's  New  Probate  Law  and  Practice  38,  52. 

Effect  of  naturalization  upon  alien's  right  to  inherit. — See  31 
L.   181. 

488 


Tit.II.ch.I.]  CLAIMING    BY    ALIENS. 


§672 


Effect  of  state  statute  and  constitution  upon  inheritance 
through  alien. — See  31  L.  146. 

Effect  of  treatise  upon  alien's  right  to  inherit.— See  32  L.   177. 

Power  of  aliens  to  hold  land. — See  14  A.  D.  97. 

Rig-ht  of  alien  to  inherit— As  to  generally.— See  Kerr's  Cyc 
C.  C.  §1304  and  note;  1  Church's  New  Probate  Law  and  Prac- 
tice, 38,   52. 

Same — Right  to  receive  or  transmit. — See  12  A.  S.  93;  31 
L.  177. 

Who  are  aliens. — See  84  A.  D.  210;  1  W.  &  P.  299. 


489 


§  678  CIVIL  CODE.  [Div.II,Pt.I. 

CHAPTER   II. 

MODIFICATIONS  OF  OWNERSHIP. 

Article  I.  Interests  in  Property,  §§  678-703. 

II.  Conditions  of  Ownersliip,  §§  707-711. 

III.  Restraints  upon  Alienations,  §§  715-718. 

IV.  Accumulations,   §§  722-726. 

ARTICLE  I, 

INTERESTS    IN    PROPERTY. 

§  678.  Ownership,  absolute  or  qualified. 

§  679.  When  absolute. 

§  680.  When   qualified. 

§  681.  Several    ownership,    what. 

§  682.  Ownership   of   several   persons. 

§  683.  Joint   interest,    what. 

§  684.  Partnership   interest,  what. 

§  685.  Interest  in   common,   what. 

§  686.  What  interests  are  in  common. 

§  687.  Community  property. 

§  688.  Interests   as   to    time. 

§  689.  Present   interest,   what. 

§  690.  Future  interest,  what. 

§  691.  Perpetual   interest,   what. 

§  692.  Limited  interest,  what. 

§  693.  Kinds  of  future  interests. 

§  694.  Vested    interests. 

§  695.  Contingent  interests. 

§  696.  Two  or  more  future  interests. 

§  697.  Certain  future  interests  not  to  be  void. 

s  698.  Posthumous   children. 

I  699.     Qualities   of  expectant  estates. 

§  700.     Same.      [Mere   possibility   not   an    interest.] 

§  701.     Interests  in  real  property. 

§  702.     Same.     [Names  and  classification  of  interests.] 

§  703.     What  future   interests  are   recognized. 

§678.    OWNERSHIP,    ABSOLUTE    OR    QUALIFIED.     The 

ownersliip  of  property  is  either: 

1.  Absolute;    or, 

2.  Qualified. 

History:     Enacted  March  21,  1872. 
490 


Tit.II,ch.II,art.I.]        OWNERSHIP,  qualities.  §§679-682 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

107  C.  410,  420,  40  P.  552  (construed  and  applied  with  other 
sections);  116  C.  339,  345,  58  A.  S.  170,  48  P.  228,  36  L.  497  (con- 
strued and  applied  with  other  sections);  131  C.  294,  307,  63  P. 
470   (applied). 

§  679.  WHEN  ABSOLUTE.  The  ownership  of  property  is 
absolute  when  a  single  person  has  the  absolute  dominion 
over  it,  and  may  use  it  or  dispose  of  it  according  to  his  pleas- 
ure, subject  only  to  general  laws. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

105  C.  467,  470,  38  P.  1109  (construed  and  applied);  106  C.  673, 
680,  39  P.  1071  (construed  and  applied  with  other  sections);  109 
C.  552,  555,  42  P.  448  (construed  and  applied);  112  C.  387,  399. 
44  P.  734  (construed  and  applied  in  connection  with  other  sec- 
tions); 116  C.  339,  345,  58  A.  S.  170,  48  P.  228,  36  L.  497  (con- 
strued and  applied). 

§  680.  WHEN  QUALIFIED.  The  ownership  of  property  is 
qualified: 

1.  When  it  is  shared  with  one  or  more  persons; 

2.  When  the  time  of  enjoyment  is  deferred  or  limited; 

3.  When  the  use  is  restricted. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

107  C.  410,  420,  40  P.  552  (construed  and  applied  with  other 
sections);  112  C.  387,  399,  44  P.  734  (construed  and  applied  with 
other  sections);  116  C.  339,  345,  58  A.  S.  170,  48  P.  228,  36  L.  497 
(construed  and  applied);  133  C.  420,  422,  65  P.  952  (construed 
and  applied  with  other  sections);  150  C.  177,  178,  88  P.  706 
(allegation  of  ownership  in  fee,  what  is). 

§681.  SETERAL  OWNERSHIP,  WHAT.  The  ownership 
of  property  by  a  single  person  is  designated  as  a  sole  or 
several  ownership. 

Hi.story:     Enacted  March  21,  1872. 

§  682.    OWNERSHIP  OF  SEVERAL  PERSONS.  The  owner- 
ship of  property  by  several  persons  is  either: 
1.  Of  joint  interests; 

491 


§§  683,  684  CIVIL  CODE.  [Div.II,Pt.I. 

2.  Of  partnership  interests; 

3.  Of  interests  in  common; 

4.  Of  community  interest  of  husband  and  wife. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391. 
held  unconstitutional,   see  history,   §   4  ante. 

See  vKerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

112  C.  387,  399,  44  P.  734  (construed  and  applied);  116  C.  339. 
342,  58  A.  S.  170,  48  P.  228,  36  L.  497  (construed  with  §687);  136 
C.  460,  463,  69  P.  83   (applied). 

§683.  JOI>'T  INTEREST,  WHAT.  A  joint  interest  is  one 
owned  by  several  persons  in  equal  shares,  by  a  title  created 
by  a  single  will  or  transfer,  when  expressly  declared  in  the 
will  or  transfer  to  be  a  joint  tenancy,  or  when  granted  or 
devised  to  executors  or  trustees  as  joint  tenants. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391, 
held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  36  pars,  annotation. 

127  C.  142,  149,  78  A.  S.  35,  59  P.  390  (construed  and  applied); 
141  C.  432,  435,  75  P.  53  (applied);  3  C.  A.  583,  590,  86  P.  825  (this 
section  applies  to  all  kinds  of  property). 

As  to  deposit  in  bank  in  joint  names  becoming  gift  to  survivor, 
see  51  A.  S.  476. 

As  to  joint  account  in  savings  bank,  see  31  L.  454,  455. 

As  to  what  is  a  joint  tenancy,  see  22  L.  42. 

§  684.  PARTNERSHIP  INTEREST,  WHAT.  A  partnership 
interest  is  one  owned  by  several  persons,  in  partnership,  for 
partnership  purposes. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  52  pars,  annotation. 

65  C.  46,  48,  2  P.  880  (construed  and  applied);  102  C.  384.  386, 
36  P.   665    (construed  and  applied). 

As  to  mining  partnerships,  their  nature  and  constitution,  and 
who  are   partners   therein,   see   83   A.   D.    104-111. 

As  to  partnership  in  real  estate,  see  47  A.  D.  320.  60  A.  D.  539, 
98  A.  D.   197,   201,  8  L.   657. 

As  to  validity  of  parol  partnerships  for  dealing  in  land,  see 
16  L.   745-750. 

492 


Tit.II,ch.II,art.I.]  interest  in  common.  §§  685,  686 

As  to  when  real  estate  will  be  considered  partnership  prop- 
ertj',  see  27  L.  449-497. 

Effect  of  deed  conveying-  realty  to  partnership  in  firm  name. — 
See  4  A.  C.  604. 

Realty  held  by  partnership,  deceased  partner's  interest  in. — 
See  27  A.  D.  454. 

Validity  of  deed  to  partnership. — See  1   L.   N.   S.   157. 

What  constitutes  a  partnership  to  deal  in  real  estate. — See 
5  L.  N.  S.   503. 

When  real  estate  considered  as  partnership  property — As  to, 
generally,  see  27  L.  449-496. 

§685.  INTEEEST  IN  COMMON,  WHAT.  An  interest  in 
common  is  one  owned  by  several  persons,  not  in  joint  own- 
ership or  partnership. 

History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  284  pars,  annotation. 

141  C.  432,  435,  75  P.   53    (construed  and  applied). 

As  to  action  by  one  cotenant  against  another  for  rents  and 
profits,  see  14  A.  D.  586. 

As  to  action  in  assumpsit  by  one  cotenant  against  another,  see 
14  A.  D.  587. 

As  to  adverse  claim  by  payment  of  taxes  by  cotenant.  see  2  L. 
172,  9  L.  740,  10  L.  101. 

As  to  exclusive  possession  by  one  cotenant,  see  12  L.  261-266. 

As  to  husband  and  wife  as  cotenants,  see  30  L.  305. 

As  to  liability  in  common  to  action,  see  12  L.  261-266. 

As  to  liability  of  cotenants  to  account  for  use  and  occupation, 
and  rents  and  profits,  see  28  L.  829,  77  A.  D.  665,  668. 

As  to  right  of  tenant  in  common  to  crops,  see  9  L.  625. 

As  to  right  to  levy  on  crops  owned  bv  cotenants,  see  23  L. 
258,   260-263. 

As  to  tenancy  by  entireties,  see  30  L.  305-335. 

Right  of  tenant  in  common  who  pays  mortgage  debt  to  enforce 
mortgage  against  cotenant. — See  10  A.  C.  282. 

§  686.  WHAT  INTERESTS  ARE  IN  COMMON.  Every  inter- 
est created  in  favor  of  several  persons  in  their  own  right  is 
an  interest  in  common,  unless  acquired  by  them  in  partner- 
ship, for  partnership  purposes,  or  unless  declared  in  its  crea- 
tion to  be  a  joint  interest,  as  provided  in  section  six  hundred 
and  eighty-three,  or  unless  acquired  as  community  property. 

History:  Enacted  March  .21,  1872;  amended  by  Code  Com- 
mission, Act  March  16.  1901,  Stats,  and  Amdts.  1900-1,  p.  391, 
held  unconstitutional,  see   history,   §   4  ante. 

493 


§§  687-690  CIVIL  CODE.  [Div.II.Ptl. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 
141  C.  432,  43.5,  75  P.  53  (construed  with  other  sections);  3  C.  A. 
583,  591,  86  P.  825,  828   (cited);  4  C.  A.  276,  281,  87  P.   553   (cited). 

§687.  COMMUNITY  PEOPERTY.  Community  property  is 
property  acquired  by  husband  and  wife,  or  either,  during 
marriage,  when  not  acquired  as  the  separate  property  of 
either. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

70  C.  282,  284,  11  P.  719,  720  (construed  and  applied);  116  C. 
339,  342,  58  A.  S.  170,  48  P.  228,  36  L.  N.  S.  497  (cited  as  to 
definition  of  community  property);  3  C.  A.  651,  655,  86  P.  978 
(community  property,  the  moment  it  becomes  a  valid  homestead, 
ceases  to  be  community  property). 

As  to  community  property  and  what  it  includes,  its  acquisition 
and  transmutation,  see  Kerr's  Cyc.  C.  C.  §  164  and  note;  1 
Church's  New  Probate  Law  and  Practice,  38,  42,  1729,  1732-1740. 

§  688.  INTERESTS  AS  TO  TIME.  In  respect  to  the  time 
of  enjoyment,  an  interest  in  property  is  either: 

1.  Present  or  future;   and, 

2.  Perpetual  or  limited. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

107  C.  410,  420,  40  P.  552  (construed  and  applied  with  other 
sections). 

§689.  PRESENT  INTEREST,  "WHAT.  A  present  interest 
entitles  the  owner  to  the  immediate  possession  of  the 
property. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
107  C.  410,  420,  40  P.  552   (construed  with   §  690). 

§690.  FUTURE  INTEREST,  \VHAT.  A  future  interest 
entitles  the  owner  to  the  possession  of  the  property  only  at 
a  future  period. 

History:     Enacted  March   21,   1872. 
494 


Tit.II,ch.II,art.I.]  INTERESTS,  KINDS.  §§  691-694 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

79  C.  613,  622,  22  P.  50,  52  (construed  and  applied)';  104  C.  298, 
301,  37  P.  1049  (construed  and  applied  with  other  sections);  107 
C.  410,  420,  40  P.  552  (construed  and  applied);  122  C.  626,  627, 
55  P.  595  (construed  and  applied  with  other  sections);  133  C. 
420,  422,  65  P.  952  (construed  and  applied  with  other  sections). 

As  to  estates,  when  vested  and  when  contingent,  see  1  L. 
432-538,  3  L.  690-816,  9  L.  211,  12  L.  73. 

As  to  right  of  remaindermen  on  condemnation,  see  21  L. 
212-223. 

As  to  rule  in  Shelley's  case  affecting  remainders,  see  21  L.  212. 

§691.  PERPETUAL  INTEREST,  WHAT.  A  perpetual 
interest  has  a  duration  equal  to  that  of  the  property. 

History:     Enacted  March   21,   1872. 

§692.    LIMITED   INTEREST,   WHAT.     A   limited   interest 
has  a  duration  less  than  that  of  the  property. 
History:     Enacted  March  21,  1872. 

§  693.  KINDS  OF  FUTURE  INTERESTS.  A  future  interest 
is  either: 

1.  Vested;   or, 

2.  Contingent. 

History:     Enacted  March  21,  1872. 

150  C.  39,  50,  87  P.  1097  (in  action  for  waste,  plaintiff's  interest, 
is  not  vested  where  it  is  only  contingent). 

§694.  VESTED  INTERESTS.  A  future  interest  is  vested 
when  there  is  a  person  in  being  who  would  have  a  right, 
defeasible  or  indefeasible,  to  the  immediate  possession  of 
the  property,  upon  the  ceasing  of  the  intermediate  or  prece- 
dent interest. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

73  C.  99,  102,  14  P.  394,  396  (construed  and  applied);  122  C. 
626,  627,  55  P.  595  (construed  and  applied);  132  C.  523,  574,  578, 
84  A.  S.  70,  60  P.  442,  64  P.  1000  (construed  and  applied);  133  C. 
420,  422,  65  P.  952  (construed  with  other  sections);  136  C.  97, 
106,  68  P.  494  (construed  and  applied). 

495 


§§  695-698  CIVIL  CODE.  [Div.II,Pt.I. 

§695.  CONTINGENT  INTERESTS.  A  future  interest  is 
contingent,  whilst  tlie  person  in  whom,  or  the  event  upon 
which,  it  is  limited  to  take  effect  remains  uncertain. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

120  C.  79,  84,  85,  52  P.  132  (construed  and  applied  with  other 
sections);  150  C.  39,  50,  87  P.  1097  (in  action  for  waste,  plaintiff's 
interest  is  not  vested  where  it  is  only  contingent). 

As  to  contingent  remainders,  their  definition,  classification, 
and  principles  relating  to  generally,  see  24  Encyc.  L.  395,  400. 

As  to  estates  when  vested  and  when  contingent,  see  1  L.  432, 
538;  3  L.  690,  816;  9  L.  211. 

As  to  power  to  cut  off  contingent  interests,  see  19  L.  247. 

§696.    TWO   OR   MORE    FUTURE    INTERESTS.     Two   or 

more  future  interests  maj^  be  created  to  take  effect  in  the 
alternative,  so  that  if  the  first  in  order  fails  to  vest,  the 
next  in  succession  shall  be  substituted  for  it,  and  take  effect 
accordingly. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 
•    As  to  successive  remainders  or  future  estates  to  take  effect  in 
the  alternative  and  in  succession,  see  24  Encyc.  L.  417  (5)  under 
improper  and  condemnable   head   "Double   Contingency   or  Con- 
tingency with  Double  Aspect." 

§  697.     CERTAIN  FUTURE  INTERESTS  NOT  TO  BE  VOID. 

A  future  interest  is  not  void  merely  because  of  the  improb- 
ability of  the  contingency  on  which  it  is  limited  to  take  effect. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  remoteness  of  contingency,  see  24  Encyc.  L.  402. 

Common-law  doctrine. — Possibility  upon  which  remainder  is 
to  depend  must  be  common  possibility,  or  potentia  propinqua; 
e.  g.  death,  or  death  without  issue,  or  coverture;  for  potentia 
est  duplex,  remota  et  propinqua. — 2  Cruise's  Dig.  272. 

§  698.  POSTHUMOUS  CHILDREN.  When  a  future  interest 
is  limited  to  successors,  heirs,  issue,  or  children,  posthumous 

496 


Tit.II,ch.II,art.I.]    expectant  estates.     §§  699, 700 

children  are  entitled  to  take  in  the  same  manner  as  if  living 
at  the  death  of  their  parents. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  rig-hts  of  after-born  children  not  provided  for  in  will, 
see  2  Church's  New  Probate  Law  and  Practice,  1566,  1579. 

As  to  posthumous  children  defeating  future  interest,  see  for 
a  full  discussion  and  authorities,  Kerr's  Cyc.  C.  C.  §  739  and  note. 

As   to   posthumous   children   as   grantees,   see   44   L.    489. 

Child  en  ventre  sa  mere — When  regarded  as  in  being. — See  43 
A.  D.  472;  also  Kerr's  Cyc.  C.  C.  §  29,  note  pars.  59-63. 

Same — ^WVien  gift  to  "children"  includes. — See  7  A.  C.  134. 

Same — Who  is  and  property  rights  of. — See  19  A.  S.  946. 

§699.  QUALITIES  OF  EXPECTANT  ESTATES.  Future 
interests  pass  by  succession,  will,  and  transfer,  in  the  same 
manner  as  present  interests. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  28  pars,  annotation. 

104  C.  298,  301,  37  P.  1049  (construed  and  applied);  107  C.  410, 
420,  40  P.  552  (construed  and  applied  with  other  sections);  108 
C.  627,  649,  49  A.  S.  97,  41  P.  772  (construed  and  applied);  122  C. 
626,  627,  55  P.  595  (construed  and  applied);  133  C.  420,  422,  65  P. 
952  (construed  and  applied);  150  C.  '  39,  48,  87  P.  1097  (con- 
tingent estate  is  a  species  of  property  and  may  be  transferred). 

As  to  devolution  and  transfer  of  estates  in  remainder,  see  24 
Encyc.  L.   406. 

§  700.    SAME.   [MERE  POSSIBILITY  NOT  AN  INTEREST.] 

A  mere  possibility,  such  as  the  expectancy  of  an  heir  apparent, 
is  not  to  be  deemed  an  interest  of  any  kind. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

70  C.  282,  286,  11  P.  719,  721  (erroneously  cited  for  §  700  C.  C. 
P.) ;  104  C.  570,  584,  43  A.  S.  134,  38  P.  414,  32  K  595  (construed  with 
§1045 — these  sections  simply  state  common-law  rule);  112  C. 
387,  393,  44  P.  734  (construed  and  applied);  124  C.  43,  44,  56  P. 
640  (construed  and  applied);  138  C.  355,  361,  70  P.  1076  (con- 
strued and  applied  with  §  1045);  141  C.  366,  370,  74  P.  993  (con- 
strued and  applied  with  §  1045). 

497 


§§  701-703  CIVIL  CODE.  [Div.II.Pt.I. 

As  to  validity  of  sale  of  expectant  estate  by  prospective  heir, 
see  33  L.  266-287. 

As  to  validity  of  transactions  between  heir  and  his  ancestor 
relating  to  the  former's  expectancy,  see  32  L.  595,  602. 

§  701.  INTERESTS  I\  RE.VL  PROPERTY..  In  respect  to 
real  or  immovable  property,  the  interests  mentioned  in  this 
chapter  are  denominated  estates,  and  are  specially  named 
and  classified  in  part  two  of  this  division. 

HiMtoryt     Enacted  March  21.  1872. 

Fur  commissioners'  comnifnt  on  the  above  section,  see  Kerr's 
Cyc.  C.  C.   §  701,  note. 

§70i>.  SAME.  [NAMES  AND  CLASSIFICATION  OF  IN- 
TERESTS.] The  names  and  classification  of  interests  in  real 
property  have  only  such  application  to  interests  in  personal 
property  as  is  in  this  division  of  the  code  expressly  provided. 

HUtory:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  391, 
held   unconstitutional,   see  history,   $   4  ante. 

§708.    WHAT  FUTURE  INTERESTS  ARE  RECOGNIZED. 

No    future    interest   in    property    is   recognized    by    the    law, 
except  such  as  is  defined  in  this  division  of  the  code. 

HtNtory:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission. Act  March  16,  1901.  Stats,  and  Amdts.  1900-1,  p.  392, 
held   unconstitutional,    see   history,    §    4   ante. 


498 


Tit.II.ch.II.art.II.]  CONDITIONS.  §§  707-709 

ARTICLE   II. 

CONDITIONS  OF  OWNERSHIP. 

§  707.  Fixing  the  time  of  enjoyment. 

§  708.  Conditions. 

§  709.  Certain  conditions  precedent  void. 

§  710.  Conditions    restraining   marriage.       [Void    when.] 

§  711.  Conditions  restraining  alienation  void. 

§  707.  FIXING  TIME  OF  ENJOYMENT.  The  time  when 
the  enjoyment  of  property  is  to  begin  or  end  may  be  deter- 
mined by  computation,  or  be  made  to  depend  on  events.  In 
the  latter  case,  the  enjoyment  is  said  to  be  upon  condition. 

HLstory:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  82  pars,  annotation. 

109  C.  323,  330,  50  A.  S.  43,  41  P.  1089   (construed  and  applied). 

Conditions  precedent  and  subsequent. — Vesting  of,  see  Kerr's 
Cyc.  C.  C.  §  708  and  note. 

Precedent  and  subsequent. — See  Kerr's  Cyc.  C.  C.  §  708  and 
note. 

Uses  and  trusts. — See  Kerr's  Cyc.  C.  C.  §§  847  et  seq.  and  notes. 

§  708.  CONDITIONS.  Conditions  are  precedent  or  subse- 
quent. The  former  fix  the  beginning,  the  latter  the  ending, 
of  the  right. 

History:     Enacted  March   21,  1872. 

As  to  conditions  precedent,  see  Kerr's  Cyc.  C.  C.  §  1436  and 
note. 

As  to  conditions  subsequent,  see  Kerr's  Cyc.  C.  C.  §  1438  and 
note. 

§  709.    CERTAIN  CONDITIONS  PRECEDENT  VOID.     If  a 

condition  precedent  requires  the  performance  of  an  act  wrong 
of  itself,  the  instrument  containing  it  is  so  far  void,  and  the 
right  cannot  exist.  If  it  requires  the  performance  of  an  act 
not  wrong  of  itself,  but  otherwise  unlawful,  the  instrument 
takes  effect  and  the  condition  is  void. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  392. 
held  unconstitutional,   see   history,    §    4   ante. 

499 


§§710,711  CIVIL  CODE.  [Div.II,Pt.I. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
55  C.  564,  566   (meaning  of  "instrument" — it  does  not  embrace 
what). 

As  to  unlawful  contracts,  see  Kerr's  Cyc.  C.  C.  §  1441  and  note. 


§710.  CONDITIONS  RESTRAINING  MARRIAGE.  [VOID 
WHEN.]  Conditions  imposing  restraints  upon  marriage,  ex- 
cept upon  the  marriage  of  a  minor,  are  void;  but  this  does 
not  affect  limitations  where  the  intent  was  not  to  forbid  mar- 
riage, but  only  to  give  the  use  until  marriage..;  ,,  . 

History!  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4.   p.    218. 

See  Kerr's  Cyc.  C.  C.  for  35  pars,  annotation. 

149  C.  146,  151,  85  P.  308,  9  A.  C.  1143  (distinction  between  con- 
ditions in  restraint  of  marriage,  as  applied  to  real  and  to  per- 
sonal  estate,   abolished). 

As  to  effect  of  statute  prohibiting  remarriage  of  guilty  party 
on  divorce,  see  24  L.  831. 

As  to  injunctions  against  enforcing  contracts  relating  to 
marriage  under  marriage-brokerage  contracts,  see  48  L.  842- 
850. 

As  to  restraint  with  limitation  over,  see  Kerr's  Cyc.  C.  C. 
§  710,  note  pars.   29-33. 

§711.    CONDITIONS  RESTRAINING   ALIENATION  VOID. 

Conditions    restraining    alienation,    when    repugnant    to    the 
interest  created,  are  void. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  45  pars,  annotation. 

,64  C.  363,  366,  367,  28  P.  118,  120  (applied);  74  C.  141,  143,  15 
P.  451,  452  (applied);  110  C.  423,  426,  427,  42  P.  908  (referred  to); 
141  C.  659,  667,  75  P.  344  (applied  with  §715);  149  C.  178,  188, 
189,  190,  86  P.  603  (not  applicable  to  what  conveyance);  149  C. 
667,  675,  87  P.  276  (construed — section  declares  against  repug- 
nant conditions  restraining  alienation,  but  rule  does  not  depend 
on  mere  form  in  which  restraint  is  imposed — what  covenants 
are  avoided);  149  C.  712,  717,  87  P.  573  (instance  of  repugnancy 
to  particular  interest  created,  by  will,  and  consequently  void). 

As  to  conditions  subsequent,  see  Kerr's  Cyc.  C.  C.  §  1438  and 
note. 

As  to  restraint  against  alienation,  see  note  9  A.  D.  200-202; 
57  A.  D.  488-499;  32  A.  D.  242,  243;  9  A.  S.  405-408. 

500 


Tit.II,ch.II.art.III.l       RESTRAINTS,    VALIDITY.  §715 

ARTICLE   III. 

RESTRAINTS  UPON  ALIENATION. 

§  715.     How  long  it  may   be  suspended. 

§  716.      Future    interests    void,    which    suspend    power    of    aliena- 
tion. 
§  717.      Leases  of  agricultural  land,  for  over  fifteen  years,  void. 
§  718.     Leases  of  city  lots,  for  over  fifty  years,  void. 

§  715.  HOW  LONG  IT  MAY  BE  SUSPENDED.  The  abso- 
lute power  of  alienation  cannot  be  suspended,  by  any  limita- 
tion or  condition  whatever,  for  a  longer  period  than  during 
the  continuance  of  the  lives  of  persons  in  being  at  the  crea- 
tion of  the  limitation  or  condition,  except  in  a  single  case 
mentioned  in  section  seven  hundred  and  seventy-two. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  125  pars,  annotation. 

58  C.  457,  473,  481,  482  (construed);  73  C.  99,  103,  14  P.  394, 
396  (applied);  74  C.  141,  143,  15  P.  451,  452  (referred  to  in  con- 
struing limitations  of  power  to  sell  to  named  person):  79  C. 
613,  622,  22  P.  50,  52  (applied);  105  C.  192,  197,  38  P.  636  (con- 
strued); 108  C.  627,  646,  647,  649  (cited),  656,  657,  658  (applied  to 
trusts  in  personal  property) ;  49  A.  C.  97,  41  P.  772;  109  C.  323,  330, 
50  A.  S.  43,  41  P.  1089  (applied);  118  C.  656,  657,  658,  50  P.  753 
(applied);  119  C.  139,  146,  51  P.  38  (applied);  121  C.  379,  382,  53  P. 
813  (applied);  123  C.  140,  142,  55  P.  681  (construed  with  other  sec- 
tions);  124  C.  533,  536,  57  P.  564  (applied  with  other  sections); 
133  C.  617,  620,  85  A.  S.  227,  66  P.  32  (cited) ;  136  C.  138,  141,  142,  89 
A.  S.  120,  68  P.  587  (applied);  144  C.  121,  125,  127,  77  P.  825  (con- 
strued); 149  C.  200,  204,  205,  85  P.  147  (limitation  or  condition 
created  only  upon  death  of  deceased,  and  not  at  time  of  execu- 
tion of  will);  149  C.  712,  714,  87  P.  573  (applied);  150  C.  640,  645, 
89  P.  606  (limit  of  trust  for  accumulation);  152  C.  201,  204,  92 
P.  184,  185  (trust  created  by  will,  when  void);  5  C.  A.  188,  191, 
89  P.  1065  (court  has  often  considered  and  upheld  this  section); 
86  F.  975,  976   (what  deed  of  trust  is  not  in  violation  of  law). 

As  to  charitable  uses  and  trusts,  see  9  A.  D.  577-588;  44  A.  D. 
98-101;  67  A.  D.  184;  90  A.  D.  101-106;  38  A.  R.  300-303;  39  A.  R. 
738-750;  58  A.  R.  599-601;  60  A.  R.  230-236;  49  A.  S.  117-138;  63 
A.   S.    248-269. 

As  to  charitable  uses  and  trusts,  with  reference  to  the  rule 
against  perpetuities,  see  5  Encyc.  L.  902. 

501 


§§716,717  CIVIL  CODE.  [Div.II,Pt.L 

As  to  perpetuities  in  general,  see  9  A.  D.  577-588;  60  A.  R. 
230-236;  49  A.  S.  117-138;  63  A.  S.  248-269;  64  A.  S.  755-772;  95 
A.  S.  214-234;  1  L.  453;  3  L.  145-149;  4  L.  140;  11  L.  85-89;  20  L. 
509-517. 

Lease  witli  option  to  purchase — As  to  validity. — See  Kerr's 
Cyc.  C.  C.  §  715,  note  par.  85;   §  718,  note  par.  5. 

Provision  against  alienation  of  interest  of  cestui  que  trust. — 
See  2  L.  113. 

Restraints  upon  alienation. — See  9  A.  D.  200;  16  Cent.  Dig. 
col.    1624,    §  479. 

Suspension  of  power  of  alienation — As  to  generally,  see  1  L. 
453;  3  L.  145;  4  L.  110;  11  L.  85;  11  L.  87. 


§716.  FUTURE  INTERESTS  VOID,  WHICH  SUSPEND 
POWER  OF  ALIEN.\TIO>'.  Every  future  interest  is  void  in 
its  creation  which,  by  any  possibility,  may  suspend  the  abso- 
lute power  of  alienation  for  a  longer  period  than  is  prescribed 
in  this  chapter.  Such  power  of  alienation  is  suspended  when 
there  are  no  persons  in  being  by  whom  an  absolute  interest 
in  possession  can  be  conveyed. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

73  C.  99,  103,  14  P.  394,  396  (applied  with  §715);  79  C.  613, 
622,  22  P.  50,  52  (construed);  108  C.  627,  647,  648,  49  A.  S.  97, 
41  P.  772  (applied  with  other  sections);  119  C.  139,  146,  51  P. 
38  (applied  with  other  sections);  121  C.  379,  382,  53  P.  813 
(construed);  123  C.  140,  143,  55  P.  681  (construed);  124  C.  533, 
537,  57  P.  564  (construed  with  other  sections);  136  C.  138,  141, 
142,  89  A.  S.  120,  68,  P.  587,  588  (construed  with  other  sec- 
tions); 149  C.  712,  714,  717,  87  P.  573  (applied);  150  C.  640,  645, 
89  P.  606  (limit  of  trust  for  accumulation);  152  C.  201,  204.  92 
P.  184,  185  (trust  created  by  will,  when  void);  5  C.  A.  188,  191, 
89  P.  1065  (court  has  often  discussed  and  upheld  this  section); 
86  F.  975,  976   (referred  to). 

As  to  restraint  on  alienation,  see  Kerr's  Cyc.  C.  C.  §  715  and 
note. 


§717.  LEASES  OF  AGRICULTURAL  LAND,  FOR  OVER 
FIFTEEN  YEARS,  VOID.  No  lease  or  grant  of  land  for  agri- 
cultural or  horticultural  purposes  for  a  longer  period  than 
fifteen  years,  in  which  shall  be  reserved  any  rent  or  service 
of  any  kind,  shall  be  valid. 

502 


Tit.II,cli.II.art.III.]  CITY  LOTS,  LEASE.  §718 

History:  Enacted  March  21,' 1872;  amended  March  26,  1895, 
Stats,  and  Amdts.  1895,  p.  75;  April  19,  1909,  Stats,  and  Amdts. 
1909,    p.   1000. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
141   C.  326,   330,   74  P.   995    (construed). 

§718.  LEASES  OF  CITY  LOTS,  FOR  OVER  FIFTY 
YEARS,  VOID.  No  lease  or  grant  of  any  town  or  city  lot, 
for  a  longer  period  than  fifty  years,  in  which  shall  be  reserved 
any  rent  or  service  of  any  kind,  shall  be  valid;  provided,  that 
the  property  of  any  municipality,  or  any  minor  or  incompe- 
tent person  shall  not  be  leased  for  a  longer  period  than 
ten  years. 

History:  Enacted  March  21,  1872;  amended  March  20,  190,3, 
Stats,   and  Amdts.    1903,   p.    247. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

136  C.  138,  141,  142,  89  A.  S.  120,  68  P.  587  (applied);  141  C. 
659,  667,  75  P.  344   (construed). 


503 


§  722  CIVIL  CODE.  [Div.II.Pt.I. 


ARTICLE   IV. 

ACCUMULATIONS. 

§  722.  Dispositions    of   Income. 

§  723.  Accumulations,    when   void. 

§  724.  Accumulation    of    income. 

§  725.  Other  directions,  when  void  in  part. 

§  726.  Application  of  income  to  support,  etc.,  of  minor. 

§722.  DISPOSITIONS  OF  INCOME.  Dispositions  of  tlie 
income  of  property  to  accrue  and  to  be  received  at  any  time 
subsequent  to  the  execution  of  the  instrument  creating  such 
disposition,  are  governed  by  the  rules  prescribed  in  this  title 
in  relation  to  future  interests. 

History:     Enacted  March   21,  1872. 

58  C.  457,   481    (construed  with  other  sections);   79  C.   613,  623, 
22  P.  50   (applied  with  other  sections). 
See  post  §  724  and  note. 

PERPETUITIES. 

Accumulations — -During-  life  or  lives. — See  39  Cent.  Dig.  col.  893, 
§71. 

Same — During  minority. — See   39  Cent.   Dig.   col.   890,   §  70. 

Same — Effect  of  invalid  provision  for. — See  39  Cent.  Dig.  col. 
898,   §  73. 

Same — For  definite  period  of  time. — See  39  Cent.  Dig.  col. 
888,   §  69. 

Same — Purpose  of. — See  39  Cent.  Dig.  col.  896,  §  72. 

Same — Restrictions  on. — See  39  Cent.  Dig.  col.   884,  §  67. 

Same — What  constitutes  trusts  for. — See  39  Cent.  Dig.  col. 
885,   §  68. 

Circumstances  under  which  rule  against  is  applicable. — See 
49  A.  S.  117;   2  Obiter  Dig.   462. 

Conflict  of  laws  as  to. — See   2  L.  N.   S.   432. 

Constitutional  and  statutory  provisions  against. — See  39  Cent. 
Dig.   col.   730,   §  3. 

Contract  for  indefinite  option,  or  indefinite  renewal  of  option, 
as  a  perpetuity. — See   9  L.  N.  S.  913. 

Definition  of. — See   2  Obiter  Dig.  461;   6  W.  &  P.  5319. 

Devise — Of  life  estate  to  unborn  children  of  living  persons, 
as  contravening  rule  against. — See   6  L.   N.   S.   330. 

Same — To  a  class,  some  of  whom  may  not  take  within  a  pre- 
scribed period. — See  2  Obiter  Dig.  462. 

504 


Tit.II,ch.II,art.IV.]  PERPETUITIES.  §  723 

Effect  of — Invalidity. — See  39  Cent.  Dig.  col.   838,   |§  43,   44. 

Same — On   other  interests. — See   5  A.   D.   427. 

Same — On  prior  takers  on  the  failure  of  a  gift  clause  in 
violation  of  rule  against. — See  20  L.  509. 

Same — Upon    contemporaneous   interests. — See   5   A.   D.    431. 

Limitation  of  estate  upon  probate  of  will,  as  a  violation  of 
the  rule  against. — See  10  L.  N.  S.  564. 

Origin — And  nature  of  rule  against. — See  39  Cent.  Dig.  col. 
727,   §  1. 

Same — Of  rule  against. — See  2  Obiter  Dig.   461. 

Provisions  for  in  violation  of  the  law. — See   1  L.   453. 

Remainder — And  executory  devises. — See  39  Cent.  Dig.  col. 
742,   §§  9-30. 

Same — Void  for  remoteness,  effect  on  particular  estate. — 
See  3  L.  N.  S.  639. 

Remoteness  of  gifts  to  charity.— See  39  Cent.  Dig.  col.  ■  868, 
§§57-66. 

Restrictions  as  to  remoteness  in  general. — See  39  Cent.  Dig. 
col.   732,  §§  4-8. 

Rule  against  has  reference  to  time. — See  2  Obiter  Dig.   461. 

Severability   of  perpetuities. — See   64   A.   S.    634. 

Suspension  of  absolute  ownership  too  remote  when. — See  11 
D.   87. 

Suspension  of  absolute  power  of  alienation^Invalidity. — See 
39   Cent.  Dig.  col.   847,   §§  45-56. 

Trust  for  accumulation. — See  8  A.  D.  917. 

Trusts  for  charitable  uses. — See  1  L.  419;  3  L.  145;  5  L.  34;  11 
L.  86;  6  W.  &  P.  5321. 

Trust — In  respect  to  personal  property. — See  3  L.  145;  11  L.  89. 

Unlawful  suspension  of  power  of  sale. — See  11  L.  88. 

Uses,  trusts  and  powers — As  to,  generally,  see  39  Cent.  Dig. 
col.   803,   §§  31-39. 

Validity  of  restraints  on  the  alienation  of  a  fee  simple  during 
a  limited  time. — See  3  L.  N.  S.  68-676. 

What  are  forbidden  in  the  United  States. — See  90  A.  D.   101. 

When  vesting  of  estate  depends  on  contingency. — See  11  L.  85. 

§  723.  ACeUMTTLATIONS,  ^VHEX  VOID.  All  directions  for 
the  accumulation  of  the  income  of  property,  except  such  as 
are  allowed  by  this  title,  are  void. 

History:     Enacted  March   21,  1872. 

58  C.  457.  481  (construed  with  other  sections);  136  C.  97.  103, 
68  P.  494  (construed);  136  C.  138,  142,  89  A.  S.  120,  68  P.  587 
(referred  to);  144  C.  121,  127,  77  P.  825  (it  is  only  "directions" 
for  accumulation  of  income  that  statute  makes  void);  150  C. 
640,  644,   89  P.   606    (applied). 

See  Kerr's  Cyc.  C.  C.   §  724  and  note. 

505 


§§  724,  725  CIVIL  CODE.  [Div.II.Pt.I. 

§  724.  ACCUMULATION  OF  INCOME.  An  accumulation  of 
the  income  of  property,  for  the  benefit  of  one  or  more  per- 
sons, may  be  directed  by  any  will  or  transfer  in  writing 
sufficient  to  pass  the  property  out  of  which  the  fund  is  to 
arise,  as  follows: 

1.  If  such  accumulation  is  directed  to  commence  on  the 
creation  of  the  interest  out  of  which  the  income  is  to  arise, 
it  must  be  made  for  the  benefit  of  one  or  more  minors  then 
in  being,  and  terminate  at  the  expiration  of  their  minority;  or, 

2.  If  such  accumulation  is  directed  to  commence  at  any 
time  subsequent  to  the  creation  of  the  interest  out  of  which 
the  income  is  to  arise,  it  must  commence  within  the  time  in 
this  title  permitted  for  the  vesting  of  future  interests,  and 
during  the  minority  of  the  beneficiaries,  and  terminate  at  the 
expiration  of  such  minority. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

58  C.  457,  480,  481,  482  (construed  and  applied);  79  C.  613,  623, 
624,  22  P.  50,  52  (construed  and  applied);  136  C.  138,  142,  89 
A.  S.  120,  68  P.  587  (referred  to);  150  C.  640,  644,  645,  89  P.  606 
(construed — direction  for  accumulation  valid  when). 

As  to  accumulations,  see  49  A.  S.  117,  127,  138;  73  A.  S.  413, 
440;  1  L.  453,  454;  3  L.  145-149;  4  L.  140,  141;  11  L.  85-89. 

Same — Liability  for  debts, — as  to,  see  Kerr's  Cyc.  C.  C.  §  859 
and  note. 

Same — Ownership  of  undisposed  of, — as  to,  see  Kerr's  Cyc. 
C.   C.    §  733  and   note. 

Same — Provision  for,  in  will,  see  2  Church's  New  Probate  Law 
and  Practice,  1589,  1601. 

As  to  trust  in  respect  to  personal  property,  see  3  L.  145-149; 
11  L.  85-89. 

Annuities, — as  to,  see  Kerr's  Cyc.  C.  C.  §§  1357,  1366  and  notes. 

Beneficiary's  interest. — As  to  restraint  upon  disposition  of, 
see  Kerr's  Cyc.  C.  C.  §  859  and  note. 

Income. — As  to  bequest  of,  see  Kerr's  Cyc.  C.  C.  §§  1357,  1366 
and  notes. 

§  725.    OTHEK  DIRECTIONS,  WHEN  VOID  IN  PART.     If 

in  either  of  the  cases  mentioned  in  the  last  section  the  direc- 
tion for  an  accumulation  is  for  a  longer  term  than  during 
the  minority  of  the  beneficiaries,  the  direction  only,  whether 

506 


Tit.II,Ch.II,art.IV.]         INCOME  FOR  SUPPORT.  §  726 

separable  or  not  from  other  provisions  of  the  instrument,  is 
void  as  respects  the  time  beyond  such  minority. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  lor  2  pars,  annotation. 

58  C.  457.  481  (construed);  150  C.  640,  645,  89  P.  606  (construed 
— direction  for  accumulation  valid  when). 

§726.  APPLICATION  OF  OCOJIE  TO  SUPPORT,  ETC., 
OF  MINOK.  When  a  minor  for  whose  benefit  an  accumula- 
tion has  been  directed  is  destitute  of  other  sufficient  means 
of  support  and  education,  the  propert  court,  upon  applica- 
tion, may  direct  a  suitable  sum  to  be  applied  thereto  out  of 
the  fund. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

58  C.  457,  481. 

See  Kerr's  Cyc.  C.  C.  P.  §§  1771,  1792  and  notes. 


507 


§§  732-739  CIVIL  CODE.  [Div.II.Pt.I. 

CHAPTER  III. 

RIGHTS  OF   OWNERS. 

§  732.     Increase   of   property. 

§  733.     In  certain  cases,  who  entitled  to  income  of  property. 

§  732.  INCREASE  OF  PROPERTY.  The  owner  of  a  thing 
owns  also  all  its  products  and  accessions. 

History:     Enacted  March   21,  1872. 

§  783.  I>  CERTAIN  CASES,  WHO  ENTITLED  TO  INCOME 
OF  PROPERTY.  When,  in  consequence  of  a  valid  limitation 
of  a  future  interest,  there  is  a  suspension  of  the  power  of 
alienation  or  of  the  ownership  during  the  continuation  of 
which  the  income  is  undisposed  of,  and  no  valid  direction 
for  its  accumulation  is  given,  such  income  belongs  to  the 
persons  presumptively  entitled  to  the  next  eventual  interest. 

History:     li^nacted  March   21,  1872. 

139  C.  682,  689,  73  P.  606  (applied — where  will  contained  no 
direction  concerning  accumulations  of  income). 

CHAPTER  IV. 

TERMINATION   OF   OWNERSHIP. 

§  739.     Future   interests,   when   defeated. 
§  740.     Same.      [How  defeated.] 
§  741.     Future   interests,  when   not  defeated. 

§  742.     Same.       [Contingency     happening,    how     future     interest 
takes  effect.] 

§  739.     FUTURE     INTERESTS,     WHEN     DEFEATED.       A 

future  interest,  depending  on  the  contingency  of  the  death 
of  any  person  without  successors,  heirs,  issue,  or  children,  is 
defeated  bj  the  birth  of  a  posthumous  child  of  such  person, 
capable  of  taking  by  succession. 

History:     Enacted  March   21,  1872. 
508 


Titll.ch.IV.]  FUTURE  INTEREST.  §§  740-742 

§  740.  SAME.  [HOW  DEFEATED.]  A  future  interest  may 
be  defeated  in  any  manner  or  by  any  act  or  means  which  the 
party  creating  sucli  interest  provided  for  or  autliorized  in 
the  creation  thereof;  nor  is  a  future  interest,  thus  liable  to 
be  defeated,  to  be  on  that  ground  adjudged  void  in  its  creation. 
History:     Enacted  March   21,  1872. 

§741.  FUTURE  INTERESTS,  WHEN  NOT  DEFEATED. 

No  future  interest  can  be  defeated  or  barred  by  any  aliena- 
tion or  other  act  of  the  owner  of  the  intermediate  or  prece- 
dent interest,  nor  by  any  destruction  of  such  precedent  inter- 
est by  forfeiture,  surrender,  merger,  or  otherwise,  except  as 
provided  by  the  next  section,  or  where  a  forfeiture  is  imposed 
by  statute  as  a  penalty  for  the  violation  thereof. 

History:     Enacted  March   21,  1872. 

147  C.  554,  559,  109  A.  S.  162,  82  P.  202  (section  simply  declares 
what  was  always  the  law). 

§742.  SAME.  [CONTINGENCY  HAPPENING,  HOW 
FUTURE  INTEREST  TAKES  EFFECT.]  No  future  interest, 
valid  in  its  creation,  is  defeated  by  the  determination  of  the 
precedent  interest  before  the  happening  of  the  contingency  on 
which  the  future  interest  is  limited  to  take  effect;  but  should 
such  contingency  afterwards  happen,  the  future  interest  takes 
effect  in  the  same  manner  and  to  the  same  extent  as  if  the 
precedent  interest  had  continued  to  the  same  period. 

History:     Enacted  March  21,  1872. 


509 


§§  748,  749  CIVIL  CODE.  [Div.II,Pt.I. 


TITLE  III. 

GENERAL  DEFINITIONS. 

§  748.     Income,  what. 

§  749.     Time  of  creation,  what. 

§  748.  INCOME,  WHAT.  The  income  of  property,  as  the 
term  is  used  in  this  part  of  the  code,  includes  the  rents  and 
profits  of  real  property,  the  interest  of  money,  dividends  upon 
stock,  and  other  produce  of  personal  property. 

HLstory:     Enacted  March   21,  1872. 

§  749.  TIME  OF  CREATION,  WHAT.  The  delivery  of  the 
grant,  where  a  limitation,  condition,  or  future  interest  is  cre- 
ated by  grant,  and  the  death  of  the  testator,  where  it  is  cre- 
ated by  will,  is  to  be  deemed  the  time  of  the  creation  of  the 
limitation,  condition,  or  interest,  within  the  meaning  of  this 
part  of  the  code. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

79  C.  613.  622,  22  P.  50,  52  (cited);  108  C.  627,  647,  49  A.  S.  97, 
41  P.  772  (cited);  123  C.  140,  142,  143,  55  P.  681  (referred  to);  124 
C.  533,  537,  57  P.  564  (cited  as  to  time  of  creation  of  limitation 
where  trust  is  created  by  will);  86  F.  975,  976   (referred  to). 

Suspension  of  power  of  alienation. — See  Kerr's  Cyc.  C.  C. 
§  715  and  note. 


510 


II 


i    Pt.II,Tit.I.]  REAL  PROPERTY.  §  755 


PART  II. 

REAL  OR  IMMOVABLE  PROPERTY. 

Title  I.  General  Provisions.   §  755. 

IL  Estates   in   Real  Property,   §§  761-811. 

IIL  Rights  and  Obligations   of   Owners,    §§  818-843. 

IV.  Uses  and  Trusts,   §§  847-871. 

V.  Powers,   §§  878-940.      [Repealed.] 


TITLE   I. 

GENERAL   PROVISIONS. 

§  755.     Real  property,   how  governed. 

§  755.  REAL  PROPERTY,  HOW  GOVERNED.  Real  prop- 
erty within  this  state  is  governed  by  the  law  of  this  state, 
except  where  the  title  is  in  the  United  States. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.   1873-4,  p.    218. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
85  C.  280,  282,  24  P.  743,  744   (cited). 

Declaratory  of  common  law. — See   22  Encyc.  L.   1321. 
Territorial    jurisdiction — Limitation    on. — See    Kerr's    Pocket. 
Pol.  C.  §§  33,  34. 


511 


§  761  CIVIL  CODE.  [Div.II,Pt.I. 

TITLE  II. 

ESTATES    IN   REAL,    PROPERTY. 

Chapter  I.     Estates  in  General,   §§  761-781. 

II.     Termination   of  Estates,  §§  789-793. 
IIL     Servitudes,  §§  801-811. 

CHAPTER  I. 

ESTATES    IN    GENERAL. 

§  761.  Enumeration   of  estates. 

§  762.  What   estate  a   fee   simple. 

§  763.  Conditional   fees   and   estates   tail    abolished. 

§  764.  Certain    remainders    valid. 

§  765.  Freeholds.     Chattels  real.     Chattel  interests. 

§  766.  Estate  for  life  of  a  third  person,  when  a  freehold,  etc. 

§  767.  Future   estates,   what. 

§  768.  Reversions. 

§  769.  Remainders. 

§  770.  Suspended  ownership. 

§  771.  Suspension    by   trust. 

§  772.  Contingent   remainder   in   fee. 

§  773.  Remainders,  future  and  contingent  estates,  how  created. 

§  774.  Limitation  of  successive  estates  for  life. 

§  775.  Remainder  upon   estates  for  life   of  third  person. 

§  776.  Contingent  remainder  on  a  term  of  years. 

§  777.  Remainder   of   estates   for   life. 

§  778.  Remainder  upon  a  contingency. 

§  779.  Heirs  of  a  tenant  for  life,   when   to   take  as  purchasers. 

§  780.  Construction  of  certain  remainders. 

§  781.  Effect  of  power  of  appointment. 

§761.  E?fUMERAT10.\  OF  ESTATES.  Estates  in  real 
property,  in  respect  to  the  duration  of  their  enjoyment,  are 
either: 

1.  Estates  of  inheritance  or  perpetual  estates; 

2.  Estates  for  life; 

3.  Estates  for  years;  or, 

4.  Estates  at  will. 

History:     Enacted  March   21,   1872. 
512 


II 


Tit.II.ch.I.]  FEB    SIMPLE— ESTATES   TAIL.  §§  7g2,  763 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

79  C.  442,  443,  21  P.  861,  862  (applied);  142  C.  529,  538,  76  P. 
243  (referred  to);  150  C.  177,  178,  88  P.  706  (allegation  of  owner- 
ship in  fee,  what  is);  150  C.  392,  394,  88  P.  1090  (nature  of 
estate  created  by  privilege  to  temporarily  use  tide  lands  of 
state). 

Tenancy  at  will. — See  Kerr's  Cyc.  C.  C.  §  761  and  note. 

"Estate" — In  testamentary  gift  restricted  to  personalty. — 
See  3  A.  C.  420. 

Same — Interest  in  property  with  power  to  dispose  of  when 
does  and  wlien  does  not  amount  to  an  estate  in  fee. — See  49 
A.  D.   115. 

Same — Merger  of,  as  dependent  upon  intention  of  parties. — 
See  7  A.  C.  700. 

Estates-tail,  creation,  nature  and  destruction. — See  7  A.  S. 
428. 

Lease  is  an  estate  in  real  property. — See  79  C.  442;  21  P.  861. 

Tenancy  at  will. — See  Kerr's  Cyc.  C.  C.  §  761  and  note. 


§  762.  WHAT  ESTATE  A  FEE  SIMPLE.  Every  estate  of 
inheritance  is  a  fee,  and  every  such  estate,  when  not  defeas- 
ible or  conditional,  is  a  fee  simple  or  an  absolute  fee. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  218;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  322,  held  uncon- 
stitutional,  see   history,   §   4   ante. 

. :  -,  :  4?; 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

150  C.  177,  178,  88  P.  706  (allegation  of  ownership  in  fee,  what 
is):   3  C.  A.   633,  640,  86  P.  985    (referred  to). 

Words  of  inlieritance  not  essential. — See  Kerr's  Cyc.  C.  C. 
§  1072  and  note. 


§763.  COXDITIONAL  FEES  A>D  ESTATES  TAIL 
ABOLISHED.  Estates  tail  are  abolished,  and  every  estate 
which  would  be  at  common  law  adjudged  to  be  a  fee  tail  is  a 
fee  simple;  and  if  no  valid  remainder  is  limited  thereon,  is  a 
fee  simple  absolute. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
104  C.  298,  302,  37  P.  1049   (construed). 
Shelley's  case — Rule  in. — See  25  Encyc.  L.  639. 
Kerr's    C.    C. — 17  513 


§§  764-766  CIVIL  CODE.  [Div.II,Pt.II. 

§  764.  CERTAIN  REMAINDERS  VALID.  Where  a 
remainder  in  fee  is  limited  upon  any  estate,  which  would  by 
the  common  law  be  adjudged  a  fee  tail,  such  remainder  is 
valid  as  a  contingent  limitation  upon  a  fee,  and  vests  in  pos- 
session on  the  death  of  the  first  taker,  without  issue  living  at 
the  time  of  his  death. 

History:     Enacted  March  21,  1872. 

As  to  remainders,  conversions,  and  executory  interest,  see  24 
Encyc.  L.  374. 

§765.  FREEHOLDS.  CHATTELS  REAL.  CHATTEL 
INTERESTS.  Estates  of  inheritance  and  for  life  are  called 
estates  of  freehold;  estates  for  years  are  chattels  real;  and 
estates  at  will  are  chattel  interests,  but  are  not  liable  as  such 
to  sale  on  execution. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 
113  C.  345,  353,  45  P.  680    (applied);   142  C.   529,  538,  539,  76   P. 
243   (cited). 

§  766.  ESTATE  FOR  LIFE  OF  THIRD  PERSON,  >VHEN  A 
FREEHOLD,  ETC.  An  estate  during  the  life  of  a  third  per- 
son, whether  limited  to  heirs  or  otherwise,  is  a  freehold. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    218. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
ESTATES   FOR  LIFE, 

Adverse  possession  of,  during-  life  tenancy. — See  19  L.  839. 

Debts  of  life  tenant  as  affecting  property. — See  1  L.  545. 

Dividends — Respective  rights  of  life  tenant  and  remainder- 
man to. — See  45  L.  394. 

Same — Right  to,  as  between  remainderman  and  life  tenant. — 
See  12  L.  N.  S.  768-812. 

Dividends  on  stock,  wlien  go  to  tenant  of. — See  24  A.  R.  169; 
54  A.  R.   264. 

Duty  of  life  tenant  to  pay  taxes. — See  32  L.   744-757. 

Effect  upon  rule  in  Shelley's  Case  in  express  proliibition 
against  conveyance  or  encumbrance  of  property  by  life  ten- 
ant.—See  7  L.  N.  S.  1109. 

Emblements,  right  of  tenant  to. — See  69  A.  D.  511. 

514 


Tit.II,ch.I.]  FUTURE   STATES.  §  767 

Estovers,  right  of  tenant  for,  to. — See  64  A.  D.  367. 

Improvements,  allowance  to  life  tenant  for. — See  81  A.  S.   183. 

In  personal  property. — See  67  A.  D.  453. 

Public  improvement — Must  life  tenant  or  remainderman  bear 
expenses  of. — See   10  L.   342. 

Reservation  of,  as  illustrating  grantor's  intention  in  deliver- 
ing deed  to  third  person. — See  54  L.  884. 

Right — As  between  life  tenant  and  remainderman,  in  distribu- 
tion made  by  corporations. — See  12  L.  N.  S.  762-812. 

Same — On  condemnation  of  property. — See  21  L.   212. 

Same — To  crop  on  death  of  life  tenant. — See  1  L.  427;  11  L.  800. 

Same — To  increase  stock  and  stock  dividends,  as  between 
owners  of  capital  and  income. — See  16  L.  461. 

Right  of  estate  of  one  entitled  by  will  or  statute  to  allow- 
ance for  support  and  maintenance  to  accumulations  undrawn 
and  unexpended  at  time  of  her  death. — See  9  L.  N.  S.  997. 

Right  of  lessee  of  life  tenant  to  possession  and  emblement 
upon  death  of  his  lessor. — See  11  L.  688. 

Right  of  life  tenant  in  moneys  and  life  estate. — See  57  A.  D. 
587. 

Rights  and  remedies  of  tenants  of. — See   14  A.  S.   630. 

Taxes,   duty   of   life   tenant   to   pay. — See    114   A.    S.    448. 

Tax  sale  of  land. — See  32  L.  805. 

Same — Effect  on   reversion  of  remainder.- — See   33  L.   688. 

Title  to  increase  of  animals  as  between  life  tenant  and 
remainderman. — See  17  L.  21. 

When  created,  and  of  the  rule  in  Shelley's  Case. — See  11  A.  S. 
99. 

When  right  to  use  of  income  commences. — See  2  L.   113. 


§  767.  FUTURE  ESTATES,  WHAT.  A  future  estate  may 
be  limited  by  the  act  of  the  party  to  commence  in  possession 
at  a  future  day,  either  without  the  intervention  of  a  precedent 
estate,  or  on  the  termination,  by  lapse  of  time  or  otherwise, 
of  a  precedent  estate  created  at  the  same  time. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

49  C.  369,  374  (referred  to  as  authorizing  creation  of  freehold 
to  commence  in  futuro — deed  granting  land  in  fee  with  reserva- 
tion that  grantor  is  first  to  have  use,  enjoyment,  and  possession 
of  the  property  during  his  natural  life  is  void  at  common  law) ; 
98  C.  446,  451,  35  A.  S.  186,  33  P.  338,  340  (applied);  136  C.  138, 
141,  89  A.  S.  120,  68  P.  587  (cited);  146  C.  444,  447,  80  P.  705 
(applied- — free  hold  to  commence  in  futuro  may  be  created);  149 
C.    667,    674,    87    P.    276    (this    section    removes    any    objection    to 

515 


§§  768-771  CIVIL  CODE.  [Div.II.Pt.II. 

wliich  deeds  creating-  estates  to  commence   in   future  may  have 
been  subject  at  common  law). 

Defeat  of  future  interest  by  act  of  owner,  forfeiture,  sur- 
render, merger,  not  permitted. — See  Kerr's  Cyc.  C.  C.  §  741  and 
note. 

§  768.  REVERSIONS.  A  reversion  is  the  residue  of  au 
estate  left  by  operation  of  law  in  the  grantor  or  his  succes- 
sors, Off  in  the  successors  of  a  testator,  commencing  in  pos- 
session on  the  determination  of  a  particular  estate  granted 
or  devised. 

IIlNtory:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.   C.   for  2   pars,  annotation. 
134  C.  320,  322,  66  P.  370    (referred  to). 

§  769.  RE]!ffAINDERS.  When  a  future  estate,  other  than  a 
reversion,  is  dependent  on  a  precedent  estate,  it  may  be 
called  a  remainder,  and  may  be  created  and  transferred  by 
that  name. 

IIi.Htory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.   C.   for  3  pars,  annotation. 
120  C.  79,  84,   52  P.   132    (applied  with  other  sections). 
Defeat  of  future  Interest — How  effected. — See  Kerr's  Cyc.  C.  C. 
§§  739-741  and  notes. 

§  770.  SUSPENDED  OWNERSHIP.  The  absolute  owner- 
ship of  a  term  of  years  cannot  be  suspended  for  a  longer 
period  than  the  absolute  power  of  alienation  can  be  sus- 
pended in  respect  to  a  fee. 

History:  Enacted  March  21,  1!S72;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    218. 

As  to  restraint  on  alienation. — See  Kerr's  Cyc.  C.  C.  §  715  and 
note. 

§771.  SUSPENSION  BY  TRUST.  The  suspension  of  all 
power  to  alienate  the  subject  of  a  trust,  other  than  a  power 
to  exchange  it  for  other  property  to  be  held  upon  the  same 
trust,  or  to  sell  it  and  reinvest  the  proceeds  to  be  held  upon 
the  same  trust,  is  a  suspension  of  the  power  of  alienation, 
within  the  meaning  of  section  seven  hundred  and  fifteen. 

History:     Enacted  March  21.  1872. 
516 


Tit.II,ch.I.]  REMAINDERS.  §§  772, 773 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation, 

58  C.  457,  481  (construed);  108  C.  627,  647,  648,  656,  49  A.  S.  97, 
41  P.  772  (construed  and  applied);  121.  C.  379,  382,  53  P.  813 
(cited);  124  C.  533,  537,  57  P.  533  (referred  to);  86  F.  975, 
976    (referred   to). 

Distinction  between  trusts  in  personal  and  real  property. — 
See  Kerr's  Cyc.  C.  C.  §§  852,  857,  2220,  2222  and  notes. 

§  772.  CONTINGENT  REMAINDER  IN  FEE.  A  contingent 
remainder  in  fee  may  be  created  on  a  prior  remainder  in  fee, 
to  take  effect  in  the  event  that  the  persons  to  whom  the  first 
remainder  is  limited  die  under  the  age  of  twenty-one  years, 
or  upon  any  other  contingency  by  which  the  estate  of  such 
persons  may  be  determined  before  they  attain  majority. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.   C.   for   4   pars,   annotation. 

58  C.  457,  474,  476,  480  (construed  and  applied);  79  C.  613,  622, 
22  P.  50,  52  (referred  to  in  applying  §  715);  119  C.  139,  146,  51  P. 
38  (construed);  124  C.  533,  537,  57  P.  564  (cited);  128  C.  1,  9,  60 
P.  471  (cited);  149  C.  200,  204,  85  P.  147  (referred  to  in  applying 
§715). 

After-born  children  born  during  testator's  life. — See  Kerr's 
Cyc.  C.  C.  §  29  and  note,  §  1337  and  note. 

§773.      REMAINDERS,      FUTURE      AND      CONTINGENT 

ESTATES,  HOW  CREATED.  Subject  to  the  rules  of  this 
title,  and  of  part  one  of  this  division,  a  freehold  estate,  as 
well  as  a  chattel  real,  may  be  created  to  commence  at  a 
future  day;  an  estate  for  life  may  be  created  in  a  term  of 
years,  and  a  remainder  limited  thereon;  a  remainder  of  a 
freehold  or  chattel  real,  either  contingent  or  vested,  may  be 
created,  expectant  on  the  determination  of  a  term  of  years; 
and  a  fee  may  be  limited  on  a  fee,  upon  a  contingency,  which, 
if  it  should  occur,  must  happen  within  the  period  prescribed 
in  this  title. 

History:     Enacted  March  21,  1872. 

See   Kerr's    Cyc.    C.    C.    for    6    pars,    annotation. 

120  C.  79,  84,  52  P.  132  (applied);  128  C.  1,  9,  60  P.  471  (referred 
to);  136  C.  138,  141,  89  A.  S.  120,  68  P.  587,  588  (construed  and 
applied). 

517 


§§  774-776  CIVIL  CODE.  [Div.II.Pt.II. 

Future  estate  dependent  upon  precedent  estate. — See  Kerr's 
Cyc.  C.  C.  §  695  and  note. 

Remainder  limited  on  contingency. — See  Kerr's  Cyc.  C.  C.  §  778 
and  note. 


§774.  LIMITATIOIS  OF  SUCCESSIVE  ESTATES  FOB 
LIFE.  Successive  estates  for  life  cannot  be  limited,  except 
to  persons  in  being  at  the  creation  thereof,  and  all  life  estates 
subsequent  to  those  of  persons  in  being  are  void;  and  upon 
the  death  of  those  persons,  the  remainder,  if  valid  in  its  crea- 
tion, takes  effect  in  the  same  manner  as  if  no  other  life 
estate  had  been  created. 

HiHtoryi  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1S73-4,  p.   219. 

128  C.  1,  9,  60  P.  471  (referred  to);  149  C.  200,  205,  85  P.  147 
(inapplicable  to  what  trust  created  by  will). 

S  77.').  KE.>rAIM)ER  I  P0>  ESTATES  FOR  LIFE  OF 
THIRD  PERSON.  No  remainder  can  be  created  upon  succes- 
sive estates  for  life,  provided  for  in  the  preceding  section, 
unless  such  remainder  is  in  fee;  nor  can  a  remainder  be  cre- 
ated upon  such  estate  in  a  term  for  years,  unless  it  is  for 
the  whole  residue  of  such  term. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
(V,de   Anidts.    1873-4,   p.    219. 

128  C.  1,  9,  60  P.  471  (referred  to). 

§77fi.  CONTINGENT  REMAINDER  ON  A  TERM  OF 
YEARS.  A  contingent  remainder  cannot  be  created  on  a 
term  of  years,  unless  the  nature  of  the  contingency  on  which 
it  is  limited  is  such  that  the  remainder  must  vest  in  interest 
during  the  continuance  or  at  the  termination  of  lives  in  being 
at  the  creation  of  such  remainder. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
128   C.    1,    9,   60  P.   471    (referred  to);    136   C.    138,   141,   89   A.   S. 
120,  68  P.  587  (cited  and  construed). 

518 


Tit.II.ch.I.]  REMAINDER,    CONSTRUCTION.  §§777-780 

§  777.    EEMAINDER  OF  ESTATES  FOR  LIFE.    No  estate 
for  life  can  be  limited  as  a  remainder  on  a  term  of  years, 
except  to  a  person  in  being  at  the  creation  of  such  estate. 
History:     Enacted  March  21,  1872. 

128  C.  1,  9,  60  P.  471  (referred  to). 

§  778.  RE]ffAI^DER  UPOJf  A  CONTIXGEXCT.  A  remainder 
may  be  limited  on  a  contingency  which,  in  case  it  should 
happen,  will  operate  to  abridge  or  determine  the  precedent 
estate;  and  every  such  remainder  is  to  be  deemed  a  condi- 
tional limitation. 

Hifstory:     Enacted  March  21,  1872. 

120  C.  79,  84,  52  P.  132  (referred  to);  128  C.  1,  9,  60  P.  471 
(referred  to). 

§  779.  HEIRS  OF  A  TENANT  FOR  LIFE,  WHEN  TO  TAKE 
AS  PURCHASERS.  When  a  remainder  is  limited  to  the  heirs, 
or  heirs  of  the  body,  of  a  person  to  whom  a  life  estate  in  the 
same  property  is  given,  the  persons  who,  on  the  termination 
of  the  life  estate,  are  the  successors  or  heirs  of  the  body 
of  the  owner  for  life,  are  entitled  to  take  by  virtue  of  the 
remainder  so  limited  to  them,  and  not  as  mere  successors  of 
the  owner  for  life. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

70  C.  553,  559  (erroneously  cited  for  §  709  C.  C.  P.);  104  C.  298, 
299,  301,  302,  37  P.  1049  (construed  and  applied);  128  C.  1,  9, 
60   P.    471    (referred   to). 

§780.      CONSTRUCTION     OF     CERTAIN     REMAINDERS. 

When  a  remainder  on  an  estate  for  life  or  for  years  is  not 
limited  on  a  contingency  defeating  or  avoiding  such  prece- 
dent estate,  it  is  to  be  deemed  intended  to  take  effect  only 
on  the  death  of  the  first  taker;  or  the  expiration,  by  lapse  of 
time,  of  such  term  of  years. 

History:     Enacted  March   21,  1872. 

128  C.  1,  9,  60  P.  471   (referred  to). 

519 


§  781  CIVIL  CODE.  [Div.II.Pt.II. 

§  781.  EFFECT  OF  POWER  OF  APPOFNTMENT.  A  gen- 
eral or  special  power  of  appointment  does  not  prevent  the 
vesting  of  a  future  estate  limited  to  take  effect  in  case  such 
power  is  not  executed. 

HiHtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

128  Or  1,  9,  60  P.  471  (referred  to);  132  C.  523,  558,  84  A.  S.  70, 
60  P.  442,  64  P.  1000  (construed);  147  C.  95,  102,  81  P.  315  (this 
section  seemed  to  contemplate  validity  of  provisions  of  will  in 
case  at  bar,  but  question  was  not  definitely  determined). 


520 


Tit.II.Ch.II.]  TERMINATING   TENANCY.  §  739 

CHAPTER  II. 

TERMINATION   OF   ESTATES. 

§  789.  Tenancy  at  will  may  be  terminated  by  notice. 

§  790.  Effect  of  notice. 

§  791.  Re-entry,   when  and  how   to  be  made. 

§  792.  Summary  proceedings  in  certain  cases  provided  for. 

§  793.  Notice  not  necessary  before  action. 

§789.  TENANCY  AT  WILL  MAY  BE  TERMINATED  BY 
NOTICE.  A  tenancy  or  other  estate  at  will,  however  created, 
may  be  terminated  by  the  landlord's  giving  notice  in  writing 
to  the  tenant,  in  the  manner  prescribed  by  section  eleven 
hundred  and  sixty-two  of  the  Code  of  Civil  Procedure,  to 
remove  from  the  premises  within  a  period  of  not  less  than 
one  month,  to  be  specified  in  the  notice. 

HLstory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

56  C.  128,  129  (applied);  66  C.  446.  447,  6  P.  84  (applied);  67  C. 
471,  8  P.  39,  69  (referred  to);  33  P.  447,  448  (applied  in  action 
to  recover  possession);  101  C.  425,  428,  35  P.  1021  (applied); 
105  C.  15,  19,  38  P.  510  (applied);  113  C.  15,  19,  45  P.  14  (applied); 
113  C.  532,  540,  45  P.  816  (held  not  applicable);  140  C.  164  167 
73  P.  818   (applied). 

TERMINATING   TENANCY. 

Appeal    in    summary   proceedings. — See    9    L.    801. 

Constructive  ejection  resulting  from  positive  overt  act  of 
landlord. — See  7  A.  C.  593. 

Damages  recoverable  by  tenant  in  action  for  wrongful  evic- 
tion.— See  6  A.  C.   460. 

Death  of  lessor  or  lessee,  effect  of. — See  23  L.  707. 

Demand  before  commencing  action. — See  Kerr's  Cyc.  C.  C. 
§  791  and  note. 

Designation  of  time  of  termination  of  tenancy  at  will  in 
notice  to  quit. — See  4  A.  C.   628. 

Emblements,  right  of  tenant  to. — See  Kerr's  Cyc.  C.  C.  §  819 
and  note. 

First  and  last  days  in  computing  time. — See  49  L.  210;  49  1^, 
239. 

Liability  for  wrongful   ejection   of  tenant. — See   16  L.   798. 

521 


§§  790-792  CIVIL  CODE.  [Div.II,Pt.II. 

Same — For  evicting  sick  tenant,  lodger  or  other  occupant. — 
See  55  L.  258. 

Notice  to  quit,  ejection  to  tenant. — See  8  L.   221. 

Stipulation  that  vendee  or  mortgagee  shall  on  default  become 
a  tenant,  as  affecting  right  to  recover  possession  of  premises. — 
See  49  L.  438. 

Sufficiency  of  service  of  notice  to  quit  by  landlord. — See  8 
A.  C.  1144. 

Summary  proceedings  to  oust  tenants — Notice  in. — See  9 
L.  798. 

§  790.  EFFECT  OF  NOTICE.  After  such  notice  has  been 
served,  and  the  period  specified  by  such  notice  has  expired, 
but  not  before,  the  landlord  may  re-enter,  or  proceed  accord- 
ing to  law  to  recover  possession. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

66  C.  446,  447,  6  P.  84  (referred  to);  140  C.  164,  167,  73  P.  818 
(applied). 

Effect  of  notice — Tenant  holds  over. — See  Kerr's  Cyc.  C.  C. 
§  789  and  note  par.  5. 

Unlawful  detainer — When  commences. — See  Kerr's  Cyc.  C.  C. 
§  789  and  note  par.  16. 

§  791.  RE-ENTRY,  WHEN  AND  HOW  TO  BE  MADE.  When- 
ever the  right  of  re-entry  is  given  to  a  grantor  or  lessor  in 
any  grant  or  lease,  or  otherwise,  such  re-entry  may  be  made 
at  any  time  after  the  right  has  accrued,  upon  three  days' 
notice,  as  provided  in  sections  eleven  hundred  and  sixty-one 
and  eleven  hundred  and  sixty-two.  Code  of  Civil  Procedure. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

56  C.  128,  129,  130  (applied);  63  C.  51,  52  (applied);  66  C. 
446,  447,  6  P.  84  (referred  to);  138  C.  76,  79,  70  P.  1073  (construed 
and  applied). 

Re-entry  on  forfeiture — Erection  of  remedies. — See  8  L.   759. 

§792.  SUMMARY  PROCEEDINGS  IN  CERTAIN  CASES 
PROVIDED  FOR.  Summary  proceedings  for  obtaining  pos- 
session of  real  property  forcibly  entered,  or  forcibly  and 
unlawfully  detained,  are  provided  for  in  sections  eleven  hun- 

522 


Tit.II,ch.II.]       NOTICE    TO    QUIT    NECESSARY.  §  793 

dred  and  fifty-nine  to  eleven  hundred  and  seventy-five,  both 
inclusive,  of  the  Code  of  Civil  Procedure. 

History:     Enacted  March   21,   1872. 

§  793.    NOTICE  KOT  NECESSARY  BEFORE  ACTION.    An 

action  for  the  possession  of  real  property  leased  or  granted, 
with  a  right  of  re-entry,  may  be  maintained  at  any  time,  after 
the  right  to  re-enter  has  accrued,  without  the  notice  pre- 
sci-ibed  in  section  seven  hundred  and  ninety-one. 

HLstory:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  392, 
held  unconstitutional,  see  history,  §  4  ante:  amendment  re- 
enacted  March   21,   1905,   Stats,  and  Amdts.   1905,  p.   599. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

11  P.  246,  247   (applied);  98  C.  422,  425,  33  P.  729,  730   (applied).. 


523 


§  801  CIVIL  CODE.  [Div.II.Pt.II. 

CHAPTER  III. 

SERVITUDES. 

§  801.  Servitudes  attached  to  land. 

§  802.  Servitudes  not  attached  to  land. 

§  803.  Designation  of  estates. 

§  804.  By  vv'liom  grantable. 

§  805.  By  whom  held. 

§  806.  Extent  of  servitudes. 

§  807.  Apportioning   easements. 

§  808.  Rights  of  owner  of  future  estate. 

§  809.  Actions   by   owner  and   occupant   of   dominant   tenement. 

§  810.  Actions  by  owner  of  servient  tenement. 

§  811.  How  extinguished. 

§  801.  SERVITUDES  ATTACHED  TO  LAND.  The  follow- 
ing land  burdens,  or  servitudes  upon  land,  may  be  attached 
to  other  land  as  incidents  or  appurtenances,  and  are  then 
called  easements: 

1.  The  right  of  pasture; 

2.  The  right  of  fishing; 

3.  The  right  of  taking  game; 

4.  The  right  of  way; 

5.  The  right  of  taking  water,  wood,  minerals,  and  other 
things; 

6.  The  right  of  transacting  business  upon  land; 

7.  The  right  of  conducting  lawful  sports  upon  land; 

8.  The  right  of  receiving  air,  light,  or  heat  from  or  over,  or 
discharging  the  same  upon  or  over  land; 

9.  The  right  of  receiving  water  from  or  discharging  the 
same  upon  land; 

10.  The  right  of  flooding  land; 

11.  The  right  of  having  water  flow  without  diminution  or 
disturbance  of  any  kind; 

12.  The  right  of  using  a  wall  as  a  party-wall; 

13.  The  right  of  receiving  more  than  natural  support  from 
adjacent  land  or  things  affixed  thereto; 

14.  The  right  of  having  the  whole  of  a  division  fence  main- 
tained by  a  coterminous  owner; 

524 


II 


Tit.II,cll.III.]  SERVITUDES.  §  801 

15.  The  right  of  having  public  conveyances  stopped,  or  of 
stopping  the  same  on  land; 

16.  The  right  of  a  seat  in  church; 

17.  The  right  of  burial. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  392, 
held  unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  74  pars,  annotation. 

56  C.  11,  13  (applied);  69  C.  217,  221,  58  A.  R.  558,  10  P.  409, 
411  (right  in  and  of  receiving  water  passes  by  deed  when); 
69  C.  255,  293,  10  P.  674,  693  (construed  and  applied);  22  P. 
216,  217  (subds.  9  and  11  applied);  83  C.  515,  517,  518,  23  P.  795, 
796,  8  L.  575  (construed  and  applied);  90  C.  279,  286,  27  P.  216, 
219  (what  contract  will  create  servitude  or  easement  in  ditch 
property);  91  C.  74,  84,  27  P.  539,  542  (construed  and  applied); 
120  C.  488,  490,  493,  52  P.  843,  40  L.  476  (construed  and  applied); 
132  C.  234,  236,  64  P.  287  (referred  to);  136  C.  36,  48,  50,  68  P. 
308  (construed  and  applied);  146  C.  435,  440,  80  P.  623  (ease- 
ment of  right  to  receive  water  or  to  discharge  it  upon  another's 
land);  148  C.  313,  321,  83  P.  54,  5  L.  N.  S.  174,  7  A.  C.  511  (subds. 
4  and  6  applied — right  of  electric  light  company  to  lay  pipes, 
etc.,  in  streets  of  city);  152  C.  596,  597,  93  P.  498,  499  (right  to 
receive  water,  wlien  appurtenant  to  land);  4  C.  A.  18,  24  (subds. 
4  and  9  applied,  but  section  erroneously  cited  as  §811);  87  P. 
213  (same  error). 

SERVITUDES. 

Acquisition  of. — See  10  Encyc.  L.  409-427. 

Additional,  in  streets  and  highwaj'S. — See  106  A.  S.   232. 

Adverse   possession,   acquisition   of.  by. — See   11   A.   D.   663. 

Ancient  lights. — See  46  A.  D.  583. 

By  necessity,  when  exist. — See  36  A.  R.  415. 

Cotenant's  power  to  create. — See  21  A.  S.   593. 

Continuance  of  on  the  severance  of  a  heritage. — See  57  A. 
D.  759. 

Definition  of. — See  10  Encyc.  L.  398;  25  Encyc.  L.  481;  7  W.  & 
P.   6434;    7   W.   &   P.   6435. 

"Easement"  used  interchangeably  with. — See  25  Encyc.  L.  482. 

Easement  and  servitude  distinguished. — See  25  Encyc.  L.  482, 
note. 

Essential  qualities  of. — See  10  Encyc.  L.  1099. 

Extinguishment  of — By  merger  or  release. — See  10  Encyc.  L. 
432,  433. 

Grant  of  by  implication. — See  23  A.  R.  446. 

Implied  grant  of  by  severance  and  sale  of  property. — See  34 
A.  S.   708. 

525 


§  802  CIVIL  CODE.  [Div.II,Pt.II. 

In  gross. — See  7  W.  &  P.  6435. 

Kinds   of. — See   10   Encyc.   L.    403. 

Lateral  support — Presumption  of  grant  of  right  of. — See  29 
A.   R.   399. 

Same — Right  to. — See   33   A.   S.    446. 

Limitations,  statute  of,  extinguishment  of  by. — See  14  A.  S. 
278. 

Of  drain. — See  7  W.  &  P.  6435. 

Of  drip.— See  7  W.  &  P.  6435. 

Of  ligbt— See  7  W.  &  P.   6435. 

Of  light  and  air. — See   7   A.   D.   49;   32   A.   D.   412. 

Same — From   public   streets. — See   41   A.   S.    323. 

Of  view. — See  7  W.  &  P.  6435. 

Riglits  and  liabilities  of  parties  under. — See  10  Encyc.  I^.  428- 
430. 

Rights  in  nature  of  easements  distinguished. — See  10  Encyc.  L. 
406. 

To  receive  the  flow  of  water. — See  32  A.  D.  123. 

Ways,  and  the  rights  and  remedies  of  the  parties  entitled 
thereto.— See  88  A.  D.  279;  100  A.  D.  115;  50  A.  R.  64. 

Ways  of  necessity. — See  13  A.  D.  746;  35  A.  D.  464;  85  A.  D.  675. 

Ways,  private,  rights  and  obligations  of  parties  to. — See  95 
A.  S.  318. 

When  pass  by   implication   in  conveyances. — See   40  A.   R.   537. 

When  revocable. — See  43  A.  R.  195. 

§802.     SERVITUDES    NOT    ATTACHED    TO    LAND.     The 

following    land    burdens,    or    servitudes    upon    land,    may    be 
granted  and  held,  though  not  attached  to  land: 

1.  The  right  to  pasture,  and  of  fishing  and  taking  game. 

2.  The  right  of  a  seat  in  church. 

3.  The  right  of  burial. 

4.  The  right  of  taking  rents  and  tolls. 

5.  The  right  of  way. 

6.  The  right  of  taking  water,  wood,  minerals,  or  other 
things. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,   p.    219. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

65  C.  46.  48,  2  P.  880,  881  (applied);  69  C.  255.  323.  10  P.  674 
(cited);  91  C.  74,  84,  27  P.  539.  542  (cited);  99  C.  210.  212.  33  P. 
885,  886  (applied);  109  C.  29,  37.  41  P.  1024  (applied);  110  C.  582, 
585,  42  P.  1091  (construed);  148  C.  313,  322.  83  P.  54,  5  L.  N.  S. 
174,  7  A.  C.  511  (subds.  4  and  6  applied — right  of  electric  light 
company  to  use  of  streets  for  transmission  of  illumlnants). 

526 


Tit.II.ch.III.]      GRANTING,   ETC.,   EXTENT  OF.  §§  803-806 

§803.  DESIGNATIOIV  OF  ESTATES.  The  land  to  which 
an  easement  is  attached  is  called  the  dominant  tenement; 
the  land  upon  which  a  burden  or  servitude  is  laid  is  called 
the  servient  tenement. 

Hi-story:     Enacted  March   21,   1872. 

65  C.  46,  48,  2  P.  880,  881  (referred  to);  117  C.  604,  616,  49  P. 
736  (right  of  way  is  not  involved  in  franchise  to  street  railway 
corporation  wlien). 

§  804.  BY  WHOM  GKANTABLE.  A  servitude  can  be  cre- 
ated only  by  one  who  has  a  vested  estate  in  the  servient  tene- 
ment. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
65  C.  46,  48,  2  P.  880,  881  (referred  to). 

§805.  BY  WHOM  HELD.  A  servitude  thereon  cannot  be 
held  by  the  owner  of  the  servient  tenement. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

65  C.  46,  48,  2  P.  880,  881  (referred  to);  110  C.  582,  585,  42  P. 
1091   (applied). 

Extinguishing-,  how. — See  1  L.  214,  brief  10  L.  569. 

§  806.  EXTENT  OF  SERVITUDES.  The  extent  of  a  servi- 
tude is  determined  by  the  terms  of  the  grant,  or  the  nature  of 
the  enjoyment  by  which  it  was  acquired. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for   9  pars,  annotation. 

65  C.  46,  48,  2  P.  880,  881  (cited);  81  C.  122,  125,  22  P.  393 
(cited);  92  C.  138,  141,  142,  28  P.  215,  216,  15  L.  93  (construed  and 
applied);  108  C.  589,  596,  41  P.  448  (referred  to);  146  C.  203,  211, 
79  P.  880  (applied  to  water  rights);  148  C.  723,  725,  113  A.  S.  349, 
84  P.  191,  5  L.  N.  S.  851,  7  A.  C.  851  (if  easement  or  servitude  is 
acquired  by  grant,  its  terms  must  determine  extent);  148  C. 
759,  766,  84  P.  162  (applied  to  water  rights);  151  C.  403,  406,  90 
P.  1052  (oral  grant  of  right  of  way,  having  become  fixed  and 
complete,  does  not  include  right  to  make  changes);  151  C.  425, 
429,  90  P.  1053  (servitude  cannot  be  enlarged  when,  without  con- 
sent of  parties);  4  C.  A.  18,  25,  87  P.  213   (applied  to  water  ditch). 

527 


§§  807-810  CIVIL  CODE.  [Div.II,Pt.II. 

§807.  APPORTIONING  EASEMENTS.  In  case  of  parti- 
tion of  the  dominant  tenement  the  burden  must  be  apportioned 
according  to  the  division  of  the  dominant  tenement,  but  not 
in  such  a  way  as  to  increase  the  burden  upon  the  servient 
tenement. 

History:     Enacted  March   21,   1S72. 
See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§  808.    RIGHTS  OF  OWNER  OF  FUTURE  ESTATE.    The 

owner  of  a  future  estate  in  a  dominant  tenement  may  use 
easements  attached  thereto  for  the  purpose  of  viewing  waste, 
demanding  rent,  or  removing  an  obstruction  to  the  enjoyment 
of  such  easements,  although  such  tenement  is  occupied  by  a 
tenant. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation, 

§  809.  ACTIONS  BY  OWNER  AND  OCCUPANT  OF  DOMI- 
NANT  TENEMENT.  The  owner  of  any  estate  in  a  dominant 
tenement,  or  the  occupant  of  such  tenement,  may  maintain 
an  action  for  the  enforcement  of  an  easement  attached 
thereto. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 
146  C.  203,   211.  79  P.  880   (cited — covenant  concerning  (low  of 
water  construed). 

§  810.    ACTIONS  BY  OWNER  OF  SERVIENT  TENEMENT. 

The  owner  in  fee  of  a  servient  tenement  may  maintain  an 
action  for  the  possession  of  the  land,  against  any  one  unlaw- 
fully possessed  thereof,  though  a  servitude  exists  thereon  in 
favor  of  the  public. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.  C.   for   3   pars,   annotation. 
G9  C.  217,  221,  58  A.  R.  558,  10  P.  409   (referred  to). 
Trespass    upon    servient    tenement    cannot    be    committed    by 
owner  of  easement. — See  Kerr's  Cyc.  C.  C.  §  808  and  note  par.  9. 

528 


Titll.ch.III.]  EXTINGUISHMENT.  §  gll 

§811.  HOW  EXTINGUISHED.  A  servitude  is  extin- 
guished: 

1.  By  the  vesting  of  the  right  to  the  servitude  and  the 
right  to  the  servient  tenement  in  the  same  person; 

2.  By  the  destruction  of  the  servient  tenement; 

3.  By  the  performance  of  any  act  upon  either  tenement,  by 
the  owner  of  the  servitude,  or  with  his  assent,  which  is  incom- 
patible with  its  nature  or  exercise;  or, 

4.  When  the  servitude  was  acquired  by  enjoyment,  by  dis- 
use thereof  by  the  owner  of  the  servitude  for  the  period  pre- 
scribed for  acquiring  title  by  enjoyment. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

69  C.  255,  292,  294,  10  P.  674,  692  (applied);  81  C.  122,  125  (con-, 
strued  with  §§  2619,  2621  Pol.  C,  but  erroneously  cited  as  §  811 
Pol.  C.)  22  P.  393,  394  (correct  citation);  93  C.  206,  213,  28  P. 
944,  945  (construed  and  applied);  110  C.  122,  126,  42  P.  453  (con- 
strued and  applied);  110  C.  582,  585,  42  P.  1091  (applied);  125  C. 
420,  425,  58  P.  69  (construed  and  applied);  146  C.  640,  644,  80  P. 
1078  (subd.  4  applied — right  to  use  of  road  not  lost  by  disuse);  4 
C.  A.  18,  24   (erroneously  cited  for  §  801),  87  P.  213   (same  error). 

Owner  of  servient  tenement  cannot  hold  servitude. — ^See  ante. 
§805. 

Same — As  to  servitudes  generally. — See  note  §  801,  ante. 


529 


§  818  CIVIL  CODE.  [Div.II.Pt.II. 

TITLE  III. 

RIGHTS    AND    OBLIGATIONS    OF    OWNERS. 

Chapter  I.     Rights   of   Owners,    §§  818-834. 

II.     Obligations   of   Owners,   §§  840-843. 

CHAPTER  I. 

RIGHTS  OF  OWNERS. 

Article  I.     Incidents  of  Ownership,  §§  818-827. 
IL     Boundaries,    §§  829-834. 

ARTICLE    I. 

INCIDENTS   OF   OWNERSHIP. 

§  818.  Rights  of  tenant  for  life. 

§  819.  Rights  of  tenant  for  years,  etc. 

.  §  820.  Same. 

§  821.  Rights  of  grantees  of  rents  and  reversion. 

§  822.  Assignee  of  lessee,  remedies  of  lessor  against. 

§  823.  Rights  of  lessees  and  their  assignees,  etc. 

§  824.  Remedy  on  leases  for  life. 

§  825.  Rent  dependent  on  life. 

§  826.  Remedy  of  reversioners,  etc. 

§  827.  Leases,    change   of   terms.      [Notice.] 

§  818.  BIGHTS  OF  TENANT  FOE  LIFE.  The  owner  of  a 
life  estate  may  use  the  land  in  the  same  manner  as  the  owner 
of  a  fee  simple,  except  that  he  must  do  no  act  to  the  injury 
of  the  inheritance. 

Hiiiitory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

Procedure  to  have  life  estate  declared  terminated  by  death. — 
See  Kerr's  Cyc.  C.  C.  P.  §  1723  and  note. 

Treble  damages  recoverable  for. — See  Kerr's  Cyc.  C.  C.  P. 
§  732  and  note. 

530 


Tit.III,ch.I,art.I.]        TENANT  FOR  TEARS.  §§  819-821 

§  819.  RIGHTS  OF  TENANT  FOR  YEARS,  ETC.  A  tenant 
for  years  or  at  will,  unless  he  is  a  wrong-doer  by  holding 
over,  may  occupy  the  buildings,  take  the  annual  products  of 
the  soil,  work  mines  and  quarries  open  at  the  commencement 
of  his  tenancy. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

101  C.  425,  428,  35  P.  1021  (referred  to):  115  C.  622,  625,  47  P. 
597  (construed  and  applied);  150  C.  39,  41,  87  P.  1097  (lease  of 
going  mine  or  qviarry  is  exception  to  general  doctrine  applicable 
to  rights  of  tenant  for  years);  5  C.  A.  603,  613,  91  P.  117,  121 
(right   of  tenants  for  years   to   graze   stock  upon   land). 

Life  tenants — Rights  of. — See  Kerr's  Cyc.  C.  C.  §  818  and  note. 

Waste — Treble  damages  recoverable  for. — See  Kerr's  Cyc.  C. 
C.  P.  §  732  and  note. 


§  820.  SAME.  A  tenant  for  years  or  at  will  has  no  other 
rights  to  the  property  than  such  as  are  given  to  him  by  the 
agreement  or  instrument  by  which  his  tenancy  is  acquired, 
or  by  the  last  section. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
86  C.   335,   339,   24   P.   993,   994    (applied). 

As  to  removal  of  buildings. — See  Kerr's  Cyc.  C.  C.  §  660,  note 
pars.  65-79. 

§  821.  RIGHTS  OF  GRANTEES  OF  RENTS  AND  REVER- 
SION.  A  person  to  whom  any  real  property  is  transferred 
or  devised,  upon  which  rent  has  been  reserved,  or  to  whom 
any  such  rent  is  transferred,  is  entitled  to  the  same  remedies 
for  recovery  of  rent,  for  non-performance  of  any  of  the  terms 
of  the  lease,  or  for  any  waste  or  cause  of  forfeiture,  as  his 
grantor  or  devisor  might  have  had. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

79  C.  442,  443,  21  P.  861,  862  (applied);  2  C.  A.  470,  475,  84  P.  317 
(construed  with  §§  1452,  1663,  1664  C.  C.  P. — rights  and  powers 
of  testamentary  trustee  who  is  a  devisee);   5  C.  A.   475,  481,   90 

531 


§§  822-825  CIVIL  CODE.  [Div.II.Ptll. 

P.    962,    965    (section    is    applicable    when,    though    landlord    has 
not  directly  conveyed). 

Notice  to  tenant  of  grant  of  rent,  etc.,  necessary. — See  Kerr's 
Cyc.  C.  C.  §  1111  and  note. 

§822.  ASSIGNEE  OF  LESSEE,  REMEDIES  OF  LESSOR 
AGAINST.  Whatever  remedies  the  lessor  of  any  real  prop- 
erty has  against  his  immediate  lessee  for  the  breach  of  any 
agreeiaent  in  the  lease,  or  for  recovery  of  the  possession,  he 
has  against  the  assignees  of  the  lessee,  for  any  cause  of 
action  accruing  while  they  are  such  assignees,  except  where 
the  assignment  is  made  by  way  of  security  for  a  loan,  and  is 
not  accompanied  by  possession  of  the  premises. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  220;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  393,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,  1905,  Stats,  and  Amdts.   1905,  p.   599. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
63  C.   369,  370   (applied);   144  C.  155,  160,   77  P.   889   (applied  to 
trustee  in  bankruptcy,  who  succeeded  to  interest  of  lessee). 

§823.    RIGHTS  OF  LESSEES  AND  THEIR  ASSIGNEES, 

ETC.  Whatever  remedies  the  lessee  of  any  real  property 
may  have  against  his  immediate  lessor,  for  the  breach  of  any 
agreement  in  the  lease,  he  may  have  against  the  assigns  of 
the  lessor,  and  the  assigns  of  the  lessee  may  have  against  the 
lessor  and  his  assigns,  except  upon  covenants  against  encum- 
brances or  relating  to  the  title  or  possession  of  the  premises. 
History:  Enacted  March  21,  1872. 
66  C.  416,  421,  5  P.  910   (applied). 

§  824.  REMEDY  ON  LEASES  FOR  LIFE.  Rent  due  upon 
a  lease  for  life  may  be  recovered  in  the  same  manner  as  upon 
a  lease  for  years. 

History:     Enacted  March   21,   1872. 

§  825.    RENT  DEPENDENT  ON  LIFE.    Rent  dependent  on 

532 


Tit.III,ch.I,art.I.]        REVERSIONERS— LEASE.  §§  826,  827 

the  life  of  a  person  maj'  be  recovered  after  as  well  as  before 
his   death.  ~ 

History:     Enacted  March   21,   1872. 

§826.  REMEDY  OF  RETERSIOXERS,  ETC.  A  person 
having  an  estate  in  fee,  in  remainder  or  reversion,  may  main- 
tain an  action  for  any  injury  done  to  the  inheritance,  not- 
withstanding an  intervening  estate  for  life  or  years,  and 
although,  after  its  commission,  his  estate  is  transferred,  and 
he  has  no  interest  in  the  property  at  the  commencement  of 
the  action. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2   pars,  annotation. 
75  C.  117,  121,  17  P.  65,  67   (applied). 

§827.  LEASE,  CHANGE  OF  TERM.  [NOTICE.]  In  all 
leases  of  lands  or  tenements,  or  of  any  interest  therein,  from 
month  to  month,  the  landlord  may,  upon  giving  notice  in  writ- 
ing at  least  thirtj''  days  before  the  expiration  of  the  month, 
change  the  terms  of  the  lease  to  take  effect  at  the  expiration 
of  the  month. 

The  notice,  when  served  upon  the  tenant,  shall  of  itself 
operate  and  be  effectual  to  create  and  establish,  as  a  part  of 
the  lease,  the  terms,  rent,  and  conditions  specified  in  the 
notice,  if  the  tenant  shall  continue  to  hold  the  premises  after 
the  expiration  of  the  month. 

[In  effect,  -when.]  Sec.  2.  This  act  shall  take  effect  and 
be  in  force  immediately  after  its  passage. 

History:  Enacted  March  30,  1874,  Code  Amdts.  1873-4,  p.  220; 
amended  February  26,  1907,  Stats,  and  Amdts.  1907,  p.  58,  Kerr's 
Stats,  and  Amdts.  1906-7,  p.  423. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

86  C.  433,  439,  25  P.  7,  9  (referred  to);  105  C.  15,  19,  20,  38  P.  510 
(applied);  4  C.  A.  272,  275,  87  P.  559,  560  (cited — terms  of  lease, 
how  chang-ed);  4  C.  A.  422,  425,  88  P.  374  (section  is  confined,  by 
its  terms,  to  leases  from  month  to  month — case  at  bar  was  not 
such  lease). 

Presumption  of  notice. — See  Kerr's  Cyc.  C.  C.  §  19  and  note; 
§  789  and  note. 

533 


§  g29  CIVIL,  CODE.  [DiV.II.Pt.II. 


ARTICLE  II. 

BOUNDARIES. 

§  829.  Rights  of  owner. 

§  830.  Boundaries  by  water. 

§  831.  Boundaries   by   ways. 

§  832.  I^ateral   and   subjacent   support. 

§  833.  Trees  whose  trunks  are  wholly  on  land  of  one. 

§  834.  Line  trees. 

§  829.  RIGHTS  OF  OWNER.  The  owner  of  land  in  fee  has 
the  right  to  the  surface  and  to  everything  permanently  sit- 
uated beneath  or  above  it. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
BOITIN  DAUIES — GENERALLY. 

Acquiescence  in  boundary  line,  effect  of. —  See  8  A.  C.  81;  69  A. 
D.  711;  27  A.  R.  239;  4  L.  643. 

Adverse  possession  in  case  of  ignorance  or  mistake,  as  to. — 
See  21  L.  829. 

Agreement — Establishment  by. — See  8  A.  C.  81;  69  A.  D.  711; 
27  A.  R.  239;  1  L.  214. 

Same — Relating  to,  as  affecting  statute  of  frauds.— See  8 
A.    C.    81. 

Bounding  land  on  street  or  alley  as  covenant  that  street  or 
alley  exists,  where  grantor  does  not  own  fee  thereof. — See  10 
L.  N.  S.  964. 

Compromise  agreement  locating  division  line  at  place  known 
not  to  be  true  boundary  line,  effect  of. — See  10  L.  N.  S.  610. 

Conclusiveness  of  established. — See  110  A.  S.  677. 

Same — Proceedings  to  fix  upon  title  to  land. — See  3  A.  C.  1064. 

Same— Survey.— See  3  A.  C.  140;  110  A.  S.  677. 

Confusion  of,  equity  jurisdiction  in  case  of. — See  15  A.  D.  745. 

Construction  of.— See  22  A.  S.  34;  30  A.  S.  453. 

Construction    of    "beginning   at    the    side    of   a    road."— See    39 

A.    R.    305. 

Declarations— Of    deceased    persons    as    evidence    of.— See    94 

A.  S.   678. 
,  Same — What  admissible  to  prove. — See  36  A.  R.  749. 

Description,  rules  governing  inconsistent  or  uncertain.— See 
30  A.  D.  734. 

534 


Tit.III,ch.I,art.II.]       boundaries,  generally.  §  829 

Domicile    or    residence    where    boundary    line    runs    through 
dwelling.— See  10  L.  N.  S.  874. 

Effect    of    taking-    possession    on    disputed    boundaries. — See    3 
L.  N.  S.  805. 

Establishment  of  and  description. — See  1  L.  214;   1  L.   522;   4  L. 
643;   13  L.  142. 

Fixing  by  estoppel. — See  1  L.   522. 

Fraud   in   declaration   of   opinion   as  to. — See   35   L.    419. 
Hearsay  evidence  regarding. — See  15  A.  D.  628. 
Improvements  by  abutting   owner  with   reference   to   what   is 
mistakingly    supposed    to    be    street    boundary    line,    estoppel    of 
municipality  from  asserting  true  line. — See  7  L.  N.  S.   243. 
Judicial  notice  of. — See   82  A.   S.   439. 

Limitations   of  actions  founded   on   mistakes   in. — See   62   A.   D. 
527. 

Location    of   by   acquiescence   or   agreement. — See    8    A.    C.    81; 
69  A.  D.  711;   27  A.  R.  239;   4  L.  643. 

Map  as  affecting  description. — See  13  L.  142. 
Natural    monuments    as. — See    8    A.    C.    81. 
Navigable  rivers  as. — See  10  A.  D.  385. 
Of  mining  claim. — See    7   L.   N.   S.   851. 

Of    state    or    other    municipalities — Upon    waters. — See    15    L. 
187;  23  L.  520;  45  L.  243;  65  L.  953. 
On  highways,  as  to. — See  4  L.  624. 

On   waters — As   to,   generally,    8   L.    579;    42   L.   502;    51   L.    178. 
Same — Change   of   by   sudden   submerging   of  land. — See   38   L. 
850. 

Same — Effect  of  bounding  grant  on   river  or  tide  water. — See 
42  L.   502. 

Parole  agreement   establishing   boundary   line,   as   affected   by 
statute  of  frauds. — See  8  A.  C.  83. 

Possession   taken  and   held  beyond   through   mistake   or   igno- 
rance.—See  24  A.  S.  388. 

Proof   of  by   declarations   and    other   hearsay    testimony. — See 
60  A.  R.  589. 

Property  right  in  trees  on. — See   82  A.  D.   330;    21  L.   729. 
Right  to  inspect  public  records  as  to. — See  27  L.  84. 
Right  to  rely  upon  representations  as  to. — See  37  L.   610. 
Same — Effect  of  fraud  in  representation. — See  35  L.  419. 
Settlement  of — By  agreement   or  acquiescence,  effect  of. — See 
8  A.  C.  81;  69  A.  D.  711;  27  A.  R.   239;   4  L.   643. 
Same— By   parol.— See   13   A.   D.    224. 

Same — Disputed    by    an    express    or    Implied    agreement. — See 
27    A.    D.    121. 

Streets  or  highways,  when  included  within. — ^See  54  A.  D.  797. 
Suits  to  ascertain  and  declare. — See  119  A.  S.  66. 
Surplusage,   what  may  be  rejected  as. — See  40  A.  D.   109. 

535 


§§  830, 831  CIVIL  CODE.  [Div.II.Pt.II. 

Surveys,  construction  of,  and  establishing  lost  corners. — See 
22   A.   S.   34. 

Trees  growing  on  or  near,  rights  of  adjoining  proprietors  to. — 
See  82  A.  D.  330;   21  L.  729. 

Water  lots,  running  side  lines  of. — See  23  A.  D.  536. 

Waters  and  watercourses  as. — See  30  A.  D.  286;  27  A.  S.  56. 

§830.  BOUNDARIES  BY  WATER.  Except  where  the 
grant  under  which  the  land  is  held  indicates  a  different  intent, 
the  owner  of  the  upland,  when  it  borders  on  tide-water,  takes 
to  ordinary  high-water  mark;  when  it  borders  upon  a  navi- 
gable lake  or  stream,  where  there  is  no  tide,  the  owner  takes 
to  the  edge  of  the  lake  or  stream,  at  low-water  mark;  when 
it  borders  upon  any  other  water,  the  owner  takes  to  the  mid- 
dle of  the  lake  or  stream. 

Hl.story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  220;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  393,  held  uncon- 
stitutional, see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  43  pars,  annotation. 

69  C.  122,  127,  10  P.  323,  326  (this  and  §  670  are  but  declara- 
tion of  pre-existing  law);  99  C.  303,  308,  33  P.  1099  (conveyance 
by  state  of  lands  bounding  upon  sea,  or  upon  bay  or  navigable 
stream,  would  extend  to  high-water  mark);  108  C.  179,  185 
(erroneously  cited  as  §  880),  49  A.  S.  76,  41  P.  289  (correct 
citation);  138  C.  423,  425,  71  P.  496  (whether  or  not  this  sec- 
tion is  applicable  to  case  depends  upon  evidence). 

Bridges  over  navigable  streams — How  must  be  construed. — 
See  Kerr's  Cyc.  Pol.  C.  §  2875  and  note. 

Flotation  of  logs — Test  of  navigability — Enumeration  of 
streams. — See  Kerr's  Cyc.  Pol.  C.  §  2349  and  note. 

Public  ferries  and  toll-bridges. — See  Kerr's  Cyc.  Pol.  C. 
§§  2843-2895  and  notes. 

§831.  BOUNDARIES  BY  WAYS.  An  owner  of  land 
bounded  by  a  road  or  street  is  presumed  to  own  to  the  center 
of  the  way,  but  the  contrary  may  be  shown. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

69  C.  202,  206,  10  P.  510,  512  (construed  and  applied);  70  C. 
534,  540,  12  P.  530,  533  (applied);  95  C.  661,  665,  30  P.  793,  794 
(applied);    41   P.    14    (applied);    131   C.    96,   99,   63    P.    143    (cited); 

536 


Tit.III,ch.I,art.II.]        lateral  support.  §§832,833 

151  C.   425,  431,   90  P.  1053    (applied  to  strip   of  land  granted  as 
a  highway). 

Waters  as  boundaries. — See  Kerr's  Cyc.  C.  C.  §  830  and  note. 


§832.  LATERAL  AND  SUBJACENT  SUPPORT.  Each 
coterminous  owner  is  entitled  to  the  lateral  and  subjacent 
support  which  his  land  receives  from  the  adjoining  land, 
subject  to  the  right  of  the  owner  of  the  adjoining  land  to 
make  proper  and  usual  excavations  on  the  same  for  purposes 
of  construction,  on  using  ordinary  care  and  skill,  and  taking 
reasonable  precautions  to  sustain  the  land  of  the  other,  and 
giving  previous  reasonable  notice  to  the  other  of  his  intention 
to  make  such  excavations. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874,' 
Code  Amdts.  1873-4,  p.  221.  This  section  as  originally  enacted 
was   taken   from  proposed  Civil  Code   of  New  York.- — 98   C.   346, 

348,  33  P.   209,  20  L.   730. 

South  Dakota  Comp.  Laws,  §  2784,  an  exact  copy  of  this 
section.— See   9   S.   D.   412,    69   N.   W.   585. 

Utah  Comp.  Laws,  §  2784,  is  substantially  the  same  as  this 
section,  except  that  it  omits  the  words  "in  its  natural  con- 
dition" and  also  the  words  "when  improved." — 2  S.  D.  285,  49 
N.  W.   1054. 

See  Kerr's  Cyc.  C.  C.  for  64  pars,  annotation. 

63  C.  269,  271,  272,  273,  274,  276  (construed  and  applied);  92  C. 
96,  98,  28  P.  97,  98  (applied);  92  C.  600,  603,  604,  28  P.  809,  810 
(construed);  95  C.  494,  499,  30  P.  762   (construed);  98  C.  346,  348, 

349,  33  P.  209,  20  L.  730  (construed  and  applied);  105  C.  52, 
57,  45  A.  S.  25,  38  P.  539,  540  (applied);  128  C.  501,  503,  61  P.  96, 
97  (applied);  147  C.  609,  611,  109  A.  S.  178,  82  P.  241,  2  L.  N.  S.  796 
(what  ordinance  is  not  in  conflict  with   this  section). 

Party-wall— Rig-ht  to  use.— See  Kerr's  Cyc  C.  C.  §  801,  subd. 
12  and  note. 

Respective  rights  and  liabilities  of  adjoining-  owners  in  respect 
to  party-walls. — See  19  L.  240. 

Right  by  prescription  for  lateral  support  of  buildings. — See 
20  L.  730,  731;   66  A.  D.  648. 


§  833.    TREES  WHOSE  TRUNKS  ARE  WHOLLY  ON  LAND 
OF  ONE.     Trees  whose  trunks   stand  wholly   upon   the   land 

537 


§  834  CIVIL  CODE.  [Div.II,Pt.II. 

of  one  owner  belong  exclusively  to  him,  although  their  roots 
grow  into  the  land  of  another. 

HlMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

Ownership  of  soil  upwards  usque  ad  coelum. — See  Kerr's  Cyc. 
C.    C.    §  829  and   note. 

Rights  of  adjoining  proprietor  where  tree  grows  on  or  near 
boundary  line. — See  82  A.  D.  330,   331. 

§  834.  LINE  TREES.  Trees  whose  trunks  stand  partly  on 
the  land  of  two  or  more  coterminous  owners,  belong  to  them 
in  common. 

HlNtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars  annotation. 

7  C.  A.  39.  40,  93  P.  383   (cited). 

Overhanging  branches — Fruit  belongs  to  owner  of  tree. — See 
Kerr's  Cyc.  C.  C.  §  832,  note  par.  2. 

Rights  of  adjoining  proprietor  wliere  tree  grows  on  or  near 
boundary  line. — See  82  A.  D.  330.   331. 


538 


Tit.III,ch.II.]  MONUMENTS   AND   FENCES.  §§  840,  841 

CHAPTER  II. 
OBLIGATIONS    OF    OWNERS. 

§  840.  Duties  of  tenant  for  life. 

§  841.  Monuments  and  fences. 

§  842.  Owners  of  ditches,   flumes,  etc.     Liability   to   each   other. 

§  843.  Neglect  to  pay  proportion  of  expenses;  liability  in  action. 

§  840.  DUTIES  OF  TENA^NT  FOR  LIFE.  The  owner  of  a 
life  estate  must  keep  the  buildings  and  fences  in  repair  from 
ordinary  waste,  and  must  pay  the  taxes  and  other  annual 
charges,  and  a  just  proportion  of  extraordinary  assessments 
benefiting  the  whole  inheritance. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

136  C.   514,  518.  69  P.   146    (applied). 

Improvements — Allowance  to  life  tenant  for. — See  81  A.  S.  182. 

Rights  of  tenant  for  life. — ^See  Kerr's  Cyc.  C.  C.  §  818  and  note. 

Termination  of  life  estate  by  death — Decree  declaring-. — See 
Kerr's  Cyc.   C.   C.   P.    §  1723   and   note. 

Waste — Definition  of. — See  Kerr's  Cyc.  C.  C.  §  818  and  note 
par.  13. 

Same — Treble  damages  recoverable. — See  Kerr's  Cyc.  C.  C.  P. 
§  732  and  note. 

§841.  MONUMENTS  AND  FENCES.  Coterminous  owners 
are  mutually  bound  equally  to  maintain: 

1.  The  boundaries  and  monuments  between  them; 

2.  The  fences  between  them,  unless  one  of  them  chooses  to 
let  his  land  lie  without  fencing;  in  which  case,  if  he  after- 
wards incloses  it,  he  must  refund  to  the  other  a  just  propor- 
tion of  the  value,  at  that  time,  of  any  division  fence  made  by 
the  latter. 

History:  Enacted  March  21,  1872.  This  secti'on  is  apparently 
based  on  1  Rev.  St.  N.  Y.  350,  §  30. — See  9  How.  Pr.  (N.  Y.)  453, 
455.  As  to  lawful  fence  in  counties  named,  see  Act  1850,  as 
amended  by  Act  April  3,  1860  (Stats.  1860,  p.  141). — Gonzales  vs. 
Wasson,  51  Cal.  295,  297.     See  Hen.  G.  L.  tit.  Fences. 

See  Kerr's  Cyc.  C.  C.  for  40  pars,  annotation. 
51  C.   295,   297,   298    (construed);   67  C.   591,   593,  8  P.   311    (con- 
strued);  103   C.   43,   45,   36   P.    1029    (construed  and  applied);    103 

539 


§  841  CIVIL  CODE.  [DiV.II.Pt.II. 

C.  Ill,  117,  37  P.  192  (provision  for  division  fences — constitu- 
tionality of  act  concerning);  119  C.  526,  527,  51  P.  848  (con- 
strued and  applied). 

As  to  fences  generally,  see  12  Encyc.  L.  1035. 

Constittitionallty  of  statute  giving  fence  viewers  power  to 
assign  division  fences  between  owners  to  maintain. — See  8 
A.    C.    426. 

Covenants  to  build  fences,  whether  run  with  the  land. — See 
56  A.  R.  161. 

Division  of  partition  fences  between  land  owners. — See  23 
Cent.  Dig.  col.  818,  §§18-28;  9  Decen.  Dig.  p.  1013,  §§11-13. 

Duty  to  erect  and  maintain  partition  fences. — See  23  Cent. 
Dig.  col.  799,  §1;  col.  805;  §§1-17;  9  Decen.  Dig.  p.  1011,  §  1;  9 
Decen.  Dig.  p.  1012,  §§5-10;  see  "Partition  fences,"  this  note. 

Failure  to  erect  or  maintain  partition  fence. — See  23  Cent. 
Dig.  col.  817,  §  16;  col.  837,  §  39;  9  Decen.  Dig.  p.  1016,  §  17. 

Fencing*  material,  not  actually  attached  to  land  as  fixttire. — 
See  69  L.  901. 

Injunction  to  compel  or  prevent  the  erection,  maintenance,  or 
removal  of  fences. — See  7  L.  N.  S.  49. 

Lack  of  division  fences  as  affecting  liability  for  damages  by 
trespassing  cattle. — See  9  A.  C.  1095;   22  L.  60. 

Lawful  fence — What  constitutes  under  act  April  3,  1860  (Stats. 
1860,  p.  141,  amendatory  of  act  April  27,  1885). — See  Hen. 
G.   L.    tit.   Fences. 

Liability  for  permitting  another's  livestock  to  escape  from 
pasture  by  failure  to  keep  proper  division  fence,  extent  of. — 
See    20   L.    479;    12   L.   N.    S.    912. 

Partition   fences. — See    68   A.   D.    626. 

game^Definition  of. — See  68  A.  D.  626;  6  W.  &  P.   5190. 

Same—Duty  to  erect  and  maintain. — See  "Duty  to  erect," 
etc.,   this   note. 

Same — Liability  for  injuries  arising  from  defects  in. — See  54 
A.    S.    513. 

Same — Proceedings  to  compel  erection  thereof. — See  "Pro- 
ceedings," etc.,  this  note. 

Party  walls — Provisions  as  to. — See  'Kerr's  Cyc.  C.  C.  §  801  and 
note. 

Prescriptive  right  to  maintain  fence. — See  53  L.  901. 

Proceedings  to  compel  erection  of  partition  fence  or  con- 
tribution thereto. — See  23  Cent.  Dig.  coL  1826,  §§29-44;  9 
Decen.   Dig.  p.   1014,   §§  14-16. 

Railroad  fences. — See  note  §  454,  ante;  3  A.  C.  182. 

Right  of  tenant  to  cut  wood  for  fence. — See  68  L.  641. 

Right  to  enjoin  adjoining  land  owner  from  maliciously  erect- 
ing or  maintaining  fence  of  unusual  height. — See  9  A.  C.  734; 
see  also   40  L.   177. 

Statutes  formerly  in  force  preserved. — See  Kerr's  Cyc.  Pol.  C. 
§  19   subd.   23   and  note. 

540 


Tit.III,ch.II.]  DITCHES,    ETC.— EXPENSE.  §§  842,  843 

Statutory  provisions  concerning  rights  of  adjoining  owners. — 
See   12  L.    601. 

Sufficiency    of   fences. — See    22   L>.    105. 

Unlawful  removal  of  fence. — See  12  L.   601. 

Same — Liability  for  consequential  injuries  from. — See  53  L. 
629. 

Waters  as  boundaries. — See  Kerr's  Cyc.  C.  C.  §  830  and  note. 

Ways  as  boundaries. — See  Kerr's  Cyc.  C.  C.  §  831  and  note. 

§842.  OWNERS  OF  DITCHES,  FLUMES,  ETC.  LIABIL- 
ITT  TO  EACH  OTHER.  When  two  or  more  persons  are  asso- 
ciated by  agreement  in  the  use  of  a  ditch,  flume,  pipe-line  or 
other  conduit  for  the  conveyance  of  water,  or  who  are  using 
such  ditch,  flume,  pipe-line  or  other  conduit,  or  any  part 
thereof,  for  the  irrigation  of  land  or  for  any  other  lawful 
purpose,  to  the  construction  of  which  they  or  their  grantors 
have  contributed,  he  is  liable  to  the  others  for  the  i-easonable 
expenses  of  maintaining  and  repairing  the  same,  and  of  dis- 
tributing such  water  in  proportion  to  the  share  to  which  he 
is  entitled  in  the  use  of  the  water. 

History:  Proposed  by  Code  Commission  and  enacted  March 
16,  1901,  Stats.  Amdts.  1900-1,  p.  393,  held  unconstitutional,  see 
history,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,    p.    600. 

§843.  NEGLECT  TO  PAY  PROPORTION  OF  EXPENSES; 
LIABILITY  IN  ACTION.  If  any  one  of  them  neglects,  after 
demand  in  writing,  to  pay  his  proportion  of  such  expenses, 
he  is  liable  therefor  in  an  action  for  contribution,  and  in  any 
judgment  obtained  against  him  interest  from  the  time  of  such 
demand  must  be  included.  The  action  authorized  by  this  sec- 
tion must  be  brought  by  any  or  all  of  the  parties  who  have 
contributed  more  than  his  or  their  just  proportion  of  such 
expenses,  and  may  be  joint  or  several,  and  therein  plaintiff 
may  recover  as  costs,  reasonable  counsel  fees,  to  be  fixed 
by  the  court. 

History:  Proposed  by  Code  Commission  and  enacted  Marcli 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  393,  held  unconstitutional, 
see  history,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and 
Amdts.    1905,   p.    600. 

541 


§  847  CIVIL  CODE.  [Div.II.Pt.II. 

TITLE  IV. 

USES    AND    TRUSTS. 

§  847.  What  uses  and  trusts  may   exist. 

§  848.  Right    to    possession    of    land    creates    legal     ownership 

[repealed]. 

§  849.  Certain   trusts  unaffected    [repealed]. 

§  850.  Trustees   of   estate   for   use   of   another   take    no   interest 

[repealed]. 

§  851.  Preceding  sections  qualified  [repealed], 

§  852.  Trust  must  be  in  writing. 

§  853.  Transfer    to    one    for    money    paid    by    another.       [Trust 

presumed.] 

§  854.  Rights  of  creditors    [repealed]. 

§  855.  Section  eight  hundred  and  fifty-three  qualified  [repealed]. 

§  856.  Purchasers  protected. 

§  857.  For  what  purposes  express  trusts  may  be  created. 

§  858.  Vesting   of  mortgage   powers. 

§  859.  Profits  of  land  liable  to  creditors  in  certain  cases. 

§  860.  Exercise   of  vested  power. 

§  861.  Creation   of  certain  powers  not  prohibited   [repealed]. 

§  862.  Land,  etc.,  to  descend  to  persons  entitled   [repealed]. 

§  863.  Trustees  of  express  trusts  to  have   whole   estate. 

§  864.  Author   of  trust  may  devise,   etc. 

§  865.  Title  of  grantor  of  trust  property. 

§  866.  Interests   remaining  in   grantor  of  express  trust. 

§  867.  Restraining   disposition   of  trusts. 

§  868.  Powers   over  trust  of  party  interested    [repealed]. 

§  869.  Effect  of  omitting  trust  in  conveyance. 

§  870.  Certain   sales,  etc.,   by  trustees,  void. 

§  871.  When   estate   of  trustee  to  cease. 

§847.  WHAT  USES  AND  TRUSTS  MAY  EXIST.  Uses 
and  trusts  in  relation  to  real  property  are  those  onlj'^  which 
are  specified  in  this  title. 

History:    .Enacted  March    21,   1872.     See  history  to   §   857  post. 

See  Kerr's  Cyc.  C.  C.  for   46   pars,  annotation. 

58  C.  457,  478,  481  (construed  and  applied  in  connection  with 
§857);  80  C.  237,  242,  22  P.  167,  169  (applied);  107  C.  587,  595, 
40  P.  810  (applied  in  connection  with  other  sections) ;  116  C. 
405,  409,  48  P.  622  (construed  with  §  857 — express  trust  can- 
not be  created  to  sell  realty  for  benefit  of  legatees);   124  C.  418, 

542 


Tit.  IV.]  USES   AND   TRUSTS.  §  §47 

421,  57  P.  219  (applied);  132  C.  523,  527,  551,  557,  84  A.  S.  70,  60  P. 
442,  64  P.  1000  (construed  and  applied  in  connection  with 
§857);  139  C.  682,  684,  73  P.  604,  606  (applied  in  connection  with 
§857);  140  C.  48,  51,  73  P.  748  (construed  and  applied  In  con- 
nection with  §857);  3  C.  A.  741,  747,  86  P.  1108  (referred  to — 
competency  of  Masonic  lodge  to  accept  trust  imposed  upon  it 
by  terms  of  decree  of  distribution);  11  F.  253,  261  (applied  with 
other  sections  to  conveyance  in  trust  to  secure  railway  mort- 
gage bonds). 

USES  AND  TRUSTS. 

As  to  certainty  of  charitable  trusts,  necessity,  see  64  A.  S. 
756,    762;    4    L.    699. 

As  to  charitable  trusts  in  general,  see  4  L.  699;  brief  and  note 
6   L.    511. 

As  to  charitable  uses  and  trusts,  see  Kerr's  Cyc.  C.  C.  §  711 
and    note    part    III. 

As  to  definition  of  passive  and  special  trusts,  see  98  A.  D.  355; 
6  W.   &  P.   5227;   7   W.   &   P.   6594. 

As  to  evidence  to  establish  trust,  see  6  L.  47. 

As  to  necessity  of  writing  to  create  a  charitable  trust,  see 
Kerr's  Cyc.  C.  C.  §  852  and  note. 

As  to  restraints  upon  alienation,  see  Kerr's  Cyc.  C.  C. 
§§  715-718  and  notes;  also  ante  §  715  and  note. 

As  to  restrictions  on  power  to  devise  to  charitable  institu- 
tions,  see  Kerr's  Cyc.   C.   C.   §  1313  and  note. 

As  to  secret  trusts  for  charity,  see  20  L.  465-477. 

Ae  to  secret  trusts  to  use  of  masses. — See  25  L.  360;  40  L. 
717-722. 

As  to  simple  effect  of  a  trust,  see  98  A.  D.  356. 

As  to  trusts  for  religious  purposes,  see  65  A.  S.  118,  121;  3 
L.   145,  149;   5  L.   104-109. 

As  to  trusts  for  the  accumulation  of  income,  see  Kerr's  Cyc. 
C.  C.  §§  722-726  and  notes;  also  §  722  ante. 

As  to  trusts  under  will,  see  2  Church's  New  Probate  Law  and 
Practice  1427,  1433. 

As  to  validity  of  bequests  for  superstitious  or  religious 
uses,  see  39  A.  R.  738-750. 

Same — Validity  of  trust  to  propagate  a  particular  religious 
belief,  see  6  L.  N.  S.  320-323. 

As  to  what  are  public  charities,  see  1  L.  417;  3  L.  145;  5  L. 
33;  5  L.  104;  6  L.  84;  12  L.  414;  6  W.  &  P.  5778-5780. 

As  to  when  devises  and  bequests  for  charity  are  valid  or  void 
for  uncertainty,  see  1  A.  S.   415;  4  L.   699. 

Accounting  of  trustees  under  will  and  distribution  of  prop- 
erty.—See  8  A.  C.  1176;  7  L.  570;  27  L.  821;  2  Church's  New 
Probate  Law  and  Practice  1433-1454;  2  Obiter  Dig.  886. 

Applicability  of  rule  in  Shelley's  Case  to  executory  trusts. — 
See  2  L.  458.      ' 

543 


§  847  CIVIL  CODE.  [Div.II.Pt.II. 

Care-taker  of  trustee  to  sell  real  estate. — See  3  L.  N.  S.  415. 

Chang-e  of  trustees. — See  2  Obiter  Dig.   888. 

Classification    of    trusts. — See    100    A.    S.    586;    8    L.    647;    8    W. 

6  P.    7121. 

Constructive  trust  in  deed  of  homestead  by  husband  to  wife, 
with  proviso  attempting  to  derogate  from  her  right  of  survivor- 
ship.— See   1  L.  N.  S.  312. 

Conveyance  by  trustee  and  its  effect. — See   64  A.   D.   199. 

Corporation  as  trustee. — See  11  L.  715. 

Creation  of  trust  by  use  of  words  "upon  condition"  in  will 
or  conveyance  of  real  property. — See  9  L.  N.  S.  758. 

Dealing  with  trust  or  cestui  que  trust — Right  and  liabilities 
of  trustee.— See  5  L.  166;  6  L.  369;  9  L.  792;  13  L.  491;  37  L.  613. 

Debt  distinguished. — See  2  W.  &  P.  1885. 

Definition  of  trust. — See  2  Obiter  Dig.  879,  8  W.  &  P.  7019. 

Discretion  of  trustee,  control  of  by  courts  of  equity. — See  6 
A.     S.     885. 

Distinction  between  executory  and  executed  trusts. — See  2 
Obiter  Dig.   879,  880. 

Duty — Of  purchaser  from  life  tenant,  trustee,  or  other  donee 
of  power  to  sell,  to  see  to  application  of  purchase  money. — See 
4    A.    C.    376. 

Same — Of  trustee. — See  8  A.  C.  1176. 

Effect — Of  investment  by  husband  in  his  own  name  of  wife's 
separate  property  in  real  estate,  to  create  a  trust  in  her  favor. — 
See  6  L.  N.  S.  381. 

Same — Effect  of  statute  of  limitations  on  sucli  trust. — See  12 
L.  N.   S.    493. 

Same — Of  notice  to  trustees  in  trust  deeds  of  fraudulent  intent 
of  grantor. — See  31  L.   642. 

Same — Of  specifying  use  of  real  estate  in  devising  to  religious 
society,  as  creating  a  trust. — See  1  L.  N.  S.  512;   1  L.  N.  S.   520; 

7  L.  N.  S.   1119. 

Same — Upon  trust  of  death  of  donor  without  exercising  power 
of  revocation. — See  6  A.  C.  189. 

Embracing  share  of  heir,  devisee  or  legatee  with  constructive 
trust  cause  of  is  a  fraud  in  frustrating  decedent's  intention  to 
give  the  property  to  a  third  person. — See  8  L.  N.  S.  628. 

Enjoining  unlawful  share  of  church  property  by  trustee. — See 
2  L,.  N.  S.   828;   3  L.  N.   S.   860. 

Equitable — Control  by  court  of  discretion  vested  in  trustee. — 
See  8  L.  N.  S.  398. 

Same — Enforcement  of,  as  affected  by  statute  of  frauds. — 
See  5  L.  N.  S.  112. 

Essentials  of  trusts. — See  31  A.  S.  637;  15  L.  470;  8  W.  & 
P.  7121. 

Establishment  of  stale  interests. — See  2  Obiter  Dig.  888. 

544 


Tit.  IV.]  USES   AND    TRUSTS.  §  847 

Executory  trusts,  applicability  of  rule  in  Shelley's  Case  to. — 
See  2  L.  458. 

Failure — For  want  of  trustee. — See  2   Obiter  Dig-.   882. 

Same — Of  object  of  purposes  of.- — See  2  Obiter  Dig-.  882. 

Fiduciary  relation  of  trxistee  and  beneficiary. — See  16  A.  D.  616. 

Foreig-n— .Corporation  as  trustee. — See  24  L.  291. 

Same — Security  company,  power  to  act  as  trustee. — See  48  L. 
593. 

Implied  constructive  and  resulting-  trusts — As  to,  see  2  L. 
146;   5  L.   189;   10  L.   401;   20  L.   109;   27   L.   468;    58   L.    115. 

Injunction  against  execution  sale  of  trust  property. — See  31 
L.  119. 

Insurable  interest  of  husband,  as  trustee,  in  wife's  property. — 
See  66  L.  659. 

Intention   to  create  a  trust  necessary. — See   15  A.   S.   351. 

Judgment  against  trustees,  conclusiveness  of  upon  benefi- 
ciaries.— See   34  A.   D.   722;   73  A.   S.   164. 

Jurisdiction  and  province  of  equity  over. — See  2  Obiter  Dig. 
887. 

Laches  as  a  bar  to  enforcement  of  trust  as  against  one  who 
knowingly  purchased  trust  property  in  violation  of  the  terms 
of  an  express  trust. — See  7  L.  N.  S.  370. 

Legal  right  and  use  in  same  party,  effect  of. — See  2  Obiter 
Dig.   879. 

Liability- — 'Of  beneficial  interest  to  creditors. — See  1  Obiter  Dig. 
881. 

Same — Of  one  co-trustee  for  the  acts  and  defaults  of  another. 
—See  42  A.  D.  288. 

Same — Of  trustee. — See   2  Obiter  Dig.   886. 

Liens  against  trust  estate  in  favor  of  creditors  or  trustees. — 
See   19  A.  S.  67. 

Majority  of  trustees  may  act  when. — See  11  A.  D.   674. 

Necessity  of  beneficiary's  knowledge  of  trust. — See  10  L.  N. 
S.  616. 

No  particular  form  of  words  necessary  to  create. — 'See  2 
Obiter  Dig.   879. 

Parol — Creation  of  trust  in  land. — See  115  A.  S.  775. 

Same — Trust,  how  far  within  statute  of  frauds. — See  10  L.  401. 

Particular  words  unnecessary  to  create  trust. — See  1  A.  R. 
34;    8    W.  ■&    P.    7122. 

Party  dealing  with  trustee,  duty  of. — -See  2  Obiter  Dig  885. 

Power  distinguished. — See   8   W.    &   P.    2123. 

Power  of  court — To  change  number  of  trustees  designated  in 
trust  instrument. — See  1  L.  N.  S.  802. 

Same — To  increase  or  diminish  number  of  trustees  appointed 
by  grantor  of  trusts. — See  6  A.  C.  598. 

Same — To  remove  trustee  who  becomes  unsuitable  for  execu- 
tion of  trust. — See  6  A.  C.  596. 

Kerr's    C.    C. — 18  545 


§  847  CIVIL  CODE.  [Div.II.Pt.II. 

Power  of  corporation  to  act  as  trustee  of  charitable  trust. — 
See  8  A.  C.  1181. 

Power  of  married  woman  to  act  as  trustee  of  express  trust. — 
See  7  A.  C.  1082. 

Power  of  trustees  of. — See  2  Obiter  Dig.  882-884. 

Same — An  express  trust  to  sue  without  joining  beneficiaries — 
Scope  of  statutory  provisions  as  to. — See  6  L.  N.  S.  275. 

Same — To  convey  trust  property  without  consent  of 
co-trustees. — See  4  A.  C.  953. 

Same— To  expend  principal  of  trust  fund. — See  8  A.  C.  1176. 

Same — To  mortgage  trust  estate  for  purposes  of  improve- 
ments so  as  to  render  the  estate  productive. — See  L.  N.  S.   263. 

Same — To  mortgage  trust  property. — See  1  A.  C.  942;  9  A.  C. 
643;   10  A.  C.   245. 

Same — Under  control  to  make  a  ninety-year  lease  of  the  trust 
realty. — See  2  A.  C.  787. 

Powers,  duties  and  liabilities  of  trustees,  generally,  see  4  L. 
529;  7  L.  570;  9  L.  279;  13  L.  212;  27  L.  821;  29  L.  622;  51  L.  486; 
57  L.   688;   63  L.   227. 

Precatory  trusts,  when  created. — See  44  A.  D.  372;  106  A.  S. 
499;  6  L.  353;  7  L.  394;  7  L.  519;  13  L.  563. 

Provision  against  alienation  of  cestui  que  trust. — See  2  L.  113. 

Revocation  of  deed  of  trust,  power  of. — See  20  A.  S.  858. 

Rights — Of  beneficiaries. — See  2  Obiter  Dig,  884,  885. 

Same — Of  cestui  que  trust  as  to  trust  property  mingled  with 
that  of  insolvent  trustee. — See   7  A.   C.   553. 

Same — Of  trustee — Compensation  and  indemnity. — See  2  Obiter 
Dig.  884. 

Sales  and  conveyances  by  trustees. — See  19  A.  S.  266. 

Same — Under  powers  in  trust  deeds  to  secure  money. — See  92 
A.  S.   573. 

Same — When  power  of  vests  in  trustee  by  implication. — See 
87  A.  D.  209. 

Severability  of  trusts  from  perpetuities  and  forbidden  trusts. — 
See  64  A.  S.  634. 

Statute — Of  limitations  as  affecting. — See  27  A.  S.  473;  2 
Obiter  Dig.  882;  8  W.  &  P.  7124. 

Same — Regulating  uses  and  trusts. — See  4  L.  140. 

Sufficiency  of  declaration  to  establish  voluntary  trust  where 
legal  title  is  retained  by  trustor. — See  12  L.  N.  S.  547; 

Suitability  of  trustees. — See  2  Obiter  Dig.  888. 

Taxation   of  trust  property,   place  of. — See  20  L.   151. 

Termination  and  revocation  of. — See  1  L.  319;  1  L.  328;  8  L. 
480;    18   L.    745. 

Same — Power  to  revoke  or  set  aside  voluntary. — See  15  L.  75. 

Termination  of  trust  and  presumption  of  conveyance  by 
trustee  to  beneficiary. — See  58  A.  D.  472. 

To  whom  property  passes  on  trustee's  death. — See  1  L.  334. 

546 


Tit.  IV.]  USES  AND   TRUSTS.  §§  848-850 

Trustee  ex  maleflcio.— See  2  Obiter  Dig.  881. 

Trusts — For  absent  persons  and  those  not  in  being. — See  2 
Obiter  Dig.  881. 

Same — Within  the  rule  against  perpetuities. — See  49  A.  S.  128. 

Use  distinguished. — See  8  W.  &  P.  7123. 

Uses  and  trusts,  statute  regulating. — See  4  L.  140. 

Validity  of  acknowledgment  of  deed  of,  taken  by  trustee. — 
See    16  L.    719. 

Voluntary  trusts  arising  from  the  declaration  of  trustor.— 
See    34   A.    S.    189. 

When  legal  estate  vests  in  beneficiary  under  the  statute  of 
uses. — See  78  A.  D.  416. 

Where  trustee's  sale  to  be  made. — See  33  L.  96. 

Who  are  or  may  be  trustees  and  removal  thereof. — See  1  L. 
79;  8  L.  648;  11  L.  715;  14  L.  69;  16  L.  695;  24  L.  291;  48  L.  593. 

Who  may  be  appointed  trustee  by  donee  of  power  to  appoint. 
—See  4  A.  C.  405. 

§848.  RIGHT  TO  POSSESSION  OF  LAND  CREATES 
LEGAL  OWNERSHIP  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    221. 

132  C.  523,  535,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (repealed — 
wording  of  section). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,  1427-1433. 

As  to  uses  and  trusts  generally,  see  note  §  847  ante. 

§849.    CERTAIN  TRUSTS  UNAFFECTED    (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.    1873-4,   p.   221. 

132  C.  523,  535,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (repealed — 
referred  to  same  subject  as  §  848.) 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,  1427-1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§  850.  TRUSTEES  OF  ESTATE  FOR  USE  OF  ANOTHER 
TAKE  NO  INTEREST  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.    1873-4,   p.    221. 

132  C.  523,  535,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (repealed — 
referred  to  same  subject  as  §  848.) 

547 


§§851,852  CIVIL  CODE.  [Div.II.Pt.II. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,  1427-1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§851.    PRECEDING  SECTIONS  QUALIFIED   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,    p.    221. 

182  d'"523,  535,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (repealed — 
referred  to  same  subject  as  §  848). 

As  to  trusts  under  wills  see  2  Church's  New  Probate  Law  and 
Practice,    1427-1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§  852.  TRUST  MUST  BE  IN  WRITING.  No  trust  in  rela- 
tion to  real  property  is  valid  unless  created  or  declared: 

1.  By  a  written  instrument,  subscribed  by  the  trustee,  or 
by  his  agent  thereto  authorized  by  writing; 

2.  By  the  instrument  under  which  the  trustee  claims  the 
estate  affected;  or, 

3.  By  operation  of  law. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  411  pars,  annotation. 

58  C.  457,  483  (construed  and  applied);  70  C.  449,  452,  11  P. 
659,  661  (construed  and  applied  in  connection  with  other  sec- 
tions); 16  P.  535,  537  (construed  and  applied);  75  C.  525,  526, 
7  A.  S.  189,  17  P.  689,  690  (construed  and  applied);  76  C.  469,  471, 
9  A.  S.  242,  18  P.  429,  430  (construed  and  applied  in  connection 
with  other  sections);  80  C.  514,  518  (applied  but  miscited  as 
§853),  22  P.  294,  295  (correct  citation);  85  C.  436,  446,  25  P.  22, 
23,  24  (construed  and  applied  with  §  853);  88  C.  560,  565  (applied 
but  erroneously  cited  as  §82),  26  P.  367,  368  (correct  citation); 
90  C.  603,  607,  27  P.  516,  517  (construed  and  applied);  94  C.  69,  72. 
29  P.  487  (construed);  31  P.  355,  357  (construed  and  applied); 
97  C,  259,  261,  32  P.  171  (construed  and  applied  in  connection 
with  other  sections);  99  C.  311,  314,  33  P.  929  (applied);  108  C. 
627,  656,  49  A.  S.  97,  41  P.  772  (referred  to  in  discussion);  110  C. 
1,  5,  42  P.  300  (referred  to);  112  C.  279,  284,  44  P.  565  (con- 
strued and  applied);  118  C.  102,  107,  50  P.  386  (applied);  122 
C,  19,  25,  54  P.  370  (referred  to — trust  in  personal  property  need 
not  be  in  writing — ^No  set  form  of  words  is  necessary  to  create 
trust);  122  C.  426,  427,  55  P.  143  (applied);  124  C.  418,  421,  57 
P.  219  (construed  and  applied  with  other  sections);  126  C.  189, 
192,  58  P.  543    (construed  and  applied);   132  C.  21,  27,   63  P.   1071 

548 


II 


Tit.  IV.]  CREATION  OP  TRUST.  §  852 

(construed  and  applied);  135  C.  277,  279,  67  P.  129  (referred  to 
in  discussion);  136  C.  92,  96,  68  P.  482  (construed  and  applied); 
136  C.  153,  155,  68  P.  579  (applied);  136  C.  631,  634,  69  P.  428 
(construed);  147  C.  384,  389,  81  P.  1077  (referred  to — what  ex- 
press trusts  are  not  mortg-ages) ;  150  C.  710,  713,  89  P.  971 
(lias  no  application  to  resulting  trusts — they  may  be  estalilished 
by  parol);  127  U.  S.  300,  312,  32  L.  ed.  138,  143  (this  and  various 
other  sections  construed  tog'ether  as  merely  declaratory  of  pre- 
existing law). 

As  to  acceptance  of  trust  by  beneficiary,  see  46  A.  D.  81; 
34  A.  S.   214;   28  Encyc.  L.   895. 

As  to  admissibility  of  parol  evidence  in  express  or  resulting 
trusts,  see  10  L.  401;  24  A.  D.  413-417;  26  A.  D.  60;  36  A.  D. 
182;  38  A.  D.  182;  43  A.  D.  624;  63  A.  D.  42;  70  A.  D.  258;  90 
A.   D.   270;   82  A.  S.   517. 

As  to  certainty  in  the  subject-matter  of  precatory  trusts,  see 
44   A.    D.    372,    376. 

As  to  certainty  of  the  objects  or  persons  to  be  benefited  by 
precatory  words,  see   44  A.   D.   372,   377. 

As  to  creation  of  express  trusts,  see  1  L.  327;  11  L.  456;  12 
L.   667;   31  A.   R.   453-455;   34  A.   S.   216;    82  A.   S.    513. 

As   to   the   creation    of   resulting   trusts,    see    2    L.    146. 

As  to  declarations  of  trusts,  see  Kerr's  Cyc.  C.  C.  §  2253  and 
note. 

As   to   designation   of  beneficiaries,   see   61   A.   S.    623. 

As  to  effect  of  depositing'  money  in  bank  in  trust  for  third 
person,  see   32   L.   373-375;    33   L.    700;    39   L.    800;    44   L.    205. 

As  to  how  far  parol  trusts  are  within  the  statute  of  frauds, 
see    10    L.    401. 

As  to  intention  in  the  creation  of  precatory  trusts,  see  Kerr's 
Cyc.  C.   C.   §  852,   note  pars.   254-259. 

See   post    §  2221    note   pars.    25-28. 

As  to  letters  admitted  to  prove  trust,  see  Kerr's  Cyc.  C.  C. 
§  852,    note    pars.    146,    147    this    note. 

As  to  letters  not  sufficient  to  create,  see  Kerr's  Cyc.  C.  C. 
§  852,   note   par.    211. 

As  to  manifestation  of  fact  of  creation  and  of  nature  of 
trust  by  writing,  see  Kerr's  Cyc.  C.  C.  §  852,  note  pars.  144, 
145;  also  §§  2215-2217  and  notes. 

As  to  necessity  of  consideration  in  creation  of  trusts,  see 
11   L.    456. 

As  to  notification  of  beneficiaries,  see  28  Encyc.   L.  895. 

As  to  parol  trust  and  requirement  of  writing',  see  28  Encj'c. 
L.   869,   877. 

As  to  parol  trust  of  in  land,  see  Kerr's  Cj'c.  C.  C.  §  852,  note 
pars.   100-112. 

As  to  resulting  trusts  arising  from  fraud,  undue  influence, 
etc.,   see   Kerr's   Cyc.   C.   C.    §  2224  and   note. 

549 


§  852  CIVIL  CODE.  [Div.II.Pt.II. 

As  to  resulting  trusts  in  favor  of  purchaser  or  person  pay- 
ing purcliase  money,  see  Kerr's  Cyc.  C.  C.   §  1853  and  note. 

As  to  right  to  follow  trust  fund,  see  Kerr's  Cyc.  C.  C.  §§  2229. 
2236    and    notes. 

As  to  right  to  use  of  trust  property  as  his  own,  and  mingling 
with  his  own,  see  Kerr's  Cyc.  C.  C.   §§  2229,  2236  and  notes. 

As  to  trust  in  deposit  in  insolvent  bank,   see  34  L.   532-537. 

As  to  trust  in  favor  of  party  paying  purchase  money,  see 
Kerr's  ^Cyc.   C.   C.   §853   and   note. 

As  to  trust  in  partnership  real  estate,  see  Kerr's  Cyc.  C.  C. 
§  853  and  note. 

As  to  trusts  arising  from  fraud,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  2224   and  note. 

As  to  trusts  created  by  fraud,  etc.,  see  Kerr's  Cj'c.  C.  C. 
§  2224   and   note. 

As  to  trusts  created  in  favor  of  party  paying  purchase 
money,   see    Kerr's   Cyc.    C.    C.    §  853    and   note. 

As  to  trusts  created  through  fraud,  etc.,  see  Kerr's  Cyc. 
C.  C.   §  2224  and  note. 

As  to  trusts  implied  to  effectuate  the  purpose  of  a  contract 
when  its  terms  cannot   be  given  effect  to,  see   58  L..   115. 

As  to  trusts  in  favor  of  party  advancing  purchase  money,  see 
Kerr's    Cyc.    C.    C.    §  853    and    note. 

As  to  trusts  in  partnership  real  estate,  see  Kerr's  Cyc.  C.  C. 
§  853   and   note. 

As  to  trusts  obtained  by  fraud,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  2224  and  note. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and    Practice,    1427-1433. 

As  to  trusts  where  one  has  more  than  his  share,  see  Kerr's 
Cyc.    C.    C.    §  853    and   note. 

As  to   uses  and   trusts   generally,   see   note   §  847,   ante. 

As  to  what  constitutes  declaration  of  trxist,  see  Kerr's  Cyc. 
C.    C.    §  2253   and    note. 

As  to  what  words  do  or  do  not  create  precatory  trust,  see 
44  A.   D.    372,   379;    33   A.   R.   293;    48   A.   R.    494,   499;    6  L.   354. 

As  to  when  constructive  trusts  arise,   see  5  L.   189. 

As  to  when  precatory  trust  arises  in  favor  of  children,  see 
48   A.   R.    494,    499. 

As  to  when  real  estate  will  be  considered  partnership  prop- 
erty and  as  to  when  resulting  and  implied  trusts  are  created 
in  the  purchase  of  such  property,   see   27  L.   449-497. 

For  the  earlier  American  cases  on  the  subject  of  precatory 
trusts,  see  44  A.  D.   372,  377. 

For  the  later  American  and  Englisli  cases  on  precatory 
trusts,   see   44  A.   D.    372,   379. 

550 


II 


Tit.  IV.]  TRUST   PRESUMED,   WHEN.  §  353 

§8o3.  TRANSFER  TO  OJfE  FOR  MONET  PAID  BY 
ANOTHER.  [TRUST  PRESUMED.]  When  a  transfer  of 
real  property  is  made  to  one  person,  and  the  consideration 
therefor  is  paid  by  or  for  another,  a  trust  is  presumed  to 
result  in  favor  of  the  person  by  or  for  whom  such  payment 
is  made. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.    221. 

See  Kerr's   Cyc.   C.   C.   for  118  pars,  annotation. 

67  C.  255,  256,  7  P.  676,  677  (applied);  67  C.  325,  327,  7  P. 
741  (construed  and  applied);  68  C.  116,  120,  122,  8  P.  804  (ap- 
plied); 74  C.  85,  91,  15  P.  439,  442  (applied  but  miscited  as 
§353);  75  C.  166,  170,  16  P.  766,  768  (applied);  77  C.  330,  338, 
19  P.  513,  516  (applied);  80  C.  514,  518  (erroneously  cited  fof 
§852),  22  P.  294,  295  (correct  citation);  85  C.  436,  446,  25  P. 
22,  23,  24  (construed  and  applied);  92  C.  9,  13,  28  P.  50,  51 
(applied);  122  C.  114,  116,  54  P.  536  (applied);  127  C.  245,  247, 
59  P.  699  (construed  and  applied);  132  C.  21,  28,  63  P.  1071 
(applied);  134  C.  603,  605,  65  P.  321,  66  P.  860  (applied);  136 
C.  92,  95,  96,  68  P.  482  (construed  and  applied);  136  C.  460, 
463,  69  P.  83  (applied  with  other  sections);  138  C.  564,  569, 
72  P.  178  (payment  of  purchase  price  by  one  and  transfer 
to  another  establishes  a  "resulting  trust");  142  C.  59,  69,  75 
P.    649    (referred   to);    144   C.    329,    334,    77    P.    937    (applied);    144 

C.  528,  533,  534,  78  P.  25  (construed  and  applied);  146  C.  134, 
137,  79  P.  843  (establishment  of  resulting  trust  by  parol  not- 
withstanding recital  of  money  consideration — cases  where 
trusts  sought  to  be  established  were  in  favor  of  grantor  dis- 
tinguished);  2  C.  A.  479,  483,  84  P.  326  (applied);  3  C.  A.  493, 
495,  86  P.  618  (applied — constructive  trust  arising  from  fraud); 
7  C.  A.  429,  431,  94  P.  591  (referred  to— gifts  to  another  man's 
wife). 

As  to  agreement  to  purchase  on  joint  account  and  enforce- 
ment of  trust  in  favor  of  party  paying  purchase  money,  see 
note    2   John.    Ch.    (N.    Y.)    405,    bk.    1    L.    ed.    428. 

As  to  disproving  payment  of  consideration  to  create  result- 
ing trust  in  favor  of  grantor,  see   90  A.  D.   277. 

As  to  exception  of  implied  trust  from  statute  of  frauds,  see 
9  A.  S.   530. 

As  to   nature  of   evidence  to   prove   resulting  trust,    see   98   A. 

D.  311. 

As  to  parol  evidence  to  prove  resulting  trust,  see  note  2 
John.  Ch.    (N.  T.)    404,  bk.   1   L.  ed.   426. 

As  to  parol  evidence  to  show  resulting  trust,  see  65  A.  D. 
182. 

551 


§§  854-856  CIVIL  CODE.  [Div.II.Pt.II. 

As  to  presumption  arising  from  paymont  of  purcViase  money, 
see    50   A.    D.    624,    51    A.    D.    753. 

As  to  resulting  trust  from  purcliase  agent,  see  note  2  John. 
Ch.    (N.  Y.)    404,  bk.   1  L.  ed.  426. 

As  to  resulting  trust  from  purchase  in  name  of  wife  or 
son,    see    51    A.    D.    754. 

As  to  resulting  trust  in  land  purchased  by  anotlier,  see  note 
2   John.   Ch.    (N.   Y.)    404,   bk.    1   L.   ed.    426. 

As  to  resulting  trust  in  purchase  with  partnership  funds, 
see  note  2  John.  Ch.  (N.  Y.)  404,  bk.  1  L.  ed.  426;  and  27  L. 
449-497. 

As  to  resulting  trusts  arising  from  purchase  by  partner  of 
real  estate  in  his  own  name  with  partnership  funds,  see  27 
L.    449-497. 

As  to  resulting  trusts  from  advancing  purchase  money,  con- 
vej'^ance  without  consideration  or  part  payment  of  considera- 
tion,  see   51   A.   D.    752-758. 

As  to  resulting  trusts  in  general,  see  Kerr's  Cyc.  C.  C.  §  852 
and   note. 

As  to  resulting  trusts  where  land  is  purchased  by  an  agent 
and  deed   taken   in   his  own  name,  see   9   A.   S.   530. 

As  to  resulting  trusts  where  several  persons  furnish  pur- 
chase money,  see  50  A.  D.  724.  See  Kerr's  Cyc.  C.  C.  §  2217 
and   note. 

As  to  trusts  under  wills,  see  2  Churcli's  New  Probate  Law 
and   Practice,    1427-1433. 

As   to   uses  and   trusts   generally,   see   note   §  487,   ante. 

§854.    RIGHTS  OF  CREDITORS   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,   p.   221. 

See  Kerr's  Cyc.  C.  C.   for  2   pars,  annotewtion. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§855.  SECTION  EIGHT  HUNDRED  AND  FIFTY-THREE 
QUALIFIED   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.    1873-4,  p.   221. 

§  856.  PURCHASERS  PROTECTED.  No  implied  or  result- 
ing trust  can  prejudice  the  rights  of  a  purchaser  or  encum- 
brancer of  real  property  for  value  and  without  notice  of  the 
trust. 

History:      Enacted   March    21,   1872. 
552 


A 


'!>  Tit.  IV.]  EXPRESS    TRUST,   PURPOSES.  §  857 

See   Kerr's   Cyc.    C.    C.    for   83    pars,    annotation. 

74  C.  85,  91,  15  P.  439,  442  (construed  and  applied);  96  C. 
298,  307,  31  A.  S.  209,  31  P.  166  (construed  and  applied  with 
other  sections);  115  C.  330,  335,  42  P.  418,  47  P.  52  (construed 
and  applied);  128  C.  362,  365,  60  P.  925,  926  (construed  and 
applied). 

As  to  application  of  maxim  caveat  emptor,  see  61  A.  D.  353, 
90    A.    D.    424. 

As  to  constructive  notice,  see  Kerr's  Cyc.  C.  C.  §  19  and  note. 

As  to  conveyajice  by  trustee  and  its  effect,  see  64  A.  D.  199. 

As  to  duty  to  make  inquiry,  see  Kerr's  Cyc.  C.  C.  §  19  and  note 
pars.    10-27. 

As  to  how  far  bona  fide  purchaser  from  trustee  is  pro- 
tected,   see    47    A.    D.    637. 

As  to  position  of  purchasers  from  trustees  with  or  without 
notice  of  trust,  see  63  A.  S.  469,  and  Kerr's  Cyc.  C.  C.  §  869 
and    note. 

As   to  receiving  trust  property   with   notice,  see   2   L.    481. 

As  to  sales  and  conveyances  by  trustees,  see  19  A.  S.  266. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and   Practice,    1427-1433. 

As   to  uses   and   trusts   generally,    see  note    §  487,  ante. 

As  to  when  purchaser  of  trust  property  is  chargeable  with 
trust,   see   32  A.   D.    705,    40   A.   D.   210,    212. 

As  to  when  sales  or  transfers  bj^  trustee  are  void,  see  Kerr's 
Cyc.   C.   C.    §  870  and   note. 


§857.    FOR  WHAT  PURPOSES  EXPRESS  TRUSTS  MAY 

BE  CREATED.    Express  trusts  may  be  created  for  any  of  the 
following  purposes: 

1.  To  sell  real  property,  and  apply  or  dispose  of  the  pro- 
ceeds in  accordance  with  the  instrument  creating  the  trust. 

2.  To  mortgage  or  lease  real  property  for  the  benefit  of 
annuitants  or  other  legatees,  or  for  the  purpose  of  satisfying 
any  charge  thereon. 

3.  To  receive  the  rents  and  profits  of  real  property,  and 
pay  them  to  or  apply  them  to  the  use  of  any  person,  whether 
ascertained  at  the  time  of  the  creation  of  the  trust  or  not, 
for  himself  or  for  his  family,  during  the  life  of  such  person, 
or  for  any  shorter  term,  subject  to  the  rules  of  title  two  of 
this  part;   or, 

4.  To  recelye  the  rents  and  profits  of  real  property,  and  to 

553 


§  857  CIVIL  CODE.  [Div.II.Pt.TI. 

accumulate  the  same  for  purposes  and  within  the  limits  pre- 
scribed by  the  same  title. 

HlHtory:      Enacted   March    21,    1872;    amended   March    30,    1874, 
Code   Amdts.    1873-4,   pp.   221-222. 

See   Kerr's   Cyc.   C.   C.    for   63   pars,   annotation. 

58  C.  457,  478,  481,  483  (construed  and  applied  witli  otlier 
section^: — ^express  trusts  are  put  In  opposition  to  resulting: 
trusts);  76  C.  136,  144,  9  A.  S.  177.  18  P.  146.'  150  (construed 
and  applied);  79  C.  65,  67,  21  P.  545  (applied — express  trust  to 
collect  and  apply  rents  of  real  estate);  80  C.  237.  242,  22  P. 
167,  169  (construed  and  applied):  85  C.  488,  506,  24  P.  930.  934 
(applied  with  other  sections);  107  C.  587,  595.  596,  40  P.  810 
(construed  and  applied  with  other  sections);  108  C.  627,  644, 
646.  648.  656.  49  A.  S.  97.  41  P.  772  (applied  with  other  sec- 
tions); 109  C.  323,  330,  50  A.  S.  43.  41  P.  1089  (applied  with 
other  sections);  116  C.  405.  409,  48  P.  622  (no  trust  can  be 
created  to  sell  realty  for  benefit  of  legatees);  121  C.  379.  382, 
385,  53  P.  813  (applied  with  other  sections — trust  deeds  with 
power  of  sale,  as  security,  are  authorized  by  this  section); 
123  C.  140.  144,  55  P.  681  (applied);  124  C.  418.  420.  421,  57 
P.  219  (applied  with  other  sections);  124  C.  495.  497.  57  P.  381 
(referred  to  in  discussion);  130  C.  128.  134.  135.  62  P.  401  (con- 
strued and  applied);  132  C.  523.  527,  528.  559.  564.  567.  84  A.  S. 
70,  60  P.  442.  64  P.  1000  (construed  and  applied  with  other 
sections);  132  C.  621,  623.  624.  625.  626.  84  A.  S.  118,  64  P.  997, 
998  (various  subdivisions  construed  and  applied — trust  not 
authorized  by  this  section,  such  as  one  by  deed  to  hold  for 
use  of  grantor,  is  void);  133  C.  420.  423,  65  V.  952  (construed 
and  applied);  135  C.  277.  279.  67  P.  129  (construed  and  applied 
with  other  sections);  136  C.  97.  102,  103,  68  P.  494  (construed 
and  applied);  136  C.  153.  155.  68  P.  579  (construed  and  applied 
with  other  sections);  139  C.  682.  685.  73  P.  604,  606  (construed 
and  applied);  140  C.  48.  52.  73  P.  748  (trust  In  will  to  transfer 
and  convey,  is  void  as  to  real  property);  146  C.  745,  747,  81 
P.  138  (trust  to  lease  property,  collect  rents,  and  to  pay  over 
rentals  is  valid);  147  C.  95,  102.  103,  81  P.  315  (subd.  3  applied); 
147  C.  384,  389,  81  P.  1077  (referred  to — what  express  trusts  are 
not  mortgages);  148  C.  184,  187.  189.  190,  193,  82  P.  755  (power 
conferred  upon  trustees  to  "manage"  trust  property  does  not 
violate  this  section);  149  C.  200.  205.  85  P.  147  (what  trust 
created  by  will  Is  within  section);  149  C.  667.  675.  87  P.  276 
(referred  to);  150  C.  214,  227,  88  P.  920  (referred  to);  3  C.  A. 
741.  747,  86  P.  1108  (subd.  3  referred  to — competency  of  Masonic 
lodge  to  take  as  trustee);  4  C.  A.  593,  596.  88  P.  646  (applied- 
trust    Invalid    for    want    of    certainty);    11    F.    253,    261     (.npplie.l 

654 


Tit.  IV.]  MORTGAGE   POWERS— PROFITS.  §§858,859 

with  other  sections  to  conveyance  in  trust  to  secure  railway 
mortgage   bonds);   86  F.   975,   976    (subd.   1   applied). 

As  to  trusts  for  accumulation  of  income,  see  Kerr's  Cyc.  C. 
C.   §  724  and  note. 

As   to   trusts   for   creditors,   see    34   A.   S.    219. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and    Practice,    1427,    1433. 

As   to   uses  and   trusts   generally',   see  note    §  847,   ante. 


§858.  VESTING  OF  MORTGAGE  POWERS.  Where  a 
power  to  sell  real  property  is  given  to  a  mortgagee,  or  other 
encumbrancer,  in  an  instrument  intended  to  secure  the  pay- 
ment of  money,  the  power  is  to  be  deemed  a  part  of  the 
security,  and  vests  in  any  person  who,  by  assignment, 
becomes  entitled  to  the  money  so  secured  to  be  paid,  and 
may  be  executed  by  him  whenever  the  assignment  is  duly 
acknowledged  and  recorded. 

History:  Enacted  March  21,  1872;  original  provision  repealed 
and  above  provision  substituted  therefor  by  Act  March  30, 
1874,  Code  Amdts.  1873-4,  p.  222.  The  above  section  a  re-enact- 
ment of  section  895  post  (repealed). — See  132  C.  523,  557,  84  A. 
a.  70,   60  P.  442,  64  P.  1000. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

121  C.  379,  384,  53  P.  813  (construed  and  applied  with  other 
sections);  132  C.  523,  557,  84  A.  S.  70,  60  P.  442,  64  P.  1000 
(construed  and  applied  in  dis.  op.  with  other  sections) ;  7  C.  A. 
413,  416,  417,  94  P.  400  (rights  of  transferee  of  negotiable 
promissory  note,  payment  of  which  is  secured  by  deed  of  trust 
whereby  title  to  property  and  power  of  sale  in  case  of  default 
is  vested   in    third   party   as   trustee). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and  Practice,   1427,   1433. 

As   to  uses   and  trusts   generally,    see   note    §  847,   ante. 

§859.  PROFITS  OF  LAND  LIABLE  TO  CREDITORS  IN 
CERTAIN  CASES.  Where  a  trust  is  created  to  receive  the 
rents  and  profits  of  real  property,  and  no  valid  direction  for 
accumulation  is  given,  the  surplus  of  such  rents  and  profits, 
beyond  the  sum  that  may  be  necessary  for  the  education  and 
support  of  the  person  for  whose  benefit  the  trust  is  created, 
is  liable  to  the  claims  of  the  creditors  of  such  person,  in  the 

555 


§  860  CIVIL  CODE.  [Div.II.Pt.II. 

same  manner  as  personal  property  which  cannot  be  reached 
by  execution. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  394, 
held  unconstitutional,  see  history,  §  4  ante.  This  section  is 
taken  from  1  N.  Y.  Rev.  Stats.  729,  §  57,  which  has  received 
construction  in  42  Hun  (N.  Y.)  636.  See  139  C.  640,  642,  73 
P.    585.  ■  ■ 

See    Kerr's   Cyc.    C.   C.    for   15    pars,    annotation. 

139  C.   640,   641,  73   P.   585    (construed  and  applied). 

As  to  inalienability  of  trust  estates,  see  note  1  Barb.  Ch. 
(N.  Y.)   34,  bk.   5  L.   ed.   288. 

As  to  power  of  married  woman  to  charge  separate  estate 
created  for  her  benefit,  see  note  1  Barb.  Ch.  (N.  Y.)  34  bk.  5  L. 
ed.  288. 

As  to  right  of  creditor  to  her  surplus  income  of  judgment 
debtor,  see  note  2  Barb.  Ch.    (N.   Y.)    79,  bk.  5  L.  ed.   564. 

As  to  trusts  under  wills,  see  2  Cliurch's  New  Probate  Law 
and   Practice,    1427,    1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

As  to  validity  of  trusts  to  pay  over  rents  and  profits  and 
rights  of  creditors  to  reach  same,  see  note  8  Paige  Ch.  (N.  Y.) 
83,  bk.  4  L.  ed.  353. 


§  860.  EXERCISE  OF  VESTED  POWER.  Where  a  power 
is  vested  in  several  persons,  all  must  unite  in  its  execution; 
but,  in  case  any  one  or  more  of  them  is  dead,  the  power  may 
be  executed  by  the  survivor  or  survivors,  unless  otherwise 
prescribed  by  the  terms  of  the  power. 

History:  Enacted  March  21,  1872;  original  section  repealed 
and  above  provision  substituted  therefor  by  Act  March  30, 
1874,  Code  Amdts.  1873-4,  p.  222.  The  above  section  a  verbatim 
re-enactment  of  section  900  post  (repealed).  See  132  C.  523, 
557,   84  A.   S.   70,   60   P.   442,   64   P.   1000. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

132  C.  523,  537,  552,  557,  558,  84  A.  S.  70,  60  P.  442,  64  P. 
1000    (construed  with  other  sections). 

As  to  conveyance  by  one  of  several,  see  64  A.  D.  201. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and  Practice,   1427,   1433. 

As  to  uses  and  trusts  generally,   see  note   §  847,  ante. 

As  to  when  majority  of  trustees  may  act,  see  11  A.  D.  674. 

556 


A 


Tit.  IV.]  EXPRESS    TRUST — ESTATE.  §§  861-863 

§  861.  CEEATIOX  OF  CERTAIN  POWERS  NOT  PROHIB- 
ITED  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March.  30,  1874, 
Code  Amdts.    1873-4,   p.   222. 

132  C.  523,  552,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (reasons  for, 
and   effect  of,   repeal   of   section). 

As  to  trusts  under  wills,  see  2  Church's  New  Prohate  Law 
and    Practice,    1427,    1433. 

As  to  uses  and  trusts  generally,   see  note   §  847,  ante. 

§862.  LAND,  ETC.,  TO  DESCEND  TO  PERSONS  ENTI- 
TLED (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,    p.    222. 

132  C.  523,  552,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (reasons  for, 
and  effect  of,   repeal   of   section). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and  Practice,    1427,   1433. 

As  to  uses  and   trusts   generally,    see   note   §  847,    ante. 

§863.  TRUSTEES  OF  EXPRESS  TRUSTS  TO  HAVE 
WHOLE  ESTATE.  Except  as  hereinafter  otherwise  provided, 
every  express  trust  in  real  property,  valid  as  such  in  its  crea- 
tion, vests  the  whole  estate  in  the  trustees,  subject  only  to 
the  execution  of  the  trust.  The  beneficiaries  take  no  estate 
or  interest  in  the  property,  but  may  enforce  the  performance 
of  the  trust. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  173,  pars,  annotation. 

70  C.  236,  241,  11  P.  656,  658  (this  section  is  modified  by 
§§  864,  865,  and  1006,  so  that  trustor  of  express  trust,  except 
as  to  his  trustee  and  those  holding  under  him,  is  treated  as 
holder  of  legal  title);  70  C.  326,  331,  11  P.  728,  730  (applied 
with  other  sections);  79  C.  65,  68,  21  P.  545,  546  (applied); 
85  C.  488,  506,  24  P.  930,  934  (construed  and  applied);  25  P.  427, 
428  (trust  on  ground  of  fraud  is  not  established  when — insuffi- 
ciency of  complaint);  87  C.  453,  456,  25  P.  675,  676  (construed 
and  applied  with  other  sections);  95  C.  63,  74  (applied  with 
other  sections  but  erroneously  cited  as  §  863  C.  C.  P.)  30  P.  301 
(correct  citation);  107  C.  410,  419,  40  P.  552  (applied);  107  C. 
587,    596,    40    P.    810,    811     (construed    and    applied);    108    C.    627, 

557 


§  864  CIVIL  CODE.  [Div.II.Ptll. 

648,  49  A.  S.  97,  41  P.  772  (construed  and  applied  with  other 
sections);  111  C.  628,  636,  637,  638,  44  P.  225  (applied);  56  P. 
550,  552  (applied  with  other  sections);  124  C.  533,  537,  538,  57 
P.  564  (cited  in  discussion);  128  C.  1,  9,  60  P.  471  (applied); 
132  C.  523,  536,  539,  576,  577,  84  A.  S.  70,  60  P.  442,  64  P.  1000 
(construed  and  applied);  133  C.  420,  422,  65  P.  952  (construed 
and  applied);  143  C.  265,  271,  101  A.  S.  118,  76  P.  1020  (referred 
to — what  is  merely  formal  and  barren  title,  without  estate  or 
interest^Jn  land  or  right  to  its  possession);  144  C.  314,  321 
(erroneously  cited  as  C.  C.  P.),  77  P.  942,  944  (correct  citation); 
148  C.  184,  188,  82  P.  755  (when  trust  is  created,  whole  estate 
is  vested  in  trustee);  153  C.  245,  250,  94  P.  1047  (what  is  im- 
plied in  term  "trust");  11  F.  253,  260  (applied  with  other  sec- 
tions to  conveyance  in  trust  to  secure  railway  mortgage 
bonds) ;  54  F.  55,  59,  60  (this  section  does  not  deprive  federal 
court,  sitting  in  equity,  in  California,  of  jurisdiction  of  suit 
by   beneficiaries   to   remove   cloud    from   legal    title). 

As  to  enforcement  of  voluntary  executory  trust,  see  11  L. 
456. 

As  to  equitable  jurisdiction  over  trusts,  see  66  A.  D.  502;  67 
A.   D.    100;    73   A.   D.   558. 

As  to  garnishment  of  claim  of  cestui  que  trust  against 
trustee,    see    59   L.    385-387. 

As  to  right  to  enforce  trust  against  property  with  which 
it  has  been  mingled  by  trustee,  see  Kerr's  Cyc.  C.  C.  §  2236 
and    note. 

As  to  statute  of  limitations  in  its  application  to  trusts,  see 
34  A.  D.  725;  42  A.  D.  447;  44  A.  D.  159;  60  A.  D.  212;  8  L.  480, 
647;   8  Prob.  Rep.  Anno.  436-439. 

As  to  when  legal  title  vests  in  beneficiaries,  see  86  A.  D. 
512,   518. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and  Practice,   1427,  1433. 

As   to   uses   and    trusts   generally,    see    note    §  847,   ante. 

As  to  whom  property  passes  on  trustee's  death,  see   1   L.   334. 

§  864.  AUTHOR  OF  TRUST  MAY  DEVISE,  ETC.  Notwith- 
standing anything  contained  in  the  last  section,  the  author  of 
a  trust  may,  in  its  creation,  prescribe  to  whom  the  real  prop- 
erty to  which  the  trust  relates  shall  belong,  in  the  event  of 
the  failure  or  termination  of  the  trust,  and  may  transfer  or 
devise  such  property,  subject  to  the  execution  of  the  trust. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 
70    C.    236,    240,    11    P.    656,    658    (construed    and    applied    with 

558 


Tit.  IV.]  TITLE — ^INTBREST  IN  GRANTOR.  §§  ggs^  866 

other  sections);  70  C.  326,  331,  332,  11  P.  728,  730  (construed 
and  applied  with  other  sections);  87  C.  453,  456,  25  P.  675,  676 
(construed  and  applied  with  other  sections);  111  C.  628,  638, 
44  P.  225  (construed  and  applied  with  other  sections);  121  C. 
379,  383,  53  P.  813  (construed  and  applied  with  other  sections); 
132  C.  523,  547,  553,  558  (construed  and  applied  but  erroneously 
cited  in  dis.  op.  of  Temple,  J.,  as  §  846),  563,  576,  64  P.  1000, 
1007  (erroneously  cited  as  §648);  60  P.  442,  451  (construed  and 
applied — concurring  opinion  not  officially  reported);  136  C.  97, 
105,  68  P.  494  (construed  and  applied);  146  C.  745,  749,  81  P. 
138  (every  estate  not  einbraced  in  trust  is  left  how) ;  152  C.  753, 
759,  93  P.  1012,  1013   (applied  with  other  sections). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and  Practice,   1427,   1433. 

As  to   uses  and   trusts  generally,   see   note   §  847,  ante. 

§  865.  TITLE  OF  GRANTOR  OF  TRUST  PROPERTY.  The 

grantee  or  devisee  of  real  property  subject  to  a  trust  acquires 
a  legal  estate  in  the  property,  as  against  all  persons  except 
the  trustees  and  those  lawfully  claiming  under  them. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

70  C.  236,  240,  11  P.  656,  658  (applied);  121  C.  379,  383,  53  P. 
813  (applied  with  other  sections);  146  C.  745,  749,  81  P.  138 
(every  estate  not  embraced  in  trust  is  left  how) ;  152  C.  753,  759, 
93  P.  1012,  1013   (applied  with  other  sections). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,    1427,   1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§866.  INTERESTS  REMAINING  IN  GRANTOR  OF 
EXPRESS  TRUST.  Where  an  express  trust  is  created  in  rela- 
tion to  real  property,  every  estate  not  embraced  in  the  trust, 
and  not  otherwise  disposed  of,  is  left  in  the  author  of  the 
trust  or  his  successors. 

History:      Enacted  March    21,   1872. 

See   Kerr's  Cyc.   C.    C.    for    17   pars,   annotation. 

70  C.  326,  331,  11  P.  728,  730  (construed  and  applied  with 
other  sections);  109  C.  323,  331,  50  A.  S.  43,  41  P.  1089  (con- 
strued and  applied  with  other  sections);  124  C.  418,  420,  57 
P.  219  (construed  and  applied  with  other  sections);  132  C.  523, 
576,  84  A.  S.  70,  60  P.  442  (construed  and  applied  with  other 
sections);    136    C.    97,    105,    68    P.    494    (construed    and    applied); 

559 


§§  867-869  CIVIL  COTDE.  [Div.II.Pt.II. 

142  C.  15,  16,  17,  100  A.  S.  99,  75  P.  566  (construed  and  applied); 
146  C.  745,  749,  81  P.  138  (every  estate  not  embraced  in  trust 
is  left  how);  3  C.  A.  741,  747,  86  P.  1108  (competency  of  Masonic 
lodge    to    take   as    trustee). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law 
and    Practice,    1427,    1433. 

As  to  uses  and  trusts  generally,  see   §  847,  ante. 

§867.    RESTRAIMX;    DISPOSITION    OF    TRUSTS.     The 

beneficiary  of  a  trust  for  the  receipt  of  the  rents  and  profits 
of  real  property,  or  for  the  payment  of  an  annuity  out  of  such 
rents  and  profits,  may  be  restrained  from  disposing  of  his 
interest  in  such  trust,  during  his  life  or  for  a  term  of  years, 
by  the  instrument  creating  the  trust. 

HiNtory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.   1873-4,   p.   223. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

Ill  C.  628,  637,  44  P.  225  (construed  and  applied  with  other 
sections);  133  C.  420,  422,  65  P.  952  (construed  and  applied  with 
otlier  sections);  142  C.  15,  17,  100  A.  S.  99,  75  P.  566  (construed 
and  applied). 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,   1427,   1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§808.    POWERS  OVER  TRUST  OF  PARTY  INTERESTED 

(repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code    Amdts.    1873-4,   p.    223. 

§  869.    EFFECT  OF  OMITTING  TRUST  IN  CONVEYANCE. 

Where  an  express  trust  is  created  in  relation  to  real  prop- 
erty, but  is  not  contained  or  declared  in  the  grant  to  the  trus- 
tee, or  in  an  instrument  signed  by  him,  and  recorded  in  the 
same  office  with  the  grant  to  the  trustee,  such  grant  must  be 
deemed  absolute  in  favor  of  purchasers  from  such  trustee 
without  notice,  and  for  a  valuable  consideration. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    223. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

125  C.  9,   12,  57  P.   690;   83  F.   48,   52    (construed   with   §  2243  and 

560 


A 


Tit.  IV.]  SALES   BY   TRUSTEE,   VOID.  §§870,871 

applied — enforcement  of  trust — ^who  is  a  purchaser  without 
notice). 

As  to  conveyance  by  trustee  and  wlien  same  void  and  void- 
able, see  19  A.  S.  266. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,  1427,  1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

As  to  using-  proceeds  of  trust  property  in  own  business,  see 
51   L.   90. 

§870.     CERTAIN    SALES,    ETC.,    BY    TRUSTEES,    VOID. 

Where  a  trust  in  relation  to  real  property  is  expressed  in 
the  instrument  creating  tlie  estate  every  transfer  or  other 
act  of  the  trustees,  in  contravention  of  the  trust,  is  absolutely 
void. 

Hi.story:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  394, 
held  unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

70  C.  326,  331,  11  P.  728,  730  (cited  in  applying  and  constru- 
ing other  sections);  13  P.  860,  862  (construed  and  applied);  106 
C.  514,  534,  39  P.  922  (construed  and  applied  with  other  sec- 
tions); 108  C.  627,  649,  49  A.  S.  97,  41  P.  772  (construed  and 
applied);  124  C.  418,  57  P.  219  (applied  without  citation);  134  C. 
641,  645,  657,  58  P.  298,  60  P.  974,  66  P.  982  (construed  and 
applied):  133  C.  51,  52  (applied,  but  erroneously  cited  as  §871), 
65  P.  130  (same  error);  71  P.  104,  107  (construed  and  applied); 
139  C.  593,  594,  73  P.  452  (referred  to);  145  C.  157,  164,  78  P.  544 
(construed  and  applied). 

As  to  conveyances  by  trustees  and  the  circumstances  making 
same  void  or  voidable,  see  19  A.  S.  266;  also  Kerr's  Cyc.  C.  C. 
§  2243  and  note. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,   1427,   1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

§871.  WHEN  ESTATE  OF  TRUSTEE  TO  CEASE.  When 
the  purpose  for  which  an  express  trust  was  created  ceases, 
the  estate  of  the  trustee  also  ceases. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 
58  C.  63,  72   (construed  and  applied  in  dis.  op.);  70  C.  326,  331 
333,  11  P.  728,  730    (construed  and  applied  with  other  sections); 

561 


§§  878-940  CIVIL  CODE.  [Div.II.Ptll. 

119  C.  406,  409,  51  P.  629  (cited  and  referred  to);  121  C.  379,  384, 
53  P.  813  (construed  and  applied  with  other  sections);  124  C. 
418,  420,  57  P.  219  (construed  and  applied  with  other  sections); 
132  C.  523,  575,  84  A.  S.  70,  60  P.  442  (applied);  133  C.  51,  52,  65 
P.  130  (erroneously  cited  for  §870);  136  C.  97,  105,  68  P.  494 
(construed  and  applied);  145  C.  157,  163,  78  P.  544  (construed 
and  applied);  11  F.  253,  262  (applied  with  other  sections  to 
conveyance  in  trust  to  secure  railway  mortgage  bonds). 

As  ta. bequests  held  void  for  uncertainty  as  to  purposes  of 
trust  and  beneliciraies,  see   3  L.  R.  A.   145-149. 

As  to  extinguishment  of  trusts  by  reason  of  failure  in  part, 
see  post  §  2279  and  note. 

As  to  trusts  under  wills,  see  2  Church's  New  Probate  Law  and 
Practice,   1427-1433. 

As  to  uses  and  trusts  generally,  see  note  §  847,  ante. 

As  to  when  trust  is  extinguished,  see  post  §  2279  and  note. 


TITLE  V. 

POWERS. 

[This  title,  embracing  sections  878  to  and  including  940  of  the 
original  code,  was  repealed  by  Act  March  30,  1874,  Code  Amdts. 
1873-4,    p.    223.] 

1.  Citations  of  code  section.s,  tlioiieli  repealed. — 3  C.  A.  727, 
729,  86  P.  994  (effect  of  deed  wliile  former  provisions  of  code 
as  to  powers   were   in   force). 

2.  Purpose  of  title. — This  title  was  intended  to  limit  and 
restrict  the  power  of  the  owners  of  real  property. — See  132  C. 
523,  557,  84  A.  S.  70,   60  P.  442,  64  P.   1000. 

3.  Codes  authorize  creation  of  power. — Notwithstanding 
repeal  of  title  in  regard  to  powers,  "in  one  respect  the  creation 
of  a  power  is  still  authorized  by  the  codes." — See  121  C.  379,  384, 
53   P.    813. 


562 


Pt.III.Tit.I.]  PERSONAL   PROPERTY.  §  945 


PART    III. 
PERSONAL   AND    MOVABLE    PROPERTY. 

Title  L     Personal  Property  in  General,  §§  946,  947. 

II.     Particulars  Kinds  of  Personal  Property,  §§  953-995. 

TITLE   I. 

PERSONAL  PROPERTY  IN  GENERAL. 

§  946.     By   what  law   g-overned. 

§  947.     Future    interests    in    perishable    property,    how    protected 
[repealed]. 

§946.  BY  WHAT  LAW  GOVERNED.  If  there  is  no  law 
to  the  contrary,  in  the  place  where  personal  property  is  sit- 
uated, it  is  deemed  to  follow  the  person  of  its  owner,  and  is 
governed  by  the  law  of  his  domicile. 

History:  Enacted  March  21,  1S72;  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  223;  re-enacted  as  above  March  9,  1876, 
Code   Amdts.    1875-6,   p.    78. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
105   C.   192,    199,    201,   38   P.   636    (cited). 

PERSONAL.  PROPERTY — GENERALLY. 

As  to  generally. — See  note   §    657,  ante. 

As    to    fixtures. — See    note    §  660,    ante. 

Abandonment  of. — See  4  L.  N.  S.  573;  1  Cent.  Dig.  col.  3, 
§§1-11;-1   Decen.  Dig.  p.   21,   §§1-7. 

Accession  to. — See  note  §  1025,  post. 

Administration  and  distribution  of,  of  decedent. — See  1 
Church's  New  Probate  Law  and  Practice  797,   801-804,   897. 

Adverse  possession. — See  1  Cent.  Dig.  col.  2034,  §  6;  col.  2094, 
§87;  col.  2134,  §130[f];  col.  2139,  §§138[a,  b];  col.  2163,  §193[c]; 
col.  2353,  §414;  col.  2411,  §490;  col.  2414,  §493;  col.  2536,  §§619- 
623. 

Alien  ownership  of. — See  2  Cent.  Dig.  col.  161,  §59;  1  Decen. 
Dig.  p.   633,   §  14. 

Choses  in  action  as. — See  60  A.  R.  413;  62  A.  S.  436;  16  L. 
729;  37  L.  384;  6  W.  &  P.  5352. 

563 


§  947  CIVIL  CODE.  [Div.II.Pt.III. 

Claim  ex  contractu  or  ex  delicto  as. — See  6  W.  &  P.  5352. 

Confusion  of. — See  10  Cent.  Dig.  col.  1075,  §§1-16;  4  Decen. 
Dig.  p.  487,  §§  1-15. 

Conversion  of,  acts  constituting  and  liability  therefor. — See 
47   Cent.   Dig.   col.   6,   §§  1-102. 

Definition  and  distinctions. — See  22  Encye.  L.  747;  6  W.  & 
P.   5346-5351. 

Delivery  and  acceptance,  as  accord  and  satisfaction. — See  1 
Cent.   Dig.   col.   512,  §119[d]. 

Growing  crops  as. — See  5  A.  C.  480. 

Growing  fruit  as. — See  16  L.  103. 

Independent  situs  of. — See  2  Obiter  Dig.  463,  464. 

I-iaw  governing  distribution  of. — See  2  Obiter  Dig.   464. 

Law  governing  management  and  disposition  of — Generally. — 
See  2  Obiter  Dig.  464. 

Liability   for  wrongs  relating  to. — See   22   Encyc.   L.    756. 

Loss  of  and  finding  thereof. — See  23  Cent.  Dig.  col.  954,  §§  1-10; 
9  Decen.  Dig.  col.   66,   §§  1-11. 

Mobilia  sequntur  personam,  origin  of  rule. — See  2  Obiter 
Dig.   462,   463. 

Mode  of  passing  title — Deed  unnecessary. — See  2  Obiter  Dig. 
462. 

Mortgage  of,  or  agreement  to  mortgage  crops  to  be  planted, 
validity  of. — See  5  A.  C.   400. 

Ownership  and  attributes  of. — See  22  Encyc.  L.  751. 

Partition  of.— See  38  Cent.  Dig.  col.  72,  §59;  col.  82,  §67;  col. 
120,  §59;  col.  131,  §110;  col.  448,  §456. 

Right  to  plead  inconsistent  defenses  in  actions  relating  to. — 
See  48  L.   197. 

Specific  performance  of  contracts  in  reference  to. — See  5  A.  C. 
269;  10  A.  C.  934;  44  Cent.  Dig.  col.  1313,  §  65. 

Tenancy  by  entireties  in. — See  22  L.  94;  30  L.  317. 

Title  to  and  methods  of  acquiring. — See  22  Encyc.  L.   752-755. 

What  constitutes — Claim  and  compensation. — See  2  Obiter 
Dig.   462. 

§947.  FUTURE  INTERESTS  IN  PERISHABLE  PROP- 
ERTY, 110 >V  PROTECTED  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   223. 


564 


Tit.II.ch.L]  THINGS   IN  ACTION.  §§953,954 

TITLE   II. 

PARTICULAR  KINDS  OF  PERSONAL,  PROPERTY. 

Chapter  I.  Things    in   Action,    §§  953,    954. 

II.  Shipping,    §§  960-973. 

III.  Products   of   the  Mind,  §§  980,-985. 

IV.  Other  Kinds  of  Personal  Property,   §§  991-995. 

CHAPTER  I. 

THINGS    IN    ACTION. 

§  953.      Things    in    action    defined. 
§  954.      Transfer   and    survivorship. 

§953.  THi:\GS  IN  ACTION  DEFINED.  A  thing  in  action 
is  a  right  to  recover  money  or  other  personal  property  by  a 
judicial   proceeding. 

History:  Enacted  Marcli  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,    p.    224. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

123  C.  157,  161,  55  P.  786  (construed  and  applied);  143  C.  528. 
534,  77  P.  471  (cited — a  chose  in  action,  while  not  capable  of 
manual  delivery,  is  a  subject  of  gift);  144  C.  631,  633,  78  P.  22 
(certificate  of  stock  may  be  transferred  or  assigned);  54  F. 
320,  331  (construed  with  §  954 — what  right  of  action  survives 
to  administrator  as  assets  in   his  hands). 

As  to  many  miscellaneous  matters  of  personal  property,  see 
note  §  946,  ante. 

Delivery  of  possession,  etc.,  not  necessary. — See  Kerr's  Cyc. 
C.   C.   §  3440   and  note. 

Survivorship. — See  Kerr's  Cyc.  C.  C.  §  954  and  note. 

Transfer  of  chose  in  action. — See  Kerr's  Cyc.  C.  C.  §  954  and 
note. 

§954.  TRANSFER  AND  SURVIVORSHIP.  A  thing  in 
action,  arising  out  of  the  violation  of  a  right  of  property,  or 
out  of  an  obligation,  may  be  transferred  by  the  owner.  Upon 
the  death  of  the  owner  it  passes  to  his  personal  representa- 

565 


§  954  CIVIL  CODE.  [Div.II.Ptlll. 

tives,  except  where,  in  the  cases  provided  in  the  Code  of  Civil 
Procedure,  it  passes  to  his  devisees  or  successor  in  office. 

History:  Enacted  March  21,  1872.  See  Practice  Act  1851, 
§  4,  and  other  statutes  referred  to  in  brief  in  9  C.  325,  327;  Act 
May  15,  1854,  §4,  and  Act  May  7,  1855,  6  C.  247,  248;  Acts 
1851,  1854,  1855,  and  1864,  referred  to  in  32  C.  590,  593. 

South  Dakota  Coinp.  Laws,  §  2S77  is  identical. — 3  S.  D.  434, 
53  N.   W..   857. 

See  Kerr's  Cyc.  C.  C.  for  94  pars,  annotation. 

144  C.  256,  260,  79  P.  451,  1  A.  C.  850  (applied  to  obligation 
arising  out  of  contract);  144  C.  631,  633,  78  P.  22  (certificate  of 
stock  may  be  transferred  or  assigned);  3  C.  A.  561,  568,  86  P. 
820  (what  may  be  assigned);  7  C.  A.  248,  254,  94  P.  252,  253 
(right  of  action  is  property  and  is  transferable);  54  F.  320,  331 
(construed  with  §  954 — what  right  of  action  survives  to  admin- 
istrator as  assets  in  his  hands). 

As  to  duty  of  attorneys  to  maintain  respect  due  to  courts 
of  justice,  etc.,  see  Kerr's  Pocket  C.  C.  P.  §  282. 

As  to  law  governing  personal  property,  see  Kerr's  Cyc.  C.  C. 
§  946  and  note. 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

As  to  party  plaintiff  in  actions  for  infringement  of  patent, 
see  16  Encyc.  P.  65-69. 

Assignability  of  cause  of  action  for  personal  injury. — See  44 
L.   77-88. 

Attorneys — Purchase  of  claim  for  purpose  of  suit  constitutes 
misdemeanor. — See  Kerr's  Cyc.  Pen.  C.   §  161  and  note. 

Counterclaim  not  barred  by  assignment. — See  Kerr's  Cyc.  C. 
C.  P.  §  440  and  note. 

Defense  not  prejudiced  by. — See  Kerr's  Cyc.  C.  C.  P.  §  368  and 
note. 

Definition  of  "obligation." — See  Kerr's  Cyc.  C.  C.  §  1458  and 
note  par.   2. 

General  rules  governing  assignment  of  choses  in  action. — 
See  34  A.  S.  210-212. 

Lien  waived  by  transfer  of  contract. — See  Kerr's  Cyc.  C.  C. 
§  3047  and  note. 

Notice  of  assignment  to  obligor — Necessity  for  and  requisites 
of.— See  2  Encyc.  L.  1076-1079;   36  A.  D.  475-477. 

Optional  contract  is  assignable. — See  Kerr's  Cyc.  C.  C.  §1459 
and  note  pars.  55-57. 

Patents  for  inventions — Assignment  of. — See  Rev.  Stats.  U.  S. 
§  4921;  5  F.  S.  A.  577  and  note. 

Pendente  lite  assignment — Authority  to  make. — See  Kerr's 
Cyc.  C.  C.  §  1459  and  note  par.  3. 

566 


Tit.II,ch.II,art.I.]        ships  and  shipping.  §960 

Revival  of  action— Substitution  of  parties.— See  Kerr's  Cyc. 
C.   C.   P.   §  385  and  note. 

Waiver  of  lien  by  transfer  of  contract  for  payment  of  price. — 
See  Kerr's  Cyc.  C.  C.  §  3047  and  note. 

Warrants— Assignability  of.— See  Kerr's  Cyc.  C.  C.  §  1459  and 
note  pars.   49-53. 


CHAPTER  11. 

SHIPPING. 

Article  I.     General    Provisions,    §§  960-966. 
II.      Rules   of  Navigation,   §§  970-973. 


ARTICLE  I. 

GENERAL,    PROVISIONS. 

§  960.  Definition   of  a   ship. 

§  961.  Appurtenances  and  equipments. 

§  962.  Foreign  and  domestic  navigation. 

§  963.  Foreign  and  domestic  ships  distinguished. 

§  964.  Several   owners. 

§  965.  Owner  for  voyage. 

§  966.  Registry,   etc. 

§  960.  DEFINITION  OF  A  SHIP.  The  term  "ship  or  ship- 
ping," when  used  in  this  code,  includes  steamboats,  sailing 
vessels,  canal-boats,  barges,  and  every  structure  adapted  to 
be  navigated  from  place  to  place  for  the  transportation  of 
merchandise  or  persons. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,    p.    224. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

As    to    what   is   a   vessel    within    the    maritime    lien    laws,    see 

1  L.  505. 

SHIPS    AND    SHIPPING — GENERALLY. 

As  to  insurance  of  vessel  and  cargo,  see  note  §  2655,  post. 
As  to  what  are  vessels.— See  1  L.  505;  8  W.  &  P.  7297-7301. 
Collision  at  sea,  when  deemed  acts  of  God. — See  46  A.  D.  592. 

567 


§  960  CIVIL  CODE.  [Div.II,Pt.III. 

Collision   of  vessels,  liability  for  damages  caused  by. — See   45 
A.  D.  51;  7  L.  56. 

Crew  of  chartered  vessel,  servants  of  whom. — See  37  L.  54. 

Damages.— Caused  by  collision. — See  7  L.  56. 

Same — For  loss  of  vessel  caused  by  collision. — See  6  A.  C.  129. 

Same — For  personal  injuries. — See  7  L.  57. 

Definition  of  ships. — -See  7  W.  &  P.  6485. 

Definition  of  vessel. — See  8  W.  &  P.  7297. 

Demise  of  vessel  by  charter  party. — See  5  A.  C.   623. 

Demutrag-e. — See  30  A.  S.  634. 

Duty  of  ship  owners  to  seamen. — See   1   A.  S.   812. 

Duty  of  steamer  to  avoid  imperiling  of  small  boat  by  swells. 
—See  7   L.   N.  S.   920. 

Duty  of  vessel  to  land  at  wharf  to  permit  visitor  to  depart. — 
See  10  L.  N.  S.  969. 

Duty  to  furnish  medical  aid  to  seamen. — See  28  L.   .^49. 

Effect  of  strike  on. — See  35  L.  630. 

Express    provision    in    charter    party    against    demurrage    in 
case  of  strike,  effect  and  construction  of. — See  5  L.  N.  S.  126. 

Fellow    servants    in    ship's   crew,    who   are   part    from    statute, 
where  no  question  as  to  vice-principal  arises. — See  50  L.  438. 

General  average — As  to  generally,  see  2  A.  D.  207. 

Same — Liability    of    effects    of    passengers    to    contribute    in. — 
See  2  L.   287. 

Same — Voluntary  sacrifice  essential  to. — See  14  A.  D.   613. 

Hired  vessels,  liability  of  owners  of. — See  13  A.  D.  87. 

Home   port   of  vessel,   what   is   for   purposes  of  taxation. — See 
2  L.  N.  S.   197. 

Jurisdiction  and  power  of  consul. — See  45  L.   486-500. 

Jurisdiction    of  ships  at   sea. — See   46  L.    264. 

Liability — Of   effects   of   passengers,    to   contribute    in    general 
average. — See  2  L.  287. 

Liability   for  failure   to   forward    bonded   merchandise. — See    4 
L.  N.  S.  1060. 

Liability    for    failure    to    furnish    passenger    with    berth. — See 
5  L.  N.  S.   1012. 

Liability  of  owner  for  costs  of  removing  vessel  sunk   in  har- 
bor.—See  3  L.  N.  S.   1120. 

Liability    of   owners    to    seamen    for   acts    of    officers   and    em- 
ployees.— See   31   A.   S.   805. 

Liability    of   shippers    of    goods    for    injviries    to    seamen. — See 
46  L.   104. 

Liability  of  vessels  of  owners. — See  2  L.   173;  39  L.   177;   46  L. 
73;  51  L.  555;  61  L.   282;  64  L.   977. 

Lien  of  carriers  by  water  for  demurrage. — See  5  A.  C.  388. 

Limitation  of  liability — As  to  generally,  see  7  L.  55;  10  L.  420. 

Same — Of  vessel  as  to  goods  shipped. — See  7  A.  C.  283;  7  A.  C. 
471;    9   A.   C.    17. 

568 


Tit.II,ch.II,art.I.]        ships  and  shipping.  §960 

Limit  of  liability  for  passenger's  bag-gage. — See  9  A.  C.  909. 

Loss  by  fire,  liability. — See  7  L.  56. 

Loss  by  perils  of  the  sea. — See   3  L.   426. 

Loss  of  profits  as  an  element  of  damages  for  breach  of  char- 
ter or  rental  of  vessel. — See  53  L.   105. 

Loss  or  destruction  of  cargo,  right  of  carrier  to  recover  for. — 
See  2  L.  174. 

"Loss,"  what  is  within  meaning  of  statute  terminating  sea- 
men's wages  upon,  of  vessel. — See  6  A.  C.  68. 

Master's  liability  for  injury  done  by  servant  of  third  person 
in  use  of  water  craft  placed  in  his  custody. — See  10  L.  N.  S.  389. 

Master's  power  to  sell  vessel  and  to  hypothecate  it  and  the 
freight  and  cargo. — See   63  A.   D.   638. 

Mechanics'  lien  on  vessels — Creation  of  by  state. — See  1  L. 
505. 

Ownership   of  derelict. — See   18  L.   695. 

Part  owners  of  vessels. — See  88  A.  D.  364;  90  A.  S.  355. 

Private  action  for  violation  of  law  and  rules  of  navigation 
and  water  carriage. — See  9  L.  N.  S.  375. 

Prospective  profits  as  element  of  damage  for  recovery  of 
total  loss  of  vessel  by  collision. — See  6  A.  C.  131. 

Protest  of  master  as  evidence.- — See   13  A.  D.   735. 

Regulations  of  generally. — See  2  L.  380;  4  L.  125;  26  L.  484; 
27  L.   414. 

Relative  duties  of  steamers  and  small  crafts  propelled  by 
oars  on  rivers  and  in  narrow  channels. — See  5  L.  N.  S.   303. 

Relative  rights  and  duties  of  master  of  vessel  and  pilot. — See 
10   A.   C.    382. 

Right  of  cargo  owner  to  treat  contract  of  affreightment  as 
ended  by  abandonment  of  vessel. — See  4  A.  C.  412. 

Right  of  carrier  to  recovery  for  loss  or  destruction  of  cargo. 
—See  2  L.   174. 

Rights  of  seamen  as  salvors. — See  64  L.   193. 

Seamen — Assignment  of  future   wages   of. — See   14   L.    127. 

Same — Duty  of  ship  owner  to. — See  7  A.  C.   202;   1  A.  S.   812. 

Same — Same — Sick  and  disabled. — See   7  A.  C.   203. 

Same — Duty  to  furnish  medical  aid  to. — See  28  L.  549. 

Same — End  of  voyage — What  constitutes. — See  9  A.  C.   505. 

Same — Exemption  of  wages  of. — See  18  L.  310. 

Same — Liability  of  owners  of  vessels  for  injuries  received  by 
seamen  from  the  officers. — See  31  A.  S.   805. 

Same — Liability  of  shippers  of  goods  for  injuries  to. — See  46 
L.   104. 

Same — Maritime    lien    under    contract. — See    70    L.    377. 

Same — Right   of — As   salvors. — See   64  L.    193. 

Same — Same — Under  contract  of  service  for  ordinary  voyage, 
to  refuse  to  proceed  to  belligerent  port  without  relinquishing 
right  to  wages. — See  7  A.  C.  347. 

569 


§  961  CIVIL  CODE.  [Div.II,Pt.III. 

Same — Wages  of. — See  6  A.  C.  65;  7  A.  C.   434;  9  A.  C.  536. 

Same — Same — Right  of  seamen,  under  contract  of  services 
for  ordinary  voyage  to  refuse  to  proceed  to  belligerent  port 
without  relinquishing  right   of   wages. — See   7   A.   C.    347. 

Same — Same — What  constitutes  loss  within  meaning  of 
statute  termination  seamen's  wages  upon  loss  of  vessel. — See 
6  A.  C.   68. 

Seaworthiness,   what  constitutes. — See  58  A.  D.   671. 

Shipowner  and  master's  duties  toward  sick  or  disabled  sea- 
men.— See  7  A.  C.  203. 

Ship  owner's  duty  to  seamen. — See  7  A.  C.  202. 

Ship's  husband — Right  of  to  maritime  lien  for  advances. — 
See  70  L.  416. 

Situs  of  vessel  for  purposes  of  taxation. — See  3  A.  C.  1103; 
6  A.  C.  205;  7  A.  C.  443;   69  L.  447;  2  L.  N.  S.  197. 

Strike — Effect  of  on  unloading  cargo. — See   35  K   630. 

Supercargoes,  who  are  and  their  rights,  duties,  and  liabilities. 
— See  66  A.  D.  325. 

Taxation  of  receipts  of  steamship  companies. — See  57  L.  64. 

Towed  vessels,  liability  for  injury  caused  to. — See  25  A.  D. 
354. 

Unloading  cargo. — See  6  L.  172. 

Validity  and  effect  of  stipulation  in  ocean  steamship  ticket 
limiting  liability  for  passenger's  baggage. — See  9  A.  C.  913. 

Vessels  at  sea. — See  12  A.  D.  511. 

Vessels — Contracts  to  build,  whether  are  maritime  contracts. 
—See  13  A.  R.   273. 

Same — Rights  and  duties  of  not  based  upon  contract. — See 
75  A.  D.   601. 

"Vessel"  synonymous  with  ship. — See  7  W.   &  P.   6487. 

What  constitutes  appurtenances  of  ship. — See  5  A.  C.  ~652. 

What  constitutes  end  of  voyage. — See  9  A.  C.  505. 

When  vessel  is  engaged  in  interstate  commerce. — See  2  L.  381. 

Where  ships  and  vessels  are  taxable. — See  37  L.  518. 


§  961.  APPURTE>ANCES  AXD  EQUIPMENTS.  All  things, 
belonging  to  the  owners,  which  are  on  board  a  ship,  and  are 
connected  with  its  proper  use,  for  the  objects  of  the  voyage 
and  adventure  in  which  the  ship  is  engaged,  are  deemed  its 
appurtenances. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  ships  and  shipping, 
see  note  §  960,  ante. 

570 


Tit.II,ch.II,art.I.]    navigation,  foreign,  etc.       §§962-966 

§962.  FOREIGN  AND  DOMESTIC  NAVIGATION.  Ships 
are  engaged  either  in  foreign  or  domestic  navigation,  or  in 
the  fisheries.  Ships  are  engaged  in  foreign  navigation  when 
passing  to  or  from  a  foreign  country;  and  in  domestic  navi- 
gation, when  passing"  from  place  to  place  within  the  United 
States. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  ships  and  shipping, 
see  note  §  960,  ante. 

§963.  FOREIGN  AND  DOMESTIC  SHIPS  DISTIN- 
GUISHED.  A  ship  in  a  port  of  the  state  to  which  it  belongs 
is  called  a  domestic  ship;  in  another  port  it  is  called  a  foreign' 
ship. 

History:      Enacted   March    21,    1872. 

§964.  SEVERAL  OWNERS.  If  a  ship  belongs  to  several 
persons,  not  partners,  and  they  differ  as  to  its  use  or  repair, 
the  controversy  may  be  determined  by  any  court  of  competent 
jurisdiction. 

History:      Enacted   March    21,    1872. 

§965.  OWNER  FOR  VOYAGE.  If  the  owner  of  a  ship 
commits  its  possession  and  navigation  to  another,  that  other, 
and  not  the  owner,  is  responsible  for  its  repairs  and  supplies. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sliips  and  shipping, 
see  note  §  960,  ante. 

§966.  REGISTRY,  ETC.  The  registry,  enrolment,  and 
license  of  ships  are  regulated  by  acts  of  Congress. 

History:      Enacted   March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  ships  and  shipping, 
see  note  §  960,  ante. 


571 


§  970  CIVIL  CODE.  [Div.II.Pt.TII. 


ARTICLE  II. 

RUIJ-:S   OF   NAVIGATION. 

§  970.     Collisions: 

1.  Rules  as  to  ships  meeting  each   other. 

•'•  2.  The  rule  for  sailing  vessels. 

3.  Rules  for  steamers  in   narrow  channels. 

4.  Same.      [Pass   on   starboard   side.] 

5.  Rules  for  steam  vessels  on  different  courses. 

6.  Meeting   of  steamers. 

§  971.     Collision    from   breach   of   rules. 

S  972.     Breaches   of  such   rules  to   imply   wilful   default. 

§  973.     Loss,   how   apportioned. 

§  {)7(>.  COLLISIONS.  In  the  case  of  ships  meeting,  the 
following  rules  must  be  observed,  in  addition  to  those  pre- 
scribed by  that  part  of  the  Political  Code  which  relates  to 
navigation : 

1.  Kulos  as  to  ships  ineotiuj?  each  other.  Whenever  any 
ship,  whether  a  steamer  or  sailing  ship,  proceeding  in  one 
direction,  meets  another  ship,  whether  a  steamer  or  sailing 
ship,  proceeding  in  another  direction,  so  that  if  both  ships 
were  to  continue  their  respective  courses  they  would  pass  so 
near  as  to  involve  the  risk  of  a  collision,  the  helms  of  beth 
ships  must  be  put  to  port  so  as  to  pass  on  the  port  side  of 
each  other;  and  this  rule  applies  to  all  steamers  and  all  sail- 
ing ships,  whether  on  the  port  or  starboard  tack,  and  whether 
close-hauled  or  not.  except  where  the  circumstances  of  the 
case  are  such  as  to  render  a  departure  from  the  rule  neces- 
sary in  order  to  avoid  immediate  danger,  and  subject  also 
to  a  due  regard  to  the  dangers  of  navigation,  and,  as  regards 
sailing  ships  on  the  starboard  tack  close-hauled,  to  the  keep- 
ing such  ships  under  command ; 

2.  Kules  for  sailing'  vessels.  In  the  case  of  sailing  vessels, 
those  having  the  wind  fair  must  give  way  to  those  on  a  wind. 
When  both  are  going  by  the  wind,  the  vessel  on  the  starboard 
tack  must  keep  her  wind,  and  the  one  on  the  larboard  tack 
bear  up  strongly,   passing  each  other  on   the  larboard  hand. 

572 


J 


TitII,ch.II,art.II.]  COLLISIONS.  §  970 

When  both  vessels  have  the  wind  large  or  abeam,  and  meet, 
they  must  pass  each  other  in  the  same  way  on  the  larboard 
hand,  to  effect  which  two  last-mentioned  objects  the  helm 
must  be  put  to  port.  Steam  vessels  must  be  regarded  as 
vessels  navigating  with  a  fair  wind,  and  should  give  way  to 
sailing  vessels  on  a  wind  of  either  tack; 

3.  Eules  for  steamers  in  narrow  channels.  A  steamer  navi- 
gating a  narrow  channel  must,  whenever  it  is  safe  and  prac- 
ticable, keep  to  that  side  of  the  fairway  or  mid  channel  which 
lies  on  the  starboard  side  of  the  steamer; 

4.  Same.  [Pass  on  starboard  side.]  A  steamer  when  pass- 
ing another  steamer  in  such  channel,  must  always  leave  the 
other  upon  the  larboard  side; 

5.  Eules  for  steam  vessels  on  different  courses.  When 
steamers  must  inevitably  or  necessarily  cross  so  near  that 
by  continuing  their  respective  courses,  there  would  be  a  risk 
of  collision,  each  vessel  must  put  her  helm  to  port,  so  as 
always  to  pass  on  the  larboard  side  of  each  other; 

6.  Meeting  of  steamers.  The  rules  of  this  section  do  not 
apply  to  any  case  for  which  a  different  rule  is  provided  by 
the  regulations  for  the  government  of  pilots  of  steamers 
approaching  each  other  within  the  sound  of  the  steam-whistle, 
or  by  the  regulations  concerning  lights  upon  steamers,  pre- 
scribed by  or  under  authority  of  the  laws  of  the  United  States. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  394, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  pp.   600-601.    ■ 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  duty  of  sailing-  vessel  to  hold  her  course,  see  75  A.  D. 
601-604. 

As  to  duty  of  steamer  and  sailing-  vessel  when  approaching 
each  other,  see  45  A.  D.  55. 

As  to  duty  of  vessel  overtaking  another,  see  75  A.  D.  601-604. 

As  to  many  miscellaneous  matters  as  to  ships  and  shipping, 
see  note  §  960,  ante. 

As  to  rights  and  duties  of  vessels  in  navigation,  see  75  A.  D. 
601-612. 

573 


§§971-973  CIVIL  CODE.  [Div.II.Pt.III. 

§971.    COLLISION    FROM    BREACH    OF    RULES.      If    it 

appears  that  a  collision  was  occasioned  by  failure  to  observe 
any  rule  of  the. foregoing  section,  the  owner  of  the  ship  by 
which  such  rule  is  infringed  cannot  recover  compensation  for 
damages  sustained  bj^  the  ship  in  such  collision,  unless  it 
appears  that  the  circumstances  of  the  case  made  a  departure 
from  the  rule  necessary. 

HiMlory:     Enacted  March   21,   1872. 

§  972.  BREACHES  OF  SUCH  RULES  TO  IMPLY  WILFUL 
DEFAULT.  Damage  to  person  or  property  arising  from  the 
failure  of  a  ship  to  observe  any  rule  of  section  nine  hundred 
and  seventy,  must  be  deemed  to  have  been  occasioned  by  the 
wilful  default  of  the  person  in  charge  of  the  deck  of  such 
ship  at  the  time,  unless  it  appears  that  the  circumstances  of 
the  case  made  a  departure  from  the  rule  necessary. 

HLstory:     Enacted  March   21,   1872. 

§973.  LOSS,  HOW  APPORTIONED.  Losses  caused  by  col- 
lision are  to  be  borne  as  follows: 

1.  If  oitlier  iJarty  was  exelusivelj  in  fault  he  must  bear  his 
own  loss,  and  compensate  the  other  for  any  loss  he  has  sus- 
tained ; 

2.  If  neither  was  In  fault,  the  loss  must  be  borne  by  him 
on  whom  it  falls; 

3.  If  both  were  in  fault,  the  loss  is  to  be  equally  divided, 
unless  it  appears  that  there  was  a  great  disparity  in  fault, 
in  which  case  the  loss  must  be  equitably  apportioned; 

4.  If  it  cannot  be  ascertained  where  the  fault  lies,  the  loss 
must  be  equally  divided. 

History:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  34  pars,  annotation. 

As  to  burden  of  proof  in  case  of  collision,  see  4r>  A.  D.  54. 

As  to  collision  of  vessels  and  the  liability  of  tug  and  tow,  see 
3  L.  234. 

As  to  duty  to  exhibit  lights,  see  45  A.  D.  55;  75  A.  D.  601-610, 
611. 

As  to  inevitable  accident  or  inscrutable  fault,  see  45  A.  D.  51. 

As  to  liability  for  Injury  caused  by  towed  vessel,  see  25  A.  D. 
354. 

574 


A 


Tit.II.Ch.III.]         AUTHORSHIP— OWNERSHIP.  §§980,981 

As  to  liability  of  vessels  and  others  for  damages  caused  by 
collisions,  see  45  A.  D.  51-60. 

As  to  many  miscellaneous  matters  as  to  ships  and  shipping,, 
see  note  §  960,  ante. 

As  to  rule  where  both  parties  are  in  fault,  see  45  A.  D.  52. 

As  to  rule  where  one  vessel  only  is  in  fault,  see  45  A.  D.  53. 

As  to  when  collisions  at  sea  are  deemed  the  acts  of  God,  see 
46  A.  D.  592. 


CHAPTER  III. 

PRODUCTS  OF  THE  MIND. 

§  980.  How  far  the  subject  of  ownership. 

§  981.  Joint  authorship. 

§  982.  Transfer. 

§  983.  Effect  of  publication. 

§  984.  Subsequent    inventor,    author,    etc. 

§  985.  Private  writings. 

§  980.    HOW  FAR  THE  SUBJECT  OF  OW?fERSHIP.     The 

author  of  any  product  of  the  mind,  whether  it  is  an  invention, 
or  a  composition  in  letters  or  art,  or  a  design,  with  or  without 
delineation,  or  other  graphical  representation,  has  an  exclu- 
sive ownership  tlierein,  and  in  the  representation  or  expres- 
sion thereof,  which  continues  so  long  as  the  product  and  the 
representations  or  expressions  thereof  made  by  him  remain 
in  his  possession. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 
As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

Trade-marks. — See  Kerr's  Cyc.  C.  C.   §  991  and  note. 

§981.  JOINT  AUTHORSHIP.  Unless  otherwise  agreed,  a 
product  of  the  mind  in  the  production  of  which  several  per- 
sons are  jointly  concerned,  is  owned  by  them  as  follows: 

1.  If  the  product  is  single,  in  equal  proportions; 

2.  If  it  is  not  single,  in  proportion  to  the  contribution  of 
each. 

Hi.story:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

575 


§§  982-985  CIVIL  CODE.  [Div.II,Pt.III. 

§982.  TRAlVSrER.  The  owner  of  any  product  of  the 
mind,  or  of  any  representation  or  expression  thereof,  may 
transfer  his  property  in  the  same. 

History:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  9%^,  ante. 

§983.  EFFECT  OF  PUBLICATION.  If  the  owner  of  a 
product  of  the  mind  intentionally  makes  it  public,  a  copy  or 
reproduction  may  be  made  public  by  any  person,  without 
responsibility  to  the  owner,  so  far  as  the  law  of  this  state  is 
concerned. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  personal  property,. see 
note  §  946,  ante. 

§  984.     SUBSEQUENT  INVENTOR,  AUTHOR,  ETC.     If  the 

owner  of  a  product  of  the  mind  does  not  make  it  public,  any 
other  person  subsequently  and  originally  producing  the  same 
thing  has  the  same  right  therein  as  the  prior  author,  which 
is  exclusive  to  the  same  extent  against  all  persons  except  the 
prior  author,  or  those  claiming  under  him. 

History:     Enacted  March   21,   1872. 

§985.    PRIVATE    WRITINGS.     Letters   and   other   private 
communications  in  writing  belong  to  the  person  to  whom  they 
are  addressed   and   delivered;    but  they   cannot  be  published 
against  the  will  of  the  writer,  except  by  authority  of  law. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

Letters — Property  rights  in — As  between  sender  and  receiver. 
— See  57  A.  S.  619. 

Same — Same — Common-law  rights  in  respect  to. — See  51  L. 
360. 

Same — Same — Injunction  to  protect. — See  5  A.  D.  725. 

576 


Titll.ch.IV.]  TRADE-MARKS.  §  991 

CHAPTER  IV. 

OTHER  KINDS  OF  PERSONAL  PROPERTY. 

§  991.  Trade-marks  and  signs. 

§  992.  Good-will  of  business. 

§  993.  Good-will   and   name,   transfer   of. 

§  994.  Title  deeds. 

§  995.  "Tare"    on    baled    hops. 

§  991.  TEADE-MARKS  AND  SIGNS.  One  who  produces  or 
deals  in  a  particular  thing,  or  conducts  a  particular  business, 
may  appropriate  to  his  exclusive  use,  as  a  trade-mark,  any 
form,  symbol,  or  name  which  has  not  been  so  appropriated 
by  another,  to  designate  the  origin  or  ownership  thereof; 
but  he  cannot  exclusively  appropriate  any  designation,  or  part 
of  a  designation,  which  relates  only  to  the  name,  quality,  or 
the  description  of  the  thing  or  business,  or  the  place  where 
the  thing  is  produced,  or  the  business  is  carried  on. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code"Amdts.  1873-4,  p.  224.  See  Act  1863;  29  C.  292,  294,  87  A. 
D.    170. 

See  Kerr's  Cyc.  C.  C.  for  214  pars,  annotation. 

63  C.  445,  446,  49  A.  R.  96  (applied  to  business  sign);  100  C. 
672,  677,  35  P.  623,  22  L.  790  (applied  to  name);  103  C.  71,  73,  37 
P.  210  (applied  to  tea  labels— .distinction) ;  136  C.  351,  352,  68 
P.  1014  (applied  to  use  of  name  or  word);  150  C.  180,  182,  88  P. 
704  (applied  to  words  "Old  Homestead"  stamped  on  loaves  of 
bread). 

As  to  discretion  of  court  in  granting  injunction,  see  10 
Bncyc.  P.   983-994. 

As  to  good-wills,  see  Kerr's  Cyc.  C.  C.  «§  992,  993  and  notes. 

As  to  labels  adopted  by  trade  unions,  etc.,  see  Kerr's  Cyc. 
Pol.   C.   §§  3200,   3201   and  notes. 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

As  to  matters  which  may  and  which  may  not  be  adopted  as 
trade-marks,  see  12  Fed.   704-706. 

As  to  right  of  corporation  to  have  name,  see  Kerr's  Cyc.  C.  C. 
§  354  subd.   1   and  note. 

As  to  violation  of  covenants  Involving  good-will,  see  Kerr's 
Cyc.  C.  C.  §  992  and  note. 

Kerr's    C.    C. — 19  577 


§§992,993  CIVIL  CODE.  [Div.II.Pt.III. 

As  to  what  constitutes  infringement  of  trade-mark,  see  47 
A.   D.   284-299. 

As  to  when  injunction  will  lie  against  infringement  of  trade- 
mark, see  note  bk.  24  L.  ed.  U.  S.  Reps.  828-830. 

Criminal  prosecution  for  violation  of  trade-mark. — See  Kerr's 
Cyc.  Pen.  C.   §§  350-354%   and  notes. 

Damages  for  infringement  of  patents,  copyrights,  or  trade- 
marks, as  affected  by  loss  of  profits. — See  51  L.   801-825. 

Deception  as  bar  to  relief  for  infringement  of  trade-mark. — 
See  note  bk.  47  L.  ed.  U.  S.  Rep.  282-286. 

Definition  and  general  characteristics  of  trade-mark. — See  47 
A.   D.   284-286. 

For  other  definitions,  see  Kerr's  Cyc.  Pen.  C.  §  353  and  note; 
and  Kerr's  Cyc.  Pol.  C.  §  3196  and  note. 

Infringement — Criterion  of. — See  9  L.  150,  151. 

Infringement — Simulation   is  necessary. — See  9  L.   151. 

Origin  or  ownership  must  be  indicated  to  make  trade-mark 
valid.— See  47  A.   D.   287,   288. 

§992.  GOOD-^VILL  OF  BUSINESS.  The  good-will  of  a 
business  is  the  expectation  of  continued  public  patronage,  but 
it  does  not  include  a  right  to  use  the  name  of  any  person 
from  whom  it  was  acquired. 

HLstory:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

71  C.  142,  148,  11  P.  856,  859  (cited);  31  P.  155  (cited);  114  C. 
635,  664,  46  P.  742,  34  L.  265  (applied);  124  C.  429.  431,  71  A.  S. 
94,  57  P.  468,  46  L.  142  (referred  to);  145  C.  380,  388,  78  P.  879 
(trading  corporation's  expectation  of  continued  public  patronage 
constitutes  good-will  of  its  business);  149  C.  575,  598,  87  P.  102 
(franchise  of  corporation  is  good-will  of  its  business,  see  con. 
op.  of  Henshaw,  J.);  3  C.  A.  291,  292,  85  P.  132  (contract  con- 
strued as  being,  in  effect,  transfer  of  good-will  of  business). 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note   §  946,  ante. 

§993.    GOOD-^VILL    A>D    NAME,    TRANSFER    OF.      The 

good-will  of  a  business  is  property,  transferable  like  any 
other,  and  the  person  transferring  it  may  transfer  with  it  the 
right  of  using  the  name  under  which  the  business  is  con- 
ducted. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission,   Act    March    16,    1901,    Stats,    and   Amdts.    1900-1,    p.    395, 

578 


Titll.ch.IV.]  TITLE    DEEDS— "TARE."  §§  994,  995 

held    unconstitutional,    see    .history,    §    4    ante;    amendment    re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  602. 

See  Kerr's  Cyc.  C.  C.  for  58  pars,  annotation. 

71  C.  142,  148,  11  P.  856,  859  (referred  to);  31  P.  155  (referred 
to);  114  C.  635,  664,  46  P.  742,  34  L.  265  (cited);  124  C.  429,  431, 
71  A.  S.  94,  57  P.  468,  46  L.  142  (referred  to);  149  C.  575,  598,  87 
P.  102  (con.  op.  of  Henshaw,  J. — franchise  of  corporation  is 
good-will   of  its  business). 

As  to  judicial  sale  of  trade-mark,  see  Kerr's  Cyc.  C.  C.  §  991 
and  note   par.   126. 

As  to  many  miscellaneous  matters  as  to  personal  property,  see 
note  §  946,  ante. 

Analogy  between  good-will  and  trade-mark. — See  Kerr's  Cyc. 
C.   C.   §  991  and  note. 

Dissolution  of  partnership — Agreement  not  to  carry  on  simi- 
lar business. — See  Kerr's  Cyc.  C.  C.  P.  §  1675  and  note. 

Partner  has  no  authority  to  dispose  of  good-will. — See  Kerr's 
Cyc.  C.  C.  §  2430  subd.  2  and  note. 

Warranty  on  sale  of  good-will. — See  Kerr's  Cyc.  C.  C.  §  1776 
and  note. 

§  994.  TITLE  DEEDS.  Instruments  essential  to  the  title 
of  real  property,  and  which  are  not  kept  in  a  public  office  as 
a  record,  pursuant  to  law,  belong  to  the  person  in  whom,  for 
the  time  being,  such  title  may  be  vested,  and  pass  with  the 
title. 

Hi.story:      Enacted   March    21,    1872. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what). 

As  to  many  miscellaneous  matters  as  to  personal  propert5^  see 
note  §  946,  ante. 

§  995.  "TARE"  OX  BALED  HOPS.  There  shall  be  allowed 
on  baled  hops  a  tare  at  the  rate  of  two  per  centum  of  the 
weight  of  the  bale  for  the  cloth  and  other  material  used  in 
baling;  that  is,  the  tare  shall  be  at  the  rate  of  two  pounds 
per  hundred  on  the  weight  of  the  bale. 

HLstory  Enacted  March  21,  1907,  Stats,  and  Amdts.  1907, 
p.  845,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  423. 


579 


§§  1000,  1001  CIVIL  CODE.  [Div.II.Pt.IV. 


PART  IV. 
ACQUISITION  OF  PROPERTY. 

Title  I.     Modes  in  which  Property  May  Be  Acquired,  §§  1000, 
1001. 
II.     Occupancy,  §§  1006,  1007. 

III.  Accession,  §§  1013-1033. 

IV.  Transfer,  §§  1039-1231. 

V.  Homesteads,  §§  1237-1269c. 

VI.  Wills,  §§  1270-1377. 

VII.  Succession,  §§  1383-1409. 

VIII.  Water  Rights,   §§  1410-1422. 

IX.  Hydraulic  Mining,  §§  1424,  1425. 

X.  Locating  Mining  Claims,  Tunnel  Rights,  Mill  Sites, 
etc.,   §§  1426-1426S. 

TITLE   I. 

MODES   IN  WHICH  PROPERTY  MAY   BE   ACQUIRED. 

§  1000.     Property,   how  acquired. 

§  1001.     Acquisition  of  property  by  exercise  of  eminent  domain. 

§1000.  PROPERTY,  HOW  ACQUIRED.  Property  is 
acquired  by: 

1.  Occupancy; 

2.  Accession; 

3.  Transfer; 

4.  Will;  or, 

5.  Succession. 

History:      Enacted  March   21,    1872. 
112  C.  387,  394,  44  P.  734    (referred  to). 

§  1001.  ACQUISITION  OF  PROPERTY  BY  EXERCISE  OF 
EMINENT  DOMAIN.  Any  person  may,  without  further  legis- 
lative action,  acquire  private  property  for  any  use  specified 
in  section  twelve  hundred  and  thirty-eight  of  the  Code  of  Civil 

580 


Tit,  I.]  EMINENT    DOMAIN.  §  1001 

Procedure  either  by  consent  of  the  owner  or  by  proceedings 
had  under  the  provisions  of  title  seven,  part  three,  of  the 
Code  of  Civil  Procedure;  and  any  person  seeking  to  acquire 
property  for  any  of  the  uses  mentioned  in  such  title  is  "an 
agent  of  the  state,"  or  a  "person  in  charge  of  such  use," 
within  the  meaning  of  those  terms  as  used  in  such  title.  This 
section  shall  be  in  force  from  and  after  the  fourth  day  of 
April,  eighteen  hundred  and  seventy-two. 

History:      Enacted  March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

62  C.  182,  183,  45  A.  R.  659  (applied);  69  C.  255,  301,  10  P. 
674,  698  (construed  and  applied);  79  C.  159,  162,  21  P.  547,  548 
(construed  and  applied);  79  C.  549,  550,  21  P.  958  (applied);  91 
C.  238,  248,  27  P.  604,  606  (construed  and  applied);  95  C.  105, 
111,  112,  30  P.  197  (applied);  99  C.  210,  213,  33  P.  885.  886 
(referred  to);  119  C.  164,  165,  51  P.  34  (referred  to);  129  C.  8, 
11,  61  P.  947  (construed);  137  C.  619,  632,  92  A.  S.  188,  67  P.  1040. 
70  P.  1083,  59  L.  581  (referred  to  in  dis.  op.);  2  C.  A.  546,  558, 
84  P.  298  (limitation  of  charter  of  corporation  cannot  be  cir- 
cumscribed by  this  section,  nor  by  §§1238  or  1242  C.  C.  P.);  46 
F.  709,  711  (applied — waters  of  running  streams  may  be  con- 
demned  for  purpose  of  supplying  town  witli  water — waters  of 
non-navigable  running  streams  may  be  acquired  by  appropria- 
tion for  purposes  authorized  by  law). 

As  to  corporation  being  person,  see  Kerr's  Cyc.  C.  C.  §  14  and 
note. 

Complaint  in  condemnation  proceedings. — See  Kerr's  Cyc.  C. 
C.  P.   §  1244  and  note. 

Constitutionality  of  statute. — See  Kerr's  Cyc.  C.  C.  P.  §  1238 
and  note. 

Estates  and  riglits  in  land  which  may  be  taken. — See  Kerr's 
Cyc.  C.  C.  P.  §  1239  and  note. 

Necessity  must  exist  to  justify  taking. — See  Kerr's  Cyc.  C. 
C.  P.  §  1241  and  note. 

Private  property  which  may  be  taken — Classes  enumerated. — 
See  Kerr's  Cyc.  C.  C.  P.  §  1240  and  note. 

Public  uses — Statutory  enumeration  of. — See  Kerr's  Cyc.  C. 
C.   P.   §  1238  and   note. 

Railroad  corporations— Exercise  of  power  of  eminent  domain 
by. — See   Kerr's  Cyc.   C.  C.   §§  465,   467,  469,   472   and   notes. 


581 


§  1006  CIVIL  CODE.  [Div.TI.Pt.IV. 

TITLE  II. 

OCCUPANCY. 

§  1006.     Simple  occupancy. 
§  1007.     Prescription. 

§  100«.  SIMPLE  OCCUPANCY.  Occupancy  for  any  period 
confers  a  title  sufficient  against  all  except  the  state  and 
those  who  have  title  by  prescription,  accession,  transfer,  will, 
or  succession. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

65  C.  334,  4  P.  191  (cited);  70  C.  236,  240,  11  P.  656,  658  (con- 
strued with  other  sections);  83  C.  279,  288,  23  P.  386,  388  (cited 
witli  other  sections  in  discussion);  91  C.  383,  385,  27  P.  746 
(applied);  (C.  July  24,  1901),  65  P.  875,  876  (applied);  133  C. 
634,  636,  85  A.  S.  233,  66  P.  12  (applied  and  construed);  138  C 
517,  520,  71  P.  624  (applied);  1  C.  A.  121,  123,  124,  81  P.  713 
(applied  to  mineral  deposits  on  mill-site);  3  C.  A.  633,  639,  86 
P.  985  (applied  to  water  ditch). 

OCCUPANCY — IN    GENERAL. 

As  to  occupancy  under  conditions  of  insurance  policy,  see 
note   §  2527,  post,   titles   "Occupancy"  and   "Vacancy." 

Actual  occupancy  or  residence. — See  63  A.  D.  457;  76  A.  D. 
432;   82  A.  D.   112;   6  W.  &  P.   4898. 

Constructive  possession. — See  6  W.  &  P.  4899. 

Cultivation  as  affecting-. — See  6  W.  &  P.  4900. 

Definition  of  occupancy. — See  37  L.  ed.  533;   6  W.  &  P.  4898. 

Occupancy  by  mistake. — See  6  W.  &  P.  4900. 

Same — By  servant. — See  6  W.  &  P.  4900. 

Same — By  tenant. — See   6  W.   &  P.   4901. 

Same — Distinguished  from  adverse  possession. — See  1  W.  & 
P.  233. 

Same — Distinguished  from  residence. — See  7  W.  &  P.   6158. 

Same — Is  synonymous  with  possession. — See  21  Encyc.  L.  767. 

Same— Of  license.— See  6  W.  &  P.  4901. 

Prescription. 

Acquisition   of  easement  by. — See   10  L.   484;   11   L.   55. 
Creation  of  prescriptive  right  in  real  property. — See   1  L.   485. 
Creation  of  title  by.— See  14  A.  D.  67;  95  A.  S.  671. 
Dedication  of  highway  by  user. — See  3  A.  C.  142. 

582 


Tit.  II.]  PRESCRIPTION.  §  1007 

Prescriptive  right — As  to  fishing-,  see  60  L.   496. 
Same — To   obstruct   stream. — See   53   L.    895,   903. 
Same — Same — As    to    artificial    condition    of   a    body    of    water, 
see  50  L.   839. 

Same — Of  way  on  shore. — See   4  L.  N.  S.  880. 
Same — ^Riglits  to   subterranean   waters. — See   19  L,.   94. 
Same — To  dam  back  water  of  stream. — See  59  L.  838. 
Same — To  obstruct  navigable  stream. — See  59  L.   79. 
Same — To  pollute  water  course. — See  3  A.  C.  24. 
Title  to  abandon  highway  by. — See  26  L.   451. 


§  1007.  PRESCRIPTION.  Occupancy  for  the  period  pre- 
scribed by  the  Code  of  Civil  Procedure  as  sufficient  to  bar  an 
action  for  the  recovery  of  the  property  confers  a  title  thereto, 
denominated  a  title  by  prescription,  which  is  sufficient  against 
all. 

Hi.story:      Enacted   March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  75  pars,  annotation. 

56  C.  73,  75,  76  (applied  and  construed);  71  C.  456,  458,  12  P. 
491,  492  (construed  and  applied);  83  C.  279,  289,  23  P.  386,  389 
(applied);  97  C.  270,  273,  32  P.  231,  232  (construed  and  applied); 
98  C.  346,  349,  350,  33  P.  209,  20  L.  730  (construed);  102  C.  675, 
684,  34  P.  120  (applied);  106  C.  690,  695,  40  P.  18  (construed  and 
applied);  109  C.  12,  18,  41  P.  781  (construed  and  applied);  128  C. 
181,  187,  60  P.  677  (applied);  136  C.  292,  293,  68  P.  817  (construed 
and  applied);  139  C.  521,  525,  73  P.  429  (applied);  140  C.  385, 
388,  73  P.  1079  (applied);  141  C.  497,  501,  70  P.  298,  75  P.  58 
(applied);  144  C.  19,  27,  77  P.  712  (applied);  144  C.  339,  344,  77 
P.  929  (applied  by  analogy);  144  C.  578,  594,  77  P.  1113  (applied); 
148  C.  759,  764,  84  P.  162  (applied  to  diversion  of  water);  152  C. 
731,  733,  93  P.  878,  879  (not  applicable  to  what  tide  lands);  3 
C.  A.  282,  283,  85  P.  129  (applied  to  adverse  possession  of  land — 
prescriptive  title  against  city  and  county  of  San  Francisco); 
3  C.  A.  633,  639,  86  P.  985  (applied  to  water  ditch);  4  C.  A.  276, 
282,  87  P.  553  (applied  to  water  ditch);  18  F.  753,  787  (code  is 
meager  on  prescription — what  constitutes  prescription  must  be 
determined  by  common  law). 

Adverse  possession- — ^What  constitutes. — See  4  L.  321;  6  L. 
833;   53  L.   941. 

Occupation  under  written  instrument  or  judgment  when 
deemed  adverse. — See  Kerr's  Cyc.  C.  C.  P.  §  322  and  note. 

Possession,  when  presumed. — Occupation  deemed  under  legal 
title  unless  adverse. — See  Kerr's  Cyc.  C.  C.  P.  §  321  and  note. 

Premises  actually  occupied  under  claim  of  title  deemed  to  be 
held  adversely. — See  Kerr's  Cyc.  C.   C.   P.   §  324  and  note. 

583 


§  1007  CIVIL  CODE.  [Div.II,Pt.IV. 

Relation  of  landlord  and  tenant  as  affecting  adverse  posses- 
sion.— See  Kerr's  Cyc.  C.  C.  P.  §  326  and  note. 

Right  of  possession  not  affected  by  descent  cast. — See  Kerr's 
Cyc.  C.  C.  P.   §  327  and  note. 

Seizin  within  five  years  when  necessary  in  action  for  real 
property. — See   Kerr's  Cyc.  C.  C.   P.   §  318  and  note. 

Time  of  commencing  actions  for  the  recovery  of  real  prop- 
erty.— See  Kerr's  Cyc.  C.  C.  P.  §  315  and  note. 

What  constitutes  adverse  possession  under  a  claim  of  title 
not  written. — See  Kerr's  Cyc.  C.  C.  P.  §  325  and  note. 

What  constitutes  adverse  possession  under  written  instru- 
ment or  judgment. — See  Kerr's  Cyc.  C.  C.  P.  §  323  and  note. 

When  actions  by  the  people  or  their  grantees  are  fo  be 
brought  within  five  years. — See  Kerr's  Cyc.  C.  C.  P.  §  317  and 
note. 

When  action  cannot  be  brought  by  grantee  from  the  state. — 
See  Kerr's  Cyc.  C.  C.  P.  §  316  and  note. 


584 


Tit.III,ch.I.]  ACCESSION— FIXTURES.  §§  1013,  1014 

TITLE  III. 

ACCESSION. 

Chapter  I.     To  Real   Property,   §§  1013-1019. 

II.      To   Personal    Property,    §§  1025-1033. 

CHAPTER  I. 

ACCESSION  TO  REAL  PROPERTY. 

§  1013.  Fixtures. 

§  1014.  Alluvion. 

§  1015.  Sudden    removal    of    bank. 

§  1016.  Islands,    in   navigable   streams. 

§  1017.  [Islands.]     In   unnavigable  streams. 

§  1018.  Islands  formed  by  division   of  stream. 

§  1019.  Fixtures,  removal  of  by  tenant. 

§  1013.  FIXTURES.  When  a  person  affixes  his  property 
to  the  land  of  another,  without  an  agreement  permitting  him 
to  remove  it,  the  thing  affixed,  except  as  provided  in  section 
ten  hundred  and  nineteen,  belongs  to  the  owner  of  the  land, 
unless  he  chooses  to  require  the  former  to  remove  it. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,    p.    224. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

86  C.  335,  339,  24  P.  993,  994  (referred  to);  31  P.  360,  362 
(applied);  118  C.  635,  636,  50  P.  683   (applied). 

Appurtenances — As  to,  generally,  see  Kerr's  Cyc.  C.  C.  §  662 
and   note. 

Same — As  to  of  ship,  see  note  §  960,  ante. 

Fixtures — What  constitutes. — See  Kerr's  Cyc.  C.  C.  §  660  and 
note;  also  note  §  660,  ante. 

Mines — Fixtures  attached  to. — See  Kerr's  Cyc.  C.  C.  §  661  and 
note. 

Tenant's  right  to  remove  fixtures. — See  Kerr's  Cyc.  C.  C.  §  1019 
and  note;  also  note  §  660,  ante. 

§  1014.    ALLUVION.      Where,    from    natural  causes,    land 

forms  by  imperceptible  degrees  upon  the  bank  of  a  river  or 

stream,  navigable  or  not  navigable,  either  by  accumulation 

585 


§  1015  CIVIL  CODE.  [Div.II.Pt.IV. 

of  material  or  by  the  recession  of  the  stream,  such  land 
belongs  to  the  owner  of  the  bank,  subject  to  any  existing  right 
of  way  over  the  bank. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395, 
held  unconstitutional,  see  history,   §   4   ante. 

r- 
See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

78  C.  634,  636,  21  P.  536,  537   (construed  and  applied). 

As  to  accretions  to  land  caused  by  obstructions  in  river,  see 
16  A.   R.   526. 

As  to  some  features  of  tlie  law  of  accretion  applicaVile  to 
Islands  and  navigable  rivers,  see  72  A.  S.  280,  286. 

As  to  subjects  of  accretion  and  alluvion,  see  35  A.  S.  308-313. 

As  to  the  difference  between  accretion  and  reliction,  see  33 
A.  D.  820;  also  72  A.  S.  493;  78  A.  S.  274;  5  L.  684;  12  L.  637; 
7  W.  &  P.  6062. 

As  to  the  title  to  alluvion  artificially  formed,  see  33  A.  D. 
270,  276. 

Aerolite  falling  on  land  and  imbedded  therein  becomes  part 
of  the  soil. — See  Kerr's  Cyc.  C.  C.   §  659,  note  pars.   2,   3. 

Alluvion  and  accretion. — See  35  A.  S.  307;  51  1,.  425;  12  L.  N.  S. 
687. 

Same— Definitions  of.— See  22  A.  S.   202;   1  W.  &  P.  99,  349. 

Alluvion  and  reliction,  title  acquired  thereby. — See  33  A.  D. 
276. 

Right  to  follow  accretions  across  division  line  previously 
submerged  by  the  action  of  the  water. — See  51  L.  425. 

The  law  of  accretion  to  shore  lands. — See  58  L..   193-210. 


§1015.  SUDDEN  REMOVAL  OF  BANK.  If  a  river  or 
stream,  navigable  or  not  navigable,  carries  away,  bj'  sudden 
violence,  a  considerable  and  distinguishable  part  of  a  bank, 
and  bears  it  to  the  opposite  bank,  or  to  another  part  of  the 
same  bank,  the  owner  of  the  part  carried  away  may  reclaim 
it  within  a  year  after  the  owner  of  the  land  to  which  it  has 
been  united  takes  possession  thereof. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
Change  of  boundary  by  submersion. — See  38  L.   850. 
Effect  of  sudden  submersion  upon  title  to  land. — See  38  L.  849. 
Erosion  or  submersion,  transfer  of  title  by. — See  5  L.  688. 
Reclamation   of  submerged  land. — See  5  L.   689. 

586 


Tit.III,ch.I.]  ISLANDS— FIXTURES.  §§  1016-1019 

§1016.  ISLANDS,  m  MVIGABLE  STREAMS.  Islands 
and  accumulations  of  land,  formed  in  the  beds  of  streams 
which  are  navigable,  belong  to  the  state,  if  there  is  no  title 
or  prescription  to  the  contrary. 

History:      Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

99  C.  303,  309,  33  P.  1099  (applied);  135  C.  54V,  550,  67  P.  964 
(applied);  149  C.  511,  513,  87  P.  200  (applied  to  accretions  to 
island  in  navigable  river  as  distinguished  from  accretions  to 
ranch  on  mainland). 

As  to  islands  and  the  title  thereto,  see  33  A.  D.  281;  53  A.  R. 
215-221;  35  A.  S.  312;  53  A.  S.  289;  72  A.  S.  280-286;  5  L.  684;  12 
L.   632;   58  L.   673-678. 

Right  to  island  attached  to  shore  by  accretion. — See  35  A.  S.. 
308;   72  A.  S.  280;  6  L.  N.  S.  194. 

§1017.      [ISLANDS],   O    U> NAVIGABLE    STREAMS.     An 

island,  or  an  accumulation  of  land,  formed  in  a  stream  which 
is  not  navigable,  belongs  to  the  owner  of  the  shore  on  that 
side  where  the  island  or  accumulation  is  formed;  or,  if  not 
formed  on  one  side  only,  to  the  owners  of  the  shore  on  the 
two  sides,  divided  by  an  imaginary  line  drawn  thf-ough  the 
middle  of  the  river. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395, 
held  unconstitutional,  see  history,  §  4  ante. 

§1018.    ISLANDS   FORMED   BY   DIVISION   OF   STREAM. 

If  a  stream,  navigable  or  not  navigable,  in  forming  itself  a 
new  arm,  divides  itself  and  surrounds  land  belonging  to  the 
owner  of  the  shore,  and  thereby  forms  an  island,  the  island 
belongs  to  such  owner. 

History:     Enacted  March   21,   1872. 

§  1019.  FIXTURES,  REMOVAL  OF  BY  TENANT.  A  tenant 
may  remove  from  the  demised  premises,  any  time  during  the 
continuance  of  his  term,  anything  affixed  thereto  for  purposes 
of  trade,  manufacture,  ornament,  or  domestic  use,  if  the 
removal  can  be  effected  without  injury  to  the  premises,  unless 

587 


§  1019  CIVIL  CODE.  [Div.II.Pt.IV. 

the  thing  has,  by  the  manner  in  which  it  is  affixed,  become  an 
integral  part  of  the  premises. 

HiMtory:  Original  section,  relating  to  abandonment  of  bed 
of  stream,  enacted  March  21,  1872,  was  repealed  and  the  above 
provision  substituted  therefor  by  Act  March  30,  1874,  Code 
Amdts.   1873-4,   p.   225. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

86  C.  3^5,  339,  24  P.  993,  994  (construed  and  applied);  31  P.  360, 
362  (referred  to  in  applying  S1013);  99  C.  636,  639,  34  P.  321 
(applied);  105  C.  15,  19.  38  P.  510  (applied);  118  C.  635,  636.  639, 
,50  P.  683  (applied  and  cited);  2  C.  A.  602,  604,  84  P.  279  (section 
includes  everything  that  tenant  may  have  affixed  to  premises 
for  purposes  therein  designated). 

As  to  fixtures  generally,  see  Kerr's  Cyc.  C.  C.  §  660  and  note. 

As  to  appurtenances,  see  Kerr's  Cyc.  C.  C.  S  1013  and  note. 


588 


Tit.III,ch.II.]  PERSONALTY,   ACCESSIONS.  §  1025 

CHAPTER  II. 

ACCESSION  TO  PERSONAL  PROPERTY. 

§  1025.  Accession  by  uniting-  several  things. 

§  1026.  Principal  part,  what. 

§  1027.  Same.      [The   more  valuable   or  bulky.] 

§  1028.  Uniting  materials  and   workmanship. 

§  1029.  Inseparable  materials. 

§  1030.  Materials  of  several  owners. 

§  1031.  Wilful    trespassers. 

§  1032.  Owner  may  elect  between  the   thing  and   its  value. 

§  1033.  Wrong-doer  liable   in  damages. 

§1025.    ACCESSION    BY    UNITING    SEVERAL    THINGS. 

When  things  belonging  to  different  owners  have  been  united 
so  as  to  form  a  single  thing,  and  cannot  be  separated  without 
Injury,  the  whole  belongs  to  the  owner  of  the  thing  which 
forms  the  principal  part;  who  must,  however,  reimburse  the 
value  of  the  residue  to  the  other  owner,  or  surrender  the 
whole  to  him. 

History:      Enacted  March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

130  C.  316,  320,  80  A.  S.  127,  62  P.  559    (applied). 

As  to  accession  to  personal  property,  see  1  Cent.  Dig.  col.  437, 
§§1-10;  1  Decen.  Dig.  p.  103,  §§1,  2. 

As  to  title  by  accession  to  crop,  fruit,  and  timber  wrongfully 
severed,  see  54  A.  D.  583-597:  32  L.  422-434. 

As    to    title   by   labor   bestowed   on   personal    property,    see    26 
A.  R.   525;   1  Encyc.  L.   249. 

As  to*  whether  title   by  accession   to   personal   property   taken 
by  one  not  the  owner  can  be  acquired,  see  44  A.  S.  444-448. 

Accession   of  logs  in  boom,  see  3  L.   408. 

Alterations   in    the   form    of  property  which   do   not  affect  the 
title.— See  4  A.  D.  369;  5  A.  D.  205. 

Application  of  the  doctrine  of  accession  to  personal  property. 
— See  1  Encyc.  L.   248-251. 

Same — When  annexed  to  realty. — See  1   Encyc.  L.   255. 

Personal  property  taken  by  one  not  the  owner  as  to  whether 
title  to  accession  may  be  acquired  by. — See  44  A.  S.  444. 

Title  by  accession — General   doctrine. — See    32   L.    422-433. 

Same — To    crops,    fruit    and    timber    wrongfully    severed. — See 
32  L.  422. 

589 


§§  1026-1029  CIVIL  CODE.  [Div.TI.Pt.IV. 

§  1026.  PRIIVCIPAL  PART,  WHAT.  That  part  is  to  be 
deemed  the  principal  to  which  the  other  has  been  united  only 
for  the  use,  ornament,  or  completion  of  the  former,  unless 
the  latter  is  the  more  valuable,  and  has  been  united  without 
the  knowledge  of  its  owner,  who  may,  in  the  latter  case, 
require  it  to  be  separated  and  returned  to  him,  although  some 
injury  should  result  to  the  thing  to  which  it  has  been  united! 
History:      Enacted  March   21,    1872. 

As  to  accession  generally,  see  note  §  1025,  ante. 

As  to  what  is  principal  part,  see  Kerr's  Cyc.  C.  C.  §  1026,  note. 

§1027.     SAME.      [THE    MORE    VALUABLE    OR    BULKY.] 

If  neither  can  be  considered  the  principal,  within  the  rule 
prescribed  by  the  last  section,  the  more  valuable,  or,  if  the 
values  are  nearly  equal,  the  more  considerable  in  bulk,  is  to 
be  deemed  the  prinicpal  part. 

Hi-story:      Enacted  March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
As  to  accession  generally,  see  note  §  1025,  ante. 
As  to  test  and  proportion  of  values,  see  1  Encyc.  L.  251;  1  Cyc. 
224. 

See  also  Kerr's  Cyc.  C.  C.  §  1025  and  note. 

§1028.    UNITING     MATERIALS      A'ND     WORKMANSHIP. 

If  one  makes  a  thing  from  materials  belonging  to  another, 
the  latter  may  claim  the  thing  on  reimbursing  the  value  of 
the  workmanship,  unless  the  value  of  the  workmanship 
exceeds  the  value  of  the  materials,  in  which  case  tha  thing 
belongs  to  the  maker,  on  reimbursing  the  value  of  the  mate- 
rials. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
As  to  accession  generally,  see  note  §  1025,  ante. 

§  1029.  INSEPARABLE  MATERIALS.  Where  one  has  made 
use  of  materials  which  in  part  belong  to  him  and  in  part 
to  another,  in  order  to  form  a  thing  of  a  new  description, 
without  having  destroyed  any  of  the  materials,  but  in  such  a 

590 


Tit.III,ch.II.]  MATERIALS— TRESPASS.  §§1030,1031 

way  that  they  cannot  be  separated  without  inconvenience, 
the  thing  formed  is  common  to  both  proprietors;  in  propor- 
tion, as  respects  the  one,  of  the  materials  belonging  to  him, 
and  as  respects  the  other,  of  the  materials  belonging  to  him 
and  the  price  of  his  workmanship. 

HLstory:     Enacted  March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  accession  generally,  see  note  §  1025,  ante. 

§1030.  MATERIALS  OF  SEVERAL  OWNERS.  When  a 
thing  has  been  formed  by  the  admixture  of  several  materials 
of  different  owners,  and  neither  can  be  considered  the  prin- 
cipal substance,  an  owner  without  whose  consent  the  admixt- 
ure was  made  may  require  a  separation,  if  the  materials  can 
be  separated  without  inconvenience.  If  they  cannot  be  thus 
separated,  the  owners  acquire  the  thing  in  common,  in  pro- 
portion to  the  quantity,  quality,  and  value  of  their  materials; 
but  if  the  materials  of  one  were  far  superior  to  those  of  the 
others,  both  in  quantity  and  value,  he  may  claim  the  thing 
on  reimbursing  to  the  others  the  value  of  their  materials. 
History:      Enacted  March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

128  C.   637,  641,   61  P.   283    (applied). 

As  to  accession  generally,  see  note  §  102.'j,  ante. 

As  to  confusion  of  goods  and  rights  of  owner,  see  6  Encyc. 
L.  592,  593;  8  Cyc.  571,  572. 

As  to  confusion  of  goods,  what  is,  and  effect  of,  see  54  A.  D. 
589  et  seq. 

§  1031.  WILFUL  TRESPASSERS.  The  foregoing  sections 
of  this  article  are  not  applicable  to  cases  in  which  one  wil- 
fully uses  the  materials  of  another  without  his  consent;  but, 
in  such  cases,  the  product  belongs  to  the  owner  of  the  mate- 
rial, if  its  identity  can  be   traced. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
As  to  accession  generally,  see  note  §  1025,  ante. 

591 


§§  1032, 1033  CIVIL  CODE.  [Div.II,Pt.IV. 

§1032.  OWNER  MAT  ELECT  BETWEEN  THE  THING 
AND  ITS  VALUE.  In  all  cases  where  one  whose  material 
has  been  used  without  his  knowledge,  in  order  to  form  a 
product  of  a  different  description,  can  claim  an  interest  in 
such  product,  he  has  an  option  to  demand  either  restitution 
of  his  material  in  kind,  in  the  same  quantity,  weight,  measure, 
and  quality,  or  the  value  thereof;  or  where  he  is  entitled  to 
the  product,  the  value  thereof  in  place  of  the  product. 

History:     Enacted  March  21,  1872. 

§  1033.    WRONG-DOER  LIABLE  IN  DAMAGES.     One  who 

wrongfully  employs  materials  belonging  to  another  is  liable 
to  him  in  damages,  as  well  as  under  the  foregoing  provisions 
of  this  chapter. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

106    C.    202,    205    (erroneously    cited   for    §  1053),    39    P.    531,    532 
(same  error). 
As  to  accession  generally,  see  note  §  1025,  ante. 


592 


Tit.IV.ch.I.art.I.] 


TRANSFER,    WHAT. 


§1039 


TITLE  IV. 

TRANSFER. 

[For   Commissioners'    comment   on    this   title,   see   Kerr's   Cyc. 
C.  C] 

Chapter   I.  Transfer  in  General,   §§  1039-1085. 

II.  Transfer  of  Real  Property,  §§  1091-1115. 

III.  Transfer  of  Personal  Property,   §§  1135-1153. 

IV.  Recording-  Transfers  of  Real  Property,   §§1158-1218. 
V.  Unlawful  Transfers,  §§  1227-1231. 


Article    I. 

II. 

III. 

IV. 

V. 


CHAPTER  I. 

TRANSFERS    IN    GENERAL. 

Delnition   of  Transfer,   §§  1030,   1040. 
What  May  Be  Transferred,  §§  1044-1041 
Mode   of  Transfer,   §§  1052-1060. 
Interpretation   of  Grants,   §§  1066-1072. 
Effect  of  Transfer,  §§  1083-1085. 


ARTICLE  I. 

DEFINITION   OF   TRANSFER. 

§  1039.     Transfer,   what. 

§  1040.     Voluntary  transfer. 


§  1039.     TRANSFER,    WHAT.     Transfer    is   an    act   of   the 

parties,  or  of  the  law,  by  which  the  title  to  property  is  con- 
veyed from  one  living  person  to  another. 

Hit^tory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

58  C.  11,  15  (cited);  58  C.  457,  484  (cited);  106  C.  202,  205,-39 
P.  531  (cited);  145  C.  431,  434,  78  P.  962  (applied);  1  C.  A.  659, 
664,  82  P.  1075  (not  applicable  to  promissory  notes  descended 
from  dead  persons  to  living  persons — change  of  position  of 
parties  effected  by  law). 

As  to  effect  of  transfer  of  bill  of  lading  as  passing  title,  see 
55  A.  D.  299. 

593 


§§1040,1044  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1040.  VOLUNTARY  TRANSFER.  A  voluntary  transfer 
is  an  executed  contract,  subject  to  all  rules  of  law  concerning 
contracts  in  general;  except  that  a  consideration  is  not  neces- 
sary to  its  validity. 

]liK<<»r.v:     Enacted  March   21.  1872. 

See  Kerr's  Cyc.  C.  C.  for  45  pars,  annotation. 

75  C.  525,  532,  7  A.  S.  189.  17  P.  689.  692  (applied*;  79  C.  525. 
5.30,  12  A.  S.  162.  21  P.  984,  986.  4  L.  826  (construed);  95  C.  63, 
74  (applied  but  erroneously  cited  as  §  1040  C.  C.  P.),  30  P.  301, 
303  (correct  citation);  122  C.  426.  428,  55  P.  143  (applied);  143 
C.  528,  533,  77  P.  471,  473  (applied);  145  C.  431,  434,  78  P.  962 
(applied). 

As  to  voluntary  conveyances,  see  14  A.  D.  703-709;  14  A.  S. 
739-754;  65  A.  S.  798-801. 


ARTICLE  II. 

WHAT   MAY   BE   TRANSFERRED. 

§  1044.  What  may   be   transferred. 

§  1045.  Possibility. 

§  1046.  Right  of  re-entry   can   be  transferred. 

§  1047.  Owner  ousted  of  possession  may  transfer. 

§  1044.  WHAT  MAY  RE  TRANSFERRED.  Property  of 
any  kind  may  be  transferred,  except  as  otherwise  provided  by 
this  article. 

HI.«rtory!     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

74  C.  619,  623,  5  A.  S.  479,  16  P.  501,  503  (cited);  84  C.  281, 
283,  18  A.  S.  179,  24  P.  42,  43  (construed);  109  C.  29,  37,  41  P.  1024 
(construed);  145  C.  431,  434,  78  P.  962  (referred  to);  151  C.  479. 
483,  91  P.  152  (title  to  property,  after  wrongful  conversion  may 
be  transferred);  1  C.  A.  587,  591,  82  P.  542  (charter  party  and 
contract  may  be  transferred  without  consent  of  owners);  7  C. 
A.  248,  253,  94  P.  252,  253   (cited). 

Adverse  possession — Transferability  of  title  claimed  by. — 
See   Kerr's   Cyc.   C.   C.    §  1047    and   note. 

Burden  of  obligation  not  transferable. — See  post  §  1457  and 
note. 

Chose  in  action  is  assignable. — See  Kerr's  Cyc.  C.  C.  §  954 
and  note. 

594 


i 

Tit.IV,ch.I,art.II.]  RIGHT    OP    ENTRY.  §§1045-1047 

Non-neg-otiable  instruments  may  be  transferred. — See  Kerr's 
Cyc.  C.  C.  §  1459  and  note. 

Possibility  not  transferable. — See  Kerr's  Cyc.  C.  C.  §  1045  and 
note. 

Right  arising-  out  of  obligation  is  transferable. — See  Kerr's 
Cyc.  C.  C.  §  1458  and  note  pars.  3,  4. 

Right  of  re-entry  or  of  repossession  is  transferable. — See 
Kerr's  Cyc.  C.  C.  §  1046  and  note. 

Servitudes— Grant   of.— See    Kerr's   Cyc.    C.    C.    §  802   and    note. 

§  1045.  POSSIBILITY.  A  mere  possibility,  not  coupled 
with  an  interest,  cannot  be  transferred. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

74  C.  619,  623,  5  A.  S.  479,  16  P.  501,  503  (referred  to);  104  C. 
570,  584,  43  A.  S.  134,  38  P.  414,  32  L.  595  (construed);  138  C. 
355!  361,  70  P.  1076  (applied);  141  C.  366,  370,  74  P.  993  (con- 
strued and  applied);  7  C.  A.  248,  253,  94  P.  252,  253  (cited). 

Possibility  is  not  interest  of  any  kind. — See  Kerr's  Cyc.  C.  C. 
§  700  and  note. 

§  1046.    EIGHT  OF  RE-ENTKY  CAN  BE  TRANSFERRED. 

A  right  of  re-entry,  or  of  repossession  for  breach  of  condi- 
tion  subsequent,   can  be  transferred. 

History:     Enacted  March  21,  1872. 

74  C.  619,  623,  5  A.  S.  479,  16  P.  501,  503  (landowner  may  make 
valid  lease  before  former  leases  have  expired  and  tenants  have 
surrendered    back    possession). 

§  1047.  OWNER  OUSTED  OF  POSSESSION  MAY  TRANS- 
FER. Any  person  claiming  title  to  real  property  in  the 
adverse  possession  of  another  may  transfer  it  with  the  same 
effect  as  if  in  actual  possession. 

History:     Enacted  March  21,  1872. 

55  C.  126,  128  (cited);  74  C.  619,  623,  5  A.  S.  479,  16  P.  501, 
503  (cited);  151  C.  479,  483,  91  P.  152  (title  to  property,  after 
wrongful  conversion,  may  be  transferred). 


595 


§§  1052,  1053  CIVIL  CODE.  [Div.II.Pt.'IV. 

ARTICLE  III. 

MODE  OF  TRANSFER. 

§  1052.  When   oral. 

§  1053.  Grant,   what. 

§  1054.  Delivery    necessary. 

§  1055.  Date. 

§  1056.  Delivery   to   grantee    is   necessarily   absolute. 

§  1057.  Delivery    in   escrow. 

§  1058.  Surrendering-  or  canceling  grant  does  not  reconvey. 

§  1059.  Constructive  delivery. 

§  1060.  Gratuitous    grants    take    effect    immediately;    exception 
[repealed]. 

§  1052.  WHEN  ORAL.  A  transfer  may  be  made  without 
writing,  in  every  case  in  which  a  writing  is  not  expressly 
required  by  statute. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

70  C.  449,  452,  11  P.  659,  661  (applied);  121  C.  376,  377,  53  P.  821 
(construed  and  applied);  128  C.  527,  530,  61  P.  77  (construed  and 
applied);  128  C.  627,  633  (erroneously  citing  this  section  instead 
of  §1053),  61  P.  371  (same  error);  144  C.  681,  691,  78  P.  270 
(applied);  153  C.  245,  250,  94  P.  1047  (valid  trust  in  personal 
property  may  be  created  by  parol). 

Frauds — Statute  of — -Contracts  which  must  be  in  writing. — 
See  Kerr's  Cyc.  C.  C.  §  1624  and  note. 

Trusts  in  real  property  must  be  in  writing. — See  Kerr's 
Cyc.  C.  C.   §§  852,  853  and  notes. 

§  1053.  GRANT,  WHAT.  A  transfer  in  writing  is  called  a 
grant,  or  conveyance,  or  bill  of  sale.  The  term  "grant,"  in 
this  and  the  next  two  articles,  includes  all  these  instruments, 
unless  it  is  specially  applied  to  real  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   225. 

See  Kerr's  Cyc.  C.  C.  for  36  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not 
embrace  what);  58  C.  11,  15  (referred  to);  67  C.  547,  556,  56 
A.  R.  726,  4  P.  473,  478,   8  P.  46    (referred  to);   93  C.  664,   668,  29 

596 


Tit.IV,ch.I,art.III.]        DELIVERY,  NECESSITY  OF.  §  i054 

P.  256,  257  (cited);  101  C.  238,  240,  35  P.  772  (referred  to);  106  C. 
202,  205  (erroneously  cited  as  §1033),  39  P.  531,  532  (same 
error);  128  C.  627,  633  (erroneously  citing  §1052  instead  of 
this  section),  61  P.  371  (same  error);  134  C.  603,  605,  65  P.  321, 
66  P.  860  (cited);  143  C.  528,  536,  77  P.  471  (cited);  143  C.  646! 
649,  77  P.  657  (deed  of  conveyance,  what  is  and  effect  of); 
6  C.  A.  144,  146,  91  P.  658,  659  (construed  with  other  sections- 
gift  before  death  of  savings-bank  pass-book  with  written  order 
for  payment). 

Conclusive  on  purchaser — To  what  extent  grant  is. — See 
Kerr's  Cyc.   C.   C.    §  1107   and  note. 

Condition  precedent — Grant  on. — See  Kerr's  Cyc.  C.  C.  §1110 
and   note. 

Condition  subsequent — Grant  on. — See  Kerr's  Cyc.  C.  C.  §  1109 
and   note. 

Construction  of  grants. — See  Kerr's  Cyc.  C.  C.  §§  1066-1072 
and  notes. 

Deed — Presumption  as  to  time  of  delivery. — See  Kerr's  Cyc.  C. 
C.  §  1055  and  note. 

Delivery  necessary. — See  Kerr's  Cyc.  C.  C.   §  1054  and  note. 

Form  of  grant. — See  Kerr's  Cyc.  C.  C.  §  1092  and  note. 

Fee  simple  presumed  to  pass  by  grant. — See  Kerr's  Cyc.  C. 
C.  §  1105  and  note. 

Homestead — Grant   of. — See  post  §  1243  and  note. 

Implied  Covenants — Effect  of  use  of  word  "grant." — See  post 
§  1113   and  note. 

"Instrument"  defined. — See  Kerr's  Cyc.  C.  C.  §§  709,  994,  1056, 
1059,  1091,  1093-1095,  1106.  1107,  1110,  1135,  1158.  1161, 
1162,  1165,  1170,  1172,  1180-1183,  1185,  1186,  1188,  '  1190. 
1193,  1195-1205,  1207,  1215,  1216,  1227-1229,  1451,  1629,  3087,  3413, 
3414   and   notes. 

Rents,  reversions,  and  remainders — Grant  of. — See  Kerr's  Cyc. 
C.   C.    §  1111    and   note. 

Surrendering  or  canceling  grant — Effect  of  redelivery. — See 
Kerr's  Cyc.  C.  C.  §  1058  and  note. 

Transfer — What  constitutes. — See  Kerr's  Cyc.  C.  C.  §  1039 
and  note. 

§  1054.  DELIVERY  NECESSARY.  A  grant  takes  effect,  so 
as  to  vest  the  interest  intended  to  be  transferred,  only  upon 
its  delivery  by  the  grantor. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  57  pars,  annotation. 

51  C.  73,  74  (not  applicable  to  grants  made  by  or  under 
authority  of  the  United  States);  67  C.  547,  556.  56  A.  R.  726.  4 
P.    473,    478,    8   P.    46    (applied    with    other   sections*:    lOl    r.    '.-ns. 

597 


§§  1055, 1056  CIVIL  CODE.  [Div.II,Pt.IV. 

240,  35  P.  772  (applied);  127  C.  464,  467,  59  P.  897  (applied); 
143  C.  528,  536,  77  P.  471  (cited);  6  C.  A.  144,  146,  91  P.  658,  659 
(construed  with  other  sections — gift  before  death  of  savings- 
bank  pass-book  with  written  order  for  payment). 

C.  O.  D. — Duty  of  buyer  to  t»ay  price. — See  Kerr's  Cyc.  C.  C. 
§  1784  and  note. 

Constructive   delivery. — See   Kerr's  Cyc.   C.   C.    §  1059   and   note. 

Contract  takes  effect  upon  delivery. — See  Kerr's  Cyc.  C.  C 
§  1626  and  note. 

Date — Grant  presumed  to  have  been  delivered  at  its  date. — 
See  Kerr's  Cyc.   C.   C.   §  1055   and  note. 

Dominion  or  control  over  instrument  must  be  parted  with  by 
grantor  in  order  to  constitute  delivery. — See  63  A.  D.  244,  245. 

Escrow. — See  Kerr's  Cyc.  C.  C.  §  1057  and  note. 

Frauds,  statute  of — Delivery  of  part  of  goods  sold. — See 
Kerr's  Cyc.  C.  C.  §  1624  par.  4  and  note. 

Gift — 'Necessity  for  delivery. — See  Kerr's  Cyc.  C.  C.  §  1147  and 
note. 

Limitation,  condition,  or  interest — Delivery  determines  time. — 
See  Kerr's  Cyc.  C.  C.  §  749  and  note. 

Pledge  and  collateral  security — Delivery  necessary. — See 
Kerr's  Cyc.  C.  C.  §  2988  and  note. 

Tenants  in  common  and  joint  tenants — Delivery  of  shares  by 
depositary.^ — See  'Kerr's  Cyc.  C.  C.  §  1827  and  note. 

§  1055.  DATE.  A  grant  duly  executed  is  presumed  to  have 
been  delivered  at  its  date. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

61  C.  148  (applied);  75  C.  240,  243,  7  A.  S.  151,  17  P.  193,  194 
(construed  and  applied);  101  C.  238,  240,  35  P.  772  (referred  to); 
108  C.  264,  268,  41  P.  301  (applied);  50  P.  434,  436  (cited);  120  C. 
311,  315,  49  P.  563,  52  P.  586  (cited);  122  C.  358,  362,  55  P.  132 
(construed  and  applied);  135  C.  312,  314,  67  P.  279  (applied);  135 
C.  316,  319,  67  P.  778  (cited);  2  C.  A.  351,  352,  354,  83  P.  455  (pre- 
sumption is  not  conclusive — it  may  be  controverted  by  other 
evidence);  4  C.  A.  647,  649,  88  P.  806  (satisfactory  evidence  to 
overcome    presumption    of    delivery    is    required    when). 

§1056.  DELIVERY  TO  GRANTEE  IS  NECESSARILY 
ABSOLUTE.  A  grant  cannot  be  delivered  to  the  grantee  con- 
ditionally. Delivery  to  him,  or  to  his  agent  as  such,  is  neces- 
sarily absolute,  and  the  instrument  takes  effect  thereupon, 
discharged  of  any  condition  on  which  the  delivery  was  made. 

History:     Enacted  March  21,  1872. 
598 


TitlV.ch.I.art.III.]  ESCROW.  §  1057 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

55  C.  564,  565  (meaning-  of  "instrument" — it  does  not  embrace 
wliat);  101  C.  238,  240,  35  P.  772  (referred  to);  137  C.  527,  5:51. 
70  P.  556   (referred  to). 

Party  or  agent  as  depositary  of  escrow. — See  K'Mt's  Cyc. 
C.  C.   §  1057  and  note. 


§  1057.  DELIVERY  IX  ESCKOW.  A  grant  may  be  depos- 
ited by  the  grantor  with  a  third  person,  to  be  delivered  on 
performance  of  a  condition,  and,  on  delivery  by  the  depos- 
itary, it  will  take  effect.  While  in  possession  of  the  third  per- 
son, and  subject  to  condition,  it  is  called  an  escrow. 
History:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  55  pars,  annotation. 

101  C.  238,  240,  35  P.  772  (referred  to);  125  C.  146,  149,  57  P. 
772  (lield  not  applicable);  147  C.  702,  705,  82  P.  304  (what  is 
not  effectual  delivery  of  deed,  or  passage  of  title);  151  C.  550. 
552,  91  P.  329  (effect  of  delivery  of  deed  to  third  person  for 
delivery  to  grantee  upon  grantor's  death). 

DELIVERY  IN   ESCROW. 

As  to  delivery  of  deed  to  third  person,  generally,  see  9  L.  N. 
S.   224;   9  L.  N.  S.  317. 

Deeds  delivered  in — Generally,  see  53  A.  S.   555. 

Same — Conditions  and  contingencies. — See  3  A.  P.  415:  7  A. 
D.   375;   3   W.   &   P.   2465. 

Same — Depositories. — See  21  A.  R.  356;  21  A.  R.  4  10;  3  W.  & 
P.  2466. 

Same — Learning  in  escrow  and  when  deemed  pres.-ntly 
operative.— See  28  A.  D.  408. 

Duty  and  obligation  of  depository. — See  10  L.  471. 

Effect  of. — See  5  L>.  697. 

Same— Delivery  of  deed— As  further  security  for  mortgage 
debt.— See  2  L.  N.  S.  628. 

Same— Same— In  escrow  as  to  bona  fide  purchaser  from 
grantee  who  has  wrongfully  obtained  and  recorded  the  deed.— 
See  17  L.  511. 

Same — To  bona  tide  purchaser  from  grantee  wlio  lias  wrong- 
fully obtained  and   recorded  deed. — See   17   L.   511. 

Same — Upon  of  the  imposition  of  conditions  in  violation  of 
vendor's  contract. — See  11  L.  N.  S.  1183. 

Escrow  defined.— ^ee  5  L.  696;  10  L.  469;  3  W.  &   P.  2464. 

Necessity  of  delivery  to  third  person. — See  5  L.  696;  12  L.  175. 

Revocation  of  deed.— See  10  L.  471,  12  L.  175. 

Right  of  grantor  to  revoke  deed  delivered  in   to   stranger,  to 

599 


§§  1058,  1059  CIVIL  CODE.  [Div.II.Pt.IV. 

be  delivered  by  the  latter  to  grantee  after  grantor's  death. — See 
4  L.  N.  S.  816. 

Testamentary  deed — Deposit  to  take  effect  on  death  of 
grantor. — See  Kerr's  Cyc.  C.  C.  §  1057,  note  pars.   17,   18. 

To  third  party  to  be  delivered  upon  grantors  death. — See  1 
A.  C.   864. 

To  whom  may  be  delivered.- — See  5  L.  696;  12  L.  175. 

When  escrow  takes  effect. — See  5  L.  697. 

When  second  delivery  ineffectual. — See  5  L.  697. 

When  title  passes  to  grantee. — See  10  L.  470. 

§  1058.     SURRENDERING  OR  CANCELING  GRANT  DOES 

NOT  RECONYEY.  Redelivering  a  grant  of  real  property  to 
the  grantor,  or  canceling  it,  does  not  operate  to  retransfer 
the  title. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

147  C.  702,  705,  82  P.  304  (applied — deed  in  favor  of  creditor 
of  grantor  delivered  in  escrow);  151  C.  550,  552,  91  P.  329  (effect 
of  delivery  of  deed  to  third  person  for  delivery  to  grantee  upon 
grantor's  deatli). 

§  1059.  CONSTRUCTIYE  DELIYERY.  Though  a  grant  be 
not  actually  delivered  into  the  possession  of  the  grantee,  it  is 
yet  to  be  deemed  constructively  delivered  in  the  following 
cases: 

1.  Where  the  instrument  is,  by  the  agreement  of  the  par- 
ties at  the  time  of  execution,  understood  to  be  delivered,  and 
under  such  circumstances  that  the  grantee  is  entitled  to  imme- 
diate delivery;   or, 

2.  Where  it  is  delivered  to  a  stranger  for  the  benefit  of  the 
grantee,  and  his  assent  is  shown,  or  may  be  presumed. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what);  67  C.  547,  556,  557,  56  A.  R.  726,  4  P.  473,  478,  8  P.  46 
(construed);  128  C.  531,  546,  58  P.  180,  61  P.  99  (construed  with 
§  1059 — rule  as  to  delivery  of  written  instruments  is  same  as 
in  regard  to  grants — delivery  of  life  insurance  police — delivery 
is   matter   solely   of   intention). 

Gift — Necessity  for  actual  or  symbolical  delivery. — See  Kerr's 
Cyc.  C.  C.   §  1147  and  note. 

600 


Tit.IV,ch.I,art.IV.]  interpretation.  §§1060,1066 

Instrument  defined. — See  Kerr's  Cyc.  C.  C.  §§709,  1053.  1056. 
post  §§1091,  1093-10-95,  1106,  1107,  1110,  1135,  1158,  1161,'  II62' 
1165,  1170,  1172,  1180-1183,  1185,  1186,  1188,  1190.  II93' 
1195-1205,  1207,  1215,  1216,  1227-1229,  1629,  3087,  3413,  3414  and 
notes. 

Question  for  jury  as  to  delivery. — See  Kerr's  Cyc.  C.  C.  §  1054 
and  note. 


§  1060.     GRATUITOUS  GRWTS  TAKE  EFFECT  L>r:»IEDI. 
ATELY;  EXCEPTION  (repealed). 

History:      Enacted    March    21,    1872;    repealed    Marcli    30,    1874, 
Code  Amdts.   1873-4,  p.   225. 


ARTICLE  IV. 
INTERPRETATION    OP    GRANTS. 

§  1066.  Grants,   how  interpreted. 

§  1067.  Limitations,   how   controlled. 

§  1068.  Recitals,    when   resorted   to. 

§  1069.  Interpretation    against  grantor. 

§  1070.  Irreconcilable    provisions. 

§1071.  Meaning-   of   "heirs"   and    "issue,"    in    certain    r.ni.i  in.l.rs. 

§  1072.  Words  of  inheritance  unnecessary. 

§  1066.     GRANTS,    HOW    INTERPRETED.      Grants    are    to 
be    interpreted    in    like    manner    with    contracts    in    general, 
except  so  far  as  is  otherwise  provided  in  this  article. 
HLstory:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  97  pars,  annotation. 

103  C.  516.  518,  37  P.  465  (cited);  104  C.  298,  300,  37  P.  1049 
(construed  and  applied);  150  C.  39,  45,  87  P.  1097  (applied  to 
deed  of  quarry). 

As  to  after-acquired  title,  when  passes  to  grantee,  see  58  A. 
D.    583. 

As  to  construction  of  conditions  precedent  and  subsequent  in 
deeds,   see   70  A.  S.   829,  832. 

As  to  construction  of  conditions  subsequent  in  deeds,  see  57 
A.  R.  63;  31  A.  S.  46;  79  A.  S.  747. 

As  to  construction  of  deeds  in  general,  see  13  L.  31S. 

As  to  effect  of  quitclaim  deeds,  see  53  A.  R.  749. 

As  to   interpretation   of  contracts,   see   post   §§  1635   et   seq. 

601 


§§  1067-1069  CIVIL  CODE.  [Div.II,Pt.IV. 

As  to  when  words  of  present  grant  do  not  convey  title,  see 
48  A.   D.   45. 

As  to  words  sufficient  to  constitute  conveyance,  see  31  A.  S.  26. 

§  1067.  LIMITATIONS,  HOW  CONTROLLED.  A  clear  and 
distinct  limitation  in  a  grant  is  not  controlled  by  other  words 
less  clear  and  distinct. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  395, 
lield  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

86  C.   500,  521,  522,  24  P.   172,   25  P.   64    (construed  and  applied). 

§  1068.  RECITALS,  WHEN  RESORTED  TO.  If  the  oper- 
ative words  of  a  grant  are  doubtful,  recourse  may  be  had  to 
its  recitals  to  assist  the  construction. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

As  to  notice  by  recitals  in  deed,  see  16  A.  D.  754;  also 
notes   §§  18,  19,  ante. 

§  1069.  INTERPRETATION  AGAINST  GRANTOR.  A  grant 
is  to  be  interpreted  in  favor  of  the  grantee,  except  that  a 
resei-vation  in  any  grant,  and  every  grant  by  a  public  officer 
or  body,  as  such,  to  a  private  party,  is  to  be  interpreted  in 
favor  of  the  grantor. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

83  C.  56,  63,  23  P.  222,  224  (construed  and  applied);  94  C. 
195,  203,  29  P.  491  (applied);  108  C.  38,  44,  41  P.  330  (applied); 
118  C.  160,  175,  50  P.  277  (applied);  128  C.  285,  288,  60  P.  855 
(referred  to  with  §1442  in  construing  a  deed  to  lots);  137  C. 
401,  70  P.  282  (applied  without  citation);  138  C.  583,  586,  72  P. 
171  (applied);  144  C.  19,  Sa,  77  P.  712,  69  P.  228  (construed 
and  applied);  150  C.  39,  45,  87  P.  1097  (applied  to  deed  of 
quarry);  3  C.  A.  727,  730,  86  P.  994  (applied  to  deed  executed 
while  provisions  as  to  powers  were  in  force);  4  C.  A.  219,  223,  88 
P.  290  (applied — construction  of  lease  in  favor  of  lessee);  7 
C.  A.  55,  69,  93  P.  391,  396  (this  section  must  be  read  in 
connection  with  §1654);  7  C.  A.  106,  111,  93  P.  900,  903  (restric- 
tion   on   presumption   as   to   easement). 

602 


Tit.IV,ch.I,art.IV.]         "HEIRS"   AND   "ISSUE."         §§  1070-1072 

§  1070.  1HKE(  0N(  ILABLE  PROVISIONS.  If  several  parts 
of  a  grant  are  absolutely  irreconcilable,  the  former  part  pre- 
vails. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

94  C.  195,  203,  29  P.  491  (applied);  103  C.  516,  518,  37  P. 
465  (construed);  104  C.  298,  300,  37  P.  1049  (applied);  150  C. 
39,  45,  87  P.  1097  (applied  to  deed  of  quarry);  7  C.  A.  55. 
69,  93  P.  391,  396   (referred  to  in  construing  §§  1069  and  1654). 

§1071.  MEANING  OF  "HEIRS"  AND  ^'ISSLE"  IN  CER- 
TAIN  REMAINDERS.  Where  a  future  interest  is  limited  by 
a  grant  to  take  effect  on  the  death  of  any  person  without 
heirs,  or  heirs  of  his  body,  or  without  issue,  or  in  equivalent 
words,  such  words  must  be  taken  to  mean  successors,  or  issue 
living  at  the  death  of  the  person  named  as  ancestor. 

History:  Enacted  March  21,  1872,  founded  upon  §  2,  Act  1855. 
Stats.    1855,   p.    171. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  phrase  "dying  without  issue,"  meaning  and  doflnition  of. 
see   55   A.   R.   774. 

§1072.       >VORDS     OF     INHERITANCE      UNNECESSARY. 

Words  of  inheritance  or  succession  are  not  requisite  to  trans- 
fer a  fee  in  real  property. 

History:  Enacted  March  21,  1872,  founded  upon  §  3.  Act  1S55. 
Stats.    1855,   p.    171. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

68  C.  559,  561,  10  P.  197,  198  (applied  witli  §  1106  to  grant 
from  hushand  to  wife);  91  C.  74.  81,  27  P.  539.  540,  541  (con- 
strued and  applied);  104  C.  298,  301,  37  P.  1049  (construed  and 
applied);  138  C.  583,  586,  72  P.  171   (applied). 


603 


§§  10S3-1085  CIVIL  CODE.  [Div.II.Pt.IV. 

ARTICLE  V. 

EFFECT   OF    TRANSFER. 

§  1083.     What   title    passes. 

§  1084.      Incidents. 

§  1085.     Grant  may  inure  to  benefit  of  stranger. 

§  1083.  WHAT  TITLE  PASSES.  A  transfer  vests  in  the 
transferee  all  the  actual  title  to  the  thing  transferred  which 
the  transferrer  then  has,  unless  a  different  intention  is 
expressed  or  is  necessarily  implied. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

92  C.  514,  524,  27  A.  S.  158,  28  P.  593,  596  (referred  to);  143  C. 
528,  536,  77  P.  471,  474  (applied  with  other  sections);  145  C. 
431,  434,  78  P.  962  (applied  to  assignment  of  judgment);  6  C. 
A.  144,  146,  91  P.  658  (construed  with  other  sections — gift 
before  death  of  savings-bank  pass-book  with  written  order  for 
payment). 

§  1084.  INCIDENTS.  The  transfer  of  a  thing  transfers 
also  all  its  incidents,  unless  expressly  excepted;  but  the  trans- 
fer of  an  incident  to  a  thing  does  not  transfer  the  thing 
itself. 

History:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.   C.    for   38   pars,   annotation. 

69  C.  217,  221,  58  A.  R.  558,  10  P.  409,  411  (construed  and 
applied);  80  C.  310,  313,  22  P.  178,  179  (applied):  92  C.  514, 
524,  27  A.  S.  158,  28  P.  593,  596  (cited);  104  C.  10,  12,  37  P. 
626  (construed  and  applied);  120  C.  488,  490,  493,  52  P.  843,  40  L. 
476  (cited  and  applied);  138  C.  405,  411,  71  P.  506  (cited);  145  C. 
431,  434,  78  P.  962  (applied  to  assignment  of  judgment). 

For  further  illustrations  of  the  doctrine,  see  Kerr's  Cyc.  C. 
C.  P.   §  662  and  note. 

Franchise  passes  under  §  388  ante. — See  Kerr's  Cyc.  C.  C.  P. 
§  662   note  pars   13-15. 

1085.     GRANT  MAY  INURE  TO  BENEFIT  OF  STRANGER. 

A  present  interest,  and  the  benefit  of  a  condition  or  covenant 

604 


Tit.IV.ch.II.art.I.]       tiiansfeh.   Rr-:QrisiTi:s.  g  |091 

respecting   property,    may   be    taken    by    any    natural    person 
under  a  grant,  although  not  named  a  party  thereto. 

IliNtory:      Enactid  March   21.   1872. 

As    to    cominl.ssloners'    comment    on    above    section,    seo    Ki-rr'« 
Cyc.  C.  C.  S    1085,  note. 


CHAPTER  II. 

TRANSFER  OF  REAL  PROPERTY. 

Article  I.     Mode  of  Transfer,   SS  1091-1096. 
II.      Effect  of  Transfer,   S5  1104-1 1  ir>. 

ARTICLE  I. 
MODE  OF  TRANSFER. 

§  1091.      Requisites   for   transfer   of   certain   estatts. 

§  1092.     Form   of   grant. 

§  1093.     Grant  by  married  woman,  how  acknowledged. 

§  1094.  Power  of  attorney  of  married  woman,  how  acknowl- 
edged. 

S  1095.      Attorney   in   fact,  liow  must  execute  for  prin(  ipal. 

§  1096.  Conveyance  of  real  estate  wlien  name  of  person  haJ» 
been   changed. 

§101)1.  HE(aiSI'IKS  F0|{  TK.VNSFKK  (H  (IIMVIN 
ESTATES.  An  estate  in  r(>al  property,  other  than  an  estate 
at  will  or  for  a  term  not  exceeding  one  year,  can  he  trans- 
ferred only  by  operation  of  law.  or  by  an  instrument  In  writ- 
ing, subscribed  by  the  party  dispo.sjng  of  the  same,  or  by  his 
agent  thereunto  authorized  by   writing. 

IliHtoryi     Enacted  March   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

51  C.  258,  260  (applied);  55  C.  564.  565  (meaning  of  •InBtrii- 
ment" — It  does  not  embrace  what):  13  C.  541.  544.  15  P.  98.  95 
(applied):  81  C.  205.  207,  208.  22  P.  550,  551  (applied):  101  C. 
405,  408,  40  A.  S.  65.  35  P.  1019  (construed  and  applied):  108  C. 
670,  674,  41  P.  806  (construed  and  applied):  122  C.  41S.  4?0. 
55  J>.    145    (cited):    130   C.    4."i5.    457.    62    P.    738    (referred    t-" 

605 


§§  1092,  1093  CIVIL  CODE.  [Div.II,Pt.IV. 

C.  320,  322,  64  P.  410  (construed);  134  C.  282,  284,  66  P.  485 
(construed  and  applied). 

As  to  power  of  attorney,  and  deed  executed  under,  see  81 
A.  D.  776. 

Written  instrument  as  indispensable  evidence  of  transfer. — 
See  Kerr's  Cyc.  C.  C.   P.   §  1971  and  note. 


§  1092.  FORM  OF  GRANT.  A  grant  of  an  estate  in  real 
property  may  be  made  in  substance  as  follows: 

"I,  A  B,  grant  to  C  D  all  that  real  property  situated  in 
(insert  name  of  county)  CoUnty,  state  of  California,  bounded 
(or  described)  as  follows:  (Here  insert  description,  or  if  the 
land  sought  to  be  conveyed  has  a  descriptive  name,  it  may  be 
described  by  the  name,  as  for  instance,  'The  Norris  Ranch'). 

"Witness  my  hand  this  (insert  day)  day  of  (insert  month), 
18...  "A.   B." 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

44  C.  132,  138  (applied);  67  C.  536,  539,  8  P.  63,  65  (applied); 
72  C.  78,  82,  13  P.  152,  154  (applied);  83  C.  187,  193,  23  P.  361,  362, 
364  (construed  and  applied);  91  C.  74,  81,  27  P.  539,  540,  541 
(cited);  105  C.  173,  183,  38  P.  715  (applied);  120  C.  311,  315,  49 
P.  563,  52  P.  586  (applied);  122  C.  413,  420,  55  P.  145  (cited); 
1  C.  A.  159,  162,  81  P.  1015  (general  description  of  land  is 
sufficient). 

Construction  of  descriptive  part  of  conveyance  of  real  estate. 
— As  to,  see  Kerr's  Cyc.  C.  C.  P.  §  2077  and  note. 

§  1093.  GRANT  BY  MARRIED  WOMAN,  HOW  ACKNOWL- 
EDGED. A  grant  or  conveyance  of  real  property  made  by  a 
married  woman  may  be  made,  executed,  and  acknowledged 
in  the  same  manner  and  has  the  same  effect  as  if  she  were 
unmarried. 

History:  Enacted  Marcli  21,  1872;  amended  March  14,  1895, 
Stats,  and  Amdts.  1895,  p.  53. 

See  Kerr's  Cyc.  C.  C.   for  29  pars,  annotation. 

53  C.  456,  460  (applied);  55  C.  52,  56,  57  (applied);  55  C.  564, 
565  (meaning  of  "instrument" — it  does  not  embrace  what) ;  59 
C.  507,  513,  514  (applied);  68  C.  135,  140,  58  A.  R.  5,  8  P.  705 
(applied  in  dis.  op.);  74  C.  345,  350,  16  P.  189,  192  (applied);  80  C. 
65,    67,   22   P.   69,    70    (applied);    83  C.    521,   536,   537,    23   P.    695,, 699 

606 


Tit.IV,ch.II,art.I.]       POWER  OF  ATTORNEY.  §§  1094,  1095 

(applied);  91  C.  606,  607,  608,  610,  27  P.  934,  935,  936  (applied); 
101  C.  532,  535,  40  A.  S.  81.  35  P.  1054,  1055  (applied — certificate 
of  acknowledgment  is  not  conclusive);  102  C.  202,  207,  36  P.  358 
(applied);  122  C.  341,  348,  349,  68  A.  S.  35,  55  P.  3  (applied): 
123  C.  491,  494,  495,  497,  56  P.  254   (applied). 

Acknowledgment  of  deeds  by  married  woman. — See  108  A.  S. 
529,   561;   3   L.   826;    11   L.    193. 

Assent  of  husband  to  conveyance  by  wife. — See  Kerr's  Cyc. 
C.   C.   §  162  and  note. 

Certificate  of  acknowledgment,  conclusiveness  of. — See  Kerr's 
Cyc.  C.  C.  §  1185  and  note. 

Deed  of  purchase  by,  effect  of. — See  57  A.  D.  194. 

Defectively  acknowledged  deed  of,  power  of  equity  to  enforce. 
—See  19  A.  D.  230. 

Form  and  sufficiency  of  acknowledgment,  generally. — See 
Kerr's  Cyc.  C.  C.   §  1185-1187  and  notes. 


§  1094.  POWER  OF  ATTORNEY  OF  MARRIED  WOMAX, 
HOW  ACKNOWLEDGED.  A  married  woman  may  make, 
execute,  and  revoke  powers  of  attorney  for  the  sale,  convey- 
ance, or  encumbrance  of  her  real  or  personal  estate,  which 
shall  have  the  same  effect  as  if  she  were  unmarried,  and  may 
be  acknowledged  in  the  same  manner  as  a  grant  of  real 
property. 

History:  Enacted  March  21,  1872,  founded  upon  S  1,  Act  April 
3,  1863,  Stats.  1863,  p.  165;  amended  March  9,  1895.  Stats,  an.l 
Amdts.  1895,  p.  39. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what). 

§109r>.  ATTORNEY  IN  FACT,  HOW  xMLST  EXECUTE 
FOR  PRINCIPAL.  When  an  attorney  in  fact  executes  an 
instrument  transferring  an  estate  in  real  property,  he  must 
subscribe  the  name  of  his  principal  to  it.  and  his  own  name 
as  attorney  in  fact. 

History:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what). 

607 


§§  1096, 1104  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1096.  CONVEYANCE  OF  REAL  ESTATE  WHEN  NAME 
OF  PERSON  HAS  BEEN  CHANGED.  Any  person  in  whom  the 
title  of  real  estate  is  vested,  who  shall  afterwards,  from  any 
cause,  have  his  or  her  name  changed,  must,  in  any  conveyance 
of  said  real  estate  so  held,  set  forth  the  name  in  which  he  or 
she  derived  title  to  said  real  estate. 

History:  Enacted,  on  recommendation  of  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  396,  held  uncon- 
stitutional, see  history,  §  4  ante;  re-enacted  March  21,  1905, 
Stats,  and  Amdts.  1905,  p.  602;  a  codification  of  §  1,  Act  March 
11,  1874,  Stats.  1873-4,  p.  345. 

Misnomer  in  grantor — "Redman"  instead  of  "Redmond,"  effect 
of. — See  Kerr's  Cyc.  C.  C.   §  1096,  note. 


ARTICLE  II. 

EFFECT   OP    TRANSFER. 

§  1104.  What  easements  pass   with  property. 

§  1105.  When  fee  simple  title  is  presumed  to  pass. 

§  1106.  Subsequently  acquired   title  passes   by  operation   of  law. 

§  1107.  Grant,  how  far  conclusive  on  purchasers. 

§  1108.  Conveyances  by  owner  for  life  or  for  years. 

§  1109.  Grant  made  on  condition  subsequent. 

§  1110.  Grants   on   condition,   when  absolute. 

§  1111.  Grant  of  rents,  reversions,  and  remainders. 

§  1112.  Boundary   by   highway,   what  passes. 

§  1113.  Implied    covenants. 

§  1114.  What  the  term   "encumbrances     embraces. 

§  1115.  Lineal   and   collateral    warranties   abolished. 

§  1104.     WHAT  EASEMENTS  PASS  WITH  PROPERTY.   A 

transfer  of  real  property  passes  all  easements  attached 
thereto,  and  creates  in  favor  thereof  an  easement  to  use 
other  real  property  of  the  person  whose  estate  is  transferred 
in  the  same  manner  and  to  the  same  extent  as  such  property 
was  obviously  and  permanently  used  by  the  person  whose 
estate  is  transferred,  for  the  benefit  thereof,  at  the  time  when 
the  transfer  was  agreed  upon  or  completed. 

History:     Enacted  March   21,  1872. 
608 


Tit.IV,ch.II,art.II.]  SUBSEQUENT   TITLE.  §§1105,1106 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

53  C.  135  (construed  and  applied);  69  C.  217,  221,  58  A.  R.  558, 
10  P.  409,  411  (applied);  73  C.  550,  554,  15  P.  131,  134  (cited);  102 
C.  362,  367,  41  A.  S.  188,  36  P.  778  (construed  and  applied);  116 
C.  689,  698,  48  P.  58  (cited);  120  C.  488,  490,  491,  492,  493,  52 
P.  843,  40  L.  476  (cited);  138  C.  405,  411,  414,  71  P.  506  (con- 
strued and  applied);  138  C.  517,  520,  521,  71  P.  624  (construed 
and  applied);  146  C.  435,  440,  80  P.  623  (applied  to  deed  to  water 
company);  153  C.  152,  156,  94  P.  613  (tract  of  land  impressed 
with  easement  of  water  ditch  for  irrigating-  purposes,  in  favor 
of  other  tracts);  7  C.  A.  106,  111,  93  P.  900,  901  (conveyance  of 
lot  carries  right  to  use  stairway  when). 

§1105.  TVHEX  FEE  SIMPLE  TITLE  IS  PRESUMED  TO 
PASS.  A  fee  simple  title  is  presumed  to  be  intended  to  pass 
by  a  grant  of  real  property,  unless  it  appears  from  the  grant 
that  a  lesser  estate  was  intended. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

58  C.  11,  15  (cited);  68  C.  559,  561,  10  P.  197,  198  (construed  and 
applied);  84  C.  611,  614,  615,  22  P.  1142,  24  P.  313  (construed 
and  applied);  88  C.  263,  267,  26  P.  106  (erroneously  cited  as  C. 
C.  P.);  91  C.  74,  81,  27  P.  539,  540,  541  (cited);  103  C.  516,  51S. 
37  P.  465  (construed  as  not  applicable);  104  C.  298,  299.  37  P. 
1049  (applied);  105  C.  173,  182,  38  P.  715  (construed  and 
applied);  149  C.  178,  190,  86  P.  603  (rule  of  common  law,  limit- 
ing and  qualifying  effect  and  meaning  of  granting  clause  of 
deed  is  part  of  the  code). 

As  to  effect  of  quitclaim  deed  to  convey  title,  see  53  A.  R.  749. 

After-acquired  title — When  will  pass, — as  to,  see  Kerr's  Cyc. 
C.  C.  §  1106  and  note. 

§  1106.  SUBSEQUENTLY  ACQUIRED  TITLE  PASSES  BY 
OPERATION  OF  LAW.  Where  a  person  purports  by  proper 
instrument  to  grant  real  property  in  fee  simple,  and  subse- 
quently acquires  any  title,  or  claim  of  title  thereto,  the  same 
passes  by  operation  of  law  to  the  grantee,  or  his  successors. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901.  Stats,  and  Amdts.  1900-1,  p.  396,  held 
unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

55  C.   564,  565    (meaning  of  "instrument" — it  does  not  embrace 
What);  68  C.  559,  561,  10  P.  197,  198  (construed  and  applied  with 
Kerr's    C.    C— 20  609 


§§  1107,  1108  CIVIL  CODE.  [Div.II,Pt.IV. 

§1072  to  grant  from  husband  to  wife);  84  C.  611,  614,  22  P. 
1142,  24  P.  313  (cited);  96  C.  206,  209,  31  P.  37  (applied  and  con- 
strued); 103  C.  108,  110,  37  P.  188  (applied);  141  C.  366,  371,  74 
P.    993    (construed   and   applied). 

§1107.  GRANT,  HOW  FAR  COJfCLUSIVE  ON  PUR- 
CHASER. Every  grant  of  an  estate  in  real  property  is  con- 
clusive against  the  grantor,  also  against  every  one  subse- 
quently claiming  under  him,  except  a  purchaser  or  encum- 
brancer who  in  good  faith  and  for  a  valuable  consideration 
acquires  a  title  or  lien  by  an  instrument  that  is  first  duly 
recorded. 

Hi.story:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

55  C.  564,  565,  566  (meaning  of  "instrument" — it  does  not 
embrace  what);  75  C.  552,  555,  557,  558,  17  P.  680,  681,  682, 
683  (construed  and  applied);  96  C.  298,  306,  31  A.  S.  209,  31  P.  166 
(construed  and  applied);  97  C.  270,  273,  32  P.  231  (cited);  97  C. 
575,  582,  583,  33  A.  S.  209,  32  P.  579,  21  L.  33  (construed  and 
applied);  100  C.  590,  591,  35  P.  170  (applied);  109  C.  42,  48,  49, 
41  P.  799  (construed);  113  C.  153,  158,  159,  45  P.  267  (construed 
and  applied);  120  C.  488,  490,  52  P.  843,  40  L.  476  (cited); 
122  C.  509,  513,  68  A.  S.  61,  55  P.  390  (cited);  126  C.  600,  604, 
59  P.  130   (applied). 

As  to  sheriff's  certificate  of  sale,  see  Kerr's  Cyc.  C.  C.  §  1107, 
note  par.  12  this  note. 

As  to  writ  of  attachment,  see  Kerr's  Cyc.  C.  C.  §  1107,  note 
pars.  16,  17  this  note. 

Good  faith, — as  to,  see  Kerr's  Cyc.  C.  C.  §  1214  and  note. 

Prior  recordation, — as  to,  see  Kerr's  Cyc.  C.  C.  §  1214  and  note. 

Rule  prior  to  adoption  of  code  was  changed  by  such  adoption. 
— See    55    C.    564. 

Valuable  consideration, — as  to,  see  Kerr's  Cyc.  C.  C.  §  1214  and 
note. 

§  1108.  CONVEYANCES  BY  OWNER  FOR  LIFE  OR  FOR 
YEARS.  A  grant  made  by  the  owner  of  an  estate  for  life  or 
years,  purporting  to  transfer  a  greater  estate  than  he  could 
lawfully  transfer,  does  not  work  a  forfeiture  of  his  estate, 
but  passes  to  the  grantee  all  the  estate  which  the  grantor 
could  lawfully  transfer. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.   C.   for   2   pars,   annotation. 

610 


Tit.IV,ch.II,art.II.]  CONDITION.  §§1109,1110 

§  1109.    GRANT    MADE    ON    CONDITION    SUBSEQUENT. 

Where  a  grant  is  made  upon  condition  subsequent,  and  is 
subsequently  defeated  by  the  nou-perforniance  of  the  condi- 
tion, the  person  otherwise  entitled  to  hold  under  the  grant 
must  reconvey  the  property  to  the  grantor  or  his  successors, 
by  grant,  duly  acknowledged  for  record. 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  43  pars,  annotation. 

56  C.  242,  248  (applied);  (dis.  op.),  58  C.  63,  73  (applltMl); 
86  C.  591,  592,  25  P.  54  (cited);  97  C.  647,  657,  32  P.  702  (applied); 
128  C.   285,   291,   60  P.   855    (applied). 

As  to  ejectment,  see  Kerr's  Cyc.  C.  C.  P.  §§  738  et  seq. 

As  to  notice  generally,  see  Kerr's  Cyc.  C.  C.  P.  §  19  and  parS. 
93  et  seq. 

As  to  waiver  generally,  see  Kerr's  Cyc.  C.  C.  P.  §  1440  and  note. 

Conditions  subsequent. — Generally, — as  to,  see  Kerr's  Cyc.  C 
C.   P.    §  1438  and   note. 

Excuse  for  non-performance, — as  to,  see  Kerr's  Cyc.  C.  C.  P. 
§§  1440,  1441  and  note. 

Impossible  conditions,   generally, — as  to,   see   Kerr's  C> 
P.   §  1441  and  note. 

Interpretation  of  condition  involving  forfeiture, — as  to,  sec 
Kerr's  Cyc.  C.  C.  P.  §  1442  and  note. 

Performance — When  essential, — as  to,  see  Kerr's  Cyc.  C.  C. 
P.  §  1439  and  note. 

Unlawful  conditions  subsequent, — as  to,  see  Kerr's  Cyc.  C. 
C.  P.  §  1441  and  note. 

§  1110.     GRANTS  ON  CONDITION,  WHEN  AHSOLUTE.    An 

instrument  puri)orting  to  be  a  grant  of  real  property,  to  take 
effect  upon  condition  precedent,  passes  the  estate  upon  the 
performance  of  the  condition. 

HlMtory:      Enacted    March    21.    1S72:    aimndcd    Mar. 
Code  Anidts.  1873-4,  p.  225. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — It  does  not  embrace 
what). 

Condition  precedent — Generally. — as  to,  see  Kerr's  Cyc.  C.  C. 
§  1436   and   note. 

Excuse  for  non-iierformance, — as  to,  see  Kerr's  Cyc.  C.  C. 
§  1440    and    note. 

Performance — When  essential. — See  Kerr's  Cyc.  C.  C.  i  14^9 
and  note. 

611 


§§  1111-1113  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1111.  GRANT  OF  RENTS,  REVERSIONS,  AND  REMAIN- 
DERS.  Grants  of  rents  or  of  reversions  or  of  remainders  are 
good  and  effectual  without  attornments  of  the  tenants;  but 
no  tenant  who,  before  notice  of  the  grant,  shall  have  paid 
rent  to  the  grantor,  must  suffer  any  damage  therebj'. 

History:  Enacted  March  21,  1872;  founded  upon  §  6,  Act  1855, 
Stats.   1855,  p.   171. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

79  C.  442,  443,  21  P.  861,  862  (construed  and  applied);  82  C. 
621,  626,  627,  628,  23  P.  193,  195  (construed  and  applied);' 
97  C.  292,  294,  33  A.  S.  187,  32  P.  246  (construed  and  applied); 
150  C.  650,  655,  89  P.  600  (applied);  5  C.  A.  475,  481,  90  P. 
962,  965    (this   section  is  for  protection   of  tenant). 

As  to  constructive  notice  by  record  of  instrument,  see  Kerr's 
Cyc.  C.  C.  §  1213  and  note. 

§1112.    BOUNDARY   BY  HIGHWAY,  WHAT  PASSES.     A 

transfer  of  land,  bounded  by  a  highway,  passes  the  title  of 
the  person  whose  estate  is  transferred  to  the  soil  of  the 
highway  in  front  of  the  center  thereof,  unless  a  different 
intent  appears  from  the  grant. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  225. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

69  C.  202,  206,  10  P.  510,  513  (applied);  70  C.  534,  540,  12  P. 
530,  533  (applied);  95  C.  661,  665,  30  P.  793  (applied);  104  C. 
186,  188,  43  A.  S.  89,  37  P.  786,  25  L.  654  (applied);  131  C.  96,  99, 
63   P.    143    (applied). 

Bounding  land  on  street  or  alley  as  covenant  that  the  street 
or  alley  exists,  where  grantor  does  not  in  fact  own  the  fee 
thereof. — See  10  L.  964. 

"Conveyance"  along  highway,  what  passes. — See  4  L.  624. 

Interpretation  of  description — Generally, — as  to,  see  Kerr's 
Cyc.  C.  C.  §  2077  and  note. 

Meander  line  as  boundary. — See  63  L.  157. 

Waters  as  boundaries. — See   Kerr's  Cyc.   C.  C.   §  830  and  note. 

§1113.     IMPLIED    COVENANTS.      From    the    use    of    the 

word  "grant"  in  any  conveyance  by  which  an  estate  of  inher- 
itance or  fee  simple  is  to  be  passed,  the  following  covenants, 

612 


Tit.IV,ch.II,art.II.]  COVENANTS.  §1113 

and  none  other,  on  the  part  of  the  grantor  for  himself  and 
his  heirs  to  the  grantee,  his  heirs,  and  assigns,  are  implied 
unless  restrained  by  express  terms  contained  in  such  convey- 
ance: 

1.  That  previous  to  the  time  of  the  execution  of  such  con- 
veyance, the  grantor  has  not  conveyed  the  same  estate,  or  any 
right,  title,  or  interest  therein,  to  any  person  other  than  the 
grantee ; 

2.  That  such  estate  is  at  the  time  of  the  execution  of  such 
conveyance  free  from  encumbrances  done,  made,  or  suffered 
by  the  grantor,  or  any  person  claiming  under  him. 

Such  covenants  may  be  sued  upon  in  the  same  manner  as 
if  they  had  been  expressly  inserted  in  the  conveyance. 

History:  Enacted  March  21,  1872,  founded  upon  §  9.  Act  isfif., 
Stats.   1855,  p.   171. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

56  C.  616,  619  (applied):  74  C.  266,  267,  268.  5  A.  S.  440,  15  P. 
831,  832  (applied);  109  C.  417,  424,  42  P.  139  (cited);  113  C. 
345,  352,  45  P.  680  (construed  and  applied):  119  C.  283.  294,  63 
A.  S.  108.  51  P.  2.  51  P.  542  (construed  and  applied);  131  C. 
109.  Ill,  82  A.  S.  335,  63  P.  179  (applied);  133  C.  436.  458.  65  P. 
968  (construed  and  applied);  134  C.  417,  418.  66  P.  472  (con- 
strued and  applied);  138  C.  618.  624.  72  P.  173  (no  considera- 
tion for  implied  covenant  in  deed  of  gift,  when);  6  C.  A.  646. 
648,  92  P.  875.  876  (lease  is  encumbrance,  and  is  within  cove- 
nants implied  from  use  of  word  "grant"  in  conveyance  of 
estate  in  fee  simple);  7  C.  A.  515.  516.  94  P.  856  (use  of  word 
"grant"  in  deed  of  gift  does  not  imply  covenant  against  encum- 
brance  of  mortgage   when). 

Apportionment  of  covenants,  as  to. — Sit-  Kerr's  Cyc.  C.  C. 
§  1467  and  note. 

"Grant",  as  effectual  to  convey  estate  in  incorporeal  hored- 
iments. — See  Kerr's  Cyc.  C.  C.  §  1053  and  note. 

Implied  covenant — Defined. — See  9  A.  D.  157;  IS  T..  34.'?:  4 
W.  &  P.  3431. 

Same — For  title  other  than  statutory. — See  32  A.  D.  353. 

Same — In  lease  as  to  fitness  of  property  for  the  purpose 
intended. — See    33    L.    449. 

Recitals  in  deed  as  basis  of  implied  covenants  of  title. — See  18 
L.    343. 

613 


§§1114,1115  CIVIL  CODE.  [Div.II,Pt.IV. 

§1114.  WHAT  THE  TERM  "ENCUMBRANCES"  EM- 
BRACES. The  term  "encumbrances"  includes  taxes,  assess- 
ments, and  all  liens  upon  real  property. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  226. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

106  C.  441,  446  (erroneously  cited  for  §  1141),  39  P.  853,  855 
(correct  citation);  149  C.  316,  320,  86  P.  706  (construed  with 
other   sections — deed   of  trust   is   not  an   encumbrance). 

As  to  eviction  under  covenant,  see  note  6  L.  107. 

§1115.  LINEAL  AND  COLLATERAL  WARRANTIES 
ABOLISHED.  Lineal  and  collateral  warranties,  with  all  their 
incidents,  are  abolished;  but  the  heirs  and  devisees  of  every 
person  who  has  made  any  covenant  or  agreement  in  refer- 
ence to  the  title  of,  in,  or  to  any  real  property,  are  answer- 
able upon  such  covenant  or  agreement  to  the  extent  of  the 
land  descended  or  devised  to  them,  in  the  cases  and  in  the 
manner  prescribed  by  law. 

History:  Enacted  March  21,  1872,  founded  upon  §  8,  Act  1855, 
Stats.   1855,  p.   171. 


614 


I 


Tit.IV,ch.III,art.I.]  TRANSFER  by   SALE.  §§1135,1136 

CHAPTER  III. 
TRANSFER    OF    PERSONAL.    PROPERTY. 

Article    L     Mode  of  Transfer.  §§1135,  1136. 

II.     What  Operates  as  a  Transfer,  §§  1140-1142. 
IIL     Gifts,   §§  1146-11.53. 

ARTICLE  I. 

MODE  OF  TRANSFER. 

I  1135.     When  must  be  in  writing. 
§  1136.     Transfer  by  sale,  etc. 

§  1135.  >VHEN  MUST  BE  IN  TTRITIXG.  An  interest  in 
a  ship,  or  in  an  existing  trust,  can  be  transferred  only  by 
operation  of  law,  or  by  a  written  instrument,  subscribed  by 
the  person  making  the  transfer,  or  by  his  agent. 

History:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.   C.   for   15   pars,   annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what). 

As  to  mortgage  of  vessel  at  sea.  see  Kerr's  Cyc.  C.  C.  {  1135 
note  par.    9. 

As  to  sale  of  vessel  at  sea,  see  Kerr's  Cyc.  C.  C.  i  1135,  note 
par.    12. 

Transfer  of  obligations, — as  to,  see  Kerr's  Cyc.  C.  C.  §$  1457 
et  seq. 

Transfer  of  personal  property  by  sale — Generally, — as  to. 
see  Kerr's  Cyc.  C.  C.  §§  1721  et  seq. 

Same — Delivery, — as  to,  see  Kerr's  Cyc.  C.  C.  H  1753  et  seq. 

Same — Auction, — as  to,  see  Kerr's  Cyc.  C.  C.  S§  1792  et  seq. 

§  1136.  TRANSFER  BY  S.\LE,  ETC.  The  mode  of  trans- 
ferring other  personal  property  by  sale  is  regulated  by  ihe 
title  on  that  subject,  in  division  third  of  this  code. 

History:     Enacted  March   21.  1872. 

As  to  sale  of  property — Generally,  see  Kerr's  C\  r  <".  C. 
§S  1721   et  seq..  and   notes. 

As  to  transfer  of  obligations,  see  Kerr's  Cyc.  C.  C.  5J1457 
et  seq.,  and  notes. 

615 


§§1140,1141  CIVIL  CODE.  [Div.II.Pt.IV. 

ARTICLE  II. 

WHAT  OPERATES   AS  A  TRANSFER. 

§  1140.     Transfer  of  title  under  sale. 

§  1141.     Transfer  of  title  under  executory  agreement  for  sale. 

§  1142.     When   buyer  acquires   better   title   than   seller  has. 

§1140.  TRAJrSFER  OF  TITLE  UNDER  SALE.  The  title 
to  personal  property,  sold  or  exchanged,  passes  to  the  buyer 
whenever  the  parties  agree  upon  a  present  transfer,  and  the 
thing  itself  is  identified,  whether  it  is  separated  from  other 
things  or  not. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  49  pars,  annotation. 

76  C.  212,  218,  9  A.  S.  199,  18  P.  248,  251  (construed  and 
applied);  86  C.  459,  463,  25  P.  12,  13  (applied);  107  C.  348,  357,  40 
P.  530,  534  (applied);  145  C.  514,  523,  78  P.  1040  (delivery 
simultaneously  with  payment  is  necessarily  essence  of  transfer) ; 
147  C.  313,  322,  81  P.  964  (applied — title  vests  regardless  of 
delivery);  3  C.  A.  519,  524,  86  P.  615  (applied — title  to  prop- 
erty sold  is  in  buyer). 

As  to  delivery  generally,  including  when  necessary  and  what 
is  sufficient,  see  Kerr's  Cyc.  C.  C.  §§  1753  et  seq.  and  notes. 

As  to  assignment  for  creditors  generally,  see  Kerr's  Cyc.  C.  C. 
§§  3449  et  seq. 

As  to  specific  performance,  see  26  A.  D.  661-671. 

Conditional  sales. — See  Kerr's  Cyc.  C.  C.  §  1721  and  note. 

Constructive  delivery  of  bulky  articles, — as  to,  see  Kerr's 
Cyc.  C.  C.   §  1140,  note  pars.   43-46;   75  A.  D.   443. 

Putting  in  condition  for. — See  Kerr's  Cyc.  C.  C.  §  1141  and 
note. 

§  1141.  TRANSFER  OF  TITLE  UNDER  EXECUTORY 
AGREEMENT  FOR  SALE.  Title  is  transferred  by  an  execu- 
tory agreement  for  the  sale  or  exchange  of  personal  prop- 
erty only  when  the  buyer  has  accepted  the  thing,  or  when 
the  seller  has  completed  it,  prepared  it  for  delivery,  and 
offered  it  to  the  buyer,  with  intent  to  transfer  the  title 
thereto,  in  the  manner  prescribed  by  the  chapter  upon  offer 
of  performance. 

Hi-story:     Enacted  March  21,  1872. 
616 


Tit.IV,ch.III,art.II.]  BUYER'S    TITLE.  §1142 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

63  C.  575,  576  (applied);  77  C.  139,  144,  12  A.  S.  63,  19  P.  260. 
261  (applied);  93  C.  532,  534,  29  P.  225,  226  (referred  to);  106 
C.  441,  446  (erroneously  cited  as  §  1114),  39  P.  853,  855  (correct 
citation);  146  C.  50,  55,  79  P.  592  (applied  to  sale  of  oranj?es 
on  trees);  3  C.  A.  519,  524,  86  P.  615  (applied — title  to  property 
sold  is  in  buyer. 

Offer  to  perform, — as  to,  see  Kerr's  Cyc.  C.  C.  §  1485  and  note. 

§  1142.  WHEN  BUYER  ACQUIRES  BETTER  TITLE  THAN 
SELLER  HAS.  Where  the  possession  of  personal  property, 
together  with  a  power  to  dispose  thereof,  is  transferred  bj-  its 
owner  to  another  person,  an  executed  sale  by  the  latter,  while 
in  possession,  to  a  buyer  in  good  faith  and  in  the  ordinj^ry 
course  of  business,  for  value,  transfers  to  such  buyer  the 
title  of  the  former  owner,  though  he  may  be  entitled  to 
rescind,  and  does  rescind,  the  transfer  made  by  him. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.   C.   for  15   pars,  annotation. 

123  C.  625,  632,  56  P.  776  (applied  to  sale  of  goods  in  ware- 
house— the  "possession"  mentioned  does  not  necessarily  nuan 
actual,  exclusive,  manual  possession — the  right  of  possos.sion 
may  be  transferred  though  property  is  in  hands  of  hallee, 
subject  to  latter's  lien). 

As  to  factor's  power  to  pledge,  see  22  Encyc.  L.  848,  note  ."i: 
also  36  A.  D.  716;  58  A.  D.  164;  59  A.  D.  297;  70  A.  D.  797;  92 
A.   D.    537;    95   A.   D.    406;    97   A.    D.    374;    42   A.   S.    48. 

Agent  with  power  to  ship,  sell,  and  receive  payment  from 
purchaser,  has  no  power  to  affect  property  consigned  to  him 
for  those  purposes  by  tortiously  soiling  it.  or  mortgaging  or 
pledging  it  as  satisfaction  or  security  for  his  own  debt.  The 
utmost  that  he  could  do,  in  that  respect,  would  be  to  mortgage 
or  pledge  it  to  extent  of  any  lien  whicli  he  might  have  upon 
it.— 19  C.  64,  76,  79  A.  D.  196;  55  C.  421.  424,  36  A.  R.  43;  56  C. 
477.  See  9  L.  270;  bk.  13  L.  ed.  667;  bk.  30  L.  ed.  573.  23 
Fed.    Cas.    853. 


617 


§  1146  CIVIL  CODE.  [Div.II.PtlV. 


ARTICLE  III. 

GIFTS. 

§  1146.  Gifts  defined. 

§  1147.  Gifts,   how   made. 

§  1148.  Gift  not  revocable. 

§  1149.  Gift  in  view  of  death,  what. 

§  1150.  When  gift  presumed  to  be  in  view  of  death. 

§  1151.  Revocation   of  gift  in  view  of  death. 

§  1152.  Effect  of  will  upon   gift. 

§  1153.  When  treated  as  legacy. 

§  1146.     GIFTS  DEFINED.    A  gift  is  a  transfer  of  personal 
propertj',  made  voluntarily,  and  without  consideration. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

83  C.  264,  265,  23  P.  369  (construed  and  applied);.  99  C.  17, 
21,  37  A.  S.  17,  33  P.  753,  754,  21  L.  474  (applied  in  construction^ 
of  gifts  prohibited  by  constitution);  121  C.  674,  678,  54  P." 
267  (construed  and  applied  in  connection  with  other  sections); 
126  C.  531,  534,  59  P.  30  (construed  and  applied);  131  C.  64,  66, 
67,  63  P.  133  (applied);  134  C.  603,  605,  65  P.  321,  66  P.  860 
(applied  in  connection  with  other  sections);  138  C.  169,  170, 
94  A.  S.  19,  71  P.  83  (construed  and  applied  in  connection  with 
other  sections);  143  C.  528,  536,  77  P.  471  (construed  and  applied 
in  connection  with  other  sections);  144  C.  289,  294,  296,  77  P. 
945  (construed — gift  by  decedent  of  debt  due  him  is  not  valid 
when);  146  C.  225,  230,  79  P.  883,  2  A.  C.  1001  (gift  of  shares 
of  stock,  when  invalid  for  want  of  delivery  during  lifetime  of 
deceased  giver);  153  C.  174,  176,  94  P.  766  (what  is  essential  to 
validity  of  verbal  gift);  3  C.  A.  115,  120,  84  P.  435  (impossibility 
of  gift  under  circumstances — inadmissible  evidence);  3  C.  A. 
213,  217,  84  P.  841  (what  gift  passes  title  to  money  and  is  not 
revocable);  3  C.  A.  501,  502,  86  P.  617  (doctrine  of  donatio 
causa  mortis  applies  only  to  personal  property);  6  C.  A.  144, 
146,  91  P.  658  (construed  with  other  sections — valid  gift  of 
savings-bank  pass-book). 

GIFTS — GENERALLY. 

Acceptance    necessary    to    completion. — See    92    A.    S.     321;     4 
W.  &  P.  3084. 

Between    husband    and    wife,    validity    of.— See    2    L.    716;    5    L,. 
579;  21  L.  623;  69  L.  355. 

618 


Tit.IV,ch.III,art.III.]        GIFTS,  GENERALLY.  §  ^q 

By  assignment  of  a  fund  or  by  check  on  bank. — St-e  "6  A  R 
684. 

By    husband,    whether    fraudulent    as    against    wife See     M 

A.  S.   490. 

By  implication. — See  1  L.   551;   11  L.   6S4. 
By  promissory  note. — See  26  L.  305. 

Bj'  wife  to  husband,  when  inferable  by  use  by  him  of  the 
income  of  real  property. — See  58  A.  R.  261. 

Causa  mortis — As  to  generally,  see  Kerr's  Cyc.  C.  C.  §  1149  and 
note;  10  A.  C.  473;  10  A.  C.  1051;  99  A.  S.  890;  3  L.  230;  7  L.  439; 
11  L.  684;  4  W.  &  P.   3087-3091. 

Same — As  a  conditional  gift. — 35  A.  S.  17;  4  W.  &  P.  3088. 
Same — By   promissory   note. — See   26   L.   305. 

Same — Constructive  delivery,  sufficiency  of  to  sustain. — See 
18  L.   170. 

Same — Death  by  existing  disorder. — See  4  "W.  &  P.  3089. 
Same — Delivered   to  third   person   constitutes  a,    when. — See    2 
A.    C.    1003. 

Same — Delivery  of  property  to  third  preson  held  insufficient 
as  a. — See  2  A.  C.  1001. 

Same — Delivery  sufficient  to  support. — See  23  A.  D.  597;  50  .\. 
R.   178;  74  A.  S.  442;  27  L.  ed.  500;  4  W.  &  P.  3089. 

Same — Expectation  of  death  necessary  to  valid. — See  74 
A.  S.  442;  4  W.  &  P.  3090. 

Same — Intention   to   make. — See   54  A.   R.   819;    4   W.   &   P.   3090. 
Same — Gift    inter    vivos    distinguished. — See    27    L.    507:    4    W. 
&  P.  3090. 

Same — Gift  of  check  as  a  valid. — See  10  A.  C.  475. 
Same — Legacy  distinguished. — See  56  A.  R.  543;  27  L.  ed.  500; 
4   W.   &    P.    3091. 

Same — Necessity  of  delivering,  to  validity  of. — See  2  A.  C.  1001. 
Same — Of  money  deposited  in  .savings  bank. — See  26  A.  R.  684; 
48   A.   R.    506. 

Same — Of  notes  and  choses  in  action  payable  to  ord---  ■-'  -^ 
23    A.    D.    600;    25    A.    D.    389. 

Same — Requisites  of. — See  6  L.  367. 

Same — Revocation   of. — See  Kerr's  Cyc.   C.  C.   5  1151    and   note. 
Same — What  is. — See   11   L.    684. 

Character  of  presumption  as  to  undue  influence  in  gift  to 
mistress. — See  11  L.  N.  S.  554. 

Conveyance  which  must  be  regarded  as. — See  65  A.  S.  79S. 
Definition  of. — See  6  L.  403;  4  W.  &  P.  3084. 

Degree  of  proof  necessary  to  establish  parol  gift  of  real 
estate. — See  9  L.  N.  S.  508. 

Delivery    necessary    to    validity    of. — See    9    A.    S.    83;    15    A.    S. 
531;   17  A.  S.   638;   92  A.  S.   231;   93  A.  S.   827;   1   L.   535;   6  L.   403; 
11  L.  684;  18  L.  170;  56  L.  596;  4  W.  &  P.  3085. 
Delivery  sufficient  to  support. — See  50  A.  R,  178, 

619 


§  1146  CIVIL  CODE.  [Div.II.Pt.IV. 

Deposit  in  bank  for  otlier  person  as  a. — See  1  L.  N.  S.  790. 

Deposit  in   bank,  when  amounts  to. — See  23  A.   R.   451. 

Deposit  in  joint  name  as  gift  to  co-depositor. — See  12  L.  N.  S. 
355. 

Disting-uislied    from    advancement. — See    12    L.    567. 

Effect  of  mere  agreement  to  make. — See   11   L.    685. 

Effect   of  mere   intention   to   make. — See    11   L.    685. 

Effect  of  receipt  of  gratuity  to  mitigate  damages  for  personal 
injury. — See   67   L.    90. 

Forfeiture  of. — See  13  L.  698. 

Fraud  and  undue  influence — As  to  generally,  see  Kerr's  Cyc. 
C.  C.  §§  1709,  1710  and  notes. 

Gift  of  or  by  deposit,  as  to  generally. — See  1  L.  536;  5  L.  72; 

5  L.  405;  6  L.  405;  11  L.  685. 

Gift  to  wife  before  and  in  consideration  of  marriage — Mis- 
conduct of  as  affecting. — See  6  L.  N.  S.   785. 

Intent  to  make  a  gift  necessary  to  validity. — See  94  A.  S. 
19;    1   L.   535;    4   W.   &   P.   3087. 

Inter  vivos — As  to  generally,  see  3  A.  C.  863;  4  A.  C.  529;  6  A. 
C.   430. 

Same — By  promissory  note. — See  26  L.  305. 

Same — Complete  execution  by  deposit  of  money  in  bank  to 
credit  of  another. — See  3  A.  C.   865. 

Same — Revocability    of    completed,    by    parent    to    child. — See 

6  A.  C.  432. 

Same — What  constitutes. — See  6  L.  515. 

Kinds  of. — See  4  W.  &  P.  3084. 

No  particular  formula  or  set  phrase  is  necessary. — See  73 
C.    614;    15    P.    354,    355. 

Of  check,  as  to  generally. — See  18  L.  855. 

Of  choses  in  action. — See   11  L.   686. 

Of  corporate  stocks,  necessity  of  writing. — See  2  L.  N.  S.  806. 

Of  deposit  of  money  in  the  bank  in  the  name  of  another. — See 
39  A.  R.  310. 

Of  husband's  personal  property  in  fraud  of  wife. — See  3  L.  N. 
S.    774. 

Of  real  property — As  basis  of  adverse  possession. — See  35  L. 
835. 

Same — By  parol. — See   67  L.   461. 

Same — -Right  in  respect  to  compensation  for  improvements  on 
land,  made  in  good  faith,  under  a  parol  contract  or  gift. — See 
53  L.   337. 

Same — Specific  performance  of  parol. — See  5  L.  327. 

Parol  gift  of  land — Degree  of  proof  necessary  to  establish. — 
See  9  L.   N.  S.   508. 

Power  of  municipality  to  donate  property  for  worthy  purpose. 
— See  11  L.  124. 

Povi^er  to  sell  as  authorizing  gift. — See  3  L.   754. 

620 


TitlV.ch.III.art.III.]         HOW  MADE.  §§1147,1148 

Right  of  married  woman  to  make  gift  of  personal  property 
without  consent   of  liusband. — See  3  L.  N.  S.   769. 

Revocability  of. — See  11  L.  687;  2  L.  N.  S.  28.'.. 

Specific   performance   of. — See   23   A.   D.    429. 

Subsequent  lunacy  of  donor  as  affecting,  incoinpi.  t.-. — S.-e  34 
L.  297. 

To  a  class,  who  entitled  to  take. — See  73  A.  S.  413. 

What  necessary  to  complete. — See  5  L.  71;  6  L.  367. 

§  1147.    GIFT,   HOAV   MADE.     A   verbal   gift  is  not   valid. 
unless  the  means  of  obtaining  possession  and  control  of  the 
thing  are  given,  nor,  if  it  is  capable  of  delivery,  unless  there  is 
an  actual  or  symbolical  delivery  of  the  thing  to  the  donee. 
Hititory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  81  pars,  annotation. 

106  C.  651,  657,  40  P.  8  (applied);  113  C.  490,  497.  45  P.  867 
(construed  and  applied);  121  C.  426,  429,  53  P.  931  (construed  and 
applied);  121  C.  674,  679,  681,  54  P.  267  (construed  and  applied 
in  connection  with  other  sections);  131  C.  64,  66,  63  P.  133 
(referred  to);  138  C.  169,  170,  14  A.  S.  19,  71  P.  83  (construed  and 
applied);  143  C.  528,  532,  534,  77  P.  471  (construed  and  applied  i; 
144  C.  289,  296,  77  P.  945  (construed — gift  by  decedent  of  debt 
due  him  is  not  valid  when);  153  C.  174.  176,  94  P.  766,  767  (what 
is  essential  to  validity  of  verbal  gift);  3  C.  A.  115,  120.  84  F. 
435,  437  (impossibility  of  gift  under  circumstances — Inadmis- 
sible evidence);  3  C.  A.  213,  217.  84  P.  841  (what  gift  pas.'^o.i 
title  to  money  and  is  not  revocable). 

As  to  gifts  generally,  see  note  §  1146,  ante. 

Execution  of  deed  by  mark — As  to,  see  Kerr's  Cyc.  C.  C.  |  14 
note  pars.    19,   20,   56-64. 

Gift  causa  mortis. — See  Kerr's  Cyc.  C.  C.  I  1149  and  note,  also 
note  §  1146.  ante. 

Gift — Generally. — See  Kerr's  Cyc.  C.  C.  8  1146  and  note,  also 
note   §  1146,  ante. 

Law  applies  to  shares  of  national  bank. — See  46  A.  D.  332;  76 
A.   D.   445. 

Revocation  of  gift  rausn  m.^rtis. — ;i«  t...  «.••>  K'rr«  r-v.-  n  c. 
§  1151  and  note. 

§  114S.    GIFT  NOT  REVO(  VULE.    A  gift,  other  than  a  gift 
in  view  of  death,  cannot  be  revoked  by  the  giver. 
History:     Enacted  March   21.  1S72. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

3  C.  A.  213.  217.  84  P.  841  (what  gift  passes  title  to  money  and 
is  not  revocable). 

621 


§§  1149-1151  CIVIL  CODE.  [Div.II,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  gifts,  see  note  §  1146, 
ante. 

Fraudulent  conveyances — Gift  as. — See  Kerr's  Cyc.  C.  C. 
§§  3439  et  seq.  and  notes. 

Revocation  of  gift  causa  mortis — As  to,  see  Kerr's  Cyc.  C.  C. 
§  1151  and  note. 


§  1140.  GIFT  IN  VIEW  OF  DEATH,  WHAT.  A  gift  in 
view  of  death  is  one  which  is  made  in  contemplation,  fear, 
or  peril  of  death,  and  with  intent  that  it  shall  take  effect 
only  in  case  of  the  death  of  the  giver. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  396,  held 
unconstitutional,  see  history,   §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

105  C.  143,  147,  38  P.  640  (construed  and  applied);  3  C.  A. 
501,  502,  86  P.  617  (doctrine  of  donatio  causa  mortis  applies 
only  to  personal  property). 

As  to  many  miscellaneous  matters  as  to  gifts,  see  note  §  1146, 
ante. 


§  1150.  WHEN  GIFT  PRESUMED  TO  BE  IN  VIEW  OF 
DEATH.  A  gift  made  during  the  last  illness  of  the  giver,  or 
under  circumstances  which  would  naturally  impress  him  with 
an  expectation  of  speedy  death,  is  presumed  to  be  a  gift  in 
view  of  death. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  anotation. 
121  C.  674,  677,  54  P.  267   (construed  and  applied). 
As  to  many  miscellaneous  matters  as  to  gifts,  see  note  §  1146, 
ante. 

§1151.    REVOCATION   OF    GIFT    IN    VIEW    OF   DEATH. 

A  gift  in  view  of  death  may  be  revoked  by  the  giver  at  any 
time,  and  is  revoked  by  his  recovery  from  the  illness,  or 
escape  from  the  peril,  under  the  presence  of  which  it  was 
made,  or  by  the  occurrence  of  any  event  which  would  operate 
as  a  revocation  of  a  will  made  at  the  same  time,  but  when 
the  gift  has  been  delivered  to  the  donee,  the  rights  of  a  bona 

622 


! 


Tit.IV,ch.III,art.III.]  WILI^-legacy.  §§  ^-^gg,  1153 

fide  purchaser  from  the   donee   before  the  revocation,   shall 
not  be  affected  by  the  revocation. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  226. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

99  C.  311,  315,  33  P.  929,  930  (applied);  132  C.  164,  166,  64  P. 
283  (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  gifts,  see  note  §  1146, 
ante. 

§  1152.  EFFECT  OF  WILL  UPON  GIFT.  A  gift  in  view 
of  death  is  not  affected  by  a  previous  will;  nor  by  a  subse- 
quent will,  unless  it  expresses  an  intention  to  revoke  the  gift. 

History:     Enacted  March  21,  1872. 

132  C.  164,  166,   64  P.  283   (cited). 

As  to  many  miscellaneous  matters  as  to  gifts,  see  note  §  1146, 
ante. 

§  1153.  WHEN  TREATED  AS  LEGACY.  A  gift  in  view  of 
death  must  be  treated  as  a  legacy,  so  far  as  relates  only  to 
the  creditors  of  the  giver. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  gifts,  see  note  §  1146, 
ante. 


623 


§§  1158, 1159  CIVIL  CODE.  [Div.II.Pt.IV. 

CHAPTER  IV. 

RECORDING    TRANSFERS. 

Article    I.     What  May  Be  Recorded,  §§  1158-1165. 
II.     Mode  of  Recording,  §§  1169-1173. 

III.  Proof  and^ Acknowledgments  of  Instruments,  §§  1180- 

1207. 

IV.  Effect  of  Recording,  or  of  the  Want  Thereof,  §§  1213- 

1218. 

ARTICLE  I. 
WHAT  MAY   BE    RECORDED. 

§  1158.     What  may  be  recorded. 

§  1159.  Judgments  may  be  recorded  without  acknowledgment. 
[Location   of  mining   claim.] 

§  1160.  Letters  patent  may  be  recorded  without  acknowledg- 
ment. 

§  1161.     Instruments  must  be  acknowledged,  except,  etc. 

§  1162.     Same.      [Certified  instruments   recorded,  when.] 

§  1163.  Certificate  of  residence  filed  witli  recorder  showing 
where  service  of  summons  may  be  made. 

§  1164.     Transfers  in  trust,  etc. 

§  1165.     Recorder's  fees  to  be  indorsed. 

§  1158.  WHAT  MAY  BE  RECORDED.  Any  instrument  or 
judgment  affecting  the  title  to  or  possession  of  real  property 
may  be  recorded  under  this  chapter. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

55  C.  564,  565,  566  (meaning  of  "instrument" — it  does  not 
embrace  what);  67  C.  57,  58,  7  P.  47  (construed  and  applied);  76 
C.  136,  140,  9  A.  S.  177,  18  P.  146,  148  (applied);  108  C.  250,  256,  49 
A.  S.  84,  39  P.  783,  41  P.  472  (cited  and  applied);  108  C.  546, 
549,  41  P.  450   (applied);  146  C.  3,  8,  79  P.  527   (cited). 

Enumeration  of  "instruments"  and  "conveyances." — See  Kerr's 
Cyc.  C.  C.  §  1215  and  note. 

§1159.  JUDGMENTS  MAT  BE  RECORDED  WITHOUT 
ACKNOWLEDGMENT.      [LOCATION    OF    MINING    CLAIM.] 

Judgments  affecting  the  title  to  or  possession  of  real  property, 

624 


Tit.IV,cli.IV,art.I.]       letters  patent.  §1160 

authenticated  by  the  certificate  of  the  clerk  of  the  court  in 
which  such  judgments  were  rendered  (and  notices  of  location 
of  mining  claims),  may  be  recorded  without  acknowledgment, 
certificate  of  acknowledgment,  or  further  proof. 

[Work  upon  niiuiiig-  claims.]  The  record  of  all  notices  of 
location  of  mining  claims  heretofore  made  in  the  proper 
office  without  acknowledgment,  or  certificate  of  acknowledg- 
ment, or  other  proof,  shall  have  the  same  force  and  effect 
for  all  purposes  as  if  the  same  had  been  duly  acknowledged, 
or  proved  and  certified  as  required  by  law.  Affidavits  show- 
ing work  or  posting  of  notices  upon  mining  claims  may  also 
be  recorded  in  the  recorder's  office  of  the  county  where  such 
mining  claims  are  situated. 

History:  Enacted  March  21,  1872;  amended  March  9,  1897, 
Stats,  and  Amdts.  1897,  pp.  97,  98.     In  effect  March  9,  1897. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  artnotation. 

129  C.  361,  362,  363,  61  P.  1124  (applied);  5  C.  A.  175,  183,  89  P. 
1001,  1004  (copy  of  notice  of  appropriation  of  water,  though  not 
in  the  excepted  classes,  may  be  recorded  without  acknowledg- 
ment). 

§  1160.  LETTEKS  PATENT  MAY  BE  RECORDED  WITH- 
OUT ACKNOWLEDGMENT.  Letters  patent  from  the  United 
States,  or  from  the  state  of  California,  executed  and  authenti- 
cated pursuant  to  existing  law,  may  be  recorded  without 
acknowledgment  or  further  proof,  and  where  letters  patent 
have  been  lost,  or'  are  beyond  the  control  of  any  party  deraign- 
ing  title  therefrom,  or  for  any  reason  they  remain  unrecorded, 
any  person  claiming  title  thereunder  may  cause  a  transcript 
of  the  copy  of  such  letters  patent  kept  by  the  government 
issuing  the  same,  duly  certified  by  the  officer  or  individual 
having  lawful  custody  of  such  copy,  to  be  recorded  in  lieu 
of  the  original;  and  such  recorded  copy  shall  have,  prima 
facie,  the  same  force  and  effect  as  the  original,  for  title  or 
for  evidence,  until  said  original  letters  patent  be  recorded. 

History:  Enacted  March  21,  1872;  amended  April  1,  1878, 
Code  Amdts.  1877-8,  p.  86. 

625 


§§1161,1162  CIVIL  CODE.  [Div.II,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

84  C.  567,  569,  24  P.  106,  107  (construed  as  not  applicable);  5 
C.  A.  175,  183,  89  P.  1001,  1004  (copy  of  notice  of  apropriation  of 
water,  though  not  in  the  excepted  classes,  may  be  recorded  with- 
out acknowledgment);  5  C.  A.  485,  489,  90  P.  965,  967  (applied 
to  copj'  of  United  States  patent). 

§1161.  IIVSTEUMENTS  MUST  BE  ACKNOWLEDGED, 
EXCEPT,  ETC.  Before  an  instrument  can  be  recorded,  unless 
it  belongs  to  the  class  provided  for  in  either  section  eleven 
hundred  and  fifty-nine,  eleven  hundred  and  sixty,  twelve  hun- 
dred and  two,  or  twelve  hundred  and  three,  its  execution  must 
be  acknowledged  by  the  person  executing  it,  or  if  executed 
by  a  corporation,  by  its  president  or  secretary,  or  other  per- 
son executing  the  same  on  behalf  of  the  corporation,  or 
proved  by  a  subscribing  witness,  or  as  provided  in  sections 
eleven  hundred  and  ninety-eight  and  eleven  hundred  and 
ninety-nine,  and  the  acknowledgment  or  proof  certified  in  the 
manner  prescribed  by  article  three  of  this  chapter. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  226;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  396,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats. 
and  Amdts.  1905,  p.  602. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

55  C.  564,  565  (meaning-  of  "instrument" — it  does  not  embrace 
what);  56  C.  128,  129  (cited);  74  C.  425,  429,  16  P.  231,  232 
(referred  to);  90  C.  444,  477,  27  P.  356,  366  (cited);  5  C.  A.  175, 
183,  89  P.  1001,  1004  (copy  of  notice  of  appropriation  of  water, 
though  not  in  the  excepted  classes,  may  be  recorded  without 
acknowledgment);  83  F.  48,  56  (instrument  creating  trusts  in 
lands,  though  unacknowledged,  may  be  recorded,  upon  proof 
of  its   execution). 

§  1162.  SAME.  [CERTIFIED  INSTRUMENTS  RECORDED, 
WHEN.]  An  instrument  proved  and  certified  pursuant  to  sec- 
tions eleven  hundred  and  ninety-eight  and  eleven  hundred  and 
ninety-nine  may  be  recorded  in  the  proper  office  if  the  origi- 
nal is  at  the  same  time  deposited  therein  to  remain  for  public 
inspection,  but  not  otherwise. 

History:     Enacted  March  21,  1872. 
626 


Tit.IV,ch.IV,art.I.]  RESIDENCE.  §§1163.  11«;4 

55  C.  564,  565   (meaning'  of  "instrumont" — it  does  not  embrace 
what). 


§  1163.  CERTIFICATE  OF  RESIDENCE  FILED  WITH 
RECORDER  SHOWIXG  WHERE  SERVICE  OF  SIMMONS 
MAY  BE  MADE.  Any  person,  firm,  or  corporation,  may- 
record  in  the  office  of  the  county  recorder  of  any  county  in 
the  state  of  California  a  certificate  setting  forth  the  name  of 
said  person,  firm,  or  corporation,  and  the  place  of  residence 
of  said  person,  firm,  or  corporation,  and  the  place  where 
service  of  summons  may  be  made  upon  said  person,  firm,  or 
corporation.  The  said  certificate  must  be  verified  by  the  oath 
of  the  person,  or  of  a  member  of  the  firm,  or  officer  of  the 
corporation  making  the  same,  and  may  be  recorded  without 
acknowledgment.  Such  person,  firm  or  corporation  may  upon 
a  change  of  place  of  residence  file  affidavit  as  herein  provided 
and  such  last  affidavit  filed  shall  be  the  place  designated  as 
the  place  where  service  of  summons  may  be  made  as  herein 
provided. 

Tlie  fee  of  the  recorder  for  reeordini;  said  eertltioale  shall 
be  fifty  cents;  and  the  recorder  shall  keep  in  his  office  an 
index  entitled  "Index  to  Certificates  of  Residence,"  in  which 
must  be  entered  the  name  of  the  person,  firm,  or  corporation 
in  whose  behalf  said  certificate  was  filed. 

Hlwtory;  Original  .section,  providing  that  instruments  executed 
under  power  of  attorney  sliould  not  be  recorded  until  the 
power  of  attorney  was  filed,  was  repealed  March  30,  1873-4.  p. 
226.  The  above  section  is  a  new  provision  added,  under  old 
section  number,  March  18,  1905,  Stats,  and  Amdts.  1905.  pp.  139. 
140. 


§  1164.  TRANSFER  IN  TRUST,  ETC.  Transfers  of  prop- 
erty in  trust  for  the  benefit  of  creditors,  and  transfers  or  liens 
on  property  by  way  of  mortgage,  are  required  to  be  recorded 
in  the  cases  specified  in  the  titles  on  the  special  relation  of 
debtor  and  creditor,  and  the  chapter  on  mortgages,  respect- 
ively. 

History:     Enacted  March  21,  1S72. 
627 


§§  1165-1170  CIVIL  CODE.  [Div.II.PtlV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

108  C.   250,   256,   49  A.  S.   84,   39  P.  783,  41  P.   472    (construed). 

Assignments  for  benefit  of  creditors, — as  to,  see  Kerr's  Cyc. 
C.  C.  §§  3449  et  seq.  and  note. 

Debtor  and  creditor— Special  relation  of. — See  Kerr's  Cyc.  C. 
C.    §§  3429   et   seq.   and  notes. 

Fraudulent  instruments  and  transfers.- — See  Kerr's  Cyc.  C.  C. 
§§  3439    et   seq.   and   notes. 

Mortg-ag-es,- — as  to,  see  Kerr's  Cyc.  C.  C.  §§  2920  et  seq.  and 
notes. 

§  1165.    RECORDER'S    FEES    TO    BE    INDORSED.      The 

recorder  must,  in  all  cases,  indorse  the  amount  of  his  fee  for 
recordation  on  the  instrument  recorded. 

History:     Enacted  March   11,  1874,  Code  Amdts.   1873-4,  p.   275. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what). 


ARTICLE  II. 

MODE    OF    RECORDING. 

§  1169.  In    what   office. 

§  1170.  Instrument,   when   deemed   recorded. 

§  1171.  Books   of   record. 

§  1172.  Duties    of   recorder. 

§  1173.  Transfer  of  vessels. 

§  1169.  IN  WHAT  OFFICE.  Instruments  entitled  to  be 
recorded  must  be  recorded  by  the  county  recorder  of  the 
county  in  which  the  real  property  affected  thereby  is  situated. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
103  C.  108,  110,  111,  37  P.  188  (applied). 

§  1170.     INSTRUMENT,  WHEN  DEEMED  RECORDED.     An 

instrument  is  deemed  to  be  recorded  when,  being  duly 
acknowledged  or  proved  and  certified,  it  is  deposited  in  the 
recorder's  office,  with  the  proper  officer,  for  record. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4.  p.  227. 

628 


Tit.IV,ch.IV,art.II.]  RECORDS.  §§1171-1173 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what):  57  C.  399,  401,  402  (applied);  67  C.  57,  58,  7  P.  47  (con- 
strued and  applied);  90  C.  444,  447,  27  P.  356,  366  (cited);  93  C. 
395,  399,  29  P.  58  (applied);  35  P.  646,  647  (construed  and 
applied);  102  C.  493,  498,  37  P.  755  (cited);  104  C.  395,  400,  38 
P.  53  (construed  and  applied);  121  C.  254,  256,  53  P.  796  (con- 
strued and  applied);  131  C.  552,  555,  556,  557,  558,  82  A.  S.  391. 
63  P.  844   (construed  and  applied  with  other  sections). 

Indorsement    of    fees    by    recorder. — See   post    §  1165. 

§  1171.  KOOKS  OF  RECORD.  Grants,  absolute  in  terms, 
are   to   be   recorded   in  one   set  of   books,   and   mortgages   in 

another. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.   C.   for    6   pars,   annotation. 

131  C.  552,  558,  82  A.  S.  391,  63  P.  844  (cited)  146  C.  3,  10. 
79  P.  527  (what  instrument  must  not  be  recorded  aniongr  mort- 
gages). 

§  1172.  DUTIES  OF  RECORDER.  The  duties  of  comvy 
recorders,  in  respect  to  recording  instruments,  are  prescribed 
by  the  Political  Code. 

History:     Enacted  March  21,  1872. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  em- 
brace   what). 

Duties  of  recorder — Generally. — See  Kerr's  Cyc.  Pol.  C.  SS  4235 
et  seq.  and  notes. 

§  1173.  TR.V>'SFER  OF  VESSELS.  The  mode  of  record- 
ing transfers  of  ships  registered  under  the  laws  of  the  I'nited 
States  is  regulated  by  acts  of  Congress. 

History:     Enacted  March   21,   1872. 

Recording  transfer  of  vessels. — See  U.  S.  Rev.  Stats.  $§4131 
et   seq.,   5    F.   S.   A.    395. 


629 


§  1180  CIVIL  CODE.  [Div.II.Pt.IV. 

ARTICLE  III. 

PROOF    AND    ACKNOWLEDGMENT    OF    INSTRUMENTS. 

§  1180.  By  whom  acknowledgments  may  be  taken  in  this  state. 

§  1181.  ^ame. 

§  1182.  By  whom  taken  without  the  state. 

§  1183.  By  whom   taken   without  the  United  States. 

§  1184.  Deputy   can  take  acknowledgment. 

§  1185.  Requisites  for  acknowledgements. 

§  1186.  Acknowledgment  by  married  women    [repealed]. 

§  1187.  Conveyance  by  married  woman.     Acknowledgment. 

§  1188.  [Same.]      Certificate. 

§  1189.  General  form   of  certificate.      [Outside   of  state.] 

§  1190.  Form    of   acknowledgment   by    corporation. 

§  1191.  Form     of    certificate    of    acknowledgment    by    married 

women    [repealed]. 

§  1192.  Form   of  certificate   of  acknowledgment  by  attorney   in 

fact. 

§  1193.  Officers  must  affix  their  signatures. 

§  1194.  Certificate  of  authority  of  justices  in   certain  cases. 

§  1195.  Proof  of  execution,  how  made. 

§  1196.  Witness  must  be  personally  known  to  officer. 

§  1197.  Witness  must  prove,   what. 

§  1198.  Handwriting   may   be   proved,   when. 

§  1199.  Evidence  of  handwriting  must  prove,  what. 

§  1200.  Certificate    of   proof. 

§  1201.  Officers  authorized  to  do  certain  things. 

§  1202.  Instrument  improperly  certified,  how  corrected. 

§  1203.  Judgment  proving   instrument. 

§  1204.  Effect  of  judgment  in   such  action. 

§  1205.  Conveyances   heretofore   made   to   be   governed   by   then 

existing  laws. 

§  1206.  Recording,    and    as    evidence,    to    be    governed    by    then 

existing  laws. 

§  1207.  Validating    defectively    executed    instruments.      Record 

imparts  notice.     Certified  copies. 

§  1180.  BY  WHOM  ACKNOWLEDGEMENTS  MAT  BE 
TAKEN  IN  THIS  STATE.  The  proof  or  acknowledgment  of 
an  instrument  may  be  made  at  any  place  within  this  state 
before  a  justice  or  clerk  of  the  supreme  court,  or  judge  of  a 
superior  court. 

630 


Tit.IV.ch.IV.art.III.]        ACKNOWLEDGEMENT.  §  HgQ 

Hlstorj-:     Enacted  March  21,  1872;  amende<l  Amii  ^.    iwu    i'...!.. 
Amdts.    1880    (C.   C.   pt.),   p.    2. 

55  C.  564,  565   (meaning  of  "instrument" — it  does  nut  embrace 
what). 

ACKXOWLEDGMEXT     OF     IXSTRl  MENTS — GENERALLY. 

As   to   instruments   included   in   term    "conveyance,"   see   Kerrs 
Cyc.   C.  C.  §  1215  and  note. 

Abbreviations    in    certificate,    sufficiency    of    to    show    offlclal 
character. — See  14  L.  815. 

Amending  and  perfecting  certificate  of. — See   52  A.   D.  519. 

Certificate    of    married    woman,    when    sufficient. — See    6    A.    S. 
642;   see   note   §1093  ante. 

Certificates    as    to — Errors    and    omissions    in,    effect    of. — S<-'- 
2    A.    C.    989;    7    A.    C.    693. 

Same — Same — Effect  of  omission  of  name  of  grantor  r>r  ni.rr- 
gagor. — See   2   A.   C.   990. 

Same — Impeachment  of,   generally,  see   7  A.   C.   245. 

Same — Same — Evidence   requisite   to. — See    7   A.   C.   249. 

Same — Necessity    that    certificate    should    state    that    it    wa.s 
taken   within    officer's  jurisdiction. — See   10   A.   C.    129. 

Same — Requisites,  generally,  see  5  A.  C.  459,  10  A.  C.   128. 

Conclusiveness  of  certificate  of. — See  1  A.  D.   81;  54  A.  S.  150. 

"Conveyance" — As  to  instruments  included  in,  see  Kerr's  Cyc. 
C.  C.   P.   §  1215  and  note. 

Disqualification  of  officer  taking,  effect  of. — See  32   A.   D.  757: 
58    A.    S.    707. 

Effect    of    grammatical    defects    in    certificate    of. — See    11     I- 
N.    S.    643. 

Informality,  how  cured. — See  10  L.   857. 

Instruments   included    in   the   term    "conveyance." — See   Kerr's 
Cyc.  C.   C.   §  1215  and  note. 

Interest   of   officer   in    transaction   disqualifies    liim    from    tak- 
ing.—See   56   A.   S.    798;    33   L.   332. 

Leaving   blank    for   name   of   party   in   certificate  of  acknowl- 
edgment, effect  of. — See  19  L.  279. 

Of    deeds,    certificate    defective,    when    fatal    and    when    not. — 
See   108  A.   S.   525. 

Omission  in,  does  not  invalidate. — See  10  L.  S57. 

Power  of  con.sul   to  take  aiknowledgment. — See   45  L.   4;>y. 

Power  of  deputy  taking  acknowlcdgnunt. — See   2  A.  C.   299. 

Presumption  as  to  official  character  of  justice  of  the  peace. — 
See  10  L.  857. 

Right  of  interested  person   to  take  acknowledgment. — See  56 
A.   S.    798;    33    L.    332. 

Substantial   compliance   with   statute  sufficient. — See   10  L.  S57. 

Sufficiency   of    evidence    to    impeach    certificate    of.    of   deod.— 
See   6   L.   N.   S.    442. 

631 


§  1181, 1182  CIVIL  CODE.  [Div.II,Pt.IV. 

Validity  of  acknowledgment — Of  deed  of  trust  taken  by  trus- 
tee.—See  16  L.  719. 

Same — Taken  by  officer  whose  right  to  office  has  ceased. — 
See    5   A.   C.    461. 

When  fatally  defective  and  when  not. — See  41  A.  D.  168; 
108   A.    S.    525. 

§  1181.  SAME.  The  proof  or  acknowledgment  of  an  instru- 
ment may  be  made  in  this  state,  within  the  city,  county,  city 
and  county,  or  township  for  which  the  officer  was  elected  or 
appointed,  before  either: 

1.  A  clerk  of  a  court  of  record; 

2.  A  county  recorder; 

3.  A  court  commissioner; 

4.  A  notary  public; 

5.  A  justice  of  the   peace. 

History:  Enacted  March  21,  1872;  amended  April  3,  1880,  Code 
Am.dts.  1880  (C.  C.  pt.),  p.  2;  March  31,  1891,  Stats,  and  Amdts. 
1891,  p.  214;  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  396,  held  unconstitutional,  see  history,  §  4 
ante;  amendment  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.   603. 

See   Kerr's   Cyc.   C.   C.   for   15   pars,   annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what);  64  C.  267,  268,  269,  30  P.  816,  817  (construed  and  ap- 
plied); 90  C.  444,  448,  27  P.  356,  367  (applied);  90  C.  444,  478, 
27  P.  356  (cited);  104  C.  680,  682,  683,  38  P.  516  (construed); 
130   C.   442,   447,    62   P.    739    (cited). 

As  to  many  miscellaneous  matters  as  to  acknowledgment 
of  instruments,  see  note   §  1180,   ante. 

Presumption  of  identity  of  persons  from  identity  of  name. — 
See,    generally,    Kerr's   Cyc.   C.   C.   P.    §  1963   subd.    25   and   note. 

§  1182.     BY  WHOM  TAKEN  WITHOUT  THE  STATE.     The 

proof  or  acknowledgment  of  an  instrument  may  be  made 
without  this  state,  but  within  the  United  States,  and  with 
the  jurisdiction  of  the  officer,  before  either: 

1.  A  justice,  judge,  or  clerk  of  any  court  of  record  of  the 
United  States;   or, 

2,  A  justice,  judge,  or  clerk  of  any  court  of  record  of  any 
state ;   or, 

632 


Tit.IV,ch.IV,art.III.]         BY  WHOM  taken.  §§1183,1181 

3.  A  commissioner  appointed  by  the  governor  of  this  state 
for  that  purpose;  or, 

4.  A  notary  public;   or, 

5.  Any  other  officer  of  the  state  where  the  acknowledg- 
ment is  made  authorized  by  its  laws  to  take  such  proof  or 
acknowledgment. 

History:     Enacted  March  21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what). 

As  to  many  miscellaneous  matters  as  to  acknowledgment  of 
instruments,  see  note   §  1180,  ante. 

§1183.  BY  WHOM  TAKEX  WITHOUT  THE  IMTEI) 
STATES.  The  proof  or  acknowledgment  of  an  instrument 
may  be  made  without  the  United  States,  before  either; 

1.  A  minister,  commissioner,  or  charge  d'affaires  of  the 
United  States,  resident  and  accredited  in  the  country  where 
the  proof  or  acknowledgment  is  made;  or, 

2.  A  consul,  vice-consul,  or  consular  agent  of  the  United 
States,  resident  in  the  country  where  the  proof  or  acknowl- 
edgment is  made;  or, 

3.  A  judge  of  a  court  of  record  of  the  country  whore  the 
proof  or  acknowledgment  is  made;  or, 

4.  Commissioners  appointed  for  such  purposes  by  the  gov- 
ernor of  the  state,  pursuant  to  special  statutes;   or, 

5.  A  notary  public. 

History!  Enacted  March  21.  1872:  am.iid.-d  March  30.  1S74. 
Code  Amdts.   1873-4,  p.   227. 

See    Kerr's    Cyc.    C.   C.    for    3    pars,    annotation. 

55  C.  564,  565  (meaning  of  "instrument" — It  does  not  embrace 
what);  110  C.  243,  245,  42  P.  810  (referred  to);  83  F.  48.  56 
(instrument  creating  trust  in  lands,  though  unacknowledged, 
may  be  recorded  upon  proof  of  its  execution). 

As  to  many  miscellaneous  matters  as  to  tlie  arkno\vl.>djr- 
ment  of  instruments,  see  note  §  1180,  ante. 

§  1184.  DEPUTY  CAN  TAKE  ACK>OWLED(iMENT.  When 
any  of  the  officers  mentioned  in  the  four  preceding  sections 

633 


§§1185,1186  CIVIL  CODE.  [Div.II.Pt.IV. 

are  authorized  by  law  to  appoint  a  deputy,  the  acknowledg- 
ment or  proof  may  be  taken  by  such  deputy,  in  the  name  of 
his   principal. 

History:     Enacted  March  21,   1872. 

§1185.    REQUISITES     FOR    ACKJfOWLEDGIffENT.      The 

acknowledgment  of  an  instrument  must  not  be  taken,  unless 
the  officer  taking  it  knows  or  has  satisfactory  evidence,  on 
the  oath  or  affirmation  of  a  credible  witness,  that  the  person 
making  such  acknowledgment  is  the  individual  who  is 
described  in  and  who  executed  the  instrument;  or,  if  executed 
by  a  corporation,  that  the  person  making  such  acknowledg- 
ment is  the  president  or  secretary  of  such  corporation,  or 
other  person  who  executed  it  on  its  behalf. 

History:  Enacted  March  21,  1872;  amended  hy  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  396,  held 
unconstitutional,  see  liistory,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  603. 

See  Kerr's  Cyc.  C.   C.  for  13  pars,  annotation. 

55  C.  564,  565  (meaning'  of  "instrument" — it  does  not  embrace 
what);  96  C.  649,  651,  31  P.  622  (cited);  97  C.  208,  212,  31  P. 
1131,  1132  (construed  and  applied);  101  C.  532,  539,  40  A.  S.  81, 
35  P.  1054  (cited);  131  C.  504,  507,  82  A.  S.  374,  63  P.  840  (con- 
strued  and   applied   but  erroneously   cited  as    §  1189). 

As  to  general  form  of  certificate,  see  Kerr's  Cyc.  C.  C.  §  1189 
and   note. 

As  to  many  miscellaneous  matters  as  to  the  acknowledg- 
ment of  instruments,   see   note   §  1180,  ante. 


§  1186.     ACKNOWLEDGMENT      BY      MARRIED      WOMEN 

(repealed). 

History:  Enacted  March  21,  1872;  repealed  March  19,  1891, 
Stats,  and  Amdts.   1891,  p.   137. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

55  C.  52,  56  (construed);  56  C.  564,  565  (meaning  of  "instru- 
ment"— it  does  not  embrace  what);  55  C.  52,  56  (construed  and 
applied);  59  C.  507,  513  (cited);  60  C.  358,  360  (construed  and 
applied);  63  C.  286,  288  (applied);  65  C.  327,  330,  4  P.  106,  108 
(construed   and  applied);    68   C.    135,    140,    58   A.   R.    5,    8   P.    705; 

634 


Tit.IV,ch.IV,art.III.]  MARRIED    WOMAN.  gUS; 

74  C.  345,  346,  347,  348,  349,  350,  16  P.  189,  190,  191,  192  (con- 
strued and  applied):  76  C.  527,  529,  530,  18  P.  650,  651  (con- 
strued and  applied);  80  C.  65,  67,  22  P.  69,  70  (construed  and 
applied);  83  C.  521,  536,  23  P.  695,  699  (applied);  91  C.  606.  607. 
27  P.  934,  935  (referred  to);  98  C.  143.  148.  32  P.  941,  942  (con- 
strued and  applied);  101  C.  532,  535,  539,  40  A.  S.  81.  35  P.  1054 
(construed  and  applied);  102  C.  202,  207,  36  P.  358  (construed 
and  applied);  113  C.  129,  139,  142,  45  P.  270,  35  L.  269  (construed 
and  applied);  122  C.  341,  349,  68  A.  S.  35,  55  P.  3  (construt-d 
as  not  applicable);   123  C.   491,   493,   494,  495,  56  P.   254    (cited). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of  instruments,  see  note  §  1180,  ante. 

Deeds  by  married  women. — See  Kerr's  Cyc.  C.  C.  §  162  and 
note. 


§1187.  CONYEYANCE  BY  MAKKlEl)  WOMAN.  M- 
KNOWLEDGMENT.  A  conveyance  by  a  married  woman  has 
the  same  effect  as  if  she  were  unmarried,  and  may  be 
acknowledged  in  the  same  manner. 

History:  Enacted  March  21,  1872;  amended  March  19,  ISUl. 
Stats,  and  Amdts.  1891,  p.  137. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

55  C.  52,  59  (cited);  55  C.  564,  565  (cited);  59  C.  507,  513  (con- 
strued and  applied);  60  C.  358,  360  (cited);  68  C.  13.-.,  140,  oS 
A.  R.  5.  8  P.  705  (cited);  74  C.  345,  349,  16  P.  189,  191  (cited): 
74  C.  432,  434,  16  P.  235  (cited):  83  C.  270.  272,  17  A.  S.  248,  23 
P.  318,  319  (cited);  91  C.  606,  607,  610,  27  P.  934.  935  (cited  and 
applied);  98  C.  465,  468  (applied — erroneously  cited  as  §1189). 
35  A.  S.  192,  195,  same  error,  33  P.  480,  481,  20  L.  702  (correct 
citation):  101  C.  532,  535,  40  A.  S.  81.  35  P.  1054  (cited):  123  C. 
491.  493,  494,   495,   497,   56  P.   254    (construed  and  cited). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of  instruments,  see  note  §  1180,  ante. 

As  to  rescission  of  wife's  contracts  and  deeds,  see  Kerr's 
Cyc.  C.  C.  §§  158,  162  and  notes. 

Conclusiveness  of  acknowledgment. — See  Kerr's  Cyc.  C.  C. 
§  1185  and   note. 

Deeds  by  married  women. — See  Kerr's  Cyc.  C.  C.  §  162  and 
note. 

Powers  of  attorney  by  married  women. — See  Kerr's  Cyc.  C.  C 
§  162   and  note. 

Separate  examination  of  married  women  under  §  1186,  which 
was  repealed  by  Act  March  19,  1891  (Stats.  1891,  p.  137).— See 
Kerr's  Cyc.  C.  C.  §  1186  and  note. 

635 


§§1188,1189  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1188.  [SAME.]  CERTIFICATE.  An  officer  taking  the 
acknowledgment  of  an  instrument  must  indorse  thereon  or 
attach  thereto  a  certificate  substantially  in  the  forms  here- 
inafter prescribed. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   227. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what);  90  C.  444,  445,  478,  27  P.  356,  357,  367  (applied);  91  C. 
606,    610,   27    P.    934,    936    (construed   and   applied). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of  instruments,  see  note  §  1180,  ante. 


§  1189.  GENERAL  FORM  OF  CERTIFICATE.  The  certifi- 
cate of  acknowledgment,  unless  it  is  otherwise  in  this  article 
provided,  must  be  substantially  in  the  following  form:    "State 

of ,  County  of  ,  ss.     On  this   day  of 

,  in  the  year   ,  before  me   (here  insert  name 

and    quality    of    the    officer),    personally    appeared    , 

known  to  me   (or  proved  to  me  on  the  oath  of   )   to 

be  the  person  whose  name  is  subscribed  to  the  within  instru- 
ment, and  acknowledged  that  he  (she  or  they)  executed  the 
same." 

[Outside  of  state — Certificate  of  clerk  of  court.]  Provided, 
however,  that  any  acknowledgment  taken  without  this  state 
in  accordance  with  the  laws  of  the  place  where  the  acknowl- 
edgment is  made,  shall  be  sufficient  in  this  state;  and  pro- 
vided further,  that  the  certificate  of  the  clerk  of  a  court  of 
record  of  the  county  or  district  where  such  acknowledgment 
is  taken,  that  the  officer  certifying  to  the  same  is  authorized 
by  law  so  to  do,  and  that  the  signature  of  the  said  officer  to 
such  certificate  is  his  true  and  genuine  signature,  and  that 
such  acknowledgment  is  taken  in  accordance  with  the  laws 
of  the  place  where  the  same  is  made,  shall  be  prima  facie  evi- 
dence of  the  facts  stated  in  the  certificate  of  said  clerk. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  37;  February  26,  1897,  Stats,  and  Amdts. 

636 


Tit.IV,ch.IV,ait.III.]  CORPORATION.  5  1190 

1897,  p.  43;  amended  by  Code  Commission,  Act  Marrli  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  397,  held  unconstitutional,  see  liiH- 
tory,  §   4  ante. 

See   Kerr's  Cyc.   C.  C.   for    19    pars,   annotation. 

90  C.  444,  478,  27  P.  356,  357,  367  (applied):  98  C.  465,  468.  35 
A.  S.  192,  20  L.  702  (erroneously  cited  for  §  1187),  33  P.  480,  481 
(correct  citation);  101  C.  532,  539,  40  A.  S.  81,  35  P.  1054  (cited); 
130  C.  124,  125,  62  P.  412  (cited  and  applied):  131  C.  504,  608. 
82  A.  S.  374,  63  P.  840   (erroneously  cited:  should  he  {  1185). 

As  to  many  miscellaneous  matters  as  to  the  ackii<i\vli(ti.'m.  nt 
of  Instruments,  see  note  §  1180,  ante. 


§1190.  FORM  OF  ACK>0>VLEI)(;MEM  BV  (OHlMHa- 
TION.  The  certificate  of  acknowledgment  of  an  instrument 
executed  by  a  corporation  must  be  substantially  in  the  fol- 
lowing form: 

"State  of ,  Igg 

"County  of I 

"On   this    day  of    ,   in   the  year   

before  me   (here  insert  the  name  and  quality  of  the  officer). 

personally   appeared    known   to   me    (or   proved   to 

me  on  the  oath  of )  to  be  the  president  (or  the  sec- 
retary) of  the  corporation  that  executed  the  within  Instru- 
ment (where,  however,  the  instrument  is  executed  in  behalf 
of  the  corporation  by  some  one  other  than  the  president  or 
secretary)  insert:  known  to  me  (or  proved  to  nie  on  the  oath 

of )  to  be  the  i)erson  who  executed  the  within  Instru- 

tnent  on  behalf  of  the  corporation  therein  named,  and 
acknowledged  to  me  that  such  corporation  executed  the  same. 

IIlNtory:     Enacted  March   21,   1S72:  amond.-d  by  Cod.-  1'.  ■■v,,^ 
sion.   Act  March    16,    1900.   Stats,   and   Amdts.    1900-1.   p. 
unconstitutional,    sec    history,    §   4    ante;   amfnilinciit    i 
March   21,  1905,  Stats,  and  Amdts.   1905,  p.   603. 

55  C.  564,  565  (meaning  of  "Instrument" — It  docs  not  embrace 
what);  101  C.  532,  539,  40  A.  S.  81.  35  P.   1054   (cited). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgrment 
of  Instruments,  see  note  S  1180,  ante. 

637 


§§  1191,  1192  CIVIL  CODE.  [Div.II.Pt.IV. 

§11»1.  FORM  OF  CERTIFICATE  OF  ACKNOWLEDG- 
MENT BY  MARRIED  WOMAN  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  19,  1891, 
Stats,   and  Amdts.    1891,   p.    137. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

53  C.  456,  460  (construed);  55  C.  52,  56  (construed  and  ap- 
plied); 59  C.  507,  513  (referred  to);  63  C.  286,  288  (cited)  65  C. 
327,  330,  4  P.  106,  108  (construed  and  applied);  68  C.  135,  140, 
58  A.  R.  5,  8  P.  705  (applied);  74  C.  345,  346,  347,  348,  350,  16 
P.  189,  190,  192  (applied);  77  C.  54,  57,  11  A.  S.  235,  18  P.  808, 
809  (construed  and  applied);  80  C.  65,  67,  22  P.  69,  70  (applied); 
83  C.  521,  536,  23  P.  695,  699  (cited);  91  C.  606,  607,  27  P.  934, 
935  (construed  and  applied);  101  C.  532,  535,  539,  40  A.  S.  81, 
35  P.  1054  (applied);  102  C.  202,  207,  36  P.  358  (cited);  122  C. 
341,  349,  68  A.  S.  35,  55  P.  3  (held  not  applicable);  123  C.  491, 
493,  494,  496,  56  P.  254  (applied,  cited,  construed,  and  referred 
to). 

As  to  many  miscellaneous  matters  as  to  acknowledgment  of 
instruments,  see  note  §  1180,  ante. 


§  1192.  FORM  OF  CERTIFICATE  OF  ACKNOWLEDG- 
MENT BY  ATTORNEY  IN  FACT.  The  certificate  of  acknowl- 
edgment by  an  attorney  in  fact  must  be  substantially  in  the 
following  form: 

State  of   ,  ) 

^ss. 
County  of j 

On  this day  of ,  in  the  year , 

before  me   [here  insert  the  name  and  quality  of  the  officer] 

personally  appeared  ,  known  to  me  [or  proved  to 

me  on  the  oath  of ]  to  be  the  person  whose  name  is 

subscribed  to  the  within  instrument  as  the  attorney  in  fact 

of  ,  and  acknowledged  to  me  that  he  subscribed  the 

name  of   thereto  as  principal,  and  his  own  name  as 

attorney  in  fact. 

History?     Enacted  March   21,   1872. 

As  to  approved  form  of  acknowledgment,  see  Kerr's  Cyc.  C. 
C.  §  1192,  note. 

As  to  many  miscellaneous  matters  as  to  acknowledgment  of 
instruments,  see  note  §  1180,  ante. 

638 


Tit.IV.ch.IV.art.III.]         SIGNATURES.  §§  1193-1195 

§  1193.    OFFICEKS   MUST   AFFIX   THEIR    SIGNATURES. 

Officers  taking  and  certifying  acknowledgments  or  proof  of 
instruments  for  record,  must  authenticate  their  certificates 
by  affixing  thereto  their  signatures,  followed  by  the  names 
of  their  offices;  also,  their  seals  of  office,  if  by  the  laws  of 
the  state  or  country  where  the  acknowledgment  or  proof  is 
taken,  or  by  authority  of  which  they  are  acting,  they  are 
required  to  have  official  seals. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  397,  held 
unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what);  90  C.  444.  478,  27  P.  356,  367  (construed  and  applied): 
150  C.  520,  534,  89  P.  338  ("Notary  Public,"  after  one's  signa- 
ture to  certificate  of  acknowledgment,  is  sufficient  statement  of 
"name   of  office"). 

As  to  many  miscellaneous  matters  as  to  acknowledgment 
of  instruments,   see  note  §  1180,   ante. 

§  1194.  CERTIFICATE  OF  AUTHORITY  OF  JUSTK  ES 
IX  CERTAIN  CASES.  The  certificate  of  proof  or  acknowl- 
edgment, if  made  before  a  justice  of  the  peace,  when  used 
in  any  county  other  than  that  in  which  he  resides,  must  be 
accompanied  by  a  certificate  under  the  hand  and  seal  of  the 
clerk  of  the  county  in  which  the  justice  resides,  setting  forth 
that  sucli  justice,  at  the  time  of  taking  such  proof  or  acknowl- 
edgment, was  authorized  to  take  the  same,  and  that  the 
clerk  is  acquainted  with  his  handwriting,  and  believes  that 
the  signature  to  the  original  certificate  is  genuine. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for   2   pars,  annotation. 
135   C.    173,   176,   67   P.   768    (applied). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of   instruments,   see   note   SllSO.   ante. 

§  1195.  I'ROOF  OF  EXEC  UTIO>,  HOW  3IAI)E.  Proof  of 
the  execution  of  an  instrument,  when  not  acknowledged,  maj* 
be   made  either: 

639 


§§  1196,  1197  CIVIL  CODE.  [Div.II,Pt.IV. 

1.  By  the  party  executing  it,  or  either  of  them;   or, 

2.  By  a  subscribing  witness;   or, 

3.  By  other  wi-tnesses,  in  cases  mentioned  in  section 
eleven  hundred  and  ninety-eight. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

55  C.  564,  565,  566  (meaning'  of  "instrument" — It  does  not  em- 
brace what);  64  C.  267,  271,  30  P.  816,  817  (applied);  83  F.  48, 
56  (instrument  creating  trust  in  lands,  though  unacknowledged, 
may   be  recorded,   upon   proof  of  its  execution). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of  instruments,  see  note  §  1180,  ante. 

§1196.  T^ITNESS  MUST  BE  PERSONALLY  KNOWN  TO 
OFFICER.  If  by  a  subscribing  witness,  such  witness  must 
be  personally  known  to  the  officer  taking  the  proof  to  be 
the  person  whose  name  is  subscribed  to  the  instrument  as 
a  witness,  or  must  be  proved  to  be  such  by  the  oath  of  a 
credible    witness. 

History:     .T^nacted  March   21,   1872. 

55  C.  564,  565  (meaning  of  "instrument" — -it  does  not  embrace 
what);  89  C.  547,  550  (erroneously  cited  for  §1996),  26  P.  1095, 
1096    (correct  citation). 

As  to  many  miscellaneous  matters  as  to  the  acknowledg- 
ment  of   instruments,   see   note    §  1180,   ante. 


§1197.  WITNESS  MUST  PROVE,  WHAT.  The  subscrib- 
ing witness  must  prove  that  the  person  whose  name  is  sub- 
scribed to  the  instrument  as  a  party  is  the  person  described 
in  it,  and  that  such  person  executed  it,  and  that  the  witness 
subscribed  his  name  thereto  as  a  witness. 

History:     Enacted  March   21,   1872. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what);  89  C.  547,  550  (erroneously  cited  for  §1997),  26  P.  1095, 
1096    (correct   citation). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of  instruments,  see  note   §  1180,  ante. 

640 


Tit.IV,ch.IV,art.III.]  HANDWRITING.  §§  1198,  1199 

§  1198.    HAADWRITING  MAY  BE  PROVED,  WHEN.    The 

execution  of  an  instrument  may  be  established  by  proof 
of  the  handwriting  of  the  party  and  of  a  subscribing  witness, 
if  there  is  one,  in  the  following  cases: 

1.  When  the  parties  and  all  the  subscribing  witnesses  are 
dead;  or, 

2.  When  the  parties  and  all  the  subscribing  witnesses  are 
non-residents  of  the  state;   or, 

3.  When  the  place  of  their  residence  is  unknown  to  the 
party  desiring  the  proof,  and  cannot  be  ascertained  by  the 
exercise  of  due  diligence;  or, 

4.  When  the  subscribing  witness  conceals  himself,  or 
cannot  be  found  by  the  officer  by  the  exercise  of  due  dili- 
gence in  attempting  to  serve  the  subpoena  or  attach- 
ment;   or, 

5.  In  case  of  the  continued  failure  or  refusal  of  the  wit- 
ness to  testify,  for  the  space  of  one  hour,  after  his  appear- 
ance. 

History:     Enacted  March   21,   187:!. 

See  Kerr's  Cyc.   C.   C.   for  3  pars,   annotation. 

55  C.  564,  565  (meaning  of  "instrument"— it  does  not  embrace 
what);  64  C.  267,  271,  30  P.  816  (cited);  83  F.  48,  56  (instru- 
ment creating  trust  in  lands,  though  unacknowledged,  may  be 
recorded,  upon  proof  of  its  execution). 

As  to  many  miscellaneous  matters  as  to  the  acknovvledgmont 
of    instruments,   see    note    §1180,   ante. 

§1199.  EVIDEXE  OF  HANDWRITING  MUST  PROVE, 
WHAT.  The  evidence  taken  under  the  preceding  section 
must  satisfactorily  prove  to  the  officer  the  following  facts: 

1.  The  existence  of  one  or  more  of  the  conditions  men- 
tioned therein;   and, 

2.  That  the  witness  testifying  knew  the  person  whose  name 
purports  to  be  subscribed  to  the  instrument  as  a  party,  and 
is  well  acquainted  with  his  signature,  and  that  it  is  genu- 
ine; and, 

3.  That  the  witness  testifying  personally  knew  the  person 
who    subscribed   the   instrument   as   a   witness,   and    is   well 

Kerr-s    C.    C— 21  641 


§§  1200,  1201  CIVIL  CODE.  [Div.II.Pt.IV. 

acquainted  with  his  signature,   and   that  it  is  genuine;    and, 
4.  The  place  of  residence  of  the  witness. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  pp.   227,   228. 

55  C.  564,  565  (meaning  of  "instrument" — it  does  not  embrace 
what);  83  F.  48,  56  (instrument  creating  trust  in  lands,  though 
unackiMiwledged,  may  be  recorded,  upon  proof  of  its  execu- 
tion). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of    instruments,   see   note    §1180,   ante. 

§  1200.  CERTIFICATE  OF  PROOF.  An  officer  taking 
proof  of  tlie  execution  of  any  instrument  must,  in  his  cer- 
tificate indorsed  thereon  or  attached  thereto,  set  forth  all 
the  matters  required  by  law  to  be  done  or  known  by  him, 
or  proved  before  him  on  the  proceeding,  together  with  the 
names  of  all  the  witnesses  examined  before  him,  their  places 
of  residence  respectively,  and  the  substance  of  their  testi- 
mony. 

History:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

55  C.  564,  565  (meaning  of  "instrument"— it  does  not  embrace 
what). 

As  to  many  miscellaneous  matters  as  to  the  acknowh'dgment 
of    instruments,    see    note    §  1180,    ante. 

§1201.  OFFICERS  AUTHORIZED  TO  DO  CERTAIN 
THINGS.  Officers  authorized  to  take  the  proof  of  instruments 
are  authorized  in  such  proocedings: 

1.  To  administer  oaths  or  affirmations,  as  prescribed  in 
section  two  thousand  and  ninety-three,  Code  of  Civil  Pro- 
cedure; 

2.  To  employ  and  swear  interpreters; 

3.  To  issue  subpoena,  as  prescribed  in  section  nineteen 
hundred  and  eighty-six.  Code  of  Civil  Procedure; 

4.  To  punish  for  contempt,  as  prescribed  in  sections  nine- 
teen hundred  and  ninety-one,  nineteen  hundred  and  ninety- 
three,  nineteen  hundred  and  ninety-four,  Code  of  Civil  Pro- 
cedure. 

642 


Tit.IV,ch.IV,art.III.]  CERTIFICATION.  §§  1202,  1203 

The  civil  damages  and  forfeiture  to  the  party  aggrieved 
are  prescribed  in  section  nineteen  hundred  and  ninety-two, 
Code  of  Civil  Procedure. 

Hi.-itory:      Enacted  March    21,    1872. 

55  C.  564,  565  (meaning-  of  "instrument" — it  does  not  embrace 
what). 

As  to  many  miscellaneous  matters  as  to  tlie  acknowledgment 
of    instruments,    see    note    §  1180,    ante. 

§1202.  IXSTRIMEM  IMPROPERLY  CERTIFIED,  HOW 
CORRECTED.  When  the  acknowledgment  or  proof  of  the 
execution  of  an  instrument  is  properly  made,  but  defectively 
certified,  any  party  interested  may  have  an  action  in  the 
superior  court  to  obtain  a  judgment  correcting  the  certificate. 

History;  Enacted  Marcli  21,  1872:  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  397,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,    1905,  Stats,   and  Amdts.    1905,   p.    604. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

53  C.  482,  485,  486,  487  (held  not  applicable):  55  C.  564,  565 
(meaning  of  "instrument" — it  does  not  embrace  wliat):  59  C. 
507,  514  (applied);  63  C.  286.  288  (construed  and  applied):  73 
C.  452,  454,  2  A.  S.  823,  15  P.  82,  83  (construed  and  applied);  116 
C.  375,  376,  48  P.  325  (construed  and  applied);  5  C.  A.  175,  183, 
89  P.  1001,  1004  (copy  of  notice  of  appropriation  of  water, 
thougli  not  In  the  excepted  classes,  may  be  recorded  without 
acknowledgment). 

As  to  deeds  by  married  woman,  see  Kerr's  Cyc.  C.  C.  §  162 
and   note. 

As  to  many  miscellaneous  matters  as  to  tlie  acknowledgment 
of    instruments,   see    note    §1180,   ante. 

§  1203.  JUDG}ME>T  PROVING  INSTRl AIE>T.  Any  per- 
son interested  under  an  instrument  entitled  to  be  proved  for 
record,  may  institute  an  action  in  the  superior  court  against 
the  proper  parties  to  obtain  a  judgment  proving  such  instru- 
ment. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901.  Stats,  and  Amdts.  1900-1,  p.  398,  held 
unconstitutional,  see  history,  S  4  ante:  amendment  re-enacted 
March   21,   1905,  Stats,  and  Amdts.  1905,  p.  604. 

643 


§§  1204-1206  CIVIL  CODE.  [Div.II.Pt.IV. 

53  C.  482,  485,  486,  487  (construed  as  not  applicable);  55  C. 
564,  565,  566  (meaning-  of  "instrument"- — it  does  not  embrace 
what);  5  C.  A.  175,  183,  89  P.  1001,  1004  (copy  of  notice  of 
appropriation  of  water,  though  not  in  the  excepted  classes, 
may  be  recorded  without  acknowledgrnent). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of    instruments,    see    note    §  1180,   ante. 

§1204.    EFFECT   OF  JUDGMENT  IN   SUCH  ACTION.     A 

certified  copy  of  the  judgment  in  a  proceeding  instituted 
under  either  of  the  two  preceding  sections,  showing  the  proof 
of  the  instrument,  and  attached  thereto,  entitles  such  instru- 
ment to  record,  with  like  effect  as  if  acknowledged. 

History:     Enacted  March   21,   1872. 

55  C.  564,  565,  566  (meaning  of  "instrument" — -it  does  not  em- 
brace   what). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of    instruments,   see   note    §  1180,   ante. 

§1205.  CONVEYANCE  HEKETOFORE  MADE  TO  BE 
GOVERNED  BY  THEN  EXISTING  LAWS.  The  legality  of 
the  execution,  acknowledgment,  proof,  form,  or  record  of 
any  conveyance  or  other  instrument  made  before  this  code 
goes  into  effect,  executed,  acknowledged,  proved,  or  recorded 
is  not  affected  by  anything  contained  in  this  chapter,  but 
depends  for  its  validity  and  legality  upon  the  laws  in  force 
when  the  act  was  performed. 

History:     Enacted  March -21,   1872. 

See  Kerr's  Cyc.  C.   C.   for   2  pars,  annotation. 

53  C.  482,  486,  487  (construed);  55  C.  564,  565,  566  (meaning  of 
"instrument" — it  does  not   embrace   what). 

As  to  many  miscellaneous  matters  as  to  the  acknowledgment 
of    instruments,    see    note    §  1180,   ante. 

§  1206.  RECORDING,  AND  AS  EVIDENCE,  TO  BE  GOV- 
ERNED BY  THEN  EXISTING  LAWS.  All  conveyances  of 
real  property  made  before  this  code  goes  into  effect,  and 
acknowledged  or  proved  according  to  the  laws  in  force  at 
the  time  of  such  making  and  acknowledgment  or  proof,  have 
the    same   force    as   evidence,    and   may    be    recorded    in    the 

644 


TIt.lV.ch.IV.art.m.l      valii>atiN(;  iNSTurMHNT.  §  i207 

same   manner  and   with   the   like  effect,  as  convej'ances  exe- 
cuted and  acknowledged  in  pursuance  of  this  chapter. 

IllMtory:      Knactt^d   March    'Jl.    IS"!'. 

§1207.  VAL1I>ATI>(J  DKFECTIVKLV  KXKdTKD  I>- 
STIUHENTS.  HKCOHI)  IMIVVHTS  XHK  E.  (EHTIKIED 
COI'IES.  Any  instrument  affecting  the  title  to  real  properly, 
which  was,  previous  to  the  first  day  of  January,  one  thou- 
sand nine  hundred  nine,  copied  into  the  proper  hook  of 
record,  kept  in  the  office  of  any  county  recorder,  imparts, 
after  that  date,  notice  of  its  contents  to  suhsequent  pur- 
chasers and  incumbrancers,  notwithstanding  any  defect, 
omission,  or  informality  in  the  execution  of  the  instrument, 
or  in  the  certificate  of  acknowledgment  thereof,  or  the  ab- 
sence of  any  such  certificate;  but  nothing  herein  afltects  the 
rights  of  purchasers  or  incumbrances  previous  to  that  date. 

[rcrtifled  copies  ;is  ovldcnoo.]  Duly  certified  copies  of 
the  record  of  any  such  in.strunient  may  be  read  in  evidence 
with  like  effect  as  copies  of  an  instrument  duly  acknowledged 
and  recorded;  provided,  when  such  copying  in  the  proper 
book  of  record  occurred  within  fifteen  years  prior  to  the 
trial  of  the  action,  it  is  first  shown  that  the  original  instru- 
ment was  genuine. 

[In  olYcct,  wlien.]  Sec.  2.  This  act  shall  take  effect  on  and 
be  in  fttrce  from  and  after  July  first,  nineteen  hundred  nine. 

IliMtory:  Knactod  Marc!)  30,  1S74,  Code  Amdts.  IST.'l-J.  p.  •J2S: 
ariu-n.lid  Marrh  4.  1897,  Stats,  and  Amdts.  1897.  p.  641:  by  Code 
Comnii.sslon.  Act  Marcli  1  (•.  1901,  Stats,  and  Anults.  1900-1.  p.  39S. 
act  lu'ld  unconslitiitlonal.  s^ee  hl.itory,  $  4  ante;  aniendnient 
re-enacted  Marcli  9.  1903,  Stats,  and  Anidf.q.  1903,  p.  108:  amended 
February  22.  1909.  Stats,  and  Aindfs.   19it9.  p.  4.*;. 

See    Kerr's  Cyc.  C.  C.  for  .">   par.*",   annota tlun. 

.'.5  C.  564,  .'iGB,  566  (mennInK  of  "Instrument" — It  docs  not  em- 
brace what):  (C.  Dec.  1,  1891  t.  2S  P.  216,  218  (conslru.-d  and 
applied). 

As  to  many  miscellaneous  matters  as  to  tlie  ai-knowledg'nient 
of    iTistrunients.    see    note    5  11'*".    rin(i>. 


645 


§  1213  CIVIL  CODE.  [Div.II.Pt.IV. 

ARTICLE    IV. 

EFFECT   OF   RECORDING,    OR   THE   WANT   THEREOF. 

[For  Commissioners'  comment  on  tliis  article,  see  Kerr's  Cyc. 
C.    C] 

§  1213.  Conveyance    filed    with    recorder    is    constructive    notice, 

etc. 

§  1214.  Conveyances  to  be  recorded,  or  are  void,  etc. 

§  1215.  Conveyance    defined. 

§  1216.  Powers   of  attorney,  how   revoked. 

§  1217.  Unrecorded    instrument   valid   between    the   parties. 

§  1218.  Recording  certified  copy   of  recorded  instrument. 

§  1213.  CONVEYANCE  FILED  WITH  RECORDER  IS  CON- 
STRUCTIVE NOTICE,  ETC.  Every  conveyance  of  real  prop- 
erty acknowledged  or  proved  and  certified  and  recorded  as 
prescribed  by  law  from  the  time  it  is  filed  with  the  recorder 
for  record  is  constructive  notice  of  the  contents  thereof  to 
subsequent  purchasers  and  mortgagees;  and  a  certified  copy 
of  any  such  recorded  conveyance  may  be  recorded  in  any 
other  county  and  when  so  recorded  the  record  thereof  shall  have 
the  same  force  and  effect  as  though  it  was  of  the  original  convey- 
ance and  where  such  original  conveyance  has  been  recorded  in 
any  county  wherein  the  property  therein  mentioned  is  not 
situated  a  certified  copy  of  such  recorded  conveyance  may  be 
recorded  in  the  county  where  such  property  is  situated  with 
the  same  force  and  effect  as  if  the  original  conveyance  had 
been  recorded  in  such  county. 

Hi.storj-:  Enacted  March  21,  1872;  amended  March  3,  1897, 
Stats,  and  Amdts.  1897,  p.  59;  March  10,  1909,  Stats,  and  Amdts. 
1909,   p.    278. 

See  Kerr's  Cyc.   C.   C.  for  36   pars,  annotation. 

46  C.  603,  606,  607,  608,  609  (construed  and  applied — §§  1213, 
1214,  and  1215  prevail  over  §2937);  55  C.  525,  528  (construed); 
63  C.  312,  316  (construed);  70  C.  23,  25,  11  P.  391,  392  (held  not 
applicable);  74  C.  217,  218,  15  P.  746  (cited);  90  C.  444,  477,  27 
P.  356,  366  (construed  and  applied);  96  C.  298,  306,  307,  31  A.  S. 
209,  31  P.  166,  168  (construed  and  applied);  98  C.  514,  518,  33 
P.    486,    488    (mortgag-e    is    not    conveyance);    32    P.    885    (cited); 

646 


Tit.IV,ch.IV,art.IV.]  RECORDING.  §  1214 

104  C.  395,  398,  399,  400,  38  P.  53  (referred  to):  109  C.  186,  189, 
50  A.  S.  29,  41  P.  1010  (applied);  128  C.  627,  632,  61  P.  371  (ap- 
plied); 131  C.  552,  556,  557,  82  A.  S.  391,  63  P.  844  (construed 
and  applied  with  other  sections);  134  C.  441,  447,  66  P.  587 
(cited  dis.  op);  144  C.  19,  35,  77  P.  712  (construed — "conveyance" 
embraces  what  instruments);  146  C.  3,  8,  79  P.  527  (applied  with 
other  sections  to  contract  to  secure  purchase  money  of  land). 


§1214.  COWEYAXES  TO  BE  KECORDEI),  OH  .\KE 
VOID,  ETC.  Every  conveyance  of  real  property,  other  than 
a  lease  for  a  term  not  exceeding  one  year,  is  void  as  against 
any  subsequent  purchaser  or  mortgagee  of  the  same  prop- 
erty, or  any  part  thereof,  in  good  faith  and  for  a  valuable 
consideration,  whose  conveyance  is  first  duly  recorded,  and 
as  against  any  judgment  affecting  the  title,  unless  such  con- 
veyance shall  have  been  duly  recorded  prior  to  the  record 
of  notice  of  action. 

History:  Enacted  March  21.  1872:  amended  Maroli  12.  1S05, 
Stats,  and   Amdts.    1895.  p.   50. 

See   Kerr's  Cyc.   C.  C.   for   87  pars,  annotation. 

46  C.  603,  606,  608,  609  (construed  and  applied — §§1213.  1214. 
and  1215  prevail  over  §2937):  63  C.  312,  316  (construed):  65  C. 
158,  159,  3  P.  659  (construed  and  applied);  74  C.  217,  218.  15 
P.  746  (cited):  74  C.  444,  446,  16  P.  242  (construed):  75  C.  552. 
554,  17  P.  680,  681  (cited):  77  C.  534,  538,  20  P.  62,  64  (cited): 
82  C.  621,  624,  625,  23  P.  193,  194  (construed  and  applied):  85 
C.  270,  272,  24  P.  713,  714  (cited):  96  C.  298.  306,  307.  31  A.  S. 
209,  31  P.  166.  168  (cited):  97  C.  575,  582,  31  A.  S.  209.  32  P. 
579.  21  L.  33  (cited):  98  C.  514,  518,  33  P.  486,  487  (cited — mean- 
ing of  "conveyance"):  100  C.  590,  591.  35  P.  170  (construed  a.s 
not  applicable):  104  C.  395.  398,  399,  38  P.  53  (applied):  109 
C.  186,  189,  50  A.  S.  29,  41  P.  1010  (applied):  113  C.  526,  531. 
532,  45  P.  820  (held  not  applicable);  119  C.  61,  63,  64,  51  P.  11 
(held  not  applicable);  124  C.  577.  579.  57  P.  463  (held  not 
applicable);  126  C.  600.  604.  606,  59  P.  130  (applied):  130  C. 
455,  458,  62  P.  738  (cited):  131  C.  552.  558,  559.  560.  82  A.  S. 
391,  63  P.  844  (applied):  134  C.  441,  443,  66  P.  587  (applied): 
69  P.  228,  231  (cited):  144  C.  19,  31.  35,  77  P.  712  (cotistrued— 
"conveyance"  embraces  what  instruments):  145  C  410,  413,  104 
A.  S.  61,  78  P.  957  (construed  with  §1217  and  applied):  7  C.  A. 
140,  146,  93  P.  894,  895  (who  is  not  subsequent  purchaser  in 
good   faith    for   valuable   consideration). 

647 


§§  1215,  1216  CIVIL  CODE.  [Div.II.Pt.IV. 

§1215.  CONVEYANCE  DEFINED.  The  term  "convey- 
ance," as  used  in  sections  twelve  hundred  and  thirteen  and 
twelve  hundred  and  fourteen,  embraces  every  instrument  in 
writing  by  which  any  estate  or  interest  in  real  property  is 
created,  aliened,  mortgaged,  or  encumbered,  or  by  which  the 
title  to  any  real  property  may  be  affected,  except  wills. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

46  C.  603,  607,  608,  609  (construed  and  applied — §§1213,  1214,  and 
1215  prevail  over  §  2937) ;  55  C.  525,  528  (cited) ;  55  C.  564,  566  (mean- 
ing of  "instrument" — it  does  not  embrace  what) ;  74  C.  217,  218,  15 
P.  746  (construed — "conveyance"  includes  mortgage) ;  74  C. 
345,  349,  16  P.  189,  191  (construed);  96  C.  298,  307,  31  A.  S.  209, 
31  P.  166,  168  (construed);  98  C.  514,  518,  33  P.  486,  487  (con- 
strued); 98  C.  527,  529,  33  P.  458,  459  (construed);  104  C.  395, 
398,  38  P.  53  (cited  with  other  sections  in  discussion);  120 
C.  177,  179,  52  P.  305  (construed);  126  C.  600,  603,  606,  59  P. 
130  (applied);  144  C.  19,  35,  77  P.  712  (applied — "conveyance" 
embraces  what  instruments);  146  C.  3,  8,  79  P.  527  (applied 
with  other  sections  to  contract  to  secure  purchase  money  of 
land,  recorded  in  book  of  "covenants"). 

Sections  of  code  construed  together. — See  Kerr's  Cyc.  C.  C. 
§  1158  and   note. 

§1216.    POWERS  OF  ATTORNEY,  HOW  REVOKED.     No 

instrument  containing  a  power  to  convey  or  execute  instru- 
ments affecting  real  property,  which  has  been  recorded,  is 
revoked  by  any  act  of  the  party  by  whom  it  was  executed, 
unless  the  instrument  containing"  such  revocation  is  also 
acknowledged  or  proved,  certified  and  recorded,  in  the  same 
office  in  which  the  instrument  containing  the  power  was 
recorded. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.   C.  for   2  pars,  annotation. 

55  C.  564,  565,  566  (meaning  of  "instruinent" — it  does  not  em- 
brace   what). 

Power  of  attorney— As  to  revocation   of.— See  110  A.   S.   854. 

Same — Construction  of — ^Whether  limited  to  property  then 
owned   by    the   principal. — See   35    A.   S.    593. 

Same— Covering  several  tracts  of  land — Judgment  of  cancel- 
lation   and   removal    from    one    tract    in    proceedings    to    remove 

648 


Tit.IV,ch.IV,art.IV.]         UNRECORDED   DEED.  §  1217 

cloud  from  title  does  not  affect  the  power  as  to  the  other 
tracts. — See    9   A.   C.    874. 

Same — Effect  of  provision  in  declaring  that  it  shall  not  be 
revoked  by  death. — See  6  L.  N.  S.  855. 

Same — Given  to  two  or  more — Construction  of. — See  22  A.  S. 
726. 

Same — How  revoked. — See   47   A.  D.   343-348. 

Same — Notice  of  revocation   of. — See   1   L.  N.   S.   577. 

Power  to  give  option  included  in  power  of  attorney  to  sell 
real  estate. — See  10  L.  N.  S.  867. 


§1217.  UMiECOKDED  I>STRUME>T  VALID  BETWEEN 
THE  PARTIES.  An  unrecorded  instrument  is  valid  as  be- 
tween the  parties  thereto  and  those  who  have  notice  thereof. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

82  C.  621,  626,  23  P.  193,  195  (applied);  85  C.  270,  272,  24  P. 
713,  714  (construed  and  applied);  96  C.  298,  305,  306,  31  A.  S. 
209,  31  P.  166,  168  (construed  and  applied);  100  C.  590,  591,  35 
P.  170  (construed  and  applied);  37  P.  914,  916  (construed  and 
applied);  104  C.  395,  398,  38  P.  53  (cited  with  other  sections  in 
discussion);  108  C.  250,  252,  253,  255,  256,  49  A.  S.  84,  30  P.  783. 
41  P.  472  (cited);  118  C.  258,  260,  50  P.  380  (construed);  119  C. 
61,  63,  51  P.  11  (applied);  119  C.  364,  371,  51  P.  549,  51  P.  955 
(construed  and  held  not  applicable);  124  C.  577,  579,  57  P.  463 
(applied);  130  C.  455,  457,  62  P.  738  (construed  and  applied); 
69  P.  228,  231  (referred  to);  144  C.  19,  31,  77  P.  712  (referred 
to);  145  C.  410,  413,  104  A.  S.  61,  78  P.  957  (construed  with 
§1214  and  applied);  146  C.  3,  9,  79  P.  527.  530  (applied  to 
contract  to  secure  purchase  money  of  land,  recorded  in 
book  of  "Covenants"):  151  C.  118,  122,  90  P.  521  (purchaser 
with  notice  of  another's  claim  cannot  take  advantage 
of  fact  that  conveyance  under  which  the  other  claims  was 
not  recorded);  150  F.  546,  548  (effect,  in  bankruptcy  proceedings, 
of  failure  to  record  deed  or  mortgage  given  as  security, 
until  after  grantor  becomes  bankrupt). 

Judicial  sale  of  homesteads, — as  to,  see  generally  Kerr's  Cyc. 
C.  C.  §  1241  and  note. 

Knowledge  of  unrecorded  deed. — See  Kerr's  Cyc.  C.  C.  §  1214 
and  note. 

Possession  puts  purchaser  on  inquiry. — See  Kerr's  Cyc.  C.  C. 
§  1214   and   note. 

Recitals  in  instruments  constituting  chain  of  title. — See 
Kerr's  Cyc.  C.  C.  §  18  and  note  pars.  30-42. 

Recordation — Effect  of. — See  Kerr's  Cyc.  C.  C.  §  1213  and  note. 

649 


§  1218  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1218.  RECOKDING  CERTIFIED  COPY  OF  RECORDED 
INSTRUMENT.  A  certified  copy  of  an  instrument  affecting 
the  title  to  real  property  once  recorded  may  be  recorded  in 
any  other  county,  and,  when  so  recorded,  the  record  thereof 
has  the  same  force  and  effect  as  though  it  was  of  the  original 
instrument. 

History;  Enacted  at  instance  of  Code  Commision,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  398;  re-enacted  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.   604. 


G50 


Tit.IV.ch.V.]  TRANSFERS,    VOID.  §  1227 

CHAPTER  V. 

UNLAWFUL    TRANSFERS. 

§  1227.      Certain   Instruments  void  against  purchasers,   etc. 

§  1228.      Not  void  against  purchaser  having  notice,  unless  fraud 

is   mutual. 
§  1229.     Power  to  revoke,  when  deemed  executed. 
§  1230.     Same.      [Deemed  executed  when  entitled  to  execute.] 
§  1231.     Other  provisions. 

§1227.  CERTAIN  I>STROIE>TS  VOID  AGAINST  PUR- 
CHASERS, ETC.  Every  instrument,  other  than  a  will,  affect- 
ing an  estate  in  real  property,  including  every  charge  upon 
real  property,  or  upon  its  rents  or  profits,  made  with  intent 
to  defraud  prior  or  subsequent  purchasers  thereof,  or  encum- 
brancers thereon,  is  void  as  against  every  purchaser  or  en- 
cumbrancer, for  value,  of  the  same  property,  or  the  rents  or 
profits  thereof. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

55  C.  564,  566  (meaning  of  '"instrument" — it  does  not  embrace 
what);  25  P.  404  (question  of  intent  is  one  of  fact);  114  C.  526. 
535,    43    P.    613,    46    P.    460    (discussed    in    connection    with    §  1589 

C.  C.    P.   and   other   sections);    117   C.    140,    146,    48    P.    1025    (dis- 
cussed with  otlier  sections). 

As  to  exempt  property,  there  can  be  none. — See  20  A.  R.   150. 

Bona  fide  purchaser  from  fraudulent  vendee,  as  to,  see  28 
A.   D.   688;   28  A.   D.   734. 

Declarations  of  vendor  as  evidence  against  hi.s  vendee  to 
show  fraud. — See  42  A.  D.   631. 

Fraud  in  conveyance  of  real  estate,  as  to,  generally,  see  2  A. 

D.  77-81. 

Fraudulent  transfer — As  to  creditors. — See  Kerr's  Cyc.  C.  C. 
§  3439  and  note. 

Interest  of  party  question  of  fact  for  jury. — See  Kerr's  Cyc. 
C.  C.   §  3442  and  note. 

Knowledge  of  vendee  as  affecting  validity  of. — See  15  A.  S. 
695;   20  A.  S.  632;  34  A.  S.  395-402. 

Voluntary  conveyance  fraudulent,   when. — See   28  A.   S.   618. 

What  are— as  to,  see  7  A.  D.  703;  28  A.  R.   721;   14  A.  S.  739. 

What  will  avoid  conveyance. — See   55  A.  D.   411-415. 

651 


§§  1228-1230  CIVIL  CODE.  [Div.II,Pt.IV. 

§1228.  NOT  VOID  AGAINST  PURCHASER  HAVING 
NOTICE,  UNLESS  FRAUD  IS  MUTUAL.  No  instrument  is  to 
be  avoided  under  the  last  section,  in  favor  of  a  subsequent 
purchaser  or  encumbrancer  having  notice  thereof  at  the  time 
liis  purchase  vv'as  made,  or  his  lien  acquired,  unless  the  per- 
son in  w^hose  favor  the  instrument  was  made  was  privy  to  the 
fraud  intended. 

History:  Enacted  March  21,  1872,  founded  upon  §  2,  Act 
April   19,  1850,  Stats.   1850,  p.   266. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what). 

Fraudulent  conveyance — Knowledge  of  grantee. — See  Kerr's 
Cyc.  C.  C.   §  1227  note  par.   9. 

Trust   deed — Revocation   of, — as   to,   see   20   A.   S.   858-864. 

§  1229.  POWER  TO  REVOKE,  IVHEN  DEEMED  EXE- 
CUTED.  Where  a  power  to  revoke  or  modify  an  instrument 
affecting  the  title  to,  or  the  enjoyment  of,  an  estate  in  real 
property;  is  reserved  to  the  grantor,  or  given  to  any  other 
person,  a  subsequent  grant  of,  or  charge  upon,  the  estate, 
by  the  person  having  the  power  of  revocation,  in  favor  of  a 
purchaser  or  encumbrancer  for  value,  operates  as  a  revoca- 
tion of  the  original  instrument,  to  the  extent  of  the  power, 
in  favor  of  such  purchaser  or  encumbrancer. 

History:  Enacted  March  21,  1872,  founded  upon  §  4,  Act 
April   19,   1850,   Stats.   1850,  p.    266. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what);  132  C.  523,  558  (section  refers  to  case  where  power  to 
modify  or  revoke  instrument  affecting  real  property  is  reserved 
to  grantor,  or  given  to  another — it  assumes  right  to  create  such 
power,  and  states  its  effect  in  certain  cases),  84  A.  S.  70,  60  P. 
442,  64  P.   1000,   1007. 

§  1230.  SAME.  [DEEMED  EXECUTED  lYHEN  ENTITLED 
TO  EXECUTE.]  Where  a  person  having  a  power  of  revoca- 
tion, within  the  provisions  of  the  last  section,  is  not  entitled 
to  execute  it  until  after  the  time  at  which  he  makes  such 
a  grant  or  charge  as  is  described  in  that  section,  the  power 

652 


I 


Tit.IV,ch.IV.]  OTHER    PROVISIOXS.  §  1231 

is  deemed  to  be  executed  as  soon  as  he  is  entitled  to  exe- 
cute it. 

History:  Enacted  March  21,  1872,  founded  upon  §  6,  Act 
April    19,    1850,   Stats.    1850,    p.    267. 

§  1231.  OTHER  PROVISIOXS.  Other  provisions  concern- 
ing unlawful  transfers  are  contained  in  part  two,  division 
fourth,  of  this  code,  concerning  the  special  relations  of  debtor 
and  creditor. 

History:     Enacted  March  21,   1872. 
See  Kerr's  Cyc.  C.  C.  §§  3439  et  seq.  and  notes. 


653 


§  1237  CIVIL  CODE.  [Div.II.Pt  IV. 


TITLE   V. 

HOMESTEADS. 

Chapter   I.      General  Provisions,  §§  1237-1261. 

11.     Homestead  of  the  Head  of  a  Family,    §§  1262-1265. 
m.     Homestead  of  Other  Persons,   §§  1266-1269. 
IV.     Alienation      of      Homesteads      of      Insane      Persons, 
§§  1269a-1269c. 


CHAPTER  I. 

GENERAL  PROVISIONS. 

§  1237.  Homestead,  of  what  it  consists. 

§  1238.  From   what  may  be   selected. 

§  1239.  From  what  not. 

§  1240.  Exempt  from   forced   sale. 

§  1241.  Sale   on    execution,   when. 

§  1242.  How   conveyed   or   encumbered. 

§  1243.  How  abandoned. 

§  1244.  Same.      [Effectual   from   when.] 

§  1245.  Proceedings   on   execution  against  homestead. 

§  1246.  Same.      [Application,   how   made.] 

§  1247.  Same.      [Petition,   where   filed.] 

§  1248.  Same.      [Notice   of   hearing,   service.] 

§  1249.  Same.      [Appointing  appraisers.] 

§  1250.  Same.      [Appraisers  to   be  sworn.] 

§  1251.  Same.      [Determining  value  and  divisibility.] 

§  1252.  Same.      [Report  of  appraisers,  contents.] 

§  1253.  Same.      [Setting   off   homestead    exemption.] 

§  1254.  Same.      [Order  directing  sale,   when.] 

§  1255.  Same.      [What  bid  may  be  received.] 

§  1256.  Same.      [Application    of   proceeds    of   sale.] 

§  1257.  After    sale,    money    equal    to    homestead    exemption    pro- 
tected. 

§  1258.  Compensation   of   appraisers. 

§  1259.  Costs.      [How  paid  and  collected.] 

§  1260.  Who  may  select  homestead,  value  of. 

§  1261.  Head   of  a   family   defined. 

§1237.    HOMESTEAD,    OF    WHAT    IT    CONSISTS.     The 

homestead  consists  of  the  dwelling-house  in  which  the  claim- 

654 


Tit.V.ch.I.]  HOMESTEADS.  §  li;37 

ant  resides,  and  the  land  on  which  the  same  is  situated, 
selected  as  in  this  title  provided. 

History:  Enacted  March  •21,  1S72:  aniendcd  Marcli  30.  1874, 
Code  Amdts.  1873-4,  p.  228;  amended  by  Code  Conimision,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  398,  held  unconstitu- 
tional,   see   liistory,    §    4   ante. 

See  Kerr's  Cyc.  C.  C.  for  63  pars,  annotation. 

52  C.  629,  630  (construed  and  applied);  62  C.  125,  134  (cited); 
62  C.  286,  289  (construed  and  applied);  4  P.  1177,  1178  (cited); 
69  C.  195,  198,  10  P.  406,  407  (referred  to);  70  C.  236,  239,  11  P. 
656.  657  (referred  to);  71  C.  300,  302,  303,  12  P.  230,  231  (referred 
to);  73  C.  590,  592,  2  A.  S.  834,  15  P.  290,  292  (construed  and 
applied);  75  C.  422,  424,  7  A.  S.  180,  17  P.  539  (construed  and- 
applied);   76   C.   639,   643,   18   P.   805,   807    (referred   to   in   dis.   op.); 

78  C.  310,   312,  12  A.  S.   58,   20  P.   715.  716,  3   L.   781    (referred   to); 

79  C.  608,  610,  12  A.  S.  180,  21  P.  973  (referred  to);  80  C.  71,  73, 
22  P.  79  (cited);  82  C.  226,  228,  233,  237,  16  A.  S.  108,  22  P.  1145, 
1146,  1147  (referred  to);  92  C.  514,  519.  27  A.  S.  158,  28  P.  593, 
594  (referred  to);  98  C.  472,  478,  33  P.  484,  485  (referred  to); 
117  C.  352,  353,  355,  59  A.  S.  190,  49  P.  211  (construed  and 
applied);  125  C.  320,  325,  57  P.  1070  (construed  and  applied); 
126  C.  527,  528,  77  A.  S.  206,  58  P.  1063  (construed  and  applied); 
141  C.  646,  649.  99  A.  S.  92,  75  P.  301  (construed — what  is  meant 
by  "dwelling  house");  146  C.  426,  429,  106  A.  S.  47.  80  P.  620 
(construed — no  limit  of  area  of  homestead);  149  C.  687,  689. 
87  P.  577    (referred  to). 

HOMESTEA  l)S — I  N    <;K.\  EH  A  I,. 

Abandonment  of — As  to  generally,  see  Kerr's  Cyc.  C.  C. 
§§  1243,   1244   and   notes. 

Same — Absence  from  by  reason  of  conviction  and  confinement 
in  penitentiary,  not  a. — See  8  A.  C.   678;   3  L.  N.  S.   515. 

Same — By  child  or  children, — See  56  L.  84. 

Same — By  husband  deserting  and  leaving  family,  effect  on 
rights. — See    11    A.  C.   423. 

Same — By    stepfather   or   stepmotiier. — See    56    L.    84. 

Same — By   surviving   parent. — See   56   L.   81. 

Same — Departure  from  f<ir  pleasure,  business  or  liealtli  does 
not  constitute. — See   13  L.   N.  S.   430. 

Same — During   life   of   botli   parents. — See   56   L.   80. 

Same — Effect  of  insanity  and  imprisonment  as. — See  3  L.  N. 
S.   515. 

Same — Neither  spouse  can  abandon  for  tiie  other  witliout  liis 
or  her  consent. — See  13  L.  N.  S.   430. 

Same — On  partition  of  homestead  in  connuunity  property. — 
See   4   L.   N.   S.   799. 

655 


§  1237  CIVIL  CODE.  [Div.IT.Pt.IV. 

Same — Or  forfeiture — As  to,  by  involuntary  or  compulsory 
absence. — See  8  A.  C.  681. 

Same — What  constitutes. — See  60  A.  D.  607;  36  A.  R.  728;  102 
A.  S.  388.  • 

Acquisition  of,  as  to. — See  8  A.  C.  678. 

Actual  occupancy,  residence  and  possession. — See  4  W.  &  P. 
3329. 

Adverse  possession  of  by  wife  or  husband. — See  18  A.  S.  113. 

Against  what  debts  a  protection. — See  56  L.   57. 

Alienation — And  encumbrance  of — As  to  generally. — See 
Kerr's  Cyc.  C.  C.   §  1242  and  note. 

Same — And  encumbrance  by  survivor,  effect  of  on  right  of 
child  to  claim. — See  56  L.   71. 

Same — Restraint  on. — See   10  L.   220. 

Same — Without  joinder  or  consent  of  wife,  effect  of. — See  9 
A.  C.   3. 

Antemortem. — See  1  Church's  New  Probate  Law  and  Practice, 
595-619. 

Appraisement  of.— See  Kerr's  Cyc.  C.  C.  §§  1245-1253  and 
notes. 

As  an  estate.— See  26  A.  S.  319;  4  W.  &  P.  3331. 

As  an  exemption  right. — See  58  A.  S.  755;   4  W.  &  P.   3332. 

As  to  selection  of,  see  Kerr's  Cyc.  C.  C.  §§  1262-1264  and  notes. 

Attachment  and  judgment  liens  against.— See  38  A.   S.   247. 

Building  alone,  as. — See  4  W.  &  P.  3330. 

Business — Partial  use  of  for,  effect  of. — See  76  A.  D.  516;  91 
A.  D.   637;   4  W.  &  P.  3335. 

Children  entitled  to  take  parent's,  who  are. — See  56  L.   52. 

Confinement  in  penitentiary — As  to  whether  an  abandonment 
of  a.— See  8  A.  C.  678. 

Constitutionality  of  statutes  exempting  as  applied  to  pre- 
existing  contracts. — See   87   A.   D.    464. 

Continuance  of  family  a  condition  of  continuance  of  home- 
stead necessary  when. — See  16  L.  N.  S.   111. 

Contract  between  husband  and  wife  concerning. — See  Kerr's 
Cyc.  C.  C.  §  158,  note  par.  31. 

Conveyance  of — As  to,  generally,  see  Kerr's  Cyc.  C.  C.  §  1242 
and  note;  65  A.  D.  482;  9  L.  805. 

Same — By  husband  after  abandonment  by  wife. — See  8  L.  N. 
S.  565. 

Same— By  husband  to  wife,  effect  of.— See  39  L.  379. 

Same — By  one  spouse,  whether  may  become  operative  on 
abandonment  or  other  future  event. — See  12  A.  S.   683. 

Same — By  widow  during  minority  of  children. — See  10  L.  N. 
S.   787. 

Same — By  wife  during  husband's  confinement  as  an  insane 
person,  does  not  estop  him  to  assert  his  rights  in. — See  13 
L.  N.  S.  430. 

656 


Tit.V,ch.T.]  HOMESTEADS.  §  1237 

Same — Contract  by  husband  alone. — See  9  L..   804. 

Same — During  insanity  of  one  of  the  spouses,  effect  of  on 
rights. — See  13  L.  N.  S.   430. 

Same — Foreclosure  of  mortgage  on. — See  9  L.  805. 

Same — Or  encumbrance  by  one  spouse  only. — See  95  A.  S.  909. 

Same — Restraint  on. — See   10  L..   220. 

Same — Wife's  a  separate  deed  in  connection  with  a  convey- 
ance or  encumbrance  by  husband,  or  her  subsequent  joinder 
therein,  effect  of. — See  8  L.  N.  S.  748. 

Damages  for  condemnation  of,  under  right  of  eminent  domain. 
—See  13  L.  N.  S.   420. 

Death — Provisions  respecting  homestead  after. — See  Kerr's 
Cyc.  C.  C.  P.  §§  1474-1486  and  notes. 

Declaration  as  to  residence  necessary. — See  Kerr's  Cyc.  C.  C. 
§  1263  and  note. 

Decree  of  divorce  awarding. — See   23  L.   240. 

Defeated  by  loss  of  family,  as  to,  see  13  L.  743. 

Definition  of.— See  4  W.  &  P.  3327-3329. 

Descent  of,  or  continuance  in  family. — See  56  L.   40. 

Designation  of  amount  of  land. — See  4  W.  &  P.   3329. 

Divorce — Effect  on. — See  4  L.  N.  S.  396. 

Domicile  of  child — Effect  on  right  to  claim  parent's. — See  56 
L.   62. 

Doxible  house,  as  a. — See  12  L.  477. 

Dwelling  house — And  adjoining  land. — See  70  A.  D.  292;  76 
A.  D.  244;  76  A.  D.  432;  4  W.  &  P.  3330. 

Same — In  course  of  erecting. — See  48  A.  S.  815;  4  W.  &  P. 
3331. 

Same — Necessary  to. — See  4  "W.  &  P.   3330. 

Effect  of  divorce  on. — See  23  L.  239. 

Encumbrance  of — As  to,  generally,  see  Kerr's  Cyc.  C.  C.  §  1242 
and  note;   8  A.  C.   721;  9  A.   C.   1 ;   9  A.  C.   930. 

Same — By  widow  during  minority  of  children. — See  10  L.  N. 
S.  787. 

Same — During  insanity  of  one  of  the  spouses,  effect  of  on 
rights.— See  13  L.  N.  S.   430. 

Same — Validity — And  effect  of  alienation  or  encumbrance  of 
homestead  without  joinder  or  consent  of  wife. — See  9  A.  C.  3. 

Same — Same — Of  mortgage  upon  government  land  made  by 
claimant  holding  under  homestead  act  prior  to  final  proof. — 
See  9  A.  C.   934. 

Estate  held  in  common,  in. — See  12  L.   519. 

Estate  of  decedents — Provisions  respecting  homesteads  out  of. 
— See  Kerr's  C.  C.  P.  §§  1474-1486  and  notes. 

Estoppel  to  assert  right  of. — See  13  L.  N.  S.  430. 

Exchange  of,  property  obtained  in,  exemption  of. — See  19 
I..   38. 

Execution,  sale  of  under. — See   87  A.  D.   273. 

657 


§  1237  CIVIL    CODE.  [Div.II.Pt.IV. 

Exemption   of.- — As  to  generally,  see  Kerr's  Cyc.  C.   C.   §§  1240, 
1241  and  notes. 

Same — From   liability    for   torts,   etc. — See    24    L.    789;    16    L.    N. 
S.   947. 

Same — Of   portion    of   building-. — See    12    L.    477. 

"Family"— Continuance   of  necessary  to  continuance   of  home- 
stead when. — See   16  L.  N.  S.   111. 

Same — Definition  of. — See  4  L.  N.  S.  366;   3  W.  &  P.  2673. 

Same — Different   aggregations   of  people. — See    4   L.   N.    S.    367- 
388. 

Same — Meaning     of     as     used     in     homestead     law. — See     6     L. 
813;  7  L.  747. 

Same — Rights    acquired    in    by    survivorship. — See    4    L.    N.    S. 
390. 

Same — What  constitutes  a,   under  homestead   exemption   laws. 
—See   4  L.  N.  S.   366. 

Fine  or  costs — Exemption  from  liability  for. — See   24  L.   790. 

For  what  claims  and  credits  liable. — See  45  A.  S.  383. 

Foreclosure — Of   lien    paramount — Does    homestead    exemption 
attach  to  surplus. — See  18  L.  N.  S.   491. 

Same — Of  mortgage  on. — See  9  L.   805. 

Forfeiture — By  loss  of  family,  as  to,  see  13  L.  743. 

Governed   by   what  law. — See   56   L.   47. 

Head   of   family,   who    is   and   what   constitutes   a   family. — See 
61  A.  D.  586;  70  A.  S.  107;   11  L.  518. 

Husband — As  head  of  family  is  entitled  to  claim,  although  fee 
of  the  property  is  vested  in  wife.— See  13  L.  N.  S.   170. 

Same — Insurable   interest  in. — See    66   L.    660. 

In   what  property — Claimed. — See   56   L.   60. 

Same — Estate    held   in   common.— See    12   L.    519. 

Same — In   partnership   land. — See   28  L.    15. 

Same — Land    held    under    estate    by    entireties. — See    30    L.    313. 

Incumbrance   of. — See   "Encumbrance"   this  note. 

Insane  person,  of. — 1  Church's  New  Probate  Law  and  Practice, 
646-651. 

Intent  as  governing.— See   34  A.   S.   832;   4  W.   &   P.   3332. 

Judgment   liens   on.— See  34  A.   S.   496:   11   L.   705. 

Land — Held   under   estate   by   entireties,    in. — See   30   L.    313. 

Same — Never   actually   occupied. — See    2    A.    S.    834;    4    W.    &    P. 
3332. 

Lease   of   by   surviving   widow   during   minority    of   children. — 
See  10  L.  N.  S.  787. 

Lien  for  purchase  money  of. — See  99  A.  D.   574;   86  A.  S.   174. 

Liens  as  affecting — Of  judgment. — See  11  L.   705. 

Same— Of  mechanics'. — See  9  L.  805. 

Same — Same — Enforcement    of    against    building    only    erected 
upon  homestead  lands. — See   62  L.   375. 

Loss  of — By  loss  of  family. — See  12  A.  C.  717. 

658 


Tit.V.ch.I.]  HOMESTEADS.  §  1237 

May  consist  of  contiguous  parts  of  different  government  sub- 
divisions.— See  8  A.  C.  721. 

Mechanics'  lien  on. — See  9  L.  805. 

Same — Enforcement   of   against   building   only. — See   62   L.    375. 

More  than  one  house,  effect  of. — See  7  A.  S.  180:  16  A.  S.  108; 
4   W.   &  P.   3333. 

Mortgage  of. — See  "Encumbrance   of"  this  note. 

Non-contiguous  lands  as. — See  91  A.  D.  637;  63  A.  S.  164;  77 
A.  S.   873;   4  W.   &  P.  3333. 

Nonresident   widow,   rights   of  therein. — See   96   A.   D.    412. 

Occupancy  of — By  widow,  as  to  necessity  for  to  perpetuate 
her  rights.— See  12  A.  C.  786. 

"Official    bonds"   exemption   from   liability   for. — See   24   L.    790. 

On  public  lands,  right  to  before  receiving  patent,  to  recover 
for  injuries  to  preinises  and  measure  of  damages  therefor. — See 
17  L,.  N.  S.  598. 

Outbuildings  and  contiguous  lands. — See  76  A.  D.  432:  27  A.  "R. 
197;   62  A.  S.   149;   4  W.  &   P.   3334. 

Partition  of.— See  6  A.  C.  952,  954;  56  L.   77;   4  I..  N.  S.  786. 

Partial  use  of  for  business,  effect  of. — See  76  A.  D.  516;  91 
A.  D.   637;   4  W.  &  P.  3335. 

Partnership  land,  in. — See  28  L.  105. 

Placer  claim  as  a.— See  98  C.  472;  33  P.  484,  486:  4  W.  &  P. 
3335. 

Probate  homesteads — As  to  generally,  see  Kerr's  Cyc.  C.  C.  P. 
§§1474-1486  and  notes;  1  Church's  New  Probate  I^aw  and  Prac- 
tice 619-645. 

Proceeds  of — On  sale  of  for  reinvestment,  exemption  of. — See 
19   L.   36. 

Same — Whether  and  when  exempt  from  execution. — See  45 
A.  S.  237. 

Property  in  which  may  be  claimed. — See  56  L.  60. 

Reformation  of  deed  or  encumbrance  as  against  claimants  of. 
—See  77  A.  S.  804. 

Removal  from  state,  effect  of  on. — See  2  L.  107. 

Renting  portion  of.  effect  of. — See  12  L.  477. 

Residence  of  family. — See  76  A.  D.  106:  4  W.  &  P.  3335. 

Revaluation  or  reassignment  of  homestead  for  appreciation 
or  depreciation  of  value. — See  44  L.  400;    16  L.  N.  S.  728. 

Riglit  of  child  in  parents — Abandonment  of. — See  56  L.   80. 

Same — As  affected  by  domicile  of  child. — See   56   L.   62. 

Same — Descent  or  continuance  to  family. — See  56  L.  40. 

Same — During  lifetime  of  owner. — See   56  L.   34. 

Same — Effect  of  alienation  or  incumbrance  by  survivor. — See 
56  L.  71. 

Same — Effect  of  sale  subject  to. — See  56  L.  74. 

Same — Governed  by  what  law. — See  56  L.  47. 

Same — In  what  property  claimed. — See  56  L.  60. 

659 


§  1237  CIVIL  CODE.  [Div.II.Pt.IV. 

Same — Partition  of. — See  56  L.  77. 

Same — Right  acquired  with  relation  to  other  interests. — See 
56   L.    62. 

Same— Selection   or  setting  apart. — See  56  L.   48. 

Same — Termination  of. — See  56  L.  86. 

Same — Waiver   of   release    of. — See    56    L.    76. 

Same — Who  are  children  entitled  to  take. — See   56  L.  52. 

Right  of — Acquired  in  by  survivorship. — See  4  L.  N.  S.  390-396. 

Same-^.Heirs  to  exemption  of  from  ancestor's  debts  contracted 
prior  to  its  acquisition  by  him. — See  4  L.  N.  S.  544. 

Same — How  secured. — See   2  L.   106. 

Same — Husband — As  against  creditors  to  claim  homestead 
where  title  vested  in  wife. — See  13  L.  N.  S.  170. 

Same — Same — ^Husband — To  deprive  wife  and  family  of  by 
deserting   them  and  abandoning   homestead. — See    11    A.    C.    423. 

Same — Same — To  partition  of  after  divorce  or  separation. — 
See  6  A.  C.  954. 

Same — Wife  to  partition  of,  after  divorce  or  separation. — See 
6  A.  C.  954. 

Sale  of — Land  siibject  to,  effect  of  on  rights,  child  to  claim 
parent's. — See  56  L.  74. 

Same— Under  execution,  injunction  against. — See  30  L.  100. 

Second  homestead. — See  Kerr's  Cyc.  C.  C.  §  1243  and  note. 

Selection  or  setting  apart. — See  Kerr's  Cyc.  C.  C.  §§  1262-1264 
and  notes;   56   L.   48. 

Separate  property  of  husband  declared  homestead. — See  Kerr's 
Cyc.  C.  C.  §  1238  and  note. 

Surplus  upon  foreclosure  of  paramount  lien  on— Does  exemp- 
tion attach  to. — See  IS  L.  N.  S.   491. 

Temporary — Absence  from  effect  of. — See  4  W.  &  P.  3336. 

Same — Separation — Affect  on. — See  4  L.  N.  S.   388. 

Termination  of. — See  56  L.   86. 

Same — By  lease. — See  4  W.  &  P.  3332. 

Torts — Exemption  from  liability  for. — See  24  L.  789;  16  L.  N. 
S.   947. 

Trust  deed  of,  by  husband  and  wife  with  proviso  attempting 
to  derrogate  from  her  right  of  survivorship,  construction  of. — 
See   1  L.  N.  S.  312. 

Under  United  States  land  laws — Cannot  be  sold  for  debt. — 
See  1  Church's  New  Probate  Law  and  Practice  894. 

Use  of  portion  of  building  for  business  purposes,  effect  of  on. 
—See   12  L.   477. 

Validity  and  effect — Of  alienation  of  without  consent  or 
joinder  of  wife. — See  9  A.  C.  3. 

Same — Of  mortgage  of  without  joinder  or  consent  of  wife. — 
See  9  A.  C.  3. 

Same — Upon  government  land  made  by  claimant  holding 
under  homestead  act,  prior  to  final  proof. — See  9  A.  C.  934. 

660 


Tit.V,ch.I.]  CREATION    OF.  §§  1238,  1239 

Value  of — Limitation  upon. — See  Kerr's  Cyc.  C.  C.  §  1260  and 
note. 

Waiver  of  release  of. — See  56  L.  76. 

What  may  be  exempt  as. — See  70  A.  D.  344. 

Whether  may  be  acquired  in  an  undivided  interest  in  lands. — 
See  63  A.  D.  122. 

Widow,  failure  of  to  occupy  as  affecting  her  rig-hts  therein. — 
See  12  A.  C.  783. 

Wife — Conveyance  of  by  husband  to,  effect  of. — See  69  L.  379. 

Same — Protection  of  marital   riglits  of. — See  9  L.   804. 

Same — Suits  by,  for  and  concerning'. — See  76  A.  D.  442. 

§  1238.  FROM  ^VHAT  MAY  BE  SELECTED.  If  the  claim- 
ant be  married,  the  homestead  may  be  selected  from  the 
community  property,  or  the  separate  property  of  the  husband, 
or,  with  the  consent  of  the  wife,  from  her  separate  property. 
When  the  claimant  is  not  married,  but  is  the  head  of  a  fam- 
ily, within  the  meaning  of  section  one  thousand  two  hundred 
and  sixty-one,  the  homestead  may  be  selected  from  any  of  his 
or  her  property. 

History:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code   Amdts.    1873-4,  p.    229. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

65  C.  389,  390,  4  P.  350  (cited);  70  C.  236,  239,  240,  11  P.  656, 
657  (construed  and  applied);  76  C.  315,  317,  9  A.  S.  207,  18  P. 
376  (construed  and  applied);  117  C.  407,  409,  49  P.  574  (referred 
to);  121  C.  582,  585.  54  P.  87   (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  title  of  grantor  of  trust  property,  see  Kerr's  Cyc.  C.  C. 
§  865   and  note. 

As  to  transmutation  of  property  and  preservation  of  charac- 
ter as  community,  see  Kerr's  Cyc.  C.  C.  §  164  and  note  pars. 
196-215. 

As  to  what  constitutes  community  property,  see  Kerr's  Cj'c. 
C.  C.  §  164  and  note. 

Wife's  power  to  make  selection  in  default  of  liusband. — See 
Kerr's  Cyc.  C.  C.  §  1262  and  note. 

§  1239.  FKOM  WHAT  M)T.  The  homestead  cannot  be 
selected  from  the  separate  property  of  the  wife,  without  her 
consent,  shown  by  her  making  or  joining  in  making  the 
declaration  of  homestead. 

661 


§§1240,1241  CIVIL  CODE.  [Div.II.Pt.IV. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    229. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

76  C.  527,  529,  18  P.  650,  651  (construed  and  applied):  86  C. 
151,  154,  24  P.  850,  851  (held  inapplicable);  121  C.  582,  585,  54 
P.  87  (referred  to);  141  C.  459,  462,  74  P.  1033  (construed  and 
applied,  holding-  husband's  declaring  wife's  separate  property, 
void). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 


§  1210.  EXEMPT  FKOM  FORCED  SALE.  The  homestead 
is  exempt  from  execution  or  forced  sale,  execpt  as  in  this 
title   provided. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held 
unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  32  pars,  annotation. 

54  C.  81,  83  (applied);  59  C.  615,  618  (construed  and  applied); 
70  C.  187,  188,  11  P.  607  (construed  and  applied);  72  C.  477,  483, 
484,  14  P.  198,  200,  201  (construed  and  applied);  74  C.  356,  361, 
16  P.  17,  19  (construed  and  applied);  82  C.  226,  233,  237,  16  A.  S. 
108,  22  P.  1145,  1146  (referred  to);  100  C.  322,  327,  38  A.  S.  296, 
34  P.  722  (construed  and  applied);  108  C.  214,  220,  41  P.  467 
(applied);  111  C.  484,  486,  487,  44  P.  167  (construed);  113  C.  26, 
31,  54  A.  S.  321,  45  P.  15  (referred  to);  121  C.  582,  587,  54  P.  87 
(referred  to  in  quotation  from  72  C.  477,  483,  14  P.  198);  125  C. 
77,  83,  57  P.  687  (referred  to);  132  C.  320,  321,  64  P.  410  (cited); 
140  C.  615,  621,  74  P.  303  (referred  to  in  quotation  from  72  C. 
477,  483,  14  P.  198);  146  C.  739,  743,  106  A.  S.  79,  81  P.  128  (excess 
in  value  of  homestead  is  subject  to  execution). 

As  to  constitutional  origin  of  homestead,  see  Kerr's  Cyc.  C. 
C.   §  1237  and  note  par.   4. 

As  to  debts  for  which  homestead  is  liable,  see  Kerr's  Cyc.  C. 
C.   §  1241  and  note. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Liberal  construction  is  given  statute. — See  Kerr's  Cyc.  C.  C. 
§  1237  and  note. 


§  1241.  SALE  ON  EXECUTION,  WHEN.  The  homstead  is 
subject  to  execution  or  forced  sale  in  satisfaction  of  judg- 
ments obtained: 

662 


Tit.V.ch.L]  SALE  ON  EXECUTION.  §  1241 

1.  Before  the  declaration  of  homestead  was  filed  for  record, 
and  which  constitute  liens  upon  the  premises. 

2.  On  debts  secured  by  mechanics,  contractors,  subcon- 
tractors, artisans,  architects,  builders,  laborers  of  every 
class,  materialmen's  or  vendors'  liens  upon  the  premises. 

3.  On  debts  secured  by  mortgages  on  the  premises,  exe- 
cuted and  acknowledged  by  husband  and  wife,  or  by  an 
unmarried  claimant. 

4.  On  debts  secured  by  mortgages  on  the  premises,  exe- 
cuted and  recorded  before  the  declaration  of  homsetead  was 
filed  for  record. 

History:      Enacted   March    21.    1872;    amended  March    30,    1874,. 

Code  Amdts.   1873-4,  p.   229;   April   6,   1880,  Code  Ahidts.   1880    (C. 

C.   pt.),  p.    7;   March   9,   1887,   Stats,  and   Amdts.  1887,   p.    81.      In 
effect  March   9,   1887. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

54  C.  81,  83  (referred  to);  58  C.  1,  2  (held  applicable);  59  C. 
615,  618  (referred  to  with  quotation  from  §1245);  64  C.  77,  78, 
28  P.  59,  60  (construed);  70  C.  187,  188,  11  P.  607  (construed);  70 
C.  553,  559,  12  P.  451,  454  (referred  to);  71  C.  479,  480,  12  P.  486 
(applied — declaration  of  homestead  does  not  impair  prior  lien 
of  mortgage — necessary  parties  to  foreclosure) ;  72  C.  477,  484, 
485,  14  P.  198,  201  (construed);  74  C.  356,  360,  16  P.  17,  18  (con- 
strued); 78  C.  470,  474,  21  P.  116,  117  (referred  to);  81  C.  641, 
649,  22  P.  860  (construed  and  applied);  82  C.  226,  229,  16  A.  S. 
108,  22  P.  1145,  1147  (referred  to);  86  C.  134,  141,  24  P.  853.  855 
(referred  to);  91  C.  94,  97,  27  P.  531,  532  (referred  to);  94  C. 
77,  79,  29  P.  488  (construed);  99  C.  39,  48,  31  P.  849,  33  P.  732, 
733  (protection,  by  law,  of  homestead  from  forced  sale  involves 
what);  104  C.  30,  34,  37  P.  775  (applied);  108  C.  214,  220,  41  P. 
467  (held  inapplicable):  109  C.  165,  168,  50  A.  S.  25,  41  P.  1014 
(applied);  111  C.  484,  486,  487,  44  P.  167  (construed);  113  C.  26. 
31,  54  A.  S.  321,  45  P.  15  (referred  to);  114  C.  566.  567.  568,  55 
A.  S.  90,  46  P.  667  (construed  and  applied);  119  C.  364.  371,  372, 
373,  51  P.  549,  955  (construed):  121  C.  254,  256.  53  P.  796  (con- 
strued and  applied);  124  C.  106,  107,  56  P.  898  (referred  to);  124 
C.  415,  417,  57  P.  208  (subd.  4  applied — election  to  look  to  per- 
sonal obligation  of  defendants  instead  of  security  promised  by 
them — effect  of  not  claiming  priority  over  lien  of  homestead); 
125  C.  77,  83,  57  P.  687  (applied);  125  C.  320,  325,  57  P.  1070 
(applied);  126  C.  527,  530,  77  A.  S.  206,  58  P.  1063  (applied); 
132  C.  320,  321,  64  P.  410  (referred  to);  133  C.  412,  413,  414,  65 
P.  876  (referred  to);  7  C.  A.  199,  202,  203,  93  P.  1047  (subsequent 
excess  in  value  of  liomestead  is  not  subject  to  liability  for 
debts). 

663 


§  1242  CIVIL  CODE.  [Div.II.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  power  of  husband  and  wife  to  contract  with  each  other, 
see  Kerr's  Cyc.  C.  C.  §  158  and  note. 

Attachment  levied  before  declaration  of  homestead. — See 
Kerr's  Cyc.  C.  C.  §  1240  and  note  par.  5. 

Homestead — Liability  to  mechanics'  lien. — See  Kerr's  Cyc.  C. 
C.  P.  §  11S5  and  note. 


§  1242.  HOW  CONVEYED  OR  ENCUMBERED.  The  home- 
stead of  a  married  person  cannot  be  conveyed  or  encumbered 
unless  the  instrument  by  which  it  is  conveyed  or  encum- 
bered is  executed  and  acknowledged  by  both  husband  and 
wife. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  54  pars,  annotation. 

78  C.  310,  312,  12  A.  S.  58,  20  P.  715,  716,  3  L.  781   (referred  to); 

81  C.  217,  220,  221,  15  A.  S.  47,  22  P.  551,  552  (construed  and 
applied);  82  C.  226,  229,  16  A.  S.  108,  22  P.  1145,  1147  (cited); 
99  C.  39,  48,  31  P.  849,  33  P.  732,  733  (protection,  by  law,  of 
homestead  from  forced  sale  involves  what);  100  C.  236,  238,  34 
P.  677  (construed  and  applied);  102  C.  202,  207,  36  P.  358  (con- 
strued and  applied);  108  C.  214,  220,  41  P.  467  (cited);  113  C. 
26,  31,  32,  54  A.  S.  321,  45  P.  15  (construed  and  held  inapplicable); 
117  C.  352,  354,  59  A.  S.  190,  49  P.  211  (referred  to);  120  C.  59, 
61,  65  A.  S.  155,  52  P.  127,  41  L.  335  (construed  and  applied); 
125  C.  77,  83,  57  P.  687  (held  inapplicable);  126  C.  471,  476,  77 
A.  S.  195,  58  P.  910  (cited);  130  C.  392,  393,  80  A.  S.  138,  62  P. 
615  (applied);  148  C.  149,  152  (vesting  of  homestead  in  sur- 
vivor), 153   (homestead  property  can  be  encumbered  only  how), 

82  P.  679,  1  L.  N.  S.  312;  6  C.  A.  697,  704,  92  P.  1050,  1053  (con- 
veyance of  homestead,  after  homestead  becomes  effective  is 
void  when);   79  F.   404,   406    (construed  and  applied). 

As  to  action  by  wife  to  enforce  rights  in  separate  property, 
see  Kerr's  Cj'c.  C.  C.  §  162  and  note  pars.  135,  141,  142. 

As  to  conveyance,  encumbrance,  and  abandonment  of  home- 
stead, see  Kerr's  Cyc.  C.  C.   §§  1243,  1244  and  notes. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  reformation  of  married  women's  contracts  in  general, 
see  Kerr's  Cyc.  C.  C.  §§  158,  162  and  notes. 

Abandonment  of  homestead. — See  Kerr's  Cyc.  C.  C.  §§  1243, 
1244  and  notes. 

Acknowledgment  by  husband  and  wife. — See  Kerr's  Cyc.  C. 
C.   §§  1180-1194  and  notes. 

664 


Tit.V.Ch.I.]  ABANDONMENT.   HOW.  §  1243 

Adverse  pussession  extinguishes  homestead. — See  Kerr's  Cyc. 
C.  C.  §  1243  and  note  par.  3. 

Prior  encumbrances. — See  Kerr's  Cyc.  C.  C.  §  1241  and  note. 

Retroactive  effect  of  abandonment. — See  Kerr's  Cyc.  C.  C. 
§  1243  and  note  par.  25. 


§  1243.  HOW  ABANDONED.  A  homestead  can  be  aban- 
doned only  by  a  declaration  of  abandonment,  or  a  grant 
thereof,   executed   and   acknowledged: 

1.  By  the  husband  and  wife,  if  the  claimant  is  married; 

2.  By  the  claimant,  if  unmarried. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held 
unconstitutional,  see  liistory,   §   4  anto. 

See  Kerr's  Cyc.  C.  C.  for  26  pars  annotation. 

58  C.  11,  15  (referred  to);  65  C.  365,  368,  4  P.  237  (construed); 
68  C.  133,  134,  8  P.  691,  692  (cited);  71  C.  325,  328,  12  P.  244,  245 
(referred  to);  15  P.  123,  125  (homestead  can  be  abandoned  only 
in  manner  specified  in  this  section);  74  C.  266,  268,  5  A.  S.  440. 
15  P.  831,  832  (construed  and  applied);  78  C.  310,  312,  12  A.  S. 
58,  20  P.  715.  716,  3  L.  781  (referred  to);  81  C.  217,  221,  15  A.  S. 
47,  22  P.  551,  552  (referred  to);  82  C.  226.  229,  16  A.  S.  108,  22  P. 
1145,  1147  (referred  to);  93  C.  664,  668,  670.  29  P.  256.  257  (con- 
strued); 94  C.  66.  68.  29  P.  330  (construed  and  applied);  98  C. 
143.  147,  32  P.  941,  942  (construed);  100  C.  339,  342.  34  P.  822 
(applied);  106  C.  202,  205,  39  P.  531  (construed  and  applied  with 
other  sections — construction  and  operation  of  deed  as  "grant"); 
113  C.  26,  31.  54  A.  S.  321.  45  P.  15  (referred  to);  117  C.  352.  354. 
59  A.  S.  190.  49  P.  211  (referred  to);  121  C.  92,  94.  53  P.  362  (con- 
strued and  applied);  121  C.  582.  586.  54  P.  87  (cited);  130  C.  392. 
393.  80  A.  S.  13S.  62  P.  615  (cited);  146  C.  426.  431.  106  A.  S.  47. 
80  P.  620  (when  liomestead  Is  not  abandoned  as  to  any  portion 
of  desert  claim  by  deed  of  husband  to  wife,  in  her  lifetime,  of 
pre-emption  claim);  148  C.  149.  152  (vesting  of  homestead  in 
survivor).  153  (liomestead  prop^-rty  can  Ijo  encumbered  only 
how).  82  P.  679,  1  L.  N.  S.  312;  153  C.  97.  99,  100.  94  P.  604.  60.t 
(deed  of  trust  given  as  security  for  payment  of  money  is  not 
a  "grant"  within  meaning  of  this  section);  6  C.  A.  774,  776,  93 
P.   295    (construed — what  acts   do   not   constitute  abandonment). 

As  to  deeds  and  contracts  between  husband  and  wife,  see 
Kerr's  Cyc.  C.  C.  §§  158.  159  and  notes;  also  88  A.  D.  54;  99  A.  D. 
599;  9  A.  S.  323:  90  A.  S.   497. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237.  ante. 

665 


§§  1244,  1245  CIVIL  CODE.  [Div.II.Pt.IV. 

Construction  of  statute — Sections  in  pari  materia. — See  Kerr's 
Cyc.  C.  C.   §  1242  and  note  par.    10. 

Separation  of  liusband  and  wife — Effect  upon  homestead. — 
See  Kerr's  Cyc.  C.  C.  §  159  and  note. 


§  1244.  SAME.  [EFFECTUAL  FROM  WHEN.]  A  declara- 
tion of  abandonment  is  effectual  only  from  the  time  it  is  filed 
in  the  office  in  which  the  homestead  was  recorded. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

65  C.  365,  368,  4  P.  237  (referred  to);  71  C.  325,  328,  12  P.  244, 
245  (referred  to);  81  C.  217,  221,  15  A.  S.  47,  22  P.  551,  552  (cited); 
95  C.  397,  405,  30  P.  568,  569,  570  (construed  and  applied);  100 
C.  339,  342,  34  P.  822  (referred  to);  113  C.  26,  31,  54  A.  S.  321,  45 
P.  15  (referred  to);  121  C.  92,  94,  53  P.  362  (referred  to);  121  C. 
582,  586,  54  P.  87  (referred  to);  6  C.  A.  774,  776,  93  P.  295  (what 
acts  do  not  constitute  abandonment). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Construction — Sections  in  pari  materia. — See  Kerr's  Cyc.  C.  C. 
§  1242  and  note  par.  10. 

Exclusive  method  of  abandonment  is  prescribed  by  this  and 
next  preceding  section. — See  Kerr's  Cyc.  C.  C.  §  1243  and  note 
par.   11. 


§1245.  PROCEEDINGS  ON  EXECUTION  AGAINST 
HOMESTEAD.  When  an  execution  for  the  enforcement  of 
a  judgment  obtained  in  a  case  not  within  the  classes  enumer- 
ated in  section  one  thousand  two  hundred  and  forty-one  is 
levied  upon  the  homestead,  the  judgment  creditor  may  apply 
to  the  superior  court  of  the  county  in  which  the  homestead 
is  situated  for  the  appointment  of  persons  to  appraise  the 
value  thereof. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880  (C.  C.  pt. ),  p.  7;  amended  by  Code  Commis- 
sion, Act  March  16,  1901.  Stats,  and  Amdts.  1900-1,  p.  399,  held 
unconstitutional,   see  history,   §    4   ante. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

59  C.  615,  618,  619  (referred  to);  62  C.  125,  138,  45  A.  S.  654 
(referred  to);   70   C.   553,  559,   12  P.   451    (referred  to);   74   C.    266, 

666 


Tit.V,ch.I.]  EXECUTION    AGAINST.  §  1246 

268,  5  A.  S.  440,  15  P.  831,  832  (cited);  75  C.  163,  164,  16  P.  760, 
761  (construed);  79  C.  460,  461,  21  P.  863  (referred  to);  79  C. 
608,  609,  12  A.  S.  180,  21  P.  973  (referred  to);  82  C.  226,  230,  16 
A.  S.  108,  22  P.  1145,  1147  (referred  to);  85  C.  71,  74,  24  P.  594. 
595  (cited);  86  C.  119,  120,  121,  21  A.  S.  26,  24  P.  852,  853  (referred 
tu);  86  C.  134,  141,  24  P.  853,  855  (cited);  144  C.  659,  663,  79  P. 
379  (creditor's  process  for  reaching  excess  in  value);  146  C. 
426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of  proceedings  for 
appraisement  and  division  or  sale  of  property);  146  C.  739,  740, 
741  (referred  to),  743  (levy  on  property,  how  made — §§  1245- 
1261  provide  plan  for  subjecting-  excess  in  value  of  homestead 
to  execution),  106  A.  S.  79,  81  P.  128;  152  C.  246,  247,  92  P.  485, 
486   (referred  to). 

As  to  many  miscellaneous  matters  as  to  liomesteads,  see  note 
§  1237,  ante. 

Appeal  from  order. — See  Kerr's  CycC.  C.  §  1245,  note  par.  9. 

Appraisement  of  homestead — Division  of  property  when  value 
excessive. — See  Kerr's  Cyc.  C.  C.  P.  S  1476  and  note. 


§1246.  SAME.  [APPLICATI()\,  HOW  MADE.]  The  ap- 
plication must  be  made  upon  a  verified  petition  showing: 

1.  The  fact  that  an  execution  has  been  levied  upon  the 
homestead; 

2.  The  name  of  the  claimant; 

3.  That  the  value  of  the  homestead  exceeds  the  amount 
of  the  homestead  exemption. 

History:      Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (cited  with  other  sections);  79  C. 
460,  461,  21  P.  863  (referred  to);  82  C.  226,  230,  16  A.  S.  108,  22 
P.  1145,  1147  (cited  with  other  sections);  85  C.  71,  74,  24  P.  594, 
595  (cited);  144  C.  659,  663,  79  P.  379  (creditor's  process  for 
reaching  excess  in  value);  146  C.  426,  429,  106  A.  S.  47,  80  P.  620 
(necessity  of  proceedings  for  appraisement  and  division  or 
sale  of  property);  146  C.  739,  740  (referred  to),  743  (§§1245-1261 
provide  plan  for  subjecting  excess  in  value  of  homestead 
to  execution),  106  A.  S.  79,  81  P.  128;  152  C.  246,  247,  92  P.  485, 
486    (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 

667 


§§  1247,  1248  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1247.  SAME.  [PETITION,  WHERE  FILED.]  The  peti- 
tion must  be  filed  with  the  clerk  of  the  superior  court. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  P-  8;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held  uncon- 
stitutional,  see   history,    §   4   ante. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (referred  to  with  other  sections); 
82  C.  226,  230,  16  A.  S.  108,  22  P.  1145,  1147  (referred  to  with 
other  sections);  85  C.  71,  74,  24  P.  594,  595  (cited);  144  C.  659, 
663,  79  P.  379  (creditor's  process  for  reaching  excess  in  value); 
146  C.  426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of  proceedings 
for  appraisement  and  division  or  sale  of  property) ;  146  C.  739, 
740  (referred  to),  743  (§§  1245-1261  provide  plan  for  subjecting 
excess  in  value  of  homestead  to  execution),  106  A.  S.  79,  81  P. 
128;  152  C.  246,  247,  92  P.  485,  486   (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 

§  1248.    SAME.     [NOTICE   OF   HEARING,   SERVICE.]      A 

copy  of  the  petition,  with  a  notice  of  the  time  and  place  of 
hearing,  must  be  served  upon  the  claimant,  at  least  two 
days  before  the  hearing. 

Hi.«itory:  Enacted  March  21,  1872;  amended  bj^  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  399,  held 
unconstitutional,   see  history,   §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (referred  to  with  other  sections); 
82  C.  226,  230,  16  A.  S.  108,  22  P.  1145,  1147  (referred  to  with 
other  sections);  85  C.  71,  74,  24  P.  594,  595  (cited);  144  C.  659, 
663,  79  P.  379  (creditor's  process  for  reaching  excess  in  value); 
145  C.  529,  533,  78  P.  1038  (cited  with  §  1249  in  discussing 
appointment  of  appraisers);  146  C.  426,  429,  106  A.  S.  47,  80  P. 
620  (necessity  of  proceedings  for  appraisement  and  division  or 
sale  of  property);  146  C.  739,  740  (referred  to),  743  (§§  1245-1261 
provide  plan  for  subjecting  excess  in  value  of  hoinestead  to 
execution),  106  A.  S.  79,  81  P.  128;  152  C.  246,  247,  92  P.  485,  486 
(referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 

668 


Tit.V,ch.T.]  APPRAISERS,    SWEARING.  §§  1249,  12ri0 

§  1249.     SAME.      [APPOI]VTI>ft    APPRAISERS.]      At    the 

hearing  the  judge  may,  upon  proof  of  the  service  of  a  copy 
of  the  petition  and  notice,  and  of  the  facts  stated  in  the 
petition,  appoint  three  disinterested  residents  of  the  county 
to  appraise  the  value  of  the  homestead. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held 
unconstitutional,   see   history,    §    4   ante. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (referred  to  with  other  sections); 
82  C.  226,  230,  16  A.  S.  108,  22  P.  1145,  1147  (referred  to  with 
other  sections);  85  C.  71,  74,  24  P.  594,  595  (referred  to  in  con- 
nection with  other  sections);  144  C.  659,  663,  79  P.  379  (creditor's 
process  for  reaching'  excess  in  value):  145  C.  529,  533,  78  P.  1038 
(construed);  146  C.  426,  429,  106  A.  S.  47,  80  P.  620  (necessity 
of  proceedings  for  appraisement  and  division  or  sale  of  prop- 
erty); 146  C.  739,  740  (referred  to),  743  (§§1245-1261  provide 
plan  for  subjecting  excess  in  value  of  homestead  to  execution), 
106  A.  S.  79,  81  P.  128;  152  C.  246,  247,  92  P.  485,  486  (referred 
to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed.— See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 

§  1250.  SAME.  [APPRAISERS  TO  BE  SWORN.]  The  per- 
sons appointed,  before  entering  upon  the  performance  of  their 
duties,  must  take  an  oath  to  faithfully  perform  the  same. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (referred  with  other  sections);  82 
C.  226,  230,  16  A.  S.  108,  22  P.  1145,  1147  (referred  to  with  other 
sections);  85  C.  71,  74,  24  P.  594,  595  (cited):  144  C.  659.  663,  79 
P.  379  (creditor's  process  for  reaching  excess  in  value):  146  C. 
426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of  proceedings  for 
appraisement  and  division  or  sale  of  property);  146  C.  739,  740 
(referred  to),  743  (§§  1245-1261  provide  plan  for  subjecting 
excess  in  value  of  homestead  to  execution),  106  A.  S.  79.  81  P. 
128;  152  C.  246,  247,  92  P.  485,  486   (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 

669 


§§  1251,  1252  CIVIL  CODE.  [Div.II.Pt.lV. 

§  1251.  SAME.  [DETERMINIJfG  VALUE  AND  DIVISI- 
BILITY.] They  must  view  the  premises  and  appraise  the 
value  thereof,  and  if  the  appraised  value  exceeds  the  home- 
stead exemption  they  must  determine  wliether  the  land 
claimed  can  be  divided  without  material  injury. 

Hisstory:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (referred  to  with  other  sections); 
79  C.  608,  610,  12  A.  S.  180,  21  P.  973  (construed  and  applied  with 
other  sections);  82  C.  226,  230,  16  A.  S.  108,  22  P.  1145,  1147 
(referred  to  with  other  sections);  85  C.  71,  74,  24  P.  594,  595 
(cited);  144  C.  659,  663,  79  P.  379  (creditor's  process  for  reaching 
excess  in  value);  146  C.  426,  429,  106  A.  S.  47,  80  P.  620  (necessity 
of  proceedings  for  appraisement  and  division  or  sale  of  prop- 
erty); 146  C.  739,  740  (referred  to),  743  (§§1245-1261  provide 
plan  for  subjecting  excess  in  value  of  homestead  to  execution), 
106  A.  S.  79,  81  P.  128;  152  C.  246,  247,  92  P.  485,  486   (referred  to). 

As  to  inany  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.   5. 

§  1252.    SAME.    [REPORT  OF  APPRAISERS,  CONTENTS.] 

Within  fifteen  days  after  their  appointment  they  must  make 
to  the  judge  a  report  in  writing,  which  report  must  show 
the  appraised  value  and  their  determination  upon  the  mat- 
ter of  a  division  of  the  land  claimed. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held 
unconstitutional,  see  history,   §    4  ante. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

62  C.  125.  138,  45  A.  R.  654  (referred  to  with  other  sections); 
82  C.  226,  230,  16  A.  S.  108,  22  P.  1145,  1147  (referred  to  with  other 
sections);  85  C.  71,  74,  24  P.  594,  595  (cited);  144  C.  659,  663,  79 
P.  379  (creditor's  process  for  reaching  excess  in  value);  146  C. 
426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of  proceedings  for 
appraisement  and  division  or  sale  of  property);  146  C.  739,  740 
(referred  to),  743  (§§  1245-1261  provide  plan  for  subjecting 
excess  in  value  of  homestead  to  execution),  106  A.  S.  79,  81  P. 
128;   152  C.  246,   247,  92  P.  485,  486    (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 

670 


Tit.V.ch.I.]  SETTING  OFF  EXEMPTION.  §§  1253,  "1254 

§  1253.  SAME.  [SETTIXG  OFF  HOMESTEAD  EXEMP- 
TION.] If,  from  the  report,  it  appears  to  the  judge  that  the 
land  claimed  can  be  divided  without  material  injury,  he 
must,  by  an  order,  direct  the  appraisers  to  set  off  to  the 
claimant  so  much  of  the  land,  including  the  residence,  as 
will  amount  in  value  to  the  homestead  exemption,  and  the 
execution  may  be  enforced  against  the  remainder  of  the 
land. 

Hifstory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  400.  held 
unconstitutional,    see    history,   §    4   ante. 

See  Kerr's  Cyc.  C.  C.  for  .5  pars,  annotation. 

52  C.  629,  630  (citing  this  section  erroneously  instead  of 
§1263);  62  C.  125,  138.  45  A.  R.  654  (referred  to  with  other  sec- 
tions); 75  C.  163,  165,  16  P.  760,  761  (cited),  79  C.  608,  610,  12 
A.  S.  180,  21  P.  973  (cited);  82  C.  226.  230.  16  A.  S.  108,  22  P. 
1145,  1147  (referred  to  with  other  sections) ; '85  C.  71,  74,  24  P. 
594,  595  (cited);  144  C.  659,  663,  79  P.  379  (creditor's  process  for 
reaching-  excess  in  value);  146  C.  426,  429,  106  A.  S.  47,  80  P.  620 
(necessity  of  proceedings  for  appraisement  and  division  or  sale 
of  property);  146  C.  739,  740  (referred  to),  743  (§§1245-1261  pro- 
vide plan  for  subjecting  excess  in  value  of  homestead  to  execu- 
tion), 106  A.  S.  79,  81  P.  128;  152  C.  246,  247,  92  P.  485,  486 
(referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  title  of  homesteader,  see  Kerr's  Cyc.  C.  C.  §  1238  and 
note. 

Divisibility  of  property. — See  Kerr's  Cyc.  C.  C.  §  1251  and  note 
pars.  2,  4. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 


§1254.     SAME.     [(MJDEK  DIRECTING  SALE,  WHE>.]     If. 

from  the  report,  it  appears  to  the  judge  that  the  land  claimed 
exceeds  in  value  the  amount  of  the  homestead  exemi)tion, 
and  that  it  cannot  be  divided,  he  must  make  an  order  direct- 
ing its  sale  under  the  execution. 

History:  Enacted  March  21.  1872:  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  400,  held 
unconstitutional,  see  history,  §   4  ante. 

671 


§§1255,1256  CIVIL  CODE.  [Div.II,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

62  C.  125,  138,  45  A.  R.  654  (referred  to);  79  C.  460,  461,  21  P. 
863  (referred  to  and  discussed  with  other  sections);  82  C.  226, 
230,  22  P.  1145,  1147,  16  A.  S.  108  (referred  to  with  other  sec- 
tions); 85  C.  71,  74,  24  P.  594,  595  (cited);  144  C.  659,  663,  79  P. 
379  (creditor's  process  for  reaching  excess  in  value) ;  146  C. 
426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of  proceedings  for 
appraisement  and  division  or  sale  of  property) ;  146  C.  739,  740 
(referred  to),  743  (§§  1245-1261  provide  plan  for  subjecting 
excess  in  value  of  homestead  to  execution),  1254  (cited — no 
notice  of  hearing  of  report  of  appraisers  required),  106  A.  S.  79, 
81  P.  128;  152  C.  246,  247,  92  P.  485,  486   (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 


§1255.    SAME.     [WHAT  BID   MAY   BE  EECEIVED.]     At 

such    sale    no   bid    must   be    received,    unless    it    exceeds    the 
amount  of  the  homestead  exemption. 

Hi-story:     Enacted  March  21,   1872. 

62  C.  125,  138,  45  A.  R.  654  (referred  to);  82  C.  226,  230,  16 
A.  S.  108,  22  P.  1145,  1147  (referred  to  with  other  sections);  85 
C.  71,  74,  24  P.  594,  595  (cited);  144  C.  659,  663,  79  P.  379 
(creditor's  process  for  reaching  excess  in  value);  146  C.  426, 
429,  106  A.  S.  47,  80  P.  620  (necessity  of  proceedings  for  appraise- 
ment and  division  or  sale  of  property);  146  C.  739,  740  (referred 
to),  743  (§§1245-1261  provide  plan  for  subjecting  excess  in 
value  of  homestead  to  execution),  106  A.  S.  79,  81  P.  128;  152  C. 
246,  247,  92  P.   485,  486    (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Exclusive  mode  prescribed. — See  Kerr's  Cyc.  C.  C.  §  1245  and 
note  par.  5. 


§  1256.    SAME.  [APPLICATION  OF  PROCEEDS  OF  SALE.] 

If  the  sale  is  made,  tlie  proceeds  thereof,  to  the  amount  of 
the  homestead  exemption,  must  be  paid  to  the  claimant, 
and  the  balance  applied  to  the  satisfaction  of  the  execution. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held 
unconstitutional,  see  historJ^  §   4  ante. 

672 


TitV,ch.I.J  EXEMPTION  OF  MONEY.  §§1257,1258 

See  Kerr's  Cvc.  C.  C.  for  2  pars,  annotation. 

62  C  125  138,  45  A.  R.  654  (referred  to);  82  C.  226.  230,  16  A. 
S  108  22  P.  1145,  1147  (referred  to  with  other  sections);  85  C. 
71  74'  24  P.  594  (referred  to  and  discussed  with  §1260);  144  C. 
659  663  79  P.  379  (creditor's  process  for  reaching  excess  in 
value)-  'l46  C.  426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of 
proceedings  for  appraisement  and  division  or  sale  of  Property) , 
146  C  739,  740  (referred  to),  743  (§1245-1261  provide  plan  for 
subjecting  excess  in  value  of  homestead  to  execution),  106 
A    S    79    89  P    128;  152  C.  246,  247,  92  P.  485,  486   (referred  to). 

As  to'  many  miscellaneous  matters  as  to  homesteads,  see  note 

5 1237    ante 

Exclusive  mode  prescribed.— See   Kerr's  Cyc.   C.   C.   §  1245  and 

note  par.  5. 

§  1257.  AFTER  SALE,  MONEY  EQUAL  TO  HOMESTEAD 
EXEMPTION  PROTECTED.  The  money  paid  to  the  claimant 
is  entitled,  for  the  period  of  six  months  thereafter,  to  the 
same  protection  against  legal  process  and  the  voluntary 
disposition  of  the  husband,  which  the  law  gives  to  the  home- 
stead. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code   Amdts.    1873-4,   p.    230. 

62  C.  125  138,  45  A.  R.  654  (referred  to);  82  C.  226,  230,  16 
A  S  108  22  P.  1145,  1147  (referred  to  with  other  sections): 
144  C  659  663,  79  P.  379  (creditor's  process  for  reaching  excess 
in  value);'  146  C.  426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of 
proceedings  for  appraisement  and  division  or  sale  of  property) . 
146  C  739  740  (referred  to),  743  (§1245-1261  provide  plan  for 
subjecting  excess  in  value  of  homestead  to  execution),  106  A. 
S    79    81  P    128-   152  C.  246,  247,  92  P.  485,  486    (referred  to). 

'  As'  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§1258.  COMPENSATION  OF  APPRAISERS.  The  court 
must  fix  the  compensation  of  the  appraisers,  not  to  exceed 
five  dollars  per  day  each  for  the  time  actually  engaged. 

History:      Enacted  March   21,   1S72. 

6'  C  r^^  131  138,  45  A.  R.  654  (referred  to):  82  C.  226,  230, 
16  A  S  108  22  P.  1145,  1147  (referred  to  with  other  sections); 
144  C;  659  663,  79  P.  379  (creditor's  process  for  reaching  excess 
in  va'lue);'  146  C.   426,   429,   106  A.  S.   47.   80  P.   620    (necessity  of 


■Kerr's    C.    C— 22 


673 


§§  1259, 1260  CIVIL  CODE.  [Div.II,Pt.IV. 

proceedings  for  appraisement  and  division  or  sale  of  property); 
146  C.  739,  740  (referred  to),  743  (§§1245-1261  provide  plan  for 
subjecting  excess  in  value  of  homestead  to  execution),  106  A.  S. 
79,  81  P.  128;  152  C.  246,  247,  92  P.  485,  486   (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 


§1259.    COSTS.     [HOW   PAID   AND    COLLECTED.]      The 

execution  creditor  must  pay  the  costs  of  these  proceedings 
in  the  first  instance;  but  in  the  cases  provided  for  in  sec- 
tions twelve  hundred  and  fifty-three  and  twelve  hundred  and 
fifty-four  the  amount  so  paid  must  be  added  as  costs  on 
execution,  and  collected  accordingly. 

History:     Enacted  March   21,   1872. 

62  C.  125,  138,  45  A.  R.  654  (referred  to);  82  C.  226,  230,  16  A. 
S.  108,  22  P.  1145,  1147  (referred  to  with  other  sections);  144  C. 
659,  663,  79  P.  379  (creditor's  process  for  reaching  excess  in 
value);  146  C.  426,  429,  106  A.  S.  47,  80  P.  620  (necessity  of  pro- 
ceedings for  appraisement  and  division  or  sale  of  property) ; 
146  C.  739,  743  (§§  1245-1261  provide  plan  for  subjecting  excess 
in  value  of  homestead  to  execution),  106  A.  S.  79,  81  P.  128; 
152  C.  246,  247,  92  P.  485,   486    (referred  to). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§1260.    WHO    MAY    SELECT  HOMESTEAD,  VALUE   OF. 

Homesteads  may  be  selected  and  claimed: 

1.  Of  not  exceeding  five  thousand  dollars  in  value  by  any 
head  of  a  family; 

2.  Of  not  exceeding  one  thousand  dollars  in  value  by  any 
other  person. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

62  C.  125,  135,  136-138,  45  A.  R.  654  (construed);  76  C.  639, 
644,  18  P.  805,  807  (construed);  85  C.  71,  74,  24  P.  594  (cited); 
86  C.  134,  141,  24  P.  853,  855  (referred  to);  108  C.  214,  219,  41  P. 
467  (referred  to);  121  C.  582,  585,  54  P.  87  (referred  to);  126  C. 
527,  528,  77  A.  S.  206,  58  P.  1063  (referred  to);  146  C.  426,  429, 
106  A.  S.  47,  80  P.  620  (homestead  may  embrace  what  area- 
value);  146  C.  739,  743  (§§1245-1261  provide  plan  for  subjecting 
excess  in  value  of  homestead  to  execution),  106  A.  S.  79,  81  P.  128. 

674 


Tit.V.Ch.I.]  HEAD    OF    FAMILY.  §  1261 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Several  lots  not  exceeding  statutory  value. — See  Kerr's  Cyc. 
C.   C.   §1238  and  note  par.   19. 

§1261.  HEAD  OF  A  FAMILY  DEFINED.  The  phrase 
"head  of  a  family,"  as  used  in  this  title,  includes  within  its 
meaning: 

1.  The  husband,  when  the  claimant  is  a  married  person. 

2.  Every  person  who  has  residing  on  the  premises  with 
him  or  her,  and  under  his  or  her  care  and  maintenance, 
either:  (1)  His  or  her  minor  child,  or  minor  grandchild,  or 
the  minor  child  of  his  or  her  deceased  wife  or  husband; 
(2)  a  minor  brother  or  sister,  or  the  minor  child  of  a' 
deceased  brother  or  sister. 

3.  A  father,  mother,  grandfather,  or  grandmother. 

4.  The  father,  mother,  grandfather,  or  grandmother  of  a 
deceased  husband  or  wife. 

5.  ^n  unmarried  sister,  or  any  other  of  the  relatives 
mentioned  in  this  section,  who  have  attained  the  age  of 
majority,  and  are  unable  to  take  care  of  or  support  them- 
selves. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  230;  March  9,  1893,  Stats,  and  Amdts. 
1893,  pp.   123,   124.     In  force  March  9,  1893. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

86  C.  134,  138,  141,  24  P.  853,  854.  855  (construed  and  applied); 
108  C.  214,  219,  41  P.  467  (referred  to);  118  C.  299,  301,  50  P.  649 
(referred  to);  121  C.  582,  585,  54  P.  87  (construed  and  applied); 
146  C.  739,  743  (§§  1245-1261  provide  plan  for  subjecting  excess 
in  value  of  homestead  to  execution),  106  A.  S.  79,  81  P.  128;  148 
C.  157,  158,  82  P.  768  (invalid  declaration  of  homestead  by 
married  woman  living  with  her  husband). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

Others  than  heads  of  families — Mode  of  selection  by. — See 
Kerr's  Cyc.  C.  C.   §  1266  and  note. 

Statement  in  declaration  as  to  declarant  being  head  of  family. 
— See  Kerr's  Cyc.  C.  C.  §  1263  and  note. 

Wife  has  no  right  independent  of  husband. — See  Kerr's  Cyc. 
C.  C.  §  1237  and  note. 

675 


§§ 1262,  1263 


CIVIL  CODE. 


[Div.II.Pt.IV. 


CHAPTER  II. 

HOMESTEAD   OF   THE    HEAD   OP   A  FAMILY. 

§  1262.  Mode  of  selection. 

§  1263.  Declaration  of  homestead.      [Must  contain   what.] 

§  1264.  iDeclaration    must   be   recorded. 

§  126.5.  Tenure  by  which  homestead  held. 

§  1262.  MODE  OF  SELECTION.  In  order  to  select  a  home- 
stead, the  husband  or  other  head  of  a  family,  or  in  case  the 
husband  has  not  made  such  selection,  the  wife,  must  execute 
and  acknowledge,  in  the  same  manner  as  a  grant  of  real 
property  is  acknowledged,  a  declaration  of  homestead,  and 
file  the  same  for  record. 

HLstory:  Enacted  March  21,  1S72;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.    230. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

62  C.  125,  134  (referred  to),  137  (construed),  138  (construed 
and  applied),  45  A.  R.  654;  66  C.  457,  458,  6  P.  92  (referred  to); 
76  C.  527,  529,  IS  P.  650,  651  (applied);  76  C.  639,  644,  18  P.  805, 
807  (cited  dis.  op.);  79  C.  203,  205,  21  P.  737,  738  (construed  and 
applied);  98  C.  143,  148,  32  P.  941,  942  (cited);  108  C.  214,  219, 
41  P.  467  (applied  and  cited);  110  C.  198,  203,  42  P.  640  (cited); 
121  C.  582,  585,  54  P.  87  (referred  to);  126  C.  527,  528,  77  A.  S. 
206,  58  P.  1063  (referred  to);  148  C.  157,  158,  159,  82  P.  768  (state- 
ments necessary  to  valid  declaration  of  homestead) ;  3  C.  A. 
525,  526,  86  P.  723  (construed — declaration  of  homestead  is 
properly  admitted  in   evidence,  when). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  recording,  see  Kerr's  Cyc.  C.  C.  §  1264  and  note. 

As  to  residence,  necessity  for,  and  what  constitutes,  see  Kerr's 
Cyc.  C.  C.   §  1237  and  note. 

As  to  selection  by  wife,  see  Kerr's  Cyc.  C.  C.  §§  1238,  1239  and 
notes. 

As  to  what  declaration  miist  contain,  see  Kerr's  Cyc.  C.  C. 
§  1263   and  note. 

As  to  who  is  "head  of  family,'  see  Kerr's  Cyc  C.  C.  §1261  and 
note. 

§1263.    DECLvlRATION  OF  HOMESTEAD.     [MUST   CON- 

TAIJV  WHAT.]     The  declaration  of  homestead  must  contain: 

1.  A  statement,  showing  that  the  person  making  it  is  the 

676 


Tit.V.ch.II.]  DECLARATION    OF.  §  1264 

head  of  a  family,  and,  if  the  claimant  is  married,  the  name 
of  the  spouse;  or,  when  the  declaration  is  made  bj'  the  wife, 
showing  that  her  husband  has  not  made  such  declaration, 
and  that  she  therefore  makes  the  declaration  for  their  joint 
benefit; 

2.  A  statement  that  the  person  making  it  is  residing  on 
the  premises,  and  claims  them  as  a  homestead; 

3.  A  description  of  the  premises; 

4.  An  estimate  of  their  actual  cash  value. 

HLstory:  Enacted  March  21,  1872;  amended  March  30.  1874, 
Code  Amdts.  1873-4,  p.  231;  amended  by  Code  Coniniission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21,' 
1905,   Stats,  and  Amdts.   1905,  p.   400. 

See   Kerr's   Cyc.   C.   C.    for   34   pars,   annotation. 

52  C.  629,  630  (§1253  erroneously  cited  instead  of  §1263);  52 
C.  630,  635  (cited);  54  C.  616,  617,  618  (cited),  620  (construed): 
55  C.  136  (construed  and  applied);  56  C.  524,  527  (applied);  62 
C.  125,  135  (cited),  136  (cited  with  §  1260),  137  (cited  with  §  1262), 
138  (construed),  45  A.  R.  654;  65  C.  343,  4  P.  Ill  (construed  and 
applied);  66  C.  457,  458,  6  P.  92,  93  (construed  and  applied); 
69  C.  195,  198,  10  P.  406,  407  (cited);  71  C.  300,  303,  304,  12  P. 
230,  231  (construed  and  applied);  76  C.  524,  525,  18  P.  436,  437 
(cited);  76  C.  639,  644,  18  P.  805,  807  (referred  to  in  dis.  op.); 
79  C.  203,  205,  21  P.  737,  738  (construed);  82  C.  226,  228,  16  A.  S. 
108,  22  P.  1145  (cited);  21  P.  961  (construed);  83  C.  319,  320,  23 
P.  301,  302  (referred  to);  92  C.  1,  4,  27  P.  1094  (referred  to);  98 
C.  143,  148,  32  P.  941,  942  (referred  to);  108  C.  214,  219,  41  P. 
467  (cited);  110  C.  198,  203,  42  P.  640  (cited  with  other  sections); 
121  C.  582,  585,  54  P.  87  (applied);  122  C.  Ill,  113.  68  A.  S.  27, 
54  P.  535  (construed  and  applied);  126  C.  527.  528,  77  A.  S.  206. 
58  P.  1063  (construed  and  applied);  141  C.  497,  500  (cited),  70 
P.  298,  75  P.  58,  59;  148  C.  157,  158,  159,  82  P.  768  (construed— 
statements  necessary  to  valid  declaration  of  homestead);  149 
C.  687,  689,  691,  87  P.  577  (referred  to);  3  C.  A.  525,  526.  86  P. 
723,  724  (declaration  of  liomestead  is  properly  admitted  in 
evidence,  when). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§  12(J4.  DECLARATION  MIST  BE  RECORDED.   The 

declaration  must  be  recorded  in  the  office  of  the  recorder  of 
the  county  in  which  the  land  is  situated. 

Hiistory:     Enacted  March   21,   1872. 
677 


§  1265  CIVIL  CODE.  [Div.II,Pt.IV. 

See  Kerr's  Cyc.   C.   C.   for   11  pars,   annotation. 

98  C.  143,  148,  32  P.  941,  942  (referred  to);  110  C.  198,  203,  42 
P.  640  (referred  to);  3  C.  A.  525,  526,  86  P.  723,  724  (declaration 
of  homestead  is  properly  admitted  in  evidence,  wlien). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  sufficiency  of  filing  for  record  without  actual  record- 
ation, see   Kerr's   Cyc.   C.   C.    §  1265  and  note. 

§  1265.  TENURE  BY  ^VHICH  HOMESTEAD  HELD.  From 
and  after  the  time  the  declaration  is  filed  for  record,  the 
premises  therein  described  constitute  a  homestead.  If  the 
selection  was  made  by  a  married  person  from  the  community 
property,  or  from  the  separate  property  of  the  spouse  making 
the  selection  or  joining  therein,  the  land  so  selected  on  the 
death  of  either  spouse,  vests  in  the  survivor,  subject  to  no 
other  liability  than  such  as  exists  or  has  been  created  under 
the  provisions  of  this  title;  in  other  cases,  upon  the  death  of 
the  person  whose  property  was  selected  as  a  homestead,  it 
shall  go  to  the  heirs  or  devisees,  subject  to  the  power  of  the 
superior  court  to  assign  the  same  for  a  limited  period  to  the 
family  of  the  decedent;  but  in  no  case  shall  it  be  held  liable 
for  the  debts  of  the  owner,  except  as  provided  in  this  title. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  231;  April  6,  1880,  Code  Amdts.  1880 
(C.  C.  pt.),   p.   8;  April   16,   1909,  Stats,  and  Amdts".   1909,  p.   972. 

See  Kerr's  Cyc.  C.  C.  for  30  pars,  annotation. 

50  C.  539,  543  (cited);  52  C.  294,  296-298  (construed);  54  C. 
496,  501  (construed);  64  C.  397,  398  (construed),  1  P.  479,  480 
(erroneously  cited  as  §1365);  76  C.  527,  531,  18  P.  650,  652 
(construed  and  applied);  76  C.  639,  644,  18  P.  805,  807  (construed 
and  applied);  78  C.  310,  312,  12  A.  S.  58,  20  P.  715,  716,  3  L.  781 
(cited  with  other  sections);  78  C.  470,  474,  21  P.  116,  117  (con- 
strued); 79  C.  203,  205,  21  P.  737,  738  (cited  and  construed);  80 
C.  208,  209,  13  A.  S.  116  (construed  but  erroneously  cited  as 
§1265  C.  C.  P.),  22  P.  141,  142  (correct  citation);  81  C.  217, 
219,  15  A.  S.  47,  22  P.  551  (cited  and  construed);  81  C.  240,  243, 
22  P.  655,  657  (law  of  title  by  survivorship  applies  to  what 
homestead  only);  82  C.  7,  10,  22  P.  938  (referred  to);  83  C.  440, 
442,  23  P.  376,  377  (applied);  85  C.  71,  74,  24  P.  594  (applied); 
85  C.  619,  621,  24  P.  1071  (applied);  86  C.  134,  138,  139,  24  P. 
853  (construed  and  applied);  86  C.  119,  120,  21  A.  S.  26,  24  P. 
852,   853,   854    (effect   of   husband's   death,    on    homestead);    86   C. 

678 


Tit.V.ch.II.]  TENURE  HELD  BY.  §  1265 

151,  153,  24  P.  850,  851  (referred  to);  92  C.  370,  371,  28  P.  570, 
571  (cited  with  C.  C.  P.  §§1168,  1474);  92  C.  514,  519,  27  A. 
S.  158,  28  P.  593,  594  (referred  to);  98  C.  143,  148,  32  P.  941,  942 
(referred  to);  98  C.  472,  478,  33  P.  484,  485  (referred  to);  100 
C.  446,  451,  34  P.  1085  (applied);  102  C.  338,  341,  36  P.  655 
(referred  to  with  §146  and  C.  C.  P.  §1474);  108  C.  627,  654,  48 
A.  S.  97,  41  P.  772  (construed  with  C.  C.  P.  §1474);  111  C.  482, 
483,  44  P.  168  (applied);  111  C.  484,  487  (applied  but  erroneously 
cited  as  §1265  C.  C.  P.),  44  P.  167  (correct  citation);  113  C.  26, 
30,  54  A.  S.  321,  45  P.  15  (construed  and  applied);  118  C.  299, 
300  (referred  to),  301  (construed  with  §1261),  50  P.  649;  121  C. 
267,  269,  53  P.  800  (construed  with  §  1468  in  answering  question, 
what  is  effect  of  order  of  probate  court  setting-  apart,  for  a 
limited  period,  separate  property  of  a  decedent  to  the  surviving 
spouse,  which  has  already  been  devised  to  another  person  and 
upon    which    no    antemortem    homestead    has    been    filed?). 

121  C.  276,  53  P.  705  (applied  without  citation);  121  C. 
647,  653,  54  P.  254  (construed  with  §  1465  C.  C.  P. — latter 
section  controls);  132  C.  609,  611,  64  P.  995  (cited  in  con- 
nection with  C.  C.  P.  §  1474);  139  C.  71,  72,  72  P.  632  (referred  to 
with  C.  C.  P.  §§1465,  1469,  1474);  139  C.  149,  151,  72  P.  909  (dis- 
tinct difference  between  this  section  and  §§  1468  and  1474  C.  C.  P. 
pointed  out  and  commented  vipon);  144  C.  144,  147,  77  P.  885 
(what  provision  of  this  section  is  not  contained  in  §  1465  C. 
C.  P.);  6  C.  A.  774,  778,  779,  93  P.  295  (construed  with  §1465  C. 
C.  P. — latter  section  controls);  7  C.  A.  199,  201,  93  P.  1047,  1048 
(the  provisions  of  this  section  must  be  read  into  §  1474  C.  C.  P.). 

As  to  debts  for  which  homestead  can  be  taken,  see  Kerr's 
Cyc.  C.  C.   §  1241  and  note,  and  particularly  pars.   13  et  seq. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

As  to  title  of  homestead,  see  Kerr's  Cyc.  C.  C.  §  1238  and  note 
pars.   24-29. 

Descent  and  devise  of  homestead. — See  Kerr's  Cyc.  C.  C. 
§§  1386,  1402  and  notes:  and  see  Kerr's  Cyc.  C.  C.  P.  §§  1474,  1475 
and   notes. 

Husband  and  wife  may  be  joint  tenants  or  tenants  in  com- 
mon,  etc. — See   Kerr's  Cyc.   C.   C.    §161  and   note. 

Recordation — Time  of  filing. — See  Kerr's  Cyc.  C.  C.   §  1'.' 
note  par.  10. 

Setting  apart  homestead  to  survivor  of  minor  children. — See 
Kerr's  Cyc.   C.   C.   P.   §  1465   and   note. 


679 


§§  1266-1268  CIVIL  CODE.  [Div.II.Pt.IV. 

CHAPTER  III. 

HOMESTEAD    OF    OTHER    PERSONS. 

§  1266.     Mode    of   selection. 

§  1267.   _  Declaration    of   homestead. 

§  1268.     Declaration    must    be    recorded. 

§  1269.     Effect  of  filing  for  record  the  declaration  of  liomestead. 

§  1266.  MODE  OF  SELECTION.  Any  person  other  than 
the  head  of  a  family,  in  the  selection  of  a  homestead,  must 
execute  and  acknowledge,  in  the  same  manner  as  a  grant  of 
real  property  is  acknowledged,  a  "declaration  of  homestead." 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  400,  held 
unconstitutional,  see  history,  §   4  ante. 

86  C.  134,  141,  24  P.  853,  855  (good  declaration  for  any  person 
other  than  head  of  family);  148  C.  157,  159,  82  P.  768  (§§1266- 
1269  refer  to  what  persons). 

As  to  constitutionality  of  statute,  see  Kerr's  Cyc.  C.  C.  §  1266, 
note. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§  1267.  DECLARATION  OF  HOMESTEAD.  The  declara- 
tion must  contain  everything  required  by  the  second,  third, 
and  fourth  subdivisions  of  section  twelve  hundred  and  sixty- 
three. 

History:     Enacted  March   21,   1872. 

86  C.  134,  141,  24  P.  853,  855  (referred  to  in  concurring  opinion 
of  Beatty,  C.  J.,  in  discussing  sufficiency  of  declaration);  148 
C.  157,  159,  82  P.  768   (§§  1266-1269  refer  to  what  persons). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§  1268.  DECLARATION  MUST  BE  RECORDED.  The  decla- 
ration must  be  recorded  in  the  office  of  the  county  recorder 
of  the  county  in  which  the  land  is  situated. 

Hi.st<M-y:      Enacted   March   21,   1872. 
680 


Tit.V.ch.IIL]      FILING  FOR  RECORD,  EFFECT.  §  1269 

86  C.  134,  141,  24  P.  853,  855  (good  declaration  for  any  person 
other  than  head  of  family);  148  C.  157,  159,  82  P.  768  (§§1266- 
1269  refer  to  what  persons). 

As  to  duty  of  recorder,  see  Kerr's  Cyc.  C.  C.  P.  §  4235  and  note. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§  1269.  EFFECT  OF  FILING  FOR  RECORD  THE  DEC- 
LARATION OF  HOMESTEAD.  From  and  after  the  time  the 
declaration  is  filed  for  record,  the  land  described  therein  is 
a  homestead. 

History:     Enacted  March   21,   1872. 

82  C.  226,  228,  229,  16  A.  S.  108,  22  P.  1145,  1147  (cited  with 
other  sections  in  discussing-  constitutional  provision  for  home- 
stead); (cone.  op.  Beatty,  C.  J.),  86  C.  134,  141,  24  P.  853,  855 
(cited  in  discussing  sufficiency  of  declaration  of  homestead); 
148  C.  157,  159,  82  P.  768  (§§  1266-1269  refer  to  what  persons). 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 


681 


§§  1269a,  1269b  CIVIL  CODE.  [Div.II.Pt.IV. 

CHAPTER  IV. 

ALIENATION    OF    HOMESTEADS    OF    INSANE    PERSONS. 

§  1269a.      Petition  for  sale   or  mortgage  of. 

§  1269b.     Notice   of  application   for   order. 

§  1269c.     When  order  may  be  made  and  effect  of  order. 

§  1269a.    PETITION   FOR  SALE   OR  MORTGAGE   OF.     In 

case  of  a  homestead,  if  either  the  husband  or  wife  becomes 
hopelessly  insane,  the  husband  or  wife  not  insane  may  peti- 
tion the  superior  court  of  the  county  in  which  such  home- 
stead is  situated  for  an  order  permitting  the  husband  or 
wife,  not  insane,  to  sell  and  convey,  or  mortgage,  such  home- 
stead to  raise  moneys  to  satisfy  a  lien  or  charge  thereon, 
or  to  provide  for  the  support  and  care  either  of  the  sane  or 
insane  spouse,  or  of  their  minor  children.  Such  petition  must 
be  subscribed  and  sworn  to  by  the  applicant,  setting  forth  the 
name  and  age  of  the  insane  husband  or  wife;  the  number, 
age,  and  sex  of  the  children,  if  any,  of  such  insane  husband 
or  wife;  a  description  of  the  premises  constituting  the  home- 
stead; the  value  of  the  same;  the  county  in  which  it  is  situ- 
ated; and  such  facts,  in  addition  to  that  of  the  insanity  of 
the  husband  or  wife,  relating  to  the  circumstances  and  neces- 
sities of  the  applicant  and  his  or  her  family,  as  he  or  she 
may  rely  upon  in  support  of  the  petition. 

History:  Enacted  March  22,  1905,  Stats,  and  Amdts.  1905,  pp. 
725,  726;  a  codification  of  §§  1  and  3,  Act  March  25,  1874,  Stats. 
1873-4,  pp.  582,  583. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  homesteads,  see  note 
§  1237,  ante. 

§  1269b.  NOTICE  OF  APPLICATION  FOR  ORDER.  Notice 
of  the  application  for  such  order  must  be  given  by  publica- 
tion of  the  same,  in  a  newspaper  published  in  the  county  in 
which  such  homestead  is  situated,  if  there  is  a  newspaper 
published  therein,  once  each  week  for  three  successive  weeks, 

682 


Tit.IV.Ch.IV.]  ORDER    OF    ALIENATION.  §  1269c 

prior  to  the  hearing  of  such  application,  and  a  copj-^  of  such 
notice  must  also  be  personally  served  upon  the  nearest  male 
relative  of  such  insane  husband  or  wife,  resident  in  this 
state,  at  least  three  weeks  prior  to  such  application;  and  in 
case  there  is  no  such  male  relative  known  to  the  applicant, 
a  copy  of  such  notice  must  be  so  served  upon  the  public 
administrator  of  the  county  in  which  such  homestead  is  sit- 
uated; and  in  such  case  it  is  the  duty  of  such  public  admin- 
istrator to  appear  and  represent  the  interests  of  such  insane 
person.  For  all  such  services  rendered  by  the  public  admin- 
istrator he  must  be  allowed  a  reasonable  fee,  to  be  fixed  by 
the  court,  and  the  same  must  be  taxed  as  costs  against  the 
person  making  application  for  the  order  herein  provided  for. 

Hi.Mtory:  Enacted  March  22,  1905,  Stats,  and  Amdts.  1905,  pp. 
725,  726;  a  codification  of  §  2,  Act  March  25,  1874,  Stats.  1873-4, 
pp.    582,    583. 

§  12(;9o.  WHEN  ORDER  MAY  BE  MADE  AND  EFFECT 
OF  (nn)ER.  if  it  appears  to  the  court  that  such  husband  or 
wife  is  hopelessly  insane,  the  court  may  make  an  order  per- 
mitting the  husband  or  wife,  not  insane,  to  sell  and  convey, 
or  mortgage,  such  homestead,  and  thereafter  any  sale,  con- 
veyance, or  mortgage  made  in  pursuance  of  such  order  is  as 
valid  and  effectual  as  if  the  property  affected  thereby  was 
the  absolute  property  of  the  person  making  such  sale,  con- 
veyance, or  mortgage.  If  a  sale  is  ordered  it  must  be  reported 
to  and  confirmed  by  the  court.  Such  husband  or  wife  must, 
before  executing  any  mortgage  or  conveyance,  give  a  bond, 
to  be  ai)proved  by  the  judge  of  the  court,  in  double  the  amount 
of  the  mortgage,  or  double  the  value  of  the  property  to  be 
sold,  conditioned  to  account  for  the  proceeds  of  the  mort- 
gage or  sale  and  to  apply  such  proceeds  only  as  the  court 
may  direct. 

History:  Enacted  March  22,  1905,  Stats,  and  Amdts.  1905.  pp. 
725,  726;  a  codification  of  §  4,  Act  March  25,  1874,  Stats.  1873-4. 
p.  583. 


6S3 


§  1270  CIVIL  CODE.  [Div.II,Pt.IV. 


TITLE   VI. 

WILLS. 

Chapter  I.      Execution   and  Revocation  of  Wills,    §§  1270-1313. 
11.      Interpretation  of  Wills,  §§1317-1351. 
III.      General  Provisions  Relating  to  Wills,  §§  1357-1377. 


CHAPTER  I. 

EXECUTION  AND  REVOCATION  OF  WILLS. 

§  1270.  Who  may  make  a  will. 

§  1271.  Monomaniac  incompetent   [repealed]. 

§  1272.  Will,   or  part  thereof,  procured   by   fraud. 

§  1273.  Will   of  married   woman. 

§  1274.  What   may  pass  by   will. 

§  1275.  Who  may  take  by  will. 

§  1276.  Written   will,   how  to   be   executed. 

§  1277.  Definition  of  an  [h]olographic  will. 

§  1278.  Witness   to   add   residence. 

§  1279.  Mutual    will. 

§  1280.  Competency   of   subscribing   witness. 

§  1281.  Conditional   will. 

§  1282.  Gifts   to  subscribing  witness  void.     Creditors  competent 

witnesses. 

§  1283.  Witness  who  is  a  devisee,  entitled  to  share  to  amount  of 

devise,  when. 

§  1284.  Will  made  out  of  this  state   [repealed]. 

§  1285.  Will  made  out  of  this  state  not  valid,  unless. 

§  1286.  Subsequent  change   of  domicile    [repealed]. 

§  1287.  Republication   by  codicil. 

§  1288.  Nuncupative   will,   how  to  be  executed. 

§  1289.  Requisites  of  a  valid  nuncupative  will. 

§  1290.  Proof   of   nuncupative   wills.      [When   to    be    offered.] 

§  1291.  Probate   of   nuncupative   wills. 

§  1292.  Written   will,   how   revoked. 

§  1293.  Evidence   of  revocation. 

§  1294.  Revocation   by    obliteration    on   face   of   will    [repealed]. 

§  1295.  Revocation    of   duplicate. 

§  1296.  Revocation  by  subsequent  will. 

§  1297.  Antecedent    not    revived    by    revocation    of    subsequent 
will. 

684 


i 


Tit.VI,ch.I.]  COMPETENCY  TO  REVOKE.  §  1270 

§  1298.     Revocation  by  marriage  and  birth  of  issue. 

§  1299.     Effect  of  marriage  of  a  man  on  his  will. 

§  1300.     Effect  of  a  marriage  of  a  woman  on  her  will. 

§  1301.     Contract  of  sale  not  a  revocation. 

§  1302.     Mortgage  not  a  revocation   of  will. 

§  1303.     Conveyance,  when   not  a  revocation. 

§  1304.     When  it  is  a  revocation. 

§  1305.     Revocation   of  codicils. 

§  1306.     After-born  child,  unprovided  for,  to  succeed. 

§  1307.     Children  or  issue  of  children  of  testator  unprovided  for 

by   Ills   will    [To   succi^ed]. 
§  1308.     Share    of   after-born    child,    out    of    what    part   of   estate 

to   be  paid. 
§  1309.     Advancement  during  lifetime  of  testator. 
§  1310.      Death    of    legatee,    before    testator,    lineal    descendants 

take   estate. 
§  1311.     Devises  of  land,  how  construed. 
§  1312.     Wills   pass  estate   subsequently  acquired. 
§  1313.     Charitable,    etc.,    bequest.      Limitation    as    to    time    and 

amount. 


§  1270.  ^VHO  MAY  MAKE  A  WILL.  Every  person  over 
the  age  of  eighteen  years,  of  sound  mind,  may,  by  last  will, 
dispose  of  all  his  estate,  real  and  personal,  and  such  estate 
not  disposed  of  by  will  is  succeeded  to  as  provided  in  title 
seven  of  this  part,  being  chargeable  in  both  cases  with  the 
payment  of  all  the  decedent's  debts,  as  provided  in  the  Code 
of  Civil  Proced'ire. 

History:  Enacted  March  21,  1872,  found.-!  iii^.m  §  1.  Act 
April    10,    1850,  Stats.   1850,   p.    177. 

See  Kerr's  Cyc.  C.  C.  for  247  pars,  annotation. 

58  C.  457,  516  (construed  with  other  sections):  33  P.  920. 
921  (requisite  capacity  to  make  will);  140  C.  282,  289,  73  P. 
976  (in  the  whole  title  on  wills  "devise"  is  used  with  reference 
to  a  testamentary  disposition  of  land,  and  "legacy"  with 
reference  to  a  like   disposition   of  personalty). 

EXECUTION  AlVn  REVOC ATIOX  OP  WIM.S. 

As  to  generally,  see  2  Church's  New  Probate  Law  and 
Practice,  1535-1553. 

As  to  burden  of  proof  of  testamentary  capacity,  see  note  17 
L.    494-497. 

As  to  competency  to  make  will,  see  1  L.  161:  2  L.  66S;  6  L.  167. 

As   to  construction    of   wills,   see   note    §  1317,   post. 

685 


§  1270  CIVIL  CODE.  [Div.II.Pt.IV. 

As  to  execution,  revocation,  and  classes  of  will,  see  2  Church's 
New  Probate  Law  and  Practice,   1514,   1535-1553. 

As  to  declaration  of  testator  to  impeach  or  invalidate  will, 
see  3  A.  D.   395;   52  A.  D.   167;   62  A.  D.  80. 

As  to  drunkenness  as  affecting  testamentary  capacity,  see  39 
L.   220-227. 

As  to  effect  of  morphinism  on  testamentary  capacity,  see 
39  L.   262-265. 

As  to  effect  of  spiritualism,  and  belief  in,  upon  testamentary 
capacity,  see  36  A.  R.  426. 

As  to  fraud  and  undue  influence  in  connection  with  drunken- 
ness, see  39  L.  220. 

As  to  interpretation  of  wills,  see  note  §  1317,  post. 

As  to  old  age  and  physical  infirmity  as  affecting  testamentary 
capacity,  see  6  L.  167. 

As  to  opinions  of  subscribing  witnesses  as  to  testamentary 
capacity,    see    39    L.    715-722. 

As  to  presumption  and  burden  of  proof  as  to  testator's  sanity, 
see   36  L.    621-641. 

As  to  presumption  arising  when  partial  insanity  has  been 
shown,  see  41  A.  R.   686,   688. 

As  to  sufficiency  of  letter  as  will,  see  15  L.  635. 

As  to  testamentary  capacity  and  insane  delusions,  see  8  A.  R. 
184. 

As  to  testamentary  capacity  generally,  see  84  A.  D.   240. 

As  to  testamentary  capacity,  insanity  and  partial  insanity, 
and  its  effect  upon  will,  see  41  A.  R.  686. 

As  to  what  constitute  testamentary  writings  of  wills,  see 
92  A.  D.  284;  30  A.  S.  717;  89  A.  S.  486. 

As  to  what  instruments  will  be  deemed  wills,  see  30  A.  S.  717. 

As  to  when  insane  delusions  will  invalidate  will,  see  63  A.  S. 
94. 

After-acquired  land,  as  affected  by  will. — See  8  W.  &  P. 
7464. 

Attestation  of  will. — See  "Formalities  and  execution  of",  this 
note. 

Aversion  to  relatives  as  affecting  mental  capacity  to  make  a 
will. — See  117  A.  S.  582. 

Codicil — As  to  generally,  see  Kerr's  Cyc.  C.  C.  §  1287  and  note; 
2  Church's  New  Probate  Law  and  Practice  1543",  1544;  8  A.  C. 
429;  1  L.  N.  S.  397;  see  also  "Formalities  and  execution,"  this 
note. 

Same — Included  in  term  will. — See  8  W.  &  P.  765. 

Contract  to  make  a  will. — See  2  Church's  New  Probate  Law 
and   Practice   1546. 

Deeds  as  wills. — See  2  Church's  New  Probate  Law  and  Prac- 
tice 1544-1546;   7  A.  C.  790;   13  L,  N,  S,  1203,   1204. 

Disposition  of  land  by  will. — See  2  Obiter  Dig.  984. 

686 


Tit.VI.ch.I.]  WILLS,  EXECUTION,  ETC.  §  1270 

Execution,  by  will,  of  a  power  of  appointment — What  is 
sufficient. — See  64  L.   849-918. 

Execution  of  wills. — See  "Formalities  and  executions"  this 
note. 

Executory  devises. — See  2  Obiter  Dig.   968. 

Extent  of  devise. — See   2  Obiter  Dig.   968. 

Foreign  wills. — See  Kerr's  Cyc.  C.  C.  §§  1285,  1376  and  notes; 
2  Church's  New  Probate  Law  and  Practice  1549;  2  L.  N.  S. 
408-468. 

Formalities  and  execution  of — As  to  generally,  see  2  Church's 
New  Probate  Law  and  Practice  1539;  2  Obiter  Dig.  984. 

Same — Attestation. — See  114  A.  S.  209-239;  8  L.  823-837;  1  L. 
N.  S.  393. 

Same — Codicils — Form,  sufficiency  and  effect  thereof. — See 
Kerr's  Cyc.  C.  C.  §■  1287  and  note;  2  Church's  New  Probate  Law 
and  Practice  1543,  1544;  8  A-  C.  429;   1  L.  N.  S.  397;  8  A.  C.  429;' 

1  L.  N.  S.  397. 

Same — Contract  to  make. — See  2  Church's  New  Probate  Law 
and  Practice  1546;  5  A.  C.  495. 

Same — Deed  construed  in  aid  of  will. — See  2  Church's  New 
Probate  Law  and  Practice   1546. 

Same — Escrow  deed,  when  not  a  will. — See  2  Church's  New 
Probate  Law  and  Practice  1546. 

Same — Foreign   wills. — See   Kerr's  Cyc.   C.   C.   §  1376  and  note; 

2  Church's    New    Probate    Law    and    Practice    1549;    2    L.    N.    S. 
408-468. 

Same — Holographic  wills — And  of  married  woman. — See  2 
Church's  New  Probate  Law  and  Practice  1546-1548;  1  A.  C.  373; 
5  A.  C.  636;  52  A.  D.  591;   104  A.  S.  22-34;  6  L.  775. 

Same — Incorporating  other  papers  by  reference. — See  2 
Church's  New  Probate  Law  and  Practice  1544;  1  A.  C.  395;  9 
A.   C.    105;    107   A.   C.    70;    68   L.    355-386. 

Same — Instruments  construed  not  to  be  wills. — See  2  Church's 
New  Probate  Law  and  Practice  1550. 

Same — Instruments  informally  executed  invalid  as  wills. — 
See  2  Church's  New  Probate  Law  and  Practice  1542. 

Same — Mutual  or  reciprocal  wills. — See  Kerr's  Cyc.  C.  C.  §  1279 
and  note;  2  Church's  New  Probate  Law  and  Practice  1549. 

Same — Nuncupative  wills. — See  2  Church's  New  Probate  Law 
and  Practice  1548,  1549;  3  A.  C.  317;  S  L.  40;  9  L.  829;  13  L.  N. 
S.   1092. 

Same — Non-intervention  wills. — See  2  Church's  New  Probate 
Law  and  Practice  1550. 

Same — Signature  of  testator — Necessity  for — By  mark  valid 
when. — See  2  Church's  New  Probate  Law  and  Practice  1540; 
2  A.  C.  732;  7  L.  1193-1195;  22  L.  370;  65  L.  95-100. 

Same — Subscribing   and    attesting    witnesses,    necessity    fur. — 

687 


§  1270  CIVIL  CODE.  [Div.IT,Pt.IV. 

See  2  Church's  New  Probate  Law  and  Practice  141,  142;  4  A. 
C.     463;  4  A.  C.  637;  5  A.  C.   463;  6  A.  C.  414;  14  L.  160. 

Same — Wills  in  form  of  deeds. — See  2  Church's  New  Probate 
Law  and  Practice  1544-1546;  7  A.  C.  790;  13  L.  N.  S.  1204. 

Fraudulent   wills.— See    2    Obiter   Dig.    974. 

General  devise.— See  2  Obiter  Dig.  967. 

Holographic  wills — As  to  generally,  see  Kerr's  Cyc.  C.  C. 
§  1277  and  note;  2  Church's  New  Probate  Law  and  Practice  1546- 
1548;   5  A.  C.  636;   52  A.  D.  591;  104  A.  S.  22-34;   6  L.   775. 

Same — Codicil  to.— See  Kerr's  Cyc.  C.  C.  §  1277  and  note. 

Incorporation  into  will  by  reference,  doctrine  of. — See  1  A.  C. 
395;  9  A.  C.  105;  107  A.  S.  70-75;   6  L.  353-386. 

Instrument,  when  a  will. — See   49  A.   S.   221. 

Intention  necessary  to  will. — See  8  W.   &  P.   7467. 

Intoxication  as  affecting  testamentary  capacity. — See  Kerr's 
Cyc.   C.   C.    §  1270   and  note. 

Letter  as  will,  sufficiency  of. — See   15  L.   635. 

Limitation  on  right  to  make  a  will. — See  "Wills",  this  note; 
also  2  Church's  New  Probate  Law  and  Practice  1536-1538;  52  A. 
S.  104;  30  L.  460. 

Married  woman,  will  of. — See  Kerr's  Cyc.  C.  C.  §  1273  and 
note. 

Morphine  habit  as  affecting  testamentary  capacity. — See  39  L. 
262. 

Mutual  or  reciprocal  wills. — See  Kerr's  Cyc.  C.  C.  §  1279  and 
note;  2  Church's  New  Probate  Law  and  Practice  1549. 

Nuncupative  wills — How  executed. — See  Kerr's  Cyc.  C.  C. 
§  1288  and  note;  2  Church's  New  Probate  Law  and  Practice  1548; 
8  L.   40;   9  L.   829;    13  L.  N.   S.   1092. 

Same — Requisites  to  validity  of. — ^See  Kerr's  Cyc.  C.  C.  §  1289 
and  note. 

Same — Statutory  restrictions  as  to  time  of  making. — See  3 
A.  C.  317;   13  L.  1092. 

Oral  agreement  to  make  devise  of  land,  validity  of. — See 
5  A.  C.  495. 

Requisites   of  valid  testamentary   disposition. — See   1   A.   C.    51. 

Revocation  of  wills — As  to  generally,  see  Kerr's  Cyc.  C.  C. 
§§  1292,  1295,  1296,  1297,  1301,  1302,  1303  1304,  1305,  1374  and 
notes;  2  Church's  New  Probate  Law  and  Practice  1551-1553;  10 
A.  C.   535;   5  L.  N.  S.   1084. 

Same — By  subsequent  marriage  of  man. — See  Kerr's  Cyc.  C. 
C.   §§  1298,   1299  and  notes;   7  A.   C.   786. 

Same — By  subsequent  marriage  of  woman  followed  bj'  birth 
of  child. — See  Kerr's  Cyc.  C.  C.  §1300  and  note;  5  A.  C.  795;  5 
L.  N.   S.   1034. 

Same — Evidence  of  revocation. — See  Kerr's  Cyc.  C.  C.  §  1293 
and  note;  10  A.  C.  535. 

Same — Revocation   by   divorce   of   testator. — See   3   A.   C.   230. 


Tit.VI.ch.I.]  WILLS,   EXKCUTrON,    lOTO.  §  1271 

Right  of  testamentary  disposition. — See  2  Churcli's  New 
Probate  Law  and  Practice  1535;  7  A.  C.  450;  59  A.  S.  179;  12 
L.   116;   12  L.   161;  9  L.  N.  S.  121. 

Right  to  dispose  of  property  by   will. — See   2  Obiter  Dig.   963. 

Several  testamentary  instruments  when  taken  and  construed 
together. — See  Kerr's  Cyc.  C.  C.  §  1320  and  note. 

Spiritualistic  places  as  affecting  testamentary  capacity. — See 
36   A.   R.   426. 

Testamentary  capacity — As  to  generally,  see  2  Church's  New 
Probate  Law  and  Practice  1538,  1539;  84  A.  D.  240;  8  A.  R.  184 
36  A.  R.  426;  41  A.  R.  686;  117  A.  S.  582,  585;  1  L.  161;  2  L. 
668;   6   L.   167;   39  L.   262-265;   3  L.  N.   S.   172. 

Same — Age  and  physical  infirmity  as  affecting. — See  Kerr's 
Cyc.  C.  C.  §  1270  and  note;  2  Church's  New  Probate  Law  and 
Practice   1538. 

Same — Aversion  to  relatives  as  affecting. — See  117  A-  S.  5S2- 
585. 

Same — Determining  of  deceased. — See  2  Obiter  Dig.  965. 

Same — Fraud,  undue  influence,  etc.,  as  affecting. — See  2 
Church's  New  Probate  Law  and  Practice  1539;  10  A.  C.  600;  39 
L.   220;   6  L.  N.  S.   202,   204. 

Same — Morphinism  as  affecting. — See  39  L.  262-265. 

Same — Spiritualism,  belief  in,  as  affecting. — See  36  A.  R.  420. 

Trust  under  wills — As  to  generally,  see  2  Church's  New 
Probate   Law   and   Practice    1434-1454. 

Undue  influence. — See  2  Obiter  Dig.  975. 

Unequitable   wills. — See   Kerr's  Cyc.   C.   C.    §  1270  and   note. 

Unnatural  wills. — See  Kerr's  Cyc.  C.  C.  1270  and  note. 

Validity   of  e.\ecutory  devise. — See   2   Obiter  Dig.   984. 

What  constitutes  a  will. — See  2  Church's  New  Probate  Law 
and  Practice  1550;  92  A.  D.  284;  30  A.  S.  717;  89  A.  S.  500;  8 
W.    &    P.    7463,    7468. 

Will  as  muniment  of  title. — See  8  W.  &  P.  7467. 

Withdrawing  property  from  creditors. — See  2  Obiter  Dig.  934. 

Witnesses   to    wills. — See   2   Obiter   Dig.   984. 

Witnessing  execution  of,  formalities  as  to. — See  Kerr's  Cyc- 
C.  C.  S  1298  and  note. 


§1271.     .M(»>(KM.VM.\(     IN((KMrKTE>T    (repealedl. 

Hi.«<t<»r.v:      Enact<'d    March    21.    1872;    repealed    March    30.    1S74. 
Code  Amdts.    1873-4,   p.    232. 

As    to    execution,    revocation,    and    classes    of    wills,    see    note 
§  1270,   ante;    2    Church's   New    Probate   Law   and   Practice,   1514, 

1535-1553. 

689 


§§  1272,  1273  CIVIL  CODE.  [Div.II,Pt.IV. 

§1272.  WILL,  OR  PART  THEREOF,  PROCURED  BY 
FRAUD.  A  will,  or  part  of  a  will,  procured  to  be  made  by 
duress,  menace,  fraud,  or  undue  influence,  may  be  denied 
probate;  and  a  revocation,  procured  by  the  same  means,  may 
be  declared  void. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  143  pars,  annotation. 

79  C.  313,  316,  21  P.  758  (construed  and  applied  by  implication 
With   §  1575). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  fraud  and  undue  influence  in  connection  with  will, 
see  2  L.  668;  4  L.  738;  8  L.  261. 

As  to  honest  intercession,  argument,  and  persuasion,  see 
16  A.   D.   257-259. 

As  to  influence  gained  by  kindness  and  affection,  see  16  A. 
D.    257-259. 

As  to  presumption  of  undue  influence,  see  16  A.  D.  257;  44 
A.  R.  537;  21  A.  S.  94. 

As  to  provision  of  will,  as  affecting  issue  of  undue  influence, 
see    6    Prob.   Rep.   Ann.    300. 

As  to  undue  influence  arising  from  illicit  relations  between 
parties,  see  16  A.  D.  257-263. 

As  to  undue  influence  by  mistress,  see  4  Prob.  Rep.  Ann.  475. 

As  to  what  amount  of  undue  influence  affects  will,  see  31 
A.  S.   670;    1  Prob.  Rep.   Ann.   117. 

As  to  what  influence  or  importunity  will  invalidate  will,  see 
16   A.   D.    257-263. 


§  1273.  WILL  OF  MARRIED  WOMATf.  A  married  woman 
may  dispose  of  all  her  separate  estate  by  will,  without  the 
consent  of  her  husband,  and  may  alter  or  reroke  the  will  in 

like  manner  as  if  she  were  single.    Her  will  must  be  executed 
and  proved  in  like  manner  as  other  wills. 

History:  Enacted  March  21,  1872,  founded  upon  §  2  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.   232. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

70    C.    140,    142    (erroneously    cited    for    §  1277),    11    P.    587,    588 
(same  error). 
As    to    execution,    revocation,    and    classes    of    wills,    see    note 

690 


TitVI.Ch.I.]  PASSING  AND  TAKING  BY.  §§  1274,  1275 

§1270,  ante;  2  Church's  New  Probate  Law  and  Practice.  1514. 
''as 'to'power  of  married  women  to  dispose  of  property  by  will, 
see   57  A.  D.   340-349. 

§  V^U  >VHAT  MAY  PASS  BY  AVILL.  Every  estate  and 
interest*  in  real  or  personal  property,  to  which  heirs,  hus- 
band widow,  or  next  of  kin  might  succeed,  may  be  disposed 
of  by  will,  exceiit  as  othenvise  provided  in  sections  fourteen 
hundred  and  one  and  fourteen  hundred  and  two. 
History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation, 
lion    "^R?    ^95    44  P.  734  (construed). 

is    S    eicuti'on     revocation,    and    classes    of    wills,    see    note 
§  mo.   ante!  2   Church's  New   Probate   Law   and   Practice.    1514. 

''As'^to^'testamentary    power    of    husband   and    wife    over    com- 
munity property,  see  Kerr's  Cyc.  C.  C.  §  1402  and  note. 

§  1*75  WHO  MAY  TAKE  BY  WILL.  A  testamentary  dis- 
position may  be  made  to  any  person  capable  by  law  of  taking 
the  property  so  disposed  of,  except  that  corporations  other 
than  counties,  municipal  .  corporations,  and  corporations 
formed  for  scientific,  literary,  or  solely  educational  or  hospi- 
tal purposes,  cannot  take  under  a  will,  unless  expressly 
authorized  by  statute;  subject,  however,  to  the  provisions  of 
section  thirteen  hundred  and  thirteen. 

HIstorv:  Enacted  March  21.  1872;  amended  March  29,  1874 
roToArndts  1873-4,  p.  275;  amended  by  Code  Comna.ss.on,  Act 
Code  Amais.   loio  t,  t-  unconsti- 

March    16,   1901,  Stats,  and  Amdts.    1900-1,  p.    '*";'  j'^'!;  . 

rt-         1     c^^  history    §   4  ante;  amendment  substantially    re  en 
ITd    Ma     h  'o     1903'  Stats,    and    Amdts.    1903.    p.    ^58.    me  e  1, 
^mSinTthe  words  "counties,  "--icipal  -rporation.     and  t^^^^ 
amendment  of  the  Code  Commission   '"^f  ^J^^'  ^^^  "^"'''"JJs 
omitted  words.  March  21.  1905,  Stats,  and  Amdts.  1905.  p.  6O0. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  ^""^tftion 

59    C.    131    (construed   and   «PP'f  ..^^^'V^    6   1  fcons^rued  and 
C.  308.  309  (construed  and  appUed) .     3  C.  6^-0.^6.1   i^  ^    ^^^ 

applied  with    §1313).   1-3  ^-  „^' ^    Mvrick's   Prob.    Rep.    134.    135 

strued   and   ^PP^^^^^'^f  J-.V^^'Vafs    "Mvrick's    Prob.    Rep.    213 
(construed    and   applied    with    §131,i).    .vijrit«.o 

(construed  and  applied). 

691 


§  1276  CIVIL    CODE.  [Div.II,Pt.IV. 

As  to  capacity  of  corporation  to  take  by  devise,  see  2  Prob. 
Rep.  Ann.   674-679. 

As  to  capacity  of  corporation  to  take  title  to  real  estate,  see 
94  A.  D.  381-387. 

As  to  collateral  attack  upon  right  of  corporation  to  take  by 
devise,   see   2  Prob.  Rep.  Ann.   674-679. 

As  to  devise  to  charitable  uses,  see  80  A.  D.  315. 

As  to  devise  to  corporations,  see  18  A.  D.  541;  80  A.  D.  315. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  extrinsic  evidence  as  applied  to  wills,  see  4  Prob.  Rep. 
Ann.  467-476. 

As  to  gifts  by  will  designating  no  donee,  see  80  A.  D.  314. 

As  to  misnomer  in  gife  to  legatee,  see  4  Prob.  Rep.  Ann.  81. 

As  to  position  of  municipal  corporations  as  legatees  or 
devisees,  see  4  Prob.  Rep.  Ann.   113-116. 

As  to  right  of  private  persons  to  contest  power  of  corpora- 
tion to  take  or  hold  property,   see  2  L.  387;  13  L.   293-297. 

As  to  whether  heirs  of  a  testator  may  assail  a  devise  or 
bequest  to  a  corporation,  see  60  A.  S.  318-  321. 


§  1276.  WRITTEN  WILL,  HOW  TO  BE  EXECUTED.  Every 
will,  other  than  a  nuncupative  will,  must  be  in  writing;  and 
every  will,  other  than  an  olographic  [holographic]  will,  and 
a  nuncupative  will,  must  be  executed  and  attested  as  follows: 

1.  It  must  be  subscribed  at  the  end  thereof  by  the  testator 
himself,  or  some  person  in  his  presence  and  by  his  direction 
must  subscribe  his  name  thereto; 

2.  The  subsei  iptioii  must  be  made  iu  the  presence  of  the 
attesting-  witnesses,  or  be  acknowledged  by  the  testator  to 
them  to  have  been  made  by  him  or  by  his  authority; 

3.  The  testator  must,  at  the  time  of  subscribing-  or  acknowl- 
edging the  same,  declare  to  the  attesting  witnesses  that  the 
instrument  is  his  will;  and, 

4.  There  must  be  two  attesting  witnesses,  each  of  whom 
must  sign  the  same  as  a  witness,  at  the  end  of  the  will,  at 
the  testator's  request  and  in  his  presence. 

History:  Enacted  March  21,  1872,  founded  upon  §  3  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  by  Code  Commission,  Act 
March   16,   1901,   Stats,  and  Amdts.    1900-1,  p.   402,   held  unconsti- 

692 


Tit.VI.ch.I.]  HOLOGRAPHIC  WILLS.  .^_j281 

tutional.  see  history.  §   4  ante:  amendment  re-enacted  Mart.     ^^ 
1905.  Stats,  and  Amdts.   190.5,   p.   605.  ^ 

See  Kerr's  Cyc.  C.  C.  for  145  pars,  annotation. 
54  C.  509.  517.  518,  35  A.  R.  83  (construed  and  ''^PP''^**> -/^J;- 
519  520,  521.  9  P.  554  (construed  and  applied);  96  C.  o98,  600, 
601  31  P  553.  22  L.  370  (construed  and  applied;  107  C.  1,  6.  40  P. 
15  *28  L.  414  (construed  and  applied):  110  C.  387,  390,  391.  393.  52 
A.'s.  104.  42  P.  815,  30  L.  460  (construed  and  applied);  ^C.  Nov.  4. 
1897)  50  P.  927  (construed  and  applied);  142  C.  373.  375.  7.1  P. 
1086  "(construed  and  applied);  145  C.  407,  409.  78  P.  964  (con- 
strued and  applied  with  §  1277  and  §1309  of  C.  C  P):  (C-  ;Vprn 
3  1905)  80  P  700.  702.  704  (construed  and  applied).  M>  ricK  s 
Prob  Rep.  210.  211  (construed  and  applied);  Myrick's  Prob.  Rep. 
140  (construed  and  applied  with  |1277):  146  C.  455^460  461 
(source  of  section— constructive).  465  (application  by  Beatty.  C. 
J.,  in  con.  op.),  80  P.  700.  106  A.  S.  53,  2  A.  C.j26. 

As  to  attestation  by  mark,  see  22  L.  370-373. 

As  to  acknowledgment  by  testator,  and  attestation  of  wit- 
nesses, see  5  L.  ed.  N.  Y.  Ch.  Rep.   855.  ,.,,„, 

As  to  execution,  publication,  and  attestation  of  will,  and 
sufficiency  thereof,  see  37  A.  D.  260;  40  A  D.  231;  45  A.  d.  442: 
52  A    D.  105;  76  A.  D.  677;  80  A.  D.  242;   1  L.  161.  491;  8  L.  822. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§1270.   ante;    2   Church's   New   Probate   Law   and    Practice,    l.ol4. 

1535-1553.  ,.,  o<-     *     r.    -jk: 

As  to  how  far  an  unexecuted  will   is  valid,  see  36   A.   D.   i\h- 

322. 

As  to  law  concerning  signing  of   wills,   see   42   A.  D.   571. 

As  to  mere  want  of  recollection  of  witness  to  signing  and 
attestation,  see  37  A.  D.  260;  45  A.  D.  443.  ,    ^,    ,.    nu 

As  to  proof  of  due   execution   of   will,  see   5   L.   ed.   N.    \.   cn. 

As  to' publication  of  will  and  the  necessity  and  sufficiency 
thereof,  see  37   A.   D.   260.  . 

As  to  requisites  of  statutes  to  be  complied  with  in  exec  nil. .n 
and  proof  of  wills,  see  5  L.  ed.  N.  Y.  Ch.  Rep^.  85r,. 

As  to  signature  by  mark,  see   22  L.  370-373. 

As  to  signature  of  witnesses  before  testator,  see   14    '"    ""'• 

As  to  what  is  a  signature  or  subscription,  see  Kerr  s  Cyc.  c. 
C.  §14   note  pars.   67-77. 

As  to  what  is  sufficient  attestation   to  a   will,  see  9-   A.  P.   6.», 

30  A.  S.  882.  , 

As  to  what  is  sufficient  execution  of  will,  see  30  A.  b.  hS- 

§1277.     DEFIMTION     OF    AX     [HIOLOORAIMIK      >VIM.. 

An   [h]olograi)hic  will  is  one  that  is  entirely  written,  dated, 
and  signed  bv  the  hand  of  the  testator  himself.     It  is  subject 

693 


§  1276  CIVIL  CODE.  [Div.II,Pt.IV. 


■^^     ^  -m,  and  may  be  made  in  or  out  of  this  state, 

Re'  CO     -3 

^     -^  3  witnessed. 

'story:     Enacted  March  21,   1872. 

\C.  C.  for  58  pars,  annotation. 

,u   i.construed  and  applied);  61  C.  468,  475,  44  A.  R. 

.construed  and  applied);  64  C.  427,  1  P.  701    (construed  and 

applied)  ;-"70  C.  140  (referred  to  but  erroneously  cited  as  §  1273), 

143    (applied),    11   P.   587,  588    (erroneously   cited  as   §1273);    100 

C.  202,  207,  208,  38  A.  S.  279,  34  P.  614  (construed  and  applied); 
112  C.  513,  518,  519,  44  P.  1028  (construed  and  applied);  135  C. 
28,  29,  87  A.  S.  96,  66  P.  961  (construed  and  applied);  145  C. 
82,  83,  78  P.  340  (construed  and  applied);  145-407,  409,  78  P. 
964  (construed  and  applied  with  other  sections);  151  C.  77,  79,  90 
P.  192  (what  is  invalid  as  a  holographic  will  and,  standing 
alone,  not  entitled  to  probate);  Myr.  Prob.  Rep.  140  (construed 
and  applied  with  §  1276). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  meaning  of  term  holographic,   see   52   A.  D.   591. 

As  to  necessity  of  attestation  of  holographic  will,  see  52 
A.  D.  593. 

As   to    necessity    of    mentioning   place    of    execution,    see    52    A. 

D.  592. 

As  to  necessity  of  mentioning  place  where  holographic  will 
may  be  deposited  or  found,  see  52  A.  D.  593. 

As  to  what  constitutes  signing  of  holographic  will,  see  52  A. 
D.  592. 

For  definition  of  date  as  used  in  holographic  will,  see  52 
A.    D.    592. 

§  1278.  WITNESS  TO  ADD  RESIDENCE.  A  witness  to  a 
written  will  must  write,  with  his  name,  his  place  of  resi- 
dence ;  and  a  person  who  subscribes  the  testator's  name,  by 
his  direction,  must  write  his  own  name  as  a  witness  to  the 
will.  But  a  violation  of  this  section  does  not  affect  the  valid- 
ity of  the  will. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

54  C.  509,  518,  35  A.  R.  83   (referred  to). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

694 


Tit.VI.ch.I.]  MUTUAL,   CONDITIONAL.  §§  1279-1281 

§  1279.  MUTUAL  AVILL.  A  conjoint  or  mutual  will  is 
valid,  but  it  may  be  revoked  by  any  of  the  testators,  in  like 
manner  with  any  other  will. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  validity  of  joint  wills,  see  68  A.  D.  407,  410;  73  A.  D. 
754;   82  A.   D.   485. 

Upon  the  subject  of  joint  wills,  see  68  A.  D.  407-410. 

§1280.    COMPETENCY      OF      SUBSCRIBIXG      WITNESS. 

If  the  subscribing  witnesses  to  a  will  are  competent  at  the 
time  of  attesting  its  execution,  their  subsequent  incompe- 
tency, from  whatever  cause  it  may  arise,  does  not  prevent 
the  probate  and  allowance  of  the  will,  if  it  is  otherwise  satis- 
factorily proved. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  April 
10,   1850,  Stats.   1850,  P-   177. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  competency  of  witnesses,  see  30  A.  S.  882;  51  A.  S.  134; 
77   A.   S.    459. 

As  to  effect  of  pardon  of  a  witness,  see  47  A.  S.  915. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  meaning  of  words  "credible"  and  "competent"  when 
used  with  reference  to  witnesses,  see  20  A.  D.  488. 

§1281.  CONDITIONAL  WILL.  A  will,  the  validity  of 
which  is  made  by  its  own  terms  conditional,  may  be  denied 
probate,  according  to  the  event,  with  reference  to  the  con- 
dition. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

As  to  conditional  wills,  see  59  A.  R.  46,  48;  2  A.  S.  617. 

As  to  conditions  precedent,  subsequent,  conditional  devises, 
operation,  effect,  and  enforcement  of,  see  1  L.  837;  9  L.   165. 

As  to  distinction  between  words  of  limitation  and  condition  in 
wills,  see   9   L.    165. 

695 


§§  1282,  1283  CIVIL  CODE.  [Div.II.Pt.lV. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  interpretation  and  effect  of  conditional  wills,  see  Kerr's 
Cyc.    C.    C.    §§  1345-1349    and    notes. 

§  1282.  GIFTS  TO  SUBSCRIBING  WITNESSES  VOID. 
CREDITOR  COMPETENT  WITNESS.  All  beneficial  devises, 
legacies,  and  gifts  whatever,  made  or  given  in  any  will  to  a 
subscribing  witness  thereto,  are  void,  unless  there  are  two 
other  competent  siihscribiug-  witnesses  to  the  same;  but  a 
mere  charge  on  the  estate  of  the  testator  for  the  payment  of 
debts  does  not  prevent  his  creditors  from  being  competent 
witnesses  to  his  will. 

Hi.story!  Enacted  March  21,  1872,  founded  upon  §  5  Act  April 
10,  1850,  Stats.   1850,  p.   177. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

120  C.  311,  315,  49  P.  563,  52  P.  586  (referred  to);  140  C.  282, 
289,  73  P.  976,  978  ("devise"  denotes  a  testamentary  disposition 
of   land — "legacy"   a   like   disposition    of   personalty). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§  1283.  W ITNESS  WHO  IS  A  DEVISEE,  ENTITLED  TO 
SHARE  TO  AMOUNT  OF  DEVISE,  WHEN.  If  a  witness,  to 
whom  any  beneficial  devise,  legacy,  or  gift,  void  by  the  pre- 
ceding section,  is  made,  would  have  been  entitled  to  any 
share  of  the  estate  of  the  testator,  in  case  the  will  should 
not  be  established,  he  succeeds  to  so  much  of  the  share  as 
would  be  distributed  to  him,  not  exceeding  the  devise  or 
bequest  made  to  him  in  the  will,  and  he  may  recover  the 
same  of  the  other  devisees  or  legatees  named  in  the  will, 
in  proportion  to  and  out  of  the  parts  devised  or  bequeathed 
to  them. 

History:  Enacted  March  21,  1872,  founded  upon  §  6  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  March  30,  1874,  Code  Amdts. 
1873-4,  p.   232. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition   of  land — "legacy"  a  like   disposition   of  personalty). 

696 


Tit.VI,ch.I.]  WILL  OUT  OF  STATE.  §§  1284,  1285 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§  1284.     WILL  MADE  OUT  OF  THIS  STATE   (repealed). 

History:  Enacted  March  21,  1S72,  founded  upon  §  23  Act 
April  10,  1850,  Stats.  1850,  p.  179;  repealed  March  30,  1874,  Code 
Amdts.    1873-4,   p.    232. 

§1285.    WILL  MADE   OUT   OF   STATE   NOT   VALID,  IX- 

LESS.  No  will  made  out  of  this  state  is  valid  as  a  will  in 
this  state,  unless  executed  according  to  the  provisions  of 
this  chapter,  except  that  a  will  made  in  a  state  or  countrj^  in 
which  the  testator  is  domiciled  at  the  time  of  his  death,  and 
valid  as  a  will  under  the  laws  of  said  state  or  country, 
is  valid  in  this  state  so  far  as  the  same  relates  to  personal 
property,  subject,  however,  to  the  provisions  of  section  thir- 
teen hundred  and  thirteen. 

History:  Enacted  March  21,  1872,  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  232;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,   Stats,  and  Amdts.   1905,  p.   606. 

See   Kerr's  Cyc.  C.   C.  for   22  pars,  annotation. 

As  to  conflict  of  laws  and  probate  of  will  made  prior  to 
passing  of  probate  act,  see  65  A.  D.  547. 

As  to  conflict  of  laws,  and  testator's  domicile  controlling  as 
to  personal  estate,  see  2  A.  D.  454. 

As  to  effect  of  probate  in  another  state,  see  48  L.  130-153. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Chvirch's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  interstate  comity  and  conflict  of  laws,  see  3  Prob.  Rep. 
Ann.  267-271. 

As  to  legislative  intent  governing  in  construction  of  statutes, 
see  74  A.  D.  534. 

As  to  statutes  regarding  prol)ate  of  copy  of  will  in  other 
states,   see   73   A.   D.   56-62. 

As  to  trust  in  personal  property,  see  8  Paige  Ch.  (N.  Y. )  4 
L.   ed.   434-436. 

As  to  what  laws  govern  execution  of  will,  see  43  A.  D.  519; 
51   A.   D.   574. 

As  to  what  law  governs  in  cases  of  foreign  wills  of  real  and 
personal   estate,   see   5   Prob.   Rep.  Ann.    206-208. 

697 


§§  1286-1288  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1286.    SUBSEQUENT  CHANGE  OF  DOMICILE  (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   232. 

§  1287.    REPUBLICATION  BY  CODICIL.    The  execution  of 
a    codicil,,  referring    to    a    previous    will,    has    the    effect    to 
republish  the  will,  as  modified  by  the  codicil. 
Hi-story:     Enacted  March   21,   1872. 

See  Kerr's.  Cyc.  C.  C.  for  25  pars,  annotation. 

94  C.  670,  673,  30  P.  99,  100  (construed  and  applied  with  other 
sections);  138  C.  432,  434,  435,  436,  438,  71  P.  512  (construed  and 
applied);  151  C.  77,  79,  90  P.  192  (adoption  in  will  or  codicil 
of  existing-  paper  by  reference);  152  C.  753,  759,  93  P.  1012, 
1013  (will  not  to  be  disturbed  by  codicil  further  than  to  give 
it  effect). 

As  to  construction  and  effect  of  a  codicil,  see  55  A.  D.  126-129. 

As  to  effect  of  destruction  of  codicil  upon  a  will,  see  55  A.  D. 
126-129. 

As  to  effect  of  unattested  codicil,  see  55  A.  D.  126-129. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  revival  and  republication   of  will,  see  7  L.   485-488. 

As  to  revocation  of  will  by  subsequent  will  and  revival  of 
former  by  destruction  of  the  latter,  37  L.  561-579. 

Holographic  will. — As  to  effect  of  codicil  to  holographic  will, 
see   Kerr's  Cyc.  C.   C.   §  1277  and  note. 


§  1288.    NUNCUPATIVE  WILL,  HOW  TO  BE  EXECUTED. 

A  nuncupative  will  is  not  required  to  be  in  writing,  nor  to 
be  declared  or  attested  with  any  formalities. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  nuncupative  wills,  see  8  L.  39-41;  9  L.  829. 

As  to  probate  of  nuncupative  will,  see  Kerr's  Cyc.  C.  C.  P. 
§  1344    and    note. 

As  to  what  is  necessary  to  make  a  valid  nuncupative  will,  see 
74  A.  D.  431. 

698 


Tit.VI.ch.L]  NUNCUPATIVE   WILL.  §§  1289,  1290 

§  1289.    KEQUISITES  OF  A  VALID  >U>CUPATIVE  WILL. 

To  make  a  nuncupative  will  valid,  and  to  entitle  it  to  be 
admitted  to  probate,  the  following  requisites  must  be 
observed: 

1.  The  estate  bequeathed  must  not  exceed  in  \alne  the 
sum  of  one  thousand  dollars. 

2.  It  must  be  proied  by  two  witnesses  who  were  present 
at  the  making  thereof,  one  of  whom  was  asked  by  the  testa- 
tor, at  the  time,  to  bear  witness  that  such  was  his  will,  or 
tu  that  effect. 

3.  The  decedent  must,  at  the  time,  have  been  in  actual  mili- 
tary service  in  the  field,  or  doing  duty  on  shipboard  at  sea, 
and  in  either  case  in  actual  contemplation,  fear,  or  peril  of 
death,  or  the  decedent  must  have  been,  at  the  time,  in  expect- 
ation of  immediate  death  from  an  injury  received  the  same 
day. 

History:  Enacted  March  21,  1872,  founded  upon  §  7  Act  April 
10,  1850,  Stats.  1850,  p.  177;  amended  March  30,. 1874,  Code  Amdts. 
1873-4,  p.   233. 

See  Kerr's  Cyc.  C.  C.  for  49  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  necessity  of  witnesses  to  nuncupative  wills,  see  81  A. 
D.  230. 

As  to  nuncupative  wills,  see  18  A.  D.  512;  20  A.  D.  44-48;  G7 
A.  S.   572-579;   30  Encyc.   L.  560-571. 

§  1290.  VnOOY  OF  >L>tUPATIVE  WILLS.  [WHE\  TO 
HE  OFFEllED.]  No  proof  must  be  received  of  any  nuncu- 
pative will,  unless  it  is  offered  within  six  months  after  speak- 
ing the  testamentarj^  words,  nor  unless  the  words,  or  the 
substance  thereof,  were  reduced  to  writing  within  thirty  days 
after  they  were  spoken. 

History:  Enacted  March  21,  1872,  founded  upon  §  8  Act  April 
10,   1850,  Stats.   1850,  p.   178. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

See  Kerr's  Cyc.  C.  C.  P.  §§  1344-1346  and  notes;  also  Kerr's 
Cyc.  C.  C.  P.  §§  1288,  1289  and  notes. 

699 


§§  1291,  1292  CIVIL  CODE.  [Div.II,Pt.IV. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§  1291.  PEOBATE  OF  MINCUPATIYE  WILLS.  No  probate 
of  any  nuncupative  will  must  be  granted  for  fourteen  days 
after  the  death  of  the  testator,  nor  must  any  nuncupative 
will  be  at  any  time  proved,  unless  the  testamentary  words, 
or  the  substance  thereof,  be  first  committed  to  writing,  and 
process  issued  to  call  in  the  widow,  or  other  persons  inter- 
ested, to  contest  the  probate  of  such  will,  if  they  think 
proper. 

Htstory:  Enacted  March  21,  1872,  founded  upon  §  9  Act  April 
10,    1S50,   Stats.   1850,  p.    178. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

See  Kerr's  Cyc.  C.  C.  §§  1288,   1289,  1291  and  notes. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

Probate  of  nuncupative  wills. — See  Kerr's  Cyc.  C.  C.  P.  §§  1344- 
1346. 

§  1292.  WRITTEX  WILL,  HOW  REVOKED.  Except  in 
the  cases  in  this  chapter  mentioned,  no  written  will,  nor  any 
part  thereof,  can  be  revoked  or  altered  otherwise  than; 

1.  By  a  written  will,  or  other  writing  of  the  test.ator,  declar- 
ing such  revocation  or  alteration,  and  executed  with  the  same 
formalities  with  which  a  will  should  be  executed  by  such 
testator ;  or, 

2.  By  being  burnt,  torn,  canceled,  obliterated,  or  destroyed, 
with  the  intent  and  for  purpose  of  revoking  the  same, 
by  the  testator  himself,  or  by  some  person  in  his  presence 
and  by  his  direction. 

Hi!st<,»ry:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  37  pars,  annotation. 

50  C.  595,  601  (construed  and  applied  with  §  1970  Code  Civ. 
Proc);  (C.  Dec.  7,  1892),  31  P.  563  (construed  and  applied);  101 
C.  609,  614,  38  P.  118  (construed  and  applied);  107  C.  1,  5,  6, 
8,  40  P.  15,  16,  28  L.  414  (construed  and  applied  with  other 
sections);   108   C.   688,   690,   41  P.   771    (construed);   122  C.   224,  229, 

700 


Tit.VT.ch.I.]  REVOCATION.  §§  1293-1295 

233,  54  P.  745  (applied);  138  C.  432,  436,  71  P.  512  (construed 
with  other  sections);  148  C.  642,  644,  84  P.  212   (cited). 

As  to  admissihility  of  parol  evidence  to  prove  non-revocation 
of   will    by   mistake,   see    48   A.   S.    198-202. 

As  to  declarations  as  evidence  of  will,  see  45  A.  R.  .'?27-34  1; 
28  A.  S.   361. 

As  to  effect  of  cancelation  by  mistake,  see  48  A.  S.  198-202. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  implied  revocation  of  will,  see  15  A.  D.  659-661. 

As   to   revocation   by   mistake,   see   48   A.   S.    198-202. 

As   to   revocation    by   obliteration,   see   45   A.   R.    327-342. 

As  to  revocation  by  third  party,  see  Kerr's  Cyc.  C.  C.  §  1293 
and   note. 

As  to  revocation  of  will,  and  what  acts  amount  to,  see  12 
A.    D.    377-380;    45    A.    R.    327-338;    22    A.    S.    344.    362. 

As  to  revocation  upcjn  erroneous  assumption  of  fact,  see  48 
A.    S.    198-202. 


§  1293.  EVITtEXCE  OF  HEV(M  ATI(»\.  When  a  will  is 
canceled  or  destroyed  by  any  other  person  than  the  testator, 
the  direction  of  the  testator,  and  the  fact  of  such  injury  or 
destruction,  must  be  proved  by  two  witnesses. 

HiMtory:  Enacted  March  21,  1872,  foundt-d  upon  §  10  Act 
April   10,   1850,  Stats.   1850,  p.   178. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
S1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514. 
1535-1553. 

As  to  revocation  of  will  liy  third  party,  si-e  30  Encyc.  L.  630. 

S  l'ii»4.  HEVOCATION  l\\  OllLITEK.VTI(»\  0\  V  Ml.  Ol 
WILL    (repealed). 

IliNlory;  Enact.-d  Mnrcli  21,  1S72,  n-pealed  March  30.  1S74. 
Code   Anult.'i.    1S73-4.   p.    233. 

§  1295.  «EV(K  AT1()\  OF  DITLU'ATE.  The  revocation 
of  a  will,  executed  in  duplicate,  may  be  made  by  revokinir 
one  of  the  duplicates. 

History:     Enacted  March    21.   1S72. 
701 


§§  1296-1298  CIVIL  CODE.  [Div.II,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Churcli's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§  1296.  KEVOCATION  BY  SUBSEQUENT  WILL.  A  prior 
will  is  not  revoked  by  a  subsequent  will,  unless  the  latter  con- 
tains an  express  revocation,  or  provisions  wholly  inconsistent 
with  the  terms  of  the  former  will;  but  in  other  cases  the 
prior  will  remains  effectual  so  far  as  consistent  with  the 
provisions  of  the  subsequent  will. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6   pars,  annotation. 

104  C.  554,  568,  38  P.  543  (construed  and  applied  with  other 
sections). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§  1297.    AiVTECEDEM  NOT  REVIVED  BY  REVOCATION 

OF  SUBSEQUENT  WILL.  If,  after  making  a  will,  the  testa- 
tor duly  makes  and  executes  a  second  will,  the  destruction, 
cancelation,  or  revocation  of  such  second  will  does  not  revive 
the  first  will,  unless  it  appears  by  the  terms  of  such  revoca- 
tion that  it  was  the  intention  to  revive  and  give  effect  to 
the  first  will,  or  unless,  after  such  destruction,  cancelation, 
or  revocation,  the  first  will  is  duly  republished. 

Hi.story:     Enacted  March  21,  1872,  founded  upon  §    11  Act  April 

10,   1850,  Stats.   1850,  p.   178. 

See   Kerr's  Cyc.   C.   C.   for   21   pars,  annotation. 

108  C.   688,  690,   41  P.   771    (construed  and  applied). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  revival  of  one  will  by  revocation  of  another,  see  76  A. 
D.   652-656. 

As  to  revocation  of  will  by  subsequent  will,  and  revival  of 
former  by  destruction  of  latter,  see  37  L.  561-579. 

§1298.    REVOCATION   BY   MARRIACJE    AND   BIRTH    OF 

ISSUE.     If,  after  having  made   a  will,  the   testator  marries, 

702 


Tit.VI,Ch.I.]  MARRIAGE  AFTER  WILL.  §  1299 

and  has  issue  of  such  marriage,  born  either  in  his  lifetime 
or  after  his  death,  and  the  wife  or  issue  survives  him,  the 
will  is  revoked,  unless  [1]  provision  has  been  made  for  such 
issue  by  some  settlement,  or  [2]  unless  such  issue  are  pro- 
vided for  in  the  will,  or  [3]  in  such  way  mentioned  therein 
as  to  show  an  intention  not  to  make  such  provision;  and  no 
other  evidence  to  rebut  the  presumption  of  such  revocation 
can  be  received. 

History:     Enacted  Marcli  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

65  C.  50,  52,  2  P.  741  (construed  and  applied);  107  C.  1,  7,  40 
P.  15,  16,  28  L.  414   (construed  and  applied). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  revocation  of  will  by  marriage  and  birth  of  issue,  see 
15  A.  D.  659-661,  28  A.  D.  516.  518,  2  Prob.  Rep.  Ann.  288:  5  L. 
346,  7  L.  485,  10  L.  57;  see  also  Kerr's  Cyc.  C.  C.  §  1299  and  note. 


§1299.  EFFECT  OF  MAKKIAGE  OF  A  3IAX  ON  HIS 
WILL.  If,  after  making  a  will,  the  testator  marries,  and  the 
wife  survives  the  testator,  the  will  is  revoked,  unless  [1] 
provision  has  been  made  for  her  by  marriage  contract,  or 
[2]  unless  she  is  provided  for  in  the  will,  or  [3]  in  such  way 
mentioned  therein  as  to  show  an  intention  not  to  make  such 
provision;  and  no  other  evidence  to  rebut  the  presumption 
of  revocation  must  be  received. 

HlHtory:  Enacted  March  21,  1S72,  foundotl  upon  j  1-  A<t 
April   10,   1850,  Stats.   1850,  p.   178. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

65  C.  50,  52,  2  P.  741,  742  (construed  and  applied):  87  C.  64.1. 
647,  648,  25  P.  922,  923  (construed  and  applied):  107  C.  1,  7,  40 
P.   15,  28  L.   414    (construed  and  applied). 

As  to  effect  of  marriage  upon  prior  will,  see  SO  A.  D.  516,  49 
A.  R.  329,  5  L.  346,  and  7  K  485:  also  Ki-rr's  Cyc.  C.  C.  §  1298 
and  note. 

As  to  execution,  revocation,  and  classes  of  wills,  soe  note 
§1270,  ante:  2  Church's  New  Probate  Law  and  Practice.  UMl 
1535-1553. 

703 


§§  1300-1302  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1300.  EFFECT  OF  A  MARRIAGE  OF  A  WOMAN  OIV 
HER  WILL.  A  will,  executed  by  a  woman,  is  revoked  by  her 
subsequent  marriage,  and  is  not  revived  by  the  death  of  her 
husband. 

History:  Enacted  March  21,  1872,  founded  upon  §  13  Act 
April  10,  1850,  Stats.  1850,  p.  178;  amended  by  Code  Commission, 
Act  March-  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  lield  uncon- 
stitutional, see  liistory,  §  4  ante;  amendment  re-enacted  Marcli 
21,    1905,   Stats,   and   Amdts.    1905,   p.    606. 

See  Kerr's  Cyc.  C.   C.  for   21   pars,  annotation. 

107  C.  1,   5,  7,  40  P.  15,  28  L.  414   (construed  and  applied). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  implied  revocation  of  will  from  marriage  of  a  woinan, 
see   28  A.   S.   344-358. 

As  to  meaning  of  words  "uninarried"  and  "without  having 
been  married,"  see   15  L.   292-293. 

§  130L  CONTRACT  OF  SALE  NOT  A  REVOCATION.  An 

agreement  made  by  a  testator,  for  the  sale  or  transfer  of 
property  disposed  of  by  a  will  previously  made,  does  not 
revoke  such  disposal;  but  the  property  passes  by  the  will, 
subject  to  the  same  remedies  on  the  testator's  agreement,  for 
a  specific  performance  or  otherwise  against  the  devisees  or 
legatees,  as  might  be  had  against  the  testator's  successors,  if 
the  same  had  passed  by  succession. 

History:  Enacted  Marcli  21,  1872,  founded  upon  §  14  Act 
April   10,  1850,  Stats.  1850,  p.  178. 

See  Kerr's  Cyc.   C.   C.   for  4  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

Agreement  entered  into  by  testator  to  sell  land  not  revocation 
of  will  previously  made  at  law,  although  equity  might  con- 
sider it  as  an  absolute  disposition. — See  1  N.  J.  L.  212;  2  Atk. 
593;  11  Mod.  148;  2  Pr.  Wms.  328;  2  Pr.  Wms.  623;  1  Ves.  Sr.  177; 
2  Vern.  241. 

§1302.    MORTGAGE    NOT    A    REVOCATION    OF    WILL. 

A  charge  or  encumbrance  upon  any  estate,  for  tlie  purpose 

704 


TitVI.ch.I.]  CONVEYANCE— REVOCATION.         §§  1303.  1304 

of  securing  the  payment  of  money  or  the  performance  of 
any  covenant  or  agreement,  is  not  a  revocation  of  any  will 
relating  to  the  same  estate  which  was  previously  executed; 
but  the  devise  and  legacies  therein  contained  must  pass, 
subject  to  such  charge  or  encumbrance. 

HiMtory:  Enacted  March  21,  1872,  founded  upon  §  15  Act 
April  10,  1850,  Stats.  1850,  p.  178. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — "legacy"  a  like  disposition  of  personalty). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§1303.    CONVEYANCE,     WHEN     NOT     A     REVOCATION. 

A  conveyance,  settlement,  or  other  act  of  a  testator,  by  which 
his  interest  in  a  thing  previously  disposed  of  by  his  will  is 
altered,  but  not  wholly  devested,  is  not  a  revocation;  but 
the  will  passes  the  property  which  would  otherwise  devolve 
by  succession. 

HiMtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  sec  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  revocation  of  will  by  change  of  testator's  circumstances 
and  by  sale  of  property,  see  28  A.  S.  356-357. 

§  1304.  WHEN  IT  IS  A  REVOCATION.  If  the  instrument 
by  which  an  alteration  is  made  in  the  testator's  interest  in 
a  thing  previously  disposed  of  by  his  will  expresses  his 
intent  that  it  shall  be  a  revocation,  or  if  it  contains  provi- 
sions wholly  inconsistent  with  the  terms  and  nature  of  the 
testamentary  disposition,  it  oi»oratos  as  a  revocation  thereof, 
unless  such  inconsistent  provisions  depend  on  a  condition 
or  contingency  by  reason  of  which  they  do  not  take  offort. 

IIi.«i<ory:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 
As    to    execution,    revocation,    and    classes    of    wills,    see    note 
Kerr's    C.    C— 23  705 


§§  1305, 1306  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1270,   ante;    2   Church's   New   Probate   Law  and   Practice,    1514, 
1535-1553. 

As  to  passing  of  proceeds  of  land  under  a  devise  of  realty, 
see   58  L.   719-722. 

§  1305.  KEVOCATIOJV  OF  CODICILS.  The  revocation  of  a 
will  revokes  all  its  codocils. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§1306.  AFTER-BORJf  CHILD,  UNPROVIDED  FOR,  TO 
SUCCEED.  Whenever  a  testator  has  a  child  born  after  the 
making  of  his  will,  either  in  his  lifetime  or  after  his  death, 
and  dies  leaving  such  child  [1]  unprovided  for  by  any  set- 
tlement, and  [2]  neither  provided  for  nor  in  any  way  men- 
tioned in  his  will,  the  child  succeeds  to  the  same  portion  of 
the  testator's  real  and  personal  property  that  he  would  have 
succeeded  to  if  the  testator  had  died  intestate.  But  such 
succession  does  not  impair  or  affect  the  validity  of  any  sale 
of  property  made  by  authority  of  such  will  in  accordance 
with  the  provisions  of  section  fifteen  hundred  and  sixty-one 
of  the  Code  of  Civil  Procedure. 

History:  Enacted  March  '21,  1872,  founded  upon  §  16  Act 
April  10,  1850,  Stats.  1850,  p.  178;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  402,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,  1905,  Stats,  and  Amdts.  1905,  p.  606. 

See  "Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

57  C.  484.  490  (construed  with  §1307);  88  C.  582,  585,  22  A.  S. 
336,  26  P.  521,  12  L.  46  (construed  and  applied);  113  C.  371,  376, 
45  P.  689  (construed  and  applied);  145  C.  118,  120,  78  P.  369 
(construed  and  applied). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  right  of  unborn  child  to  take  by  descent,  devise,  and 
distribution,  see  Kerr's  Cyc.  C.  C.  §  29  note  pars.  67-134,  and  12 
A.  S.   99. 

706 


Tit.VI,ch.T.]  OMISSION    OF    CHILD.  §1307 

As  to  what  is  a  provision  in  will  for  after-born  children,  see 
15  A.  S.   592-595. 


§  1307.  CHILDREN  OR  ISSUE  OF  CHILDREN  OF  TESTA- 
TOR UNPROVIDED    FOR   BY    HIS   ^VILL    [TO    SUC<  FED]. 

When  any  testator  omits  to  provide  in  his  will  [1]  for  any 
of  his  children,  or  [2]  for  the  issue  of  any  deceased  child, 
unless  it  appears  that  such  omission  ivas  intentional,  such 
child,  or  the  issue  of  such  child,  has  the  same  share  in  the 
estate  of  the  testator  as  if  he  had  died  intestate,  and  suc- 
ceeds thereto  as  provided  in  the  preceding  section.  But  such 
succession  does  not  impair  or  affect  the  validity  of  any  sale 
of  property  made  by  authority  of  such  will  in  accordance 
with  the  provisions  of  section  fifteen  hundred  and  sixty-one 
of  the  Code  of  Civil  Procedure. 

Hldtorys  Enacted  March  21,  1872,  founded  upon  §  17  Act 
April  10,  1850.  Stats.  1850,  p.  178;  amended  by  Code  Commission. 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  403,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  ro-enacted  March 
21,  1905,  Stats,  and  Amdts.  1905,  p.  606. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

57  C.  484,  487,  488,  489,  490,  491  (construed  and  applied);  81 
C.  571,  575,  22  P.  908,  909  (construed  and  applied);  22  P.  1143, 
1144  (cited  and  applied);  83  C.  322,  328,  17  A.  S.  252,  23  P.  379, 
381  (construed  and  applied);  86  C.  441,  443,  25  P.  15,  16  (con- 
strued); 88  C.  582,  585,  22  A.  S.  336,  26  P.  521,  12  L.  46  (con- 
strued and  applied);  99  C.  645.  647,  34  P.' 513  (construed  and 
applied);  107  C.  614,  616,  48  A.  S.  164,  40  P.  1030  (construed  and 
applied);  119  C.  571,  573,  574,  575,  51  P.  860,  39  L.  689  (con- 
strued and  applied);  140  C.  282,  289,  291,  292,  73  P.  976  (construed 
and  applied);  Myrick's  Prob.  Rep.  224,  225  (applied,  cited,  and 
construed);  140  C.  468,  470,  74  P.  10  (term  "child"  must  relate 
to  status,  not  to  origin);  148  C.  233,  236,  82  P.  962,  113  A.  S. 
231   (erroneously  cited  for  §  1307  C.  C.  P.). 

As  to  children  omitted  from  will,  see  12  A.  S.  97. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270.  ante;  2  Church's  New  Probate  Law  and  Practice.  1514. 
1535-1553. 

As  to  gift  to  a  class  such  as  "children"  and  who  are  entitled 
to  take,  see  73  A.  S.  413-440. 

As  to   right  of  adopted  children,  see  12  A.  S.   100. 

As  to  right  of  illegitimate  children,  see  12  A.  S.  101. 

707 


§§  1308, 1309  CIVIL  CODE.  [Div.II,Pt.IV. 

As  to  rights  of  child  or  issue  unintentionally  omitted  from 
will,  see   39  A.  D.   740-744. 

As  to  when  will  deemed  to  furnish  sufficient  evidence  of  inten- 
tional  omission,  see  39  A.  D.  740-744. 

As  to  who  are  entitled  to  share  as  children  of  a  decedent, 
see   12  A.   S.   80,   97-113. 

§  1308.  SHARE  OF  AFTER-BORN  CHILD,  OUT  OF  WHAT 
PART  OF  ESTATE  TO  BE  PAID.  When  any  share  of  the 
estate  of  a  testator  is  [1]  assigned  to  a  child  born  after  the 
making  of  a  will,  or  [2]  to  a  child,  or  [3]  the  issue  of  a  child, 
omitted  in  the  will,  as  hereinbefore  mentioned,  the  same  must 
first  be  taken  from  the  estate  not  disposed  of  by  the  will, 
if  any;  if  that  is  not  sufficient,  so  much  as  may  be  necessary 
must  be  taken  from  all  the  devisees  or  legatees,  in  propor- 
tion to  the  value  they  may  respectively  receive  under  the  will, 
unless  the  obvious  intention  of  the  testator  in  relation  to 
some  specific  devise  or  bequest,  or  other  provision  in  the 
will,  would  thereby  be  defeated;  in  such  case,  such  specific 
devise,  legacy,  or  provision,  may  be  exempted  from  such 
apportionment,  and  a  different  apportionment,  consistent  with 
the  intention  of  the  testator,  may  be  adopted. 

History:  Enacted  March  21,  1872,  founded  upon  §  18  Act 
April  10,  1850,  Stats.   1850,  p.   178. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

140  C.  282,  289,  292,  73  P.  976,  978  ("devise"  denotes  a  testa- 
mentary disposition  of  land — ^"legacy"  a  like  disposition  of  per- 
sonalty);  145  C.  118,  121,  122,  78  P.  369   (construed  and  applied). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

§  1309.  ADVANCEMENT  DURING  LIFETIME  OF  TESTA- 
TOR. If  such  [1]  children,  or  [2]  their  descendants,  so  unpro- 
vided for,  had  an  equal  proportion  of  the  testator's  estate 
bestowed  on  them  in  the  testator's  lifetime,  by  way  of  ad- 
vancement, they  take  nothing  in  virtue  of  the  provisions  of 
the  three  preceding  sections. 

History:  Enacted  March  21,  1872,  founded  upon  §  19  Act 
April   10,   1850,  Stats.   1850,   p.   179. 

708 


Tit.VI.ch.I.]  DEATH  BEFORE  TESTATOR.  §§1310,1311 

As  to  advancements,  see  Kerr's  Cyc.  C.  C.  §§  1351,  1395-1399 
and  notes,  and  Kerr's  Cyc.  C.  C.  P.  §  1386  and  note. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270.  ante;  2  Cliurch's  New  Probate  Law  and  Practice,  1514. 
1535-1553. 

§  1310.  ON  DEATH  OF  LEGATEE,  IJEFORE  TESTATOli, 
LINEAL  DESCENDANTS  TAKE  ESTATE.  When  any  estate 
is  devised  or  bequeathed  to  any  child,  or  other  relation  of 
the  testator,  and  the  devisee  or  legatee  dies  before  the  testa- 

tor,  leaving  lineal  descendants,  such  descendants  take  the 
estate  so  given  by  the  will,  in  the  same  manner  as  the 
devisee  or  legatee  would  have  done  had  he  survived  the 
testator. 

HiMtory:  Enacted  March  21,  1872,  founded  upon  §  20  Act 
April  10,  1850,  Stats.  1850,  p.  179;  amended  March  18,  1905,  Stats, 
and  Amdts.  1905,  p.  150. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

139  C.  87  89,  72  P.  827  (construed  and  applied  with  other 
sections);  140  C.'  282,  289,  290,  291,  73  P.  976,  978  ("devise"  denotes 
a  testamentary  disposition  of  land— "legacy"  a  like  disposition 
of  personalty). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514. 
1535-1553. 

§1311.  DEVISES  OF  LAND,  HOW  CONSTRUED.  Every 
devise  of  land  in  any  will  conveys  all  the  estate  of  the  devisor 
therein,  which  he  could  lawfully  devise,  unless  it  clearly 
appears  by  the  will  that  he  intended  to  convey  a  less  estate. 

History:.  Enacted  March  2],  1872.  founded  upon  §  21  Act 
April   10.  1850.  Stats.  1850.  p.  179. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

140  C.  282,  289,  73  P.  976.  978  ("devise"  denotes  a  testa- 
mentary disposition  of  land— "legacy"  a  like  disposition  of 
personalty);  147  C.  236,  242,  81  P.  539  (construed— passing  of 
water-riglit  by  devise). 

As  to  devise  of  community  property,  see  Kerr's  Cyc.  C.  C. 
§§1401.   1402  and  notes. 

As  to  devise  of  all  one's  estate,  see  Kerr's  Cyc.  C.  C.  §1331 
and  note. 

As   to    execution,    revocation,    and    classes    of    wills,    see    note 

709 


§§1312,1313  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  property  passing  subject  to  debts,  see  Kerr's  Cyc.  C.  C. 
§§  1359,   1363  and  notes. 

As  to  right  of  election  under  will  in  general,  and  effect 
thereof,   see  Kerr's  Cyc.   C.   C.    §§  1401,   1402   and  note. 

As  to  when  will  raises  duty  of  election  by  widow,  see  11 
Encyc.  L.  81-96. 

§1312.  WILLS  PASS  ESTATE  SUBSEQUENTLY  AC- 
QUIRED.  Any  estate,  right,  or  interest  in  lands  acquired  by 
the  testator  after  the  making  of  his  will,  passes  thereby  and 
in  like  manner  as  if  title  thereto  was  vested  in  him  at  the 
time  of  making  the  will,  unless  the  contrary  manifestly 
appears  by  the  will  to  have  been  the  intention  of  the  testator. 
Every  will  made  in  express  terms,  devising,  or  in  any  other 
terms  denoting  the  intent  of  the  testator  to  devise  all  the 
real  estate  of  such  testator,  passes  all  the  real  estate  which 
such  testator  was  entitled  to  devise  at  the  time  of  his  decease. 

History:  Enacted  March  21,  1872,  founded  upon  §  22  Act 
April  10,  1850,  Stats.  1850,  p.  179;  amended  March  30,  1874,  Code 
Amdts.   1873-4,   p.   233. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — ^"legacy"  a  like  disposition  of  personalty) ; 
148  C.  233,  236,  82  P.  962,  113  A.  S.  231  (erroneously  cited  for 
§  1312  C.  C.  P.);  150  C.  498,  505,  89  P.  98  (construed  with  §  1332— 
statute  makes  will  speak  as  of  time  of  testator's  death,  and  has 
effect  of  permitting  devises  to  be  general,  at  least  as  to  after- 
acquired  property). 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice,  1514, 
1535-1553. 

As  to  when  after-acquired  property,  both  real  and  personal, 
passes  by  will,  see  30  Encyc.  L.  617-620. 

§  1313.  CHARITABLE,  ETC.,  BEQUESTS.  LIMITATION 
AS  TO  TIME  AND  AMOUNT.  No  estate,  real  or  personal, 
shall  be  bequeathed  or  devised  [1]  to  any  charitable  or 
benevolent  society  or  corporation,  or  [2]  to  any  person  or 
persons  in  trust  for  charitable  uses,  except  the  same  be  done 
by  will  duly  executed  at  least  thirty  days  before  the  decease 

710 


I 


Tit.VI.Ch.I.]  CHARITABLE   BEQUESTS.  §  1313 

of  the  testator;  and  if  so  made,  at  least  thirty  days  prior  to 
such  death  such  devise  or  legacy  and  each  of  them  shall  be 
valid;  provided,  that  no  such  deyises  or  bequests  shall  eol- 
lectivelj'  exceed  one-third  of  the  estate  of  the  testator,  leaving 
legal  heirs,  and  in  such  case  a  pro  rata  deduction  from  such 
devises  or  bequests  shall  be  made  so  as  to  reduce  the  aggre- 
gate thereof  to  one-third  of  such  estate;  and  all  dispositions 
of  property  made  contrary  hereto  shall  be  Toid,  and  go  to 
the  residuary  legatee  or  devisee,  next  of  kin,  or  heirs,  accord- 
ing to  law. 

History:  Enacted  March  18,  1874,  Code  Amdts.  1873-4,  p.  276. 
In  force  March   18,   1874. 

See  Kerr's  Cyc.  C.  C.  for  30  pars,  annotation. 

58  C.  457,  463,  470,  484,  485,  511,  514,  516,  517  (construed  and 
applied);  63  C.  620,  622  (construed  and  applied);  94  C.  376,  378, 
379,  29  P.  775  (construed  and  applied);  98  C.  603,  606,  611,  33  P. 
451.  452,  454  (construed  and  applied);  105  C.  646,  647,  38  P.  941 
(applied);  123  C.  614,  624,  56  P.  461,  44  L.  364  (construed  and 
applied);  126  C.  296,  301,  58  P.  704  (referred  to);  127  C.  90,  96, 
59  P.  315  (clause  in  will,  creating  a  charity,  if  not  obnoxious 
to  law  against  perpetuities,  is  expressly  warranted  by  this 
section);  128  C.  1,  12,  13,  56  P.  550,  551,  60  P.  471  (construed 
and  applied);  138  C.  432,  434,  436,  71  P.  512  (construed  with  other 
sections — what  will  not  invalidate  charitable  bequest);  138  C. 
546,  547,  548,  550,  71  P.  458  (construed  and  applied);  138  C.  552, 
557,  558,  94  A.  S.  70,  71  P.  707  (cited  in  discussion);  140  C.  282, 
289,  73  P.  976,  978  ("devise"  denotes  a  testamentary  disposition 
of  land — "legacy"  a  like  disposition  of  personalty);  148  C.  233, 
236,  82  P.  962,  113  A.  S.  231  (erroneously  cited  for  §  1313,  C.  C. 
P.);  150  C.  604,  605,  89  P.  345  (devise  to  charitable  society  is 
void  if  made  less  than  30  days  before  decease  of  testator);  152 
C.  327,  328,  329,  330,  92  P.  870,  871.  872  (construed — limitation 
and  restriction  imposed  is  upon  charitable  uses  and  trusts — 
bequest  for  superstitious  use  is  not  prohibited);  26  Wasli.  3 J, 
66  P.  148  (construed  and  applied);  Myr.  Prob.  Rep.  134,  135  (con- 
strued and  applied);  Myr.  Prob.  Rep.  189,  200  (construed  and 
applied);  75  F.  480,  482    (construed  and  applied). 

As  to  charitable  uses  and  trusts,  see  Kerr's  Cyc.  C.  C.  §  715, 
note  pars.   27-59;   also   note   §  847,   ante. 

As  to  execution,  revocation,  and  classes  of  wills,  see  note 
§  1270,  ante;  2  Church's  New  Probate  Law  and  Practice.  1514, 
1535-1553. 


711 


§  1317  CIVIL  CODE.  [Div.II,Pt.IV. 


CHAPTER  II. 

INTERPRETATION    OP    WILLS,    AND    EFFECT    OF    VARIOUS 
PROVISIONS. 

§  1317.  Testator's  intention  to  be  carried  out. 

§  1318.  Intention   to   be  ascertained  from   the   will. 

§  1319.  Rules  of  interpretation. 

§  1320.  Several   instruments   are   to   be   taken   together. 

§  1321.  Harmonizing   various    parts. 

§  1322.  In  what  case  devise  not  affected. 

§  1323.  When  ambiguous  or  doubtful. 

§  1324.  Words  taken   in  ordinary  sense. 

§1325.  Words  to  receive  an   operative  construction. 

§  1326.  Intestacy  to  be  avoided. 

§  1327.  Effect  of  technical   words. 

§  1328.  Technical  words  not  necessary. 

§  1329.  Certain  words  not  necessary  to  pass  a  fee. 

§  1330.  Power  to  devise,  how  executed  by  terms  of  will. 

§  1331.  Devise   or  bequest  of  all  real  or  all  personal   property, 

or  both. 

§  1332.  Residuary  clauses. 

§  1333.  Same.      [Bequest  of  residue,  effect.] 

§  1334.  "Heirs,"  "relatives,"  "issue,"   "descendants,"  etc. 

§  1335.  Words  of  donation  and  of  limitation. 

§  1336.  To  what  time  words  refer. 

§  1337.  Devise  or  bequest  to  a  class. 

§  1338.  When  conversion  takes  effect. 

§  1339.  When  child  born  after  testator's  death  takes  under  will. 

§  1340.  Mistakes  and  omissions. 

§  1341.  When  devises  and  bequests  vest. 

§  1342.  When  cannot  be  divested. 

§  1343.  Death   of  devisee   or  legatee. 

§  1344.  Interests  in  remainder  are  not  affected. 

§  1345.  Conditional  devises  and  bequests. 

§  1346.  Condition  precedent,  what. 

§  1347.  Effect  of  condition  precedent. 

§  1348.  Conditions  precedent,   when   deemed  performed. 

§  1349.  Conditions  subsequent,  what. 

§  1350.  Devisees,   etc.,   take  as  tenants  in   common. 

§  1351.  Advancements,   when  ademptions. 


§  1317.    TESTATOR'S  INTENTION  TO  BE  CARRIED  OUT. 

A  will  is  to  be  construed  according  to  the  intention  of  the 

712 


Tit.  VI, Ch.  1 1.]        INTERPRETATION  OF  WILLS.  §  1317 

testator.     Where  his  intention  cannot  have  effect  to  its  full 
extent,  it  must  have  effect  as  far  as  possible. 

History:     Enacted  March   21,  1872. 

See   Kerr's  Cyc.  C.  C.  for  99  pars,  annotation.  ,.    ,,     ^q 

58  C  387  404  (cited);  74  C.  365,  368,  16  P.  13,  14  (applied);  99 
C  645,  648,'  34  P.  513  (applied);  123  C.  614,  625,  56  P.  461,  44  L 
364  (applied);  56  P.  550,  553  (applied— principle  which  should 
govern  courts  in  construing  wills  and  in  determining  validity 
of  trusts);  128  C.  1,  11,  60  P.  471  (construed);  132  C.  523,  566, 
567  84  A.  S.  70,  60  P.  442,  64  P.  1000  (construed  and  applied); 
135*  C  28  29,  87  A.  S.  96,  66  P.  961  (applied);  136  C.  79,  83,  68  P. 
306  (construed  and  applied);  138  C.  432,  436,  71  P.  512  (cited 
in  discussion);  139  C.  682.  686,  73  P.  606  (applied  with  other  sec- 
tions)- 142  C.  373,  375,  75  P.  1086  (applied  with  other  sections); 
1  C  A  80  82  81  P.  752  (applied  with  other  sections);  4  C.  A. 
16"  165  87  P.' 417  (construed  with  §  1324— all  parts  of  will  must 
be"  construed  together  to  make,  if  possible,  consistent  and  har- 
monious whole);  4  C.  A.  593,  596,  597,  88  P.  646  (construed  and 
applied  with  other  sections);  21  F.  594,  598  (applied-no  preca- 
tory trust  created  when);  127  U.  S.  300,  311,  312,  32  L.  ed.  138, 
143,  8  Sup.  Ct.  Rep.  1164  (referred  to  with  other  sections). 
INTERPRETATION    OF   WILLS— GENERAIiLY. 

As  to  generally.— See  2  Church's  New  Probate  Law  and  Prac- 
tice 1554,  1566-1579;  2  Obiter  Dig.  966. 

As  to  adopted  children.-^ee  2  Church's  New  Probate  Law  and 

Practice  1579.  ^    r,    skiqac    iins 

As  to  after-born  children.— See  Kerr's  Cyc.  C.  C.  §§  1306,  1308, 
1339  and  notes;  2  Church's  New  Probate  Law  and  Practice  157J; 
6  L.  N.  S.  330;  13  L.  N.  S.  781. 

As  to  charitable  bequests.— See  Kerr's  Cyc.  C.  C.  §  1313  and 
note;  2  Church's  New  Probate  Law  and  Practice  1575;  4  A.  C. 
1139;   9   A.   C.    1202;    11   L.   N.    S.    509-528. 

Same — Doctrine  of  cy  pres. — See  1  A.  C.  451. 

Same— Favored  by  courts.— See  2  Churcli's  New  Probate  Law 
and  Practice  1576;  80  A.  D.  315. 

As  to  execution  and  revocation  of  wills.— See  note  §  1270  ante. 

As  to  holographic  wills.-See  Kerr's  Cyc.  C.  C.  §  1277  and  note. 

As  to  law  governing,  see  Kerr's  Cyc.  C.  C.  §  1376  and  note. 

As  to  perpetuities.— See  2  Church's  New  Probate  Law  and 
Practice  1575;  5  A.  C.  431;  10  L.  N.  S.  564. 

As  to  pretermitted  children.— See  Kerr's  Cyc.  C.  C.  §130'  and 
note;  2  Church's  New  Probate  Law  and  Practice  1577;  115  A.  fe. 
587,  580;  119  A.  S.  950. 

As  to  terms  in  will,  See  1  L.   433.  ^ 

As  to  trusts  created  by  or  under  wills.-See  Kerr  s  Cyc.  c. 
C  §§  2221,  2222  and  notes. 

713 


§  1317  CIVIL  CODE.  [Div.II,Pt.IV. 

As  to  what  is  a  will. — See  Kerr's  Cyc.  C.  C.  §  1270  and  note. 

Adopted  children — As  to. — See  2  Church's  New  Probate  Law 
and  Practice  1579. 

After-born  children. — See  "As  to  after-born  children",  this 
note. 

Clear  devise  not  to  be  cut  down. — See  Kerr's  Cyc.  C.  C.  §  1322 
and  note;  2  Church's  New  Probate  Law  and  Practice  1573;  3  A. 
C.  675;  10.  A.  C.  176;  32  L.  ed.  138. 

Charges  on  property — As  to  generally,  see  2  Obiter  Dig.  968. 

Same- — Created  by  implication. — See  2  Obiter  Dig.  969. 

Conditions  precedent. — See  2  Obiter  Dig.  968. 

Conflicting  and  inconsistent  provisions. — See  2  Church's  New 
Probate  Law  and  Practice  1572. 

Considering  attending  circumstances  of  testator. — See  2 
Obiter  Dig.   967. 

Construction  of  wills  made  before  the  code  went  into  effect 
and  not  affected  thereby. — See  Kerr's  Cyc.  C.  C.  §  1375  and  note. 

Cy  pres — Doctrine  of. — See  1  A.  C.  451. 

Definite  meaning  of  expression  adhered  to. — See  2  Obiter  Dig. 
966. 

Desire  or  wish. — See  2  Obiter  Dig.  971. 

Different  meanings  to  same  words  in  same  sentence. — See  2 
Obiter  Dig.  969. 

Enumeration  of  certain  things. — See  2  Obiter  Dig.  969. 

Executory  devises. — See   2  Obiter  Dig.  968. 

Extent   of   devise. — See   2   Obiter  Dig.    968. 

Extrinsic  evidence  to  show  intention. — See  2   Obiter  Dig.   969. 

Favorable  to  be  given. — See   2   Obiter  Dig.   967. 

Following  construction  of  another  will. — See  2  Obiter  Dig.  967. 

Holographic    will. — See    Kerr's    Cyc.    C.    C.    §  1277    and    note. 

Identification  of  subjects  of  gift. — See  2  Obiter  Dig.  968. 

Intention  of  testator  to  govern — As  to  generally,  see  Kerr's 
Cyc.  C.  C.  §  1319  and  note;  2  Church's  New  Probate  Law  and 
Practice  1568;  3  L.  847;  8  L.  741. 

Same — How  ascertained. — See  2  Church's  New  Probate  Law 
and  Practice  1568. 

Intention  of  testator,  where  manifest,  to  control — As  to, 
generally,  see  3  L.  847;  8  L.  740;  9  L.  584;  10  L.  816;  2  Obiter 
Dig.   970,   971. 

Same — Meaning  of  words  in  ascertaining  intent. — See  2  Obiter 
Dig.  971. 

Intention  to  make  future  disposition. — See  2  Obiter  Dig.  971, 
972. 

Invalid  clause  in  will,  effect  of  on  clauses  otherwise  valid. — 
See  3  A.  C.  950. 

Language  of  will  as  affecting. — See  Kerr's  Cyc.  C.  C.  §§  1321, 
1323  and  notes;  2  Church's  New  Probate  Law  and  Practice  1571; 
1  L.   433. 

714 


Tit.VI.ch.II.]      INTERPRETATION,  INTENTION.  •      §  1318 

Law  in  force  to  govern. — See  Kerr's  Cyc.  C.  C.  §  1376  and  note; 
2  Church's  New  Probate  Law  and  Practice  1569. 

Limitation  by  conjecture  not  imposing. — See  2  Obiter  Dig.  D7fl. 

Meaning  of  certain  words. — See  Kerr's  Cyc.  C.  C.  §§  1334, 
1335;  2  Church's  New  Probate  Law  and  Practice  1569-1571;  4 
A.  C.  581;  5  A.  C.  511;  5  A.  C.  936;  7  A.  C.  134;  2  L.  848;  11  L.  767. 

Nature  of  thing  directed  to  be  done. — See  2  Obiter  Dig.   971. 

Of  technical  words.— See  Kerr's  Cyc.  C.  C.  §§  1327,  1328  and 
notes. 

Of  words  and  provisions. — See  2  Cliurch's  New  Probate  Law 
and  Practice  1566;   7  A.  C.  128. 

Oral  declarations  of  testator  as  evidence  of  intention. — See 
Kerr's  Cyc.  C.  C.  §  1318  and  note. 

Particular  description  controlling. — See  2  Obiter  Dig.  968. 

Partial  testacy. — See  2  Church's  New  Probate  Law  and  Prac- 
tice 1574;  6  A.  C.  1011. 

Precatory  words  in  will. — See  2  Church's  New  Probate  Law 
and  Practice  1572. 

Preternnitted  children. — See  "As  to  pretermitted  children",  this 
note. 

Quantum  of  estate  devised. — See  2  Obiter  Dig.  969. 

Reforming  will. — See  2  Obiter  Dig.  974. 

Rule  favoring  testacy. — See  2  Church's  New  Probate  Law  and 
Practice  1574. 

Rule  in  Shelley's  Case. — See   2  Obiter  Dig.   965. 

Terms  in  will,  of. — See  1  L.  433. 

To  prevent  intestacy. — See  2  Obiter  Dig.   967. 

Vesting  estates. — See  2  Obiter  Dig.  968. 

Whole  instrument  must  be  examined. — See   2   Obiter  Dig.   967. 

Words  and  phrases  used  in  will  as  controlling,  construction 
and  interpretation. — See  Kerr's  Cyc.  C.  C.  §  1324  and  notes;  2 
Obiter   Dig.    972-974. 

Words  referring  to  death  or  survivorship,  effect  of. — See 
Kerr's  Cyc.  C.  C.  §  1336  and  note. 

Words  to  be  generally  given  their  ordinary  grammatical 
sense. — See  Kerr's  Cj'c.  C.  C.  §  1324  and  note. 

§1318.  INTENTIOX  TO  BE  ASCERTAINED  FKOM  THE 
WILL.  In  case  of  uncertainty  arising  upon  tlie  face  of  a 
will,  as  to  the  application  of  any  of  its  provisions,  the  testa- 
tor's intention  is  to  be  ascertained  from  the  words  of  the 
will,  taking  into  view  the  circumstances  under  which  it  was 
made,  exclusive  of  his  oral  declarations. 

Hi-story:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  59  pars,  annotation. 
58  C.  387,   404   (cited);   81  C.   240,  243,  22  P.  655,  656    (applied); 

715 


§§  1319, 1320  CIVIL  CODE.  [Div.II,Pt.IV. 

107  C.  303,  308,  40  P.  558  (cited  in  discussion);  108  C.  627,  649,  49 
A.  S.  97,  41  P.  772  (applied);  123  C.  337,  341  342,  55  P.  1011 
(construed  and  applied);  129  C.  451,  453,  454,  62  P.  73  (applied); 
132  C.  173,  176,  64  P.  268  (applied);  132  C.  666,  669,  61  P.  964,  64 
P.  1071  (applied);  141  C.  295,  299,  74  P.  846  (cardinal  rule  for 
construction  of  all  wills);  142  C.  373,  375,  75  P.  1086  (construed 
and  applied  with  other  sections);  143  C.  450,  456,  77  P.  160  (cited 
in  discuseion);  145  C.  118,  123,  78  P.  369  (effect,  upon  construc- 
tion of  will,  that  child  was  about  to  be  born  when  will  was 
made);  151  C.  181,  184,  90  P.  448  (what  is  not  a  patent  ambigu- 
ity, but  a  typical  case  of  latent  ambiguity);  1  C.  A.  80,  82,  81  P. 
752  (construed  and  applied  with  other  sections);  4  C.  A.  593, 
596,  88  P.  646  (construed  and  applied  with  other  sections);  21 
F.  594,  598  (applied — ^no  precatory  trust  created  when);  127  U. 
S.  300,  311,  32  L.  ed.  138,  8  Sup.  Ct.  Rep.  1164  (referred  to  with 
other  sections). 

As  to  admissibility  of  declaration  of  testators,  see  3  A.  D. 
395. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  extrinsic  evidence  to  aid  in  the  interpretation  or  applica- 
tion of  wills,  see  46  A.  R.   72. 

§  1319.  RULES  OF  INTERPRETATION.  In  interpreting 
a  will,  subject  to  the  law  of  this  state,  the  rules  prescribed 
by  the  following  sections  of  this  chapter  are  to  be  observed, 
unless  an  intention  to  the  contrary  clearly  appears. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

139  C.  87,  89,  72  P.  827  (this  section  has  reference  to  those 
succeeding  sections  only  which  deal  with  subjects  of  "interpret- 
ing a  will"— it  does  not  refer  to  §  1343);  127  U.  S.  300,  311,  312, 
32  L.  ed.  138,  143,  8  Sup.  Ct.  Rep.  1164  (referred  to  with  other 
sections). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  what  law  governs  validity  and  interpretation  of  wills, 
see  Kerr's  Cyc.  C.  C.  §§  1285,  1376  and  notes. 

§1320.  SEVERAL  INSTRUMENTS  ARE  TO  BE  TAKEN 
TOGETHER.  Several  testamentary  instruments,  executed  by 
the  same  testator,  are  to  be  taken  and  construed  together  as 
one   instrument. 

History:     Enacted  March   21,  1872. 
716 


TitVI.ch.II.]  HARMONIZING   PARTS.  §§1321,1322 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

104  C.  554,  568,  38  P.  543   (cited). 

As  to  construction  and  interpretation  of  wills,  see  note  §1317, 
ante;  2  Cliurch's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

Consideration  of  other  instrument  in  ascertaining  intent  of 
testator.— See  Kerr's  Cyc.  C.  C.  §  1318  and  note  pars.  8,  9. 

§  1321.  HARMOMZI>G  VARIOUS  PARTS.  All  the  parts 
of  a  will  are  to  be  construed  in  relation  to  each  other,  and 
so  as,  if  possible,  to  form  one  consistent  whole;  but  where 
several  parts  are  absolutely  irreconcilable,  the  latter  must 
prevail. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

58  C  387  404  (cited);  94  C.  670,  674,  30  P.  99  (applied);  132 
C.  666,  668,'  61  P.  964,  64  P.  1071  (cited);  138  C.  432,  435,  71  P. 
512  (cited);  149  C.  200,  206,  85  P.  187  (applied);  1  C.  A.  80,  82, 
81  P.  752,  753  (applied  with  other  sections);  21  F.  594,  598 
(applied — no  precatory  .trust  created  when);  127  U.  S.  300,  311. 
32  L.  ed.  138,  8  Sup.  Ct.  Rep.  1164  (referred  to  with  other 
SGctions) 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§1322.    IN   WHAT   CASE    DEVISE    NOT    AFFECTED.     A 

clear  and  distinct  devise  or  bequest  canflot  be  affected  by 
any  reasons  assigned  therefor,  or  by  any  other  words  not 
equally  clear  and  distinct,  or  by  inference  or  argument  from 
other  parts  of  the  will,  or  by  an  inaccurate  recital  of  or  refer- 
ence to  its  contents  in  another  part  of  the  will. 

HLstory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

73  C  99  103,  14  P.  394,  397  (cited  in  discussion);  127  C.  90, 
97  59  P.  315  (applied);  132  C.  666,  672,  61  P.  964,  64  P.  1071  (con- 
strued and  applied);  140  C.  ?82,  289,  73  P.  976,  978  ("devise- 
denotes  a  testamentary  disposition  of  land— "legacy"  a  like  dis- 
position of  personalty);  142  C.  1,  7,  75  P.  324  (applied  with  other 
sections)-  21  F.  594,  .^98  (applied— no  precatory  trust  created 
when);  127  U.  S.  300,  311,  312,  32  L.  ed.  138,  8  Sup.  Ct.  Rep.  1164 
(referred  to  with   other  sections). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As' to  intention  of  testator,  see  Kerr's  Cyc.  C.  C.  §§  1317  et  seq. 
and  notes. 

717 


§§  1323-1325  CIVIL  CODE.  [Div.II.Pt.IV. 

§  1323.  WHEN  AMBIGUOUS  OR  DOUBTFUL.  Where  the 
meaning  of  any  part  of  a  will  is  ambiguous  or  doubtful,  it 
may  be  explained  by  any  reference  thereto,  or  recital  thereof, 
in  another  part  of  the  will. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.   for  2  pars,  annotation. 

As  to  bequests  void  for  uncertainty,  see  44  A.  D.  94,  98,  101;  54 
A.  R.  213,  222. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  extrinsic  evidence  to  explain  will,  see  50  A.  S.  279-284. 

§  1324.    WORDS    TAKEN    IN    ORDINARY    SENSE.     The 

words  of  a  will  are  to  be  taken  in  their  ordinary  and  gram- 
matical sense,  unless  a  clear  intention  to  use  them  in  another 
sense  can  be  collected,  and  that  other  can  be  ascertained. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

58  C.  387,  404  (cited  with  other  section  in  discussion);  74 
C.  365,  368,  16  P.  13,  14  (applied);  123  C.  140,  143,  55  P.  681 
(applied);  132  C.  666,  671,  61  P.  964,  64  P.  1071  (construed  and 
applied);  141  C.  295,  300,  74  P.  846  (applied — earlier  English 
rule  stated);  1  C.  A.  524,  527,  82  P.  549    (applied  with   §  1325);  4 

C.  A.  162,  165,  87  P.  417  (applied  with  other  sections);  21  F. 
594,  598  (applied — no  precatory  trust  created  when);  127  U. 
S.  300, -311,  312,  32  L.  ed.  138,  143,  8  Sup.  Ct.  Rep.  1164  (referred  to 
with    other   sections). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  construction  of  words  and  expressions  in  wills,  see  8 
L.   740;    10  L.   816. 

As   to   what   property   passes   by   the   word   "goods,"    see    1   A. 

D.  294. 

As  to  what  words  vest  an  estate  in  married  woman  to  exclu- 
sion of  husband,  see  39  A.  D.  773. 

As  to  what  words  will  pass  real  estate,  see  14  A.  D.  576. 

§1325.  WORDS  TO  RECEIVE  AN  OPERATITE  CON- 
STRUCTION.  The  words  of  a  will  are  to  receive  an  interpre- 
tation which  will  give  to  every  expression  some  effect,  rather 
than  one  which  will  render  any  of  the  expressions  inopera- 
tive. 

Jlistorys     ^n^-cted  March  21,  1872. 
718 


Tit.VI.ch.II.]  INTESTACY— AVOIDING.  §§  1326.  1327 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

58  C.  387,  404  (cited  with  other  sections  in  discussion);  99  C. 
645,  648,  34  P.  513  (applied);  132  C.  173,  177,  64  P.  268  (applied); 
142  C.  373,  375.  75  P.  1086  (applied  with  other  sections);  1  C.  A. 
80,  82,  81  P.  752  (applied  with  other  sections — certain  uses  of 
words  seem  to  be  beyond  absolute  and  unvarying  definition — 
among:  these  are  precatory  words);  1  C.  A.  524,  527,  528,  82  P. 
549  (applied  with  other  sections);  4  C.  A.  162.  165,  87  P.  417 
(applied  with  other  sections);  127  U.  S.  300.  311,  312,  32  L.  ed. 
138.  143.  8  Sup.  Ct.  Rep.  1164   (referred  to  with  other  sections). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§  1326.  IMESTACY  TO  BE  AVOIDED.  Of  two  modes  of 
interpreting  a  will,  that  is  to  be  preferred  which  will  prevent 
a  total  intestacy. 

Hitttory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion. Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  403,  held 
unconstitutional,  see  history.   §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

104  C.  554.  568.  38  P.  643  (applied);  123  C.  140,  143,  55  P.  681 
(applied);  123  C.  337,  343,  344,  55  P.  1011  (applied);  132  C.  523, 
566,  60  P.  442,  64  P.  1000  (applied);  139  C.  682,  686,  73  P.  606 
(applied  with  other  sections);  142  C.  373.  375.  75  P.  1086  (effect 
of  false  description  of  land  in  will);  145  C.  82,  86,  10  A.  S.  17, 
78  P.  340  (applied  to  holographic  will);  147  C.  148,  153.  81  P. 
406    (applied   to   residuary   clauses). 

As  to  construction  and  interpretation  of  wills,  see  note  $  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice.  1554,  1566-1579. 

§1327.  EFFECT  OF  TE(  IIMCAL  WORDS.  Technical 
woi'd.s  in  a  will  are  to  be  taken  in  their  technical  sense,  unless 
the  context  clearly  indicates  a  contrary  intention,  or  unless 
it  satisfactorily  appears  that  the  will  was  drawn  solely  by 
the  testator,  and  that  he  was  unacquainted  with  such  techni- 
cal sense. 

HlMtory:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  403,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March    21,   1905,  Stats,   and   Amdts.   1905.   p.   606. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
74  C.  365,  368,  16  P.  13.  14   (applied). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317. 
ante;  2  Church's  New  Probate  Law  and  Practice.  1554,  1566-1579. 

719 


§§  1328-1330  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1328.  TECHNICAL  WOEDS  NOT  NECESSARY.  Techni- 
cal words  are  not  necessary  to  give  effect  to  any  species  of 
disposition  by  a  will. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for-  2  pars,  annotation. 

127  U.  S.  300,  311,  312,  32  L.  ed.  138,  143,  8  Sup.  Ct.  Rep.  1164 
(referred  to  with  other  sections). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§  1329.  CERTAIN  WORDS  NOT  NECESSARY  TO  PASS  A 
FEE.  The  term  "heirs,"  or  other  words  of  inheritance,  are 
not  requisite  to  devise  a  fee,  and  a  devise  of  real  property 
passes  all  the  estate  of  the  testator,  unless  otherwise  limited. 

Hi-story:     Enacted  March   21,  1872. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testament- 
ary disposition  of  land — "legacy"  a  like  disposition  of 
personalty). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  meaning  of  "children,"  see  8  L.  740. 

As  to  meaning  of  "issue,"  see  notes  4  L.   117;  11  L.  305. 

As  to  meaning  of  "next  of  kin,"  see  15  L.   300. 

As  to  meaning  of  word  "heirs,"  see  2  L.  457;  8  L.  740;  12 
L.  721. 

Construction   of   word   "heirs." — See   post   §  1334. 

Words  of  inheritance  or  succession  not  necessary  to  pass  a 
fee. — See  ante   §  1072. 

§1330.  POWER  TO  DEVISE,  HOW  EXECUTED  BY 
TERMS  OF  WILL.  Real  or  personal  property  embraced  in  a 
power  to  devise,  passes  by  a  will  purporting  to  devise  all  the 
real  or  personal  property  of  the  testator. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

107  C.  587,  598,  40  P.  810  (applied);  132  C.  523,  558,  84  A.  S. 
70,  60  P.  442,  64  P.  1000  (construed  and  applied);  140  C.  282,  289, 
73  P.  976,  978  ("devise"  denotes  a  testamentary  disposition  of 
land — "legacy"  a  like  disposition  of  personalty);  145  C.  344, 
346,  78  P.  874   (referred  to). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

720 


Tit.VI.Ch.TI.]  DEVISE  OR  BEQUEST.  §§  1.031^  1332 

§1331.  DEVISE  OR  KEQUEST  OF  ALL  REAL  OR  ALL 
PERSONAL  PROPERTY,  OR  BOTH.  A  devise  or  bequest  of 
all  the  testators'  real  or  personal  property,  in  express  terms, 
or  in  any  other  terms  denoting  his  intent  to  dispose  of  all 
his  real  or  personal  property,  passes  all  the  real  or  personal 
property  which  he  was  entitled  to  dispose  of  by  will  at  the 
time  of  his  death. 

HlHtory:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

81  C.  240,  242,  22  P.  655,  656,  (applied);  140  C.  282,  289,  73  P. 
976,  978  ("devise"  denotes  a  testamentary  di.sposition  of  land— 
"legacy"  a  like  disposition  of  personalty);  188  U.  S.  291,  296» 
47  L.  ed.  480,  482  (repeal  of  section  referred  to). 

As  to  general  and  specific  legacies,  see  Kerr's  Cyc.  C.  C.  §  1357 
and    note. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

Effect  of  conveyance  of  property  previously  disposed  of  by 
will. — See  Kerr's  Cyc.  C.  C.  §  1303  and  note. 

Estate  passing  by  devise  of  land. — See  Kerr's  Cyc.  C.  C.  §  1311 
and  note. 

Passing  of  after-acquired  title, — See  Kerr's  Cyc.  C.  C.  §1312 
and  note. 


§  1332.  RESIDUARY  CLAUSES.  A  devise  of  the  residue 
of  the  testator's  real  property  passes  all  the  real  property 
which  he  was  entitled  to  devise  at  the  time  of  his  death,  not 
otherwise  effectually  devised  by  his  will. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code  Amdts.   1873-4,  p.   234. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

107  C.  410,  416,  40  P.  552  (applied);  127  C.  90,  92,  59  P.  315 
(construed  and  applied);  140  C.  282,  289,  73  P.  976,  978  ("devise" 
denotes  a  testamentary  disposition  of  land — "legacy"  a  like 
disposition  of  personalty);  142  C.  1,  7,  75  P.  324  (residuary 
clauses  to  be  given  a  broad  interpretation);  147  C.  148,  152,  81  P. 
406  (not  limited  how);  150  C.  498,  505,  89  P.  98  (construed  with 
§  1312 — statute  makes  will  speak  as  of  time  of  testator's  death, 
and  has  effect  of  permitting  devises  to  be  general,  at  least 
as  to  after-acquired  property);  150  C.  604,  605,  89  P.  345  (this 
section   abrogates   earlier  common-law-rule    which   made  a    dis- 

721 


§§  1333, 1334  CIVIL  CODE.  [Div.II.Pt.IV. 

tinction  between  devises  of  real  property  and  , bequests  of  per- 
sonal property). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  what  passes  under  residuary  clause,  see  notes,  5  L.  104; 
9   L.   200. 

Residuary  legacy  defined. — See  Kerr's  Cyc.  C.  C.  §  1357  subd. 
4  and  note. 

§1333.    SAME.     [BEQUEST  OF  RESIDUE,  EFFECT.]     A 

bequest  of  the  residue  of  the  testator's  personal  property, 
passes  all  the  personal  property  which  he  was  entitled  to 
bequeath  at  the  time  of  his  death,  not  otherwise  effectually 
bequeathed  by  his  will. 

History:  Enacted  March  21,  1872,  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.  234. 

107  C.  410,  416,  40  P.  552  (cited);  127  C.  90,  92,  59  P.  315  (con- 
strued in  connection  with  §1333);  140  C.  282,  289,  73  P.  976, 
978  ("devise"  denotes  a  testamentary  disposition  of  land — 
"legacy"  a  like  disposition  of  personalty) ;  142  C.  1,  6,  7,  75  P. 
324  (construed  and  applied,  with  other  sections,  to  separate 
property  of  testator). 

See  Kerr's  Cyc.  C.  C.  §  1332  and  note. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§1334.  "HEIRS,"  "RELATIVES,"  "ISSUE,"  "DESCEND- 
ANTS,"  ETC.  A  testamentary  disposition  to  "heirs,"  "rela- 
tions," "nearest  relations,"  "representatives,"  "legal  repre- 
sentatives," or  "personal  representatives,"  or  "family,"  "issue," 
"descendants,"  "nearest"  or  "next  of  kin,"  of  any  person, 
without  other  words  of  qualification,  and  when  the  terms 
are  used  as  words  of  donation,  and  not  of  limitation,  vests 
the  property  in  those  who  would  be  entitled  to  succeed  to 
the  property  of  such  person,  according  to  the  provisions  of 
the  title  on  succession,  in  this  code. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 
40    P.    35    (applied). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

722 


Tit.VI,ch.[I.]  WORDS  OF  DONATION.  ETC.  §§1335-1337 

§1335.     WOKDS    OF    I)0\ATIO\    AM>    OF    LIMFTATIO.V. 

The  terms  mentioned  in  the  last  section  are  used  as  words 
of  donation,  and  not  of  limitation,  when  the  property  is  given 
to  the  person  so  designated,  directly,  and  not  as  a  qualifica- 
tion of  an  estate  given  to  the  ancestor  of  such  person. 

IllMlory:     Knactod  Marcli   21,   1872. 

See   Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  Now  Probate  Law  and  Practice,  1554,  1566-1579. 

§  1336.  TO  >VHAT  TIME  WORDS  REFEK.  Words  in  a 
will  referring  to  death  or  survivorship,  simply,  relate  to  the 
time  of  the  testator's  death,  unless  possession  is  actually 
postponed,  when  they  must  be  referred  to  the  time  of  posses- 
sion. 

IILstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

114  C.  186,  190,  45  P.  1063  (construed  and  applied):  149  C. 
146,  150,  85  P.  308,  9  A.  C.  1143  (same  rule  exists  irrespective 
of  statute);   152  C.  753,  759,  93  P.  1012.  1015   (applied). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Churcli's  New  Probate  .Law  and  Practice,  1554.  1566-1579. 

As  to  time  to  whicli  bequest  relates,  see  9  L.   211. 

§  1337.  DEVISE  OR  REQUEST  TO  A  (LASS.  A  testa- 
mentary disposition  to  a  class  includes  every  person  answer- 
ing the  description  at  the  testator's  death;  but  when  the  pos- 
session is  postponed  to  a  future  period,  it  includes  also  all 
persons  coming  within  the  description  before  the  time  to 
which  possession  is  postponed. 

lllMtory:     Enacted   Marcli    21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  construction  and  interpretation  of  wills,  see  note  S  1317. 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1666-1579. 

79  C.  613,  625,  22  P.  50  (applied);  119  C.  406,  410,  51  P.  629 
(applied);  132  C.  523.  578.  60  P.  442.  64  P.  1000   (applied). 

As  to  posthumous  children,  see  Kerr's  Cyc.  C.  C.  $  1339  and 
note. 

723 


§§  1338-1340  CIVIL  CODE.  [Div.II.Pt.IV. 

§1338.  WHEN  CONVEESION  TAKES  EFFECT.  When  a 
will  directs  the  conversion  of  real  property  into  money,  such 
property  and  all  its  proceeds  must  be  deemed  personal  prop- 
erty from  the  time  of  the  testator's  death. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

Ill  C.  628,  638,  44  P.  225  (section  does  not  stand  in  way  of 
action  for  partition  of  land  distributed  to  trustees) ;  143  C.  265, 
270,  101  A.  S.  118,  76  P.  1020  (construed  and  applied);  144  C.  121, 
127,   77  P.   825   (construed  and  applied). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§1339.  WHEN  CHILD  BORN  AFTER  TESTATOR'S 
DEATH  TAKES  UNDER  WILL.  A  child  conceived  before, 
but  not  born  until  after  a  testator's  death,  or  any  other 
period  when  a  disposition  to  a  class  vests  in  right  or  in  pos- 
session, takes,  if  answering  to  the  description  of  the  class. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  G.  for  3  pars,  annotation. 

132  C.  523,  580,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (cited  with 
§  29  in  discussion). 

As  to  construction  and  interpretg.tion  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  provision  in  will  for  after-born  children,  see  15  A.  S.  592. 

Rights  of  child  born  after  making  will. — See  Kerr's  Cyc.  C.  C. 
§  1306   and   note. 

Rights  of  child  conceived  but  not  yet  born. — See  Kerr's  Cyc. 
C.  C.  §  29  and  note. 

§1340.  MISTAKES  AND  OMISSIONS.  When,  applying  a 
will,  it  is  found  that  there  is  an  imperfect  description,  or  that 
no  person  or  pi-operty  exactly  answers  the  description,  mis- 
takes and  omissions  must  be  corrected,  if  the  error  appears 
from  the  context  of  the  will  or  from  extrinsic  evidence;  but 
evidence  of  the  declarations  of  the  testator  as  to  his  inten- 
tions cannot  be  received. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 
108    C.    627,    659,    49    A.    S.    97,    41    P.    772    (cited    with    §  1318    in 

724 


TitVI.Ch.II.]  DEVISE  VESTS  WHEN.  §  1341 

discussion);  119  C.  571,  575,  51  P.  860,  39  L.  689  (construed  and 
applied);  123  C.  337,  340,  341,  55  P.  1011  (applied);  127  C.  90, 
94,  59  P.  315  (applied);  142  C.  373,  374,  376,  75  P.  1086  (extrinsic 
evidence  cannot  aid  will  which  is  hopelessly  uncertain);  151  C. 
181,  184,  185,  90  P.  448  (distinction  as  to  intention — testator's 
positive  instructions  to  his  attorney,  in  the  very  performance  of 
testamentary  act,  may  be  received  in  evidence  without  violating 
this  section). 

As  to  admissibility  of  declarations  of  testator,  see  59  A.  R.  399. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  correction  of  mistakes  in  wills,  see  40  A.  R.  292. 

As  to  parol  evidence  to  explain  or  identify  subject  of 
beneficiary  will,  see  8  A.  R.   669-673. 

When  will  lost,  spoliated,  or  destroyed  after  death. — See  5 
Prob.   Rep.   Ann.   553. 

§  1341.  WIIEX  DEVISES  AND  HEQIESTS  VEST.  Testa- 
mentary dispositions,  including  devises  and  bequests  to  a  per- 
son on  attaining  majority,  are  presumed  to  vest  at  the  testa- 
tor's death. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

73  C.  99,  102,  14  P.  394,  396  (applied);  122  C.  626.  627.  55  P. 
595  (applied);  132  C.  523,  578,  84  A.  S.  70,  60  P.  442,  64  P.  1000 
(construed  and  applied);  137  C.  354,  355,  70  P.  459  (applied); 
140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — "legacy"  a  like  disposition  of  personalty); 
149  C.  712,  717,  87  P.  573  (property  of  decedent  vests  wlien  and 
how);  2  C.  A.  468,  475,  83  P.  577  (trustee  under  will  takes  at 
death  of  testator). 

As  to  construction  and  interiirolation  of  wills,  .see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  vesting  of  estates  under  wills,  see  1  L.  551;  3  L.  816; 
9  L.  211. 

As  to  vesting  of  legacy  notwitlistanding  failure  to  perforin 
conditions,  see  78  A.  D.   234. 

As  to  vesting  of  legacies — When  vested  and  when  contingent. 
—See  10  A.  S.  471. 

As  to  when  legacies  are  vested  and  contingent,  see  37  A.  S.  147. 

Future  estate  not  defeated  by  determination  of  precedent 
estate. — See  ante  §  742. 

Limitations  which  may  be  put  upon  future  estates. — See 
Kerr's   Cyc.   C.   C.    §  767   and   note. 

Rights  of  child  conceived  before  but  born  after  testator's 
death. — See  Kerr's  Cyc.  C.  C.  §  1339  and  note. 

725 


§§  1342-1344  CIVIL  CODE.  [Div.II,Pt.IV. 

Rig-hts  of  children  born  after  making  of  will. — See  Kerr's  Cyc. 
C.  C.  §  1306  and  note,  and  §  29  and  note. 

Vesting  of  devise  or  legacy  depending  on  condition  precedent. 
— See  Kerr's  Cyc.  C.  C.  §  1347  and  note. 

§  1342.  >VHEX  CANNOT  BE  DEVESTED.  A  testamentary 
disposition,  when  vested,  cannot  be  devested  unless  upon  the 
occurrence  of  the  precise  contingency  prescribed  by  the  testa- 
tor for  that  purpose. 

History:     Enacted  March   21,   1872. 

§  1343.  DEATH  OF  DEVISEE  OB  LEGATEE.  If  a  devisee 
or  legatee  dies  during  the  lifetime  of  the  testator,  the  testa- 
mentary disposition  to  him  fails,  unless  an  intention  appears 
to  substitute  some  other  in  his  place,  except  as  provided  in 
section  thirteen  hundred  and  ten. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  234;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  403,  held  unconstitu- 
tional, see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.   for  7  pars,  annotation. 

98  C.  603,  606,  33  P.  451,  453  (applied);  134  C.  320,  324,  66  P. 
370  (construed);  139  C.  87,  89,  72  P.  827  (construed);  140  C. 
282,  289,  290,  73  P.  976,  978  (construed — comments  upon  use  of 
terms    "devise",    "legatee",    etc.). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  effect  of  death  of  devisees  before  testator,  see  94  A.  D. 
156. 

As  to  lapse  of  devise  or  bequest  by  death  of  beneficiary  before 
testator,  see  28  A.  S.  360. 

§  1344.     INTERESTS     IN     REMAINDER     ARE     NOT     AF- 

FECTED.     The   death   of   a   devisee   or   legatee   of  a   limited 
interest  before  the  testator's  (Jeath  does  not  defeat  the  inter- 
ests of  persons  in  remainder,  who  survive  the  testator. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cj'c.  C.  C.  for  2  pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — "legacy"  a  like  disposition  of  personalty). 

726 


Tit.VI.ch.II.]  CONDITIONS.  §§  1345-1347 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice.  1554,  1566-1579. 


§  1345.  CONDITIONAL  DEVISES  AND  BEQUESTS.  A  con- 
ditional disposition  is  one  which  depends  upon  the  occurrence 
of  some  uncertain  event,  by  whicli  it  is  either  to  take  effect 
or  be  defeated. 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition   of  land — "legacy"  a  like  disposition   of  personalty). 

As  to  conditions  in  will  preventing  legatee  from  contesting 
will  upon  pain  of  forfeiture,  see  60  A.  D.   113. 

As  to  conditional  obligation,  see  Kerr's  Cyc.  C.  C.  §§  1434  et 
seq.  and  notes. 

As  to  conditions  of  ownership,  see  Kerr's  Cyc.  C.  C.  §§  707  et 
seq.  and  notes. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  distinction  between  words  of  limitation  and  condition, 
see  9  L.   165. 

As  to  occurrences  of  contingencies,  see  10  L.   816. 

As  to  validity  of  conditions  in  devises  and  bequests,  see  Kerr's 
Cyc.  C.  C.  §  1281  and  note. 

§  1346.  CONDITION  PRECEDENT,  ^VHAT.  A  condition 
precedent  in  a  will  is  one  which  is  required  to  be  fulfilled 
before  a  particular  disposition  takes  effect. 

History:     Enacted  March  21,  1872. 

As  to  certain  conditions  precedent  being  void,  see  Kerr's  Cyc. 
C.  C.   §  709   and  note. 

As  to  conditions  precedent,  see  1  L.  837;  9  L.  165. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317. 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§  1347.  EFFECT  OF  CONDITION  PRECEDENT.  Where  a 
testamentary  disposition  is  made  upon  a  condition  precedent, 
nothing  vests  until  the  condition  is  fulfilled,  except  where 
such  fulfilment  is  impossible,  in  which  case  the  disposition 
vests,  unless  the  condition  was  the  sole  motive  thereof,  and 

727 


§§  1348-1350  CIVIL  CODE.  [Div.II,Pt.IV. 

the  impossibility  was  unknown  to  the  testator,  or  arose  from 
an  unavoidable  event  subsequent  to  the  execution  of  the  will. 

History:     Enacted  March   21,  1S72. 

As  to  conditions  precedent  and  subsequent  in  wills,  and 
impossibility  of  performance,  see  70  A.  S.  833  et  seq. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§1348.  CONDITIONS  PRECEDENT,  WHEN  DEEMED 
PERFORMED.  A  condition  precedent  in  a  will  is  to  be 
deemed  performed  when  the  testator's  intention  has  been  sub- 
stantially, though  not  literally,  complied  with. 

History:     Enacted  March   21,  1872. 

§  1349.  CONDITIONS  SUBSEQUENT,  WHAT.  A  condition 
subsequent  is  where  an  estate  or  interest  is  so  given  as  to 
vest  immediately,  subject  only  to  be  devested  by  some  subse- 
quent act  or  event. 

History:.    Enacted  March   21,  1872. 

As  to  conditions  subsequent,  see  1  L.  837;  9  L.  165. 

As  to  conditions  subsequent  in  will;  impossibility  of  per- 
formance, see  Kerr's  Cyc.  C.  C.  §§  707,  708  and  notes;  70  A.  S.  833 
et  seq. 

As  to  conditions  in  wills  in  restraint  of  marriage,  see  1  L.  837. 

As  to  devise  during  widowhood,  see  1  L.  432;  9  L.  573. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

§  1350.  DEVISEES,  ETC.,  TAKE  AS  TENANTS  IN  COM- 
MON. A  devise  or  legacy  given  to  more  than  one  person 
vests  in  them  as  owners  in  common. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — "legacy"  a  like  disposition  of  personalty); 
141  C.  432,  434,  75  P.  53   (construed  and  applied). 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 

As  to  estates  in  common,  see  Kerr's  Cyc.  C.  C.  §§  685,  686  and 
notes. 

728 


Tit.VI,ch.II.]  ADVANCEMENTS.  §  1351 

§1351.  ADVANCEMENTS,  WHEN  ADEMPTIONS.  Ad- 
vancements or  gifts  are  not  to  be  taken  as  ademptions  of  gen- 
eral legacies,  unless  such  intention  is  expressed  by  the  testa- 
tor in  writing. 

History:     Enacted  March   21,  1872.     . 

See  Kerr's  Cyc.  C.  C.  for  G  pars,  annotation. 

As  to  ademption  by  advancement,  see  95  A.  S.  344. 

As  to  ademption  of  legacies,  see  11  A.  D.  470;  37  A.  D.  667; 
1  L.   203. 

As  to  advancement  in  cases  of  intestacy,  see  Kerr's  Cyc.  C. 
C.  §§  1395-1399  and  notes. 

As  to  construction  and  interpretation  of  wills,  see  note  §  1317, 
ante;  2  Church's  New  Probate  Law  and  Practice,  1554,  1566-1579. 


729 


§  1357  CIVIL  CODE.  [Div.II.Pt.IV. 

CHAPTER  III. 

GENERAL  PROVISIONS. 

§  1357.     Nature  and  designations  of  legacies: 
,..1.  Specific.      [Legacy.] 

2.  Demonstrative.      [Legacy.] 

3.  Annuities. 

4.  Residuary.      [Legacy.] 

5.  General.      [Legacy.] 
§  1358.     Estates   chargeable. 

§  1359.  Order  of  resort  to  estate  for  debts. 

§  1360.  Same.      [For  legacies.] 

§  1361.  Same.      fLegacies   to   kindred.] 

§  1362.  Abatement. 

§  1363.  Specific  devises  and  legacies. 

§  1364.  Heir's    conveyance    good,    unless    will    is    proved    within 

four  years. 

§  1365.  Possession   of   legatees. 

§  1366.  Bequest   of   interest. 

§  1367.  Satisfaction. 

§  1368.  Legacies,   when   due. 

§  1369.  Interest. 

§  1370.  Construction   of  these   rules. 

§  1371.  Executor  according  to   the   tenor. 

§  1372.  Power  to  appoint  is   invalid. 

§  1373.  Executor   not   to  act   till    qualified. 

§  1374.  Provisions  as  to  revocations. 

§  1375.  Execution  and  construction   of  prior  wills  not  affected. 

§  1376.  Law  governing  validity  and  interpretation   of  wills. 

§  1377.  Liability   of  beneficiaries   for  testator's   obligations. 

§1357.    NATURE     AND     DESIGNATION    OF    LEGACIES. 

Legacies  are  distinguished  and  designated,  according  to  tlieir 
nature,  as  follows: 

1.  [Specific  legacy.]  A  legacy  of  a  particular  thing,  speci- 
fied and  distinguished  from  all  others  of  the  same  kind  belong- 
ing to  the  testator,  is  specific;  if  such  legacy  fails,  resort 
cannot  be  had  to  the  other  property  of  the  testator; 

2.  [Demonstratire  lej^acj.]  A  legacy  is  demonstrative 
when  the  particular  fund  or  personal  property  is  pointed  out 
from  which  it  is  to  be  taken  or  paid;  if  such  fund  or  property 

730 


Tit.VI.Ch.III.]  PASSING  AND  VESTING.  §  1357 

fails,  in  whole  or  in  part,  resort  may  be  had  to  the  general 
assets,  as  in  case  of  a  general  legacy; 

3.  [Aniniities.]  An  annuity  is  a  bequest  of  certain  specified 
sums  periodically;  if  the  fund  or  property  out  of  which  they 
are  payable  fails,  resort  may  be  had  to  the  general  assets,  as 
in  case  of  a  general  legacy; 

4.  [Residuary  legacy.]  A  residuary  legacy  embraces  only 
that  which  remains  after  all  the  bequests  of  the  will  are  dis- 
charged ; 

5.  [General  legacy.]  All  other  legacies  are  general  lega- 
cies. 

HLstory:     Enacted  Marcli   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

66  C.  330,  331,  332,  5  P.  507,  508  (cited);  66  C.  432,  437,  439,  440, 
6  P.  7,  11,  12,  13  (construed);  107  C.  303,  308,  40  P.  558  (con- 
strued); 112  C.  521,  526,  53  A.  S.  224,  44  P.  808  (construed);  119  C. 
131,  136,  51  P.  44  (cited);  140  C.  282,  289,  73  P.  976,  978  ("devise" 
denotes  a  testamentary  disposition  of  land — "legacy"  a  like  dis- 
position of  personalty);  143  C.  450,  453,  77  P.  160  (cited);  145  C. 
lis,  121,  78  P.  369  (referred  to);  150  C.  498,  503,  504,  505,  89  P. 
98  (construed  with  §§  1358,  1359,  1360,  1362 — specific  devises 
and  specific  legacies  are  free  from  any  contribution  to  payment 
of  general  legacies — question  wliether  testamentary  gift  is 
specific  or  general,  how  determined). 

PROPERTY    PASSING    BY     WILL — VESTING     OF     INTEREST. 

As  to  generally,  see  2  Churcli's  New  Probate  I^aw  and  Practice 
1580,    1588-1610. 

Abatement — Of  legacies,  order  of  as  between  demonstrative 
legacies  and  specific  legacies,  to  pay  debts. — See  4  L.  N.  S.   922. 

Same — Same — In  case  of  deficiency  of  assets. — See  8  A.  S.  720. 

Accumulations. — See  Kerr's  Cyc.  C.  C.  §§  722-726  and  notes;  2 
Church's  New  Probate  Law  and  Practice  1601;  also  note  §722, 
ante. 

Advancements  to  heirs,  doctrine  of. — See  12  L.  566. 

After-acquired  property  passes  with  will. — See  Kerr's  Cyc. 
C.  C.  §  1312  and  note;  2  Churcli's  New  Probate  Law  and  Prac- 
tice 1602. 

Annuities. — See  Kerr's  Cyc.  C.  C.  §  1368  and  note;  2  Church's 
New  Probate  Law  and  Practice  1601 

Beneficiaries — Liable  for  testator's  obligations. — See  Kerr's 
Cyc.  C.  C.  §  1377  and  note. 

Same — Of  benefit  certificate. — See  2  Church's  New  Probate 
Law  and  Practice  1601. 

731 


§  1357  CIVIL  CODE.  [Div.II,Pt.IV. 

Bequest — As  to,  generally,  see  "Devises  and  bequests",  this 
note. 

Same — Of  interest  or  income  of  a  certain  fund,  income  accru- 
ing- thereon  from  testator's  death. — See  Kerr's  Cyc.  C.  C.  §  1366 
and  note. 

Same — Of  stocks,  bonds  or  notes,  general  or  specific. — See  11 
L.  N.  S.  49-87. 

Same-^To  class — As  to  generally,  see  'Kerr's  Cyc.  C.  C.  §  1337 
and  note. 

Same — Same — As  including  persons  dead  before  making  of 
will. — See  5  A.  C.  243. 

Same — Same — Riglit  of  representatives  of  pre-deceased  child 
to  share  in. — See  2  A.  C.  643. 

Capacity  to  take  by  will. — See  Kerr's  Cyc.  C.  C.  §  1275  and 
note. 

Class — Bequest  to  as  including  persons  dead  before  making 
of  will.— See  5  A.  C.  243. 

Same — Devise  or  bequest  to— As  to  generally,  see  Kerr's  Cyc. 
C.   C.   §1337  and  note. 

Common  law  distinctions  abrogated. — See  2  Church's  New 
Probate  Law  and  Practice   1591. 

Community  property — Extent  to  which  may  be  disposed  of  by 
will. — See  2  Church's  New  Probate  Law  and  Practice  1602. 

Condition  subsequent  in  will. — See  Kerr's  Cyc.  C.  C.  §  1349 
and  notes;  70  A.  S.  83;  9  L.  165;  9  L.  573;  31  L.  432;  31  L.  837. 

Conditional  and  contingent  devises — As  to,  generally,  see 
Kerr's  Cyc.  C.  C.  §§1346-1348  and  notes,  §1345  and  note;  2 
Church's    New    Probate    Law    and    Practice    1600;    8    A.    C.    1150. 

Same — Words  merely  declaratory  of  purpose  or  consideration 
of  devises  as  creating. — See  3  A.  C.  38. 

Construction,  validity  and  effect  of  devises  and  legacies. — See 
2  L.  175;  10  L.  816;  11  L.  185;  also  note  §    1317  ante. 

Contribution  among  legatees  to  pay  debts. — See  Kerr's  Cyc.  C. 
C.  §  1364  and  note. 

Conversion — Of  property. — See  2  Obiter  Dig.   984. 

Same — Of  real  property  into  money,  effect  of,  when  directed  to 
be  made  by  the  will. — See  Kerr's  Cyc.  C.  C.  §  1338  and  note. 

Corporation — Capacity  to  take  by  will. — See  18  A.  D.  541;  80 
A.  D.  315;  2  Prob.  Rep.  Ann.  674;  see  also  "Municipal  corpora- 
tions",   this   note. 

Same — Right  to  contest  power  to  take  and  hold. — See  60  A. 
S.  318,  321;  32  L.  293. 

Same — Same — In  excess  of  charter  authority. — See  9  L.  N. 
S.    689. 

Creditor  as  legatee. — See  2  Church's  New  Probate  Law  and 
Practice   1600. 

Cumulative  legacies. — See  2  Church's  New  Probate  Law  and 
Practice  1593. 

732 


Tit. VI, Ch. III.]  PASSING  AND  VESTING.  §1357 

Debts  of  decedent — Contribution  among  legatees  to  pay. — See 
Kerr's  Cyc.  C.  C.  §  1364  and  note. 

Same — Entire  estate  chargeable  with,  except  otherwise  pro- 
vided.— See  Kerr's  Cyc.  C.  C.  §  1358  and  note. 

Same — Liability  of  beneficiaries  for. — See  Kerr's  Cyc.  C.  C. 
§1377  and  note. 

Same — Order  of  resort  to  estate  for. — See  Kerr's  Cyc.  C.  C. 
§  1359  and  note. 

Same — Provision  by  will  for  payment  of,  effect  of,  when  insuf- 
ficient.— See  Kerr's  Cyc.  C.  C.  §  1362  and  note. 

Demonstrative  legacies. — See  2  Church's  New  Probate  Law 
and  Practice   1593. 

Devise — Or  bequest  of  all  real  or  personal  property,  or  both — 
What  passes  by. — See  Kerr's  Cyc.  C.  C.  §  1331  and  note. 

Same — Over,  of  life  estate  with  power  of  disposition,  validity 
and  effect  of. — See  7  A.  C.  953. 

Same — To  unnamed  he^rs. — See  2  Church's  New  Probate  I^aw 
and  Practice   1592;   80   A.  D.   314. 

Devisee  of  life  estate — Power  to  sell. — See  2  Church's  New 
Probate  Law  and  Practice  1595;  7  A.  C.  953. 

Devises  and  bequests — As  to  generally,  see  2  Church's  New 
Probate  Law  and  Practice   1589. 

Same — As  to  tlie  meaning  of  certain  words  used  in  devise  or 
bequest. — See  Kerr's  Cyc.  C.  C.  §1329  and  note;  2  Church's  New 
Probate  Law  and  Practice  1590;  3  A.  C.  420. 

Same — As  to  wills,  legacies,  and  devises  generally,  see  note 
§  1270,  ante. 

Same — Advancements  to  heirs. — See  12  L.  566,  570. 

Same — Bequest  to  a  class,  as  including  persons  dead  before 
making  of  w^ill. — See  5  A.  C.  243. 

Same — Capacity — Of  corporation  to  take  by  will. — See  18  A. 
D.  541.  80  A.  D.  315;  60  A.  S.  318;  32  L.  293;  9  L.  N.  S.  GS9;  2 
Prob.  Rep.  Ann.  674-679. 

Same — Same — To  take  by  will. — See  Kerr's  Cyc.  C.  C.  §1275 
and  note. 

Same — Class,  devise  or  bequest  to. — See  Kerr's  Cyc.  C.  C. 
§  1337  and  note. 

Same — Common  law  distinctions  abrogated. — See  2  Oluircli's 
New   Probate   Law  and    Practice    1591. 

Same — Construction,  validity  and  effect  of  devise  and  legacies. 
— See  2  L.  175;  10  L.  816;  11  L.  185;  also  note  §  1317  ante. 

Same — Conversion  of  real  proi)erty  into  money,  effect  of 
when  directed  to  be  made  by  the  will. — See  Kerr's  Cyc.  C.  C. 
§  1338  and  note. 

Same — Devise  of  land,  profits,  income,  etc. — Estate  passes  by. 
—See  9  A.  C.  247. 

Same — Devise  or  bequest  of  real  or  personal  property,  or 
both — What  passes   by. — See   Kerr's   Cyc.   C.   C.    §1331   and    note. 

733 


§  1357  CIVIL  CODE.  [Div.II,Pt.IV. 

Same — Devise  to  corporation. — ^See  18  A.  D.  541;  80  A.  D.  315. 

Same — Devises  to  unnamed  heir. — See  2  Church's  New  Probate 
Law  and  Practice  1592;   80  A.  D.  314. 

Same — Executor  may  purchase  legacy. — See  2  Cliurcli's  New 
Probate  Law  and  Practice  1591. 

Same — Land,  devise  of,  how  construed,— See  Kerr's  Cyc.  C. 
C.  §  1311  and  note;  also  note  §  1317,  ante. 

Same— -Legacies — Controlled  by  testator's  intention. — See 
Kerr's  Cyc.  C.  C.  §  1370  and  note. 

Same — Same — Specific,  demonstrative,  annuities,  residuary  and 
general — As  to,  see  Kerr's  Cyc.  C.  C.  §  1357  and  note. 

Same — Municipal  corporation  as  devisee  or  legatee. — See  4 
Prob.  Rep.  Ann.   113. 

Same — Particular  description  as  a  limitation. — See  2  Church's 
New  Probate  Law  and  Practice  1591. 

Same — Power  to  devise,  how  executed  under  the  will. — See 
Kerr's   Cyc.   C.  C.   §  1330  and  note. 

Same — Shares  of  stock  appurtenant  to  land. — See  2  Church's 
New  Probate  Law  and  Practice  1592. 

Same — Substitution  of  land  for  legacy,  election. — See  Kerr's 
Cyc.  C.  C.  §  1338  and  note;  2  Church's  New  Probate  Law  and 
Practice  1591. 

Same — Witnesses  as  devisees,  when  gift  to  void. — See  Kerr's 
Cyc.  C.  C.  §§  1282,  1283  and  notes. 

Distinction  between  annuity  and  legacy  for  life,  as  respects 
commencement. — See   Kerr's    Cyc.   C.    C.    §  1368   and   note. 

Election  by  widow — As  to,  generally,  see  2  Church's  New 
Probate  Law  and  Practice  1603. 

Same — By  acceptance  of  devise. — See  2  Church's  New  Probate 
Law  and  Practice  1605. 

Same — By  acts  in  pais. — -See  2  Church's  New  Probate  Law  and 
Practice   1605. 

Same — Death  of  before,  effect  of. — See  2  L.  N.  S.  959. 

Same — Effect  of. — See  2  Church's  New  Probate  Law  and  Prac- 
tice   1604. 

Same — Same — On  administration. — See  4  L.  N.  S.  1065. 

Same — Right  of  creditors  of  personal  representatives  to  make 
or  control  for  or  against  will,  or  between  different  provisions 
of  will  or  statute. — See  11  L.  N.  S.  379. 

Same — Rule  as  to,  between  inconsistent  rights. — See  12  L.  227. 

Same — Taking  bond  by  descent  and  under  will. — See  2 
Church's  New  Probate  Law  and  Practice  1604. 

Same — To   take   under   will. — ^See    7   L.    454. 

Same — Under  mistake  and  misapprehension. — See  2  Church's 
New  Probate  Law  and  Practice   1605. 

Estate  of  testator  cliargeable  with  debts,  except  where  other- 
wise provided. — See  Kerr's  Cyc.  C.  C.  §  1356  and  note. 

734 


Tit.VI.ch.III.]  PASSING  AND  VESTING.  §  1357 

General  legacies. — See  2  Church's  New  ProVjate  Law  and 
Practice   1592. 

Gifts — When  payable  out  of  residuum. — See  2  Church's  New 
Probate  Law  and  Practice  1597. 

Gifts  causa  mortis — Altered  circumstances. — See  2  Church's 
New  Probate  Law  and  Practice  1609. 

Same — Contingent  remainder. — See  2  Church's  New  Probate 
Law  and  Practice  1608. 

Same — Distinguished. — See  Kerr's  Cyc.  C.  C.  §  1367  and  note; 
also  note  §  1270  ante;  2  Church's  New  Probate  Law  and  Prac- 
tice 1607. 

Same — Lapsed  legacies  and  devises. — See  Kerr's  Cyc.  C.  C. 
§  1343  and  notes;  2  Church's  New  Probate  Law  and  Practice 
1608. 

Intestacy  as  to  residuum. — See  2  Church's  New  Probate  Law 
and  Practice  1596. 

Lands — Devises  of,  how  construed. — See  Kerr's  Cyc.  C.  C.  S  1311 
and  note;  also  note  §  1317  ante. 

Same — Profits,  income,  etc,  of  land — Estate  passing  l>y  dovise 
of.— See  9  A.  C.  247. 

Legacies — Abatement  of  in  case  of  deficiency  of  assets. — See 
8  A.  S.  720. 

Same — Application  of  to  payment  of  debts. — See  2  Church's 
New  Probate  Law  and  Practice  1599. 

Same — Same — Order  of  abatement,  as  between  demonstrative 
legacies  and  specific  legacies. — See  4  L.  N.  S.  922. 

Same — Control  by  testator's  intention. — See  Kerr's  Cyc.  C.  C. 
§  1370  and  note;  also  §  1317  ante. 

Same — Specific,  demonstrative.  annuities,  residuary  and 
general — As  to. — See  Kerr's  Cyc.  C.  C.  S  1357  and  note. 

Life  estates — As  to,  generally,  see  2  Cliurch's  New  Probate 
I^w  and  Practice  1594. 

Same — Life  tenant  purchasing  outstanding  title. — See  2 
Church's  New  Probate  Law  and  Practice  1594. 

Same — Power  of  devisee  to  sell. — See  2  Church's  New  Probate 
Law  and  Practice  1595;  7  A.  C.  953. 

Same — Residuary  devise  of. — See  2  Church's  NfW  Probate  Law 
and  Practice   1596. 

Life  tenant  purchasing  outstanding  title,  elTcct  of. — See  2 
Cliurch's  New  Prol)ato  Law  and  I'ractice  1594. 

Meaning  of  certain  words  used  in  wills. — See  Kerr's  Cyc.  C. 
C.  §  1329  and  note;  2  Church's  New  Probate  Law  and  Practice 
1590;   4  A.  C.  420. 

Municipal  corporations  as  legatees  or  devisees. — See  4  Prob. 
Hop.  Ann.  113;  see  also  "Corporations",  this  note. 

Operation  of  wills. — See  2  Obiter  Dig.  963. 

Particular  description  as  a  limitation. — Sec  2  Cliurch's  New 
Probate  Law  and  Practice   1591. 

735 


§  1357  CIVIL  CODE.  [Div.II.Pt.IV. 

Payment  of  legacies — As  to,  generally,  see  2  Church's  New 
Probate  Law  and  Practice  1597. 

Same — Ademption  and  abatement  of. — See  Kerr's  Cyc.  C.  C. 
§  1351  and  note;  2  Church's  New  Probate  Law  and  Practice  1599; 
37  A.  D.   667;   95  A.  S.   342. 

Same — Same — Of  any  one  of  a  class. — See  Kerr's  Cyc.  C.  C. 
§  1632  and  note. 

Same-T-rBond  by  legatee. — See  2  Church's  New  Probate  Law 
and  Practice  1599. 

Same — Interest  on. — See  Kerr's  Cyc.  C.  C.  §  1369  and  note;  2 
Church's  New  Probate  Law  and  Practice  1598;  53  A.  S.  224. 

Same — Order  of  resort  to  property  of  testator  for  payment  of. 
—See  Kerr's  Cyc.  C.  C.  §§  1360,  1361  and  notes. 

Same — Out  of  residuum. — See  2  Church's  New  Probate  Law 
and  Practice  1597. 

Same — When  due  and  deliverable. — See  Kerr's  Cyc.  C.  C.  §  1368 
and  note. 

Power  to  devise,  how  executed  under  the  will. — See  Kerr's 
Cyc.  C.  C.  §  1330  and  note;  also  note  §  1270,  ante. 

Predeceased  child — Right  of  representative  of  to  share  in 
remainder  given  to  children  as  a  class. — See  2  A.  C.  645. 

Preferred  legacies. — See  2  Church's  New  Probate  Law  and 
Practice  1600. 

Residuary  clauses  in  wills. — See  Kerr's  Cyc.  C.  C.  §§  1332,  1333 
and  notes. 

Residuary  devise  of  estate  for  life. — See  2  Church's  New  Pro- 
bate Law  and  Practice  1596. 

Residuary  legacies — As  to,  generally,  see  Kerr's  Cyc.  C.  C. 
§§1332,  1333;  2  Church's  New  Probate  Law  and  Practice  1595; 
2  A.  C.  645. 

Same — Gifts,  when  payable  out  of  residuum. — See  2  Church's 
New  Probate  Law  and  Practice  1597. 

Same — Intestacy  as  to  residuant. — See  2  Church's  New  Pro- 
bate Law  and  Practice  1596. 

Same — Residuary  devise  of  life  estate. — See  2  Church's  New 
Probate  Law  and  Practice  1596. 

Same — Residuum  of  lands  under  undelivered  deeds. — See  2 
Church's  New  Probate  Law  and  Practice  1597. 

Same — Revocation  of  by  gift  of  particular  estate  of  interest. 
—See  5  A.  C.   789. 

Same — Where  life  estate  is  specifically  bequeathed. — See  2 
Church's  New  Probate  Law  and  Practice  1597. 

Revocation  of  testamentary  gift  of  particular  estate  or  inter- 
est as  a  revocation  of  remainder  or  limitation  over. — See  5 
A.  C.   789. 

Specific  legacies — As  to,  generally,  see  2  Church's  New  Pro- 
bate Law  and  Practice  1592., 

Same — For  life,  delivery  of  inventory  of  property  to  second 
legatee. — See  Kerr's  Cyc.  C.  C.  §  1365  and  note. 

736 


Tit.VI.Ch.lll.]  CHARGES— RESORT.  §§1358,1359 

Substitution  of  land  for  legacy,  election. — See  2  Cliurclis  Now 
Probate  I>aw  and  Practice  1591. 

Title  to  specific  devises  and  legacies  passes  by  will,  possession 
only  in  personal  representative. — See  Kerr's  Cyc.  C.  C.  §  1363 
and  note. 

Vesting  and  divesting  of  estates — As  to,  generally,  see  2 
Church's  New  Probate  I^aw  and  Practice  1606. 

Same — As  to  expectancies,  see  2  Church's  New  Probate  l^w 
and  Practice  1607. 

Same — Gifts  inter  vivos  distinguished. — See  2  Churths  New 
Probate  Law  and  Practice  1607. 

Witnesses  as  devisees,  when  gift  to  void. — See  Kcrrs  Cyc. 
C.  C.   §S  1282,   1283  and  notes. 

§  1358.  ESTATES  CHARGE.VBLK.  When  a  person  dies 
intestate,  all  his  property,  real  and  personal,  without  any 
distinction  between  them,  is  chargeable  with  the  payment  of 
his  debts,  except  as  otherwise  provided  in  this  code  and  the 
Code  of  Civil   Procedure. 

IliMtory:  Enacted  March  21.  1872;  amended  March  30,  1871. 
Code  Amdts.   1873-4,  p.   234. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

66  C  432,  439.  6  P.  7  (cited):  67  C.  637,  639.  S  P.  497  (cit.d  in 
connection  with  C.  C.  P.   §  1516):   150  C.  498,  505,  89  P.  98   (cited). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §1357,  ante:  2  Church's  New  Probate  Law  and  Practice. 
1580,  1588-1610. 

"Debts" — What  constitute.— See  Kerr's  Cyc.  C.  C.  P.  SS144S. 
1467,  1494,  1497,  ir>10,  1643  and  notes. 

§  1359.     OHDKH   01     IJKSOUT   TO    ESTATE    FOH    DEBTS. 

The  property  of  a  testator,  except  as  otherwise  specially  pro- 
vided in  this  code  and  the  Code  of  Civil  Procedure,  must  be 
resorted  to  for  the  payment  of  debts,  in  the  following  order: 

1.  The  property  which  is  expressly  api)ropriated  by  the  will 
for  the  payment  of  the  debts; 

2.  Property  not  disposed  of  by  the  will; 

3.  Property  which   is  devised  or  bequeathed   (n  a   residiiary 

legatee ; 

4.  Property  which  is  not  si)ecilically  dcxi^-fii  .n    luMiueatlied ; 

and, 

5.  All  other  property   ratably.     Before  any  debts  are  paid, 
Kerr's    C.    C. — 24  "737 


§  1360  CIVIL  CODE.  [Div.II,Pt.IV. 

the    expenses    of    the    administration,  and  the  allowance  to 
the  family,  must  be  paid  or  provided  for. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  234-235. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

66  C.  330,' 331,  5  P.  507  (referred  to);  66  C.  432,  439,  440,  6  P. 
7  (cited);  140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testa- 
mentary disposition  of  land — "legacy"  a  like  disposition  of  per- 
sonalty) ;  142  C.  453,  456  (citing-  §  1360  erroneously  instead  of 
this  section),  76  P.  41  (citing  this  section);  145  C.  508,  509,  510, 
78  P.  1058  (referred  to);  150  C.  498,  504,  505,  89  P.  98  (liability  of 
property  of  decedents  for  payment  of  debts  and  legacies) ;  1  C. 
A.  524,  525,  527,  528,  82  P.  549  (construed  with  §  1360— order  of 
resort  to  property  for  payment  of  expenses  of  administration, 
debts,  or  legacies). 

As  to  property  passing  by  will,  and  vesting  of  Interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

Abatement  between  legacies  and  devises. — See  Kerr's  Cyc. 
C.   C.   §  1362   and  note. 

Direction  in  will  for  payment  of  debts. — See  Kerr's  Cyc.  C.  C. 
§  1377  and  note. 

Election  of  widow  not  to  take  under  will. — See  Kerr's  Cyc. 
C.  C.  §  1377  and  note  par.  5:  also  11  Encyc.  L.  81. 

§  1360.  SAME.  [FOR  LEGACIES.]  The  property  of  a  tes- 
tator, except  as  otherwise  specially  provided  in  this  code 
and  the  Code  of  Civil  Procedure,  must  be  resorted  to  for  the 
payment  of  legacies,  in  the  following  order: 

1.  The  property  which  is  expressly  appropriated  by  the 
will  for  the  payment  of  the  legacies. 

2.  Property  not  disposed  of  by  the  will. 

3.  Property  which  is  devised  or  bequeathed  to  a  residuary 
legatee. 

4.  Property  which  is  specifically  devised  or  bequeathed. 

Htstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  235. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

66  C.  330,  331,  332,  5  P.  507,  508  (construed);  66  C.  432,  438, 
439,  440,  6  P.  7  (referred  to);  140  C.  282,  289,  73  P.  976,  978 
("devise"  denotes  a  testamentary  disposition  of  land — "legacy" 
a   like    disposition    of   personalty);    142    C.    453,    456    (citing   this 

738 


Tit.VI.ch.III.]  ORDER  OF  RESORT.  §§  13G1,  1362 

section  erroneously  instead  of  §1359),  76  P.  41  (citing  §1359; 
149  C.  552,  554,  86  P.  1107  (unconditional  legacy,  payable  gener- 
ally, must  be  paid  how);  150  C.  498,  504,  505,  89  P.  98  (liability 
of  property  of  decedents  for  payment  of  debts);  1  C.  A.  524, 
525,  527,  528,  82  P.  549  (construed  with  §1359 — order  of  resort 
to  property  for  payment  of  expenses  of  administration,  debts, 
or  legacies). 

As  to  charging  devisee  witli  compound  interest,  see  Kerr's 
Cyc.  C.  C.  §  1369  and  note  par.  5. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

As  to  residuary  legacies,  see  Kerr's  Cyc.  C.  C.  §  1357  and  note 
pars.  24,  25. 

Abatement  between  legacies  and  devises. — See  Kerr's  Cj'C. 
C.  C.  §  1362  and  note. 

"Residuary  clause"  defined. — See  Kerr's  Cyc.  C.  C.  §  1359  and 
note  par.  14. 

Sale  of  assets  for  payment  of  legacies. — See  Kerr's  Cyc.  C.  C. 
§  1377  and  note  par.  10. 

§  1361.  SAME.  [LEGACIES  TO  KINDRED.]  Legacies  to 
husband,  widow,  or  kindred  of  any  class  are  cliargeable  only 
after  legacies  to  persons  not  related  to  the  testator. 

HLstory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

66  C.   432,  438,   439,  441,   6   P.   7    (construed). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

§  1362.  ABATEMENT.  Abatement  takes  place  in  any  class 
only  as  between  legacies  of  that  class,  unless  a  different 
intention  is  expressed  in  the  will. 

History :     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

66  C.  330,  331,  5  P.  507,  508  (construed  and  appliid);  66  C. 
432,  437,  438,  439,  440,  6  P.  7,  11,  12,  13  (referred  to);  150  C.  49S. 
504,  89  P.  98  (construed  with  §§  1357  and  1359 — specific  devises 
and  specific  legacies  are  free  from  any  contribution  to  payment 
of  general  legacies). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

739 


§§  1363, 1364  CIVIL  CODE.  [Div.II,Pt.IV. 

Abatement  of  legacies  in  case  of  deficiency  of  assets  of  estate. 
— See   note   §  1357,   ante;   8  A.   S.   720-725. 

After-born  child — Contribution  for  share  of. — See  Kerr's  Cyc. 
C.  C.   §  1308  and  note. 

§  1363.  SPECIFIC  DEVISES  AND  LEGACIES.  In  a  spe- 
cific devise,,  pr  legacy,  the  title  passes  by  the  will,  but  posses- 
sion can  only  be  obtained  from  the  personal  representative; 
and  he  may  be  authorized  by  the  superior  court  to  sell  the 
property  devised  and  bequeathed  in  the  cases  herein  pro- 
vided. 

HLstory:  Enacted  March  21,  1872;  amended  April  6,  1S80. 
Code  Amdts.  1880    (C.  C.  pt.),  p.   8. 

See  Kerr's  Cyc.  C.  C.  for  49   pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — "legacy"  a  like  disposition  of  personalty). 

As  to  procedure  where  testator  indebted  to  partnership  wills 
interest  in  assets  to  surviving  partner,  see  Kerr's  Cyc.  C.  C. 
§  1360  and  note  par.  12. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

Postponement  to  future  period — Devise  or  legacy  to  class. — 
See  Kerr's  Cyc.  C.  C.  §  1337  and  note. 

Power  given  executor  to  sell  without  probate. — See  Kerr's 
Cyc.  C.  C.  §  1373  and  note  par.  5. 

Time  when  legacies  and  annuities  become  due.. — See  Kerr's 
Cyc.  C.  C.  §  1368  and  note. 

§  1364.  HEIR'S  CONVEYANCE  GOOD,  UNLESS  WILL  IS 
PROVED  WITHIN  FOUR  YEARS.  The  rights  of  a  purchaser 
or  encumbrancer  of  real  property,  in  good  faith  and  for  value, 
derived  from  any  person  claiming  the  same  by  succession, 
are  not  impaired  by  any  devise  made  by  the  decedent  from 
whom  succession  is  claimed,  unless  within  four  years  after 
the  devisor's  death,  the  instrument  containing  such  devise  is 
duly  proved  as  a  will,  and  recorded  in  the  office  of  the  clerk 
of  the  superior  court  having  jurisdiction  thereof,  or  written 
notice  of  such  devise  is  filed  with  the  clerk  of  the  county 
where  the  real  property  is  situated. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code  Amdts.  1880   (C.  C.  pt.),  p.  8;  amended  by  Code  Commission, 

740 


Tit.VI.ch.III.]        POSSESSION  OF  LEGATEES.  §§  1365,  1366 

Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  404,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,  1905,  Stats,  and  Amdts.   1905,  pp.   606,  607. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition   of  land — "legacy"   a   life   disposition    of  personalty). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357.  ante;  2  Church's  New  Probate  Law  and  Practice. 
1580,  1588-1610. 

Mortgage  executed  by  heirs — Foreclosure  before  sotth.-mcnt 
of  estate. — See  Kerr's  Cyc.  C.  C.  §  1377. 

§  1365.  POSSESSION  OF  LEGATEES.  Where  specific  leg- 
acies are  for  life  only,  the  first  legatee  must  sign  and  deliver 
to  the  second  legatee,  or,  if  there  is  none,  to  the  personal 
representative,  an  Inventory  of  the  property,  expressing  that 
the  same  is  in  his  custody  for  life  only,  and  that,  on  his 
decease,  it  is  to  be  delivered  and  to  remain  to  the  use  and 
for  the  benefit  of  the  second  legatee,  or  to  the  personal  rep- 
resentative, as  the  case  may  be. 

HiNtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

1  P.  479,  480  (erroneously  cited  for  §  1265);  108  C.  463,  470,  38 
P.  628,   41   P.  485    (cited). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Cluirtli's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

§  13({«.  BEQUEST  OF  INTEREST.  In  case  of  a  bequest 
of  the  interest  or  income  of  a  certain  sum  or  fund,  the  income 
accrues  from  the  testator's  death. 

HLstory:     Enacted  March    21.   1S72. 

See  Kerr's  Cyc.   C.  C.   for  4   pars,  annotation. 

140  C.  282,  289,  73  P.  976,  978  ("devise"  denotes  a  testamentary 
disposition  of  land — "legacy"  a  like  disposition  of  personalty*. 
143  C.  450,  454,  77  P.   160   (construed  and  lield  inapplicable). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,   1588-1610. 

Accumulation.s.— See  Kerr's  Cyc.  C.  C.  §§  722-726  and  notes; 
also   note   §  722,  ante. 

741 


§§1367,1368  CIVIL  CODE.  [Div.II.Pt.IV. 

Annuities  commence  at  testator's  decease. — See  Kerr's  Cyc. 
C.  C.  §  1368  and  note. 

§  1367.  SATISFACTION.  A  legacy,  or  a  gift  in  contempla- 
tion, fear,  or  peril  of  death,  may  be  satisfied  before  death. 

Hi-story:  .  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.   235. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

Contemplation,  fear,  or  peril  of  death. — See  Kerr's  Cyc.  C.  C. 
§  1149   and   note. 

Nuncupative  wills. — See  Kerr's  Cyc.  C.  C.  §  1288  subd.  3  and 
note. 

Revocation  of  gift  causa  mortis. — See  Kerr's  Cyc.  C.  C.  §  1151 
and  note;  also  note  §  1270,  ante. 

§  1368.  LEGACIES,  WHEN  DUE.  Legacies  are  due  and 
deliverable  at  the  expiration  of  one  year  after  the  testator's 
decease.     Annuities  commence  at  the  testator's  decease. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

50  C.  244,  246,  247  (referred  to);  107  C.  303,  309,  40  P.  558 
(cited);  112  C.  521,  524,  527,  53  A.  S.  224,  44  P.  808  (cited);  119 
C.  131,  135,  51  P.  44  (cited);  143  C.  450,  456,  77  P.  160  (construed 
in  department  opinion  not  upheld  in  bank). 

As  to  appointment  by  will,  see  Kerr's  Cyc.  C.  C.  §  1369  and 
note  par.  3. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

As  to  time  when  legacy  vests  when  direction  is  to  pay  in 
future  or  upon  condition,  see  Kerr's  Cyc.  C.  C.  §  1363  and  note 
pars.  36,  40-43. 

Discretionary  power  given  to  executor  as  to  time  of  payment. 
— See  Kerr's  Cyc.  C.  C.  §  1369  and  note  par.  11. 

Inability  of  executor  to  pay  at  end  of  year. — See  Kerr's  Cyc. 
C.  C.  §  1369  and  note. 

"Legacy  for  maintenance" — Interest  from  testator's  decease 
to  date  of  distribution. — See  Kerr's  Cyc.  C.  C.  §  1369  and  note 
par.  30. 

Partial  distribution  before  final  settlement. — See  Kerr's  Cyc. 
C.  C.  P.  §§  1658-1663  and  notes. 

742 


Tit.VI.ch.III.]  INTEREST— TENOR.  §§  1369-1371 

Restitution  upon  reversal  of  decree  of  distribution. — See 
Kerr's  Cyc.  C.  C.  §  1363  and  note. 

Trust  fund — Income  does  not  accrue  from  testator's  death. — 
See  Kerr's  Cyc.  C.  C.  §  1366  and  note. 

§  1369.  INTEREST.  Legacies  bear  interest  from  the  time 
when  they  are  due  and  payable,  except  that  legacies  for  main- 
tenance, or  to  the  testator's  widow,  bear  interest  from  the 
testator's  decease. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  30  pars,  annotation. 

50  C.  244.  247  (construed);  107  C.  303,  308,  309  (construed  but 
erroneously  cited  as  §1569),  40  P.  558,  560  (correct  citation); 
112  C.  521,  524,  527,  53  A.  S.  224,  44  P.  808  (construed  and  ap- 
plied); 137  C.  429,  431,  70  P.  303  (construed  and  applied);  143 
C.  450,  454  (referred  to),  456,  457  (construed  in  department  in 
opinion   not  upheld  in  bank),  77  P.   160. 

As  to  appointment  pursuant  to  power  contained  in  prior  will, 
see  Kerr's  Cyc.  C.  C.  §  1368  and  note  par.  5. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

Annuity — Distinction  between  annuity  and  legacy  for  life. — 
See  Kerr's  Cyc.  C.  C.   §1368  and  note"  par.  3. 

§1370.  CONSTRUCTION  OF  THESE  RULES.  The  four 
preceding  sections  are  in  all  cases  to  be  controlled  by  a  testa- 
tor's express  intention. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

112  C.  521,  524,  53  A.  S.  224,  44  P.  808   (construed  and  applied). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

Interest  may  be  controlled  by  testator. — See  Kerr's  Cyc.  C.  C. 
§1369  and  note  pars.  18-21. 

Order  in  which  legacies  sliall  be  paid  controllnblo  by  testator. 
—See  Kerr's  Cyc.  C.  C.  §  1360  and  note  pars.  10.  11. 

Power  given  to  executor  to  sell  without  probate. — See  Kerr's 
Cyc.  C.  C.  §  1373,  note  par.  5. 

§  1371.  EXECUTOR  ACCORDING  TO  THE  TENOR.  Where 
it  appears,  by  the  terms  of  a  will,  that  it  was  the  intention 

743 


§§  1372-1374  CIVIL  CODE.  [Div.II.Pt.IV. 

of  the  testator  to  commit  the  execution  thereof  and  the 
administration  of  his  estate  to  any  person  as  executor,  such 
person,  although  not  named  executor,  is  entitled  to  letters 
testamentary  in  like  manner  as  if  he  had  been  named  exec- 
utor. 

HLstory:     Enacted  March   21,  1872. 

See  'Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

101  C.  381,  386,  40  A.  S.  61,  35  P.  900  (construed);  107  C.  587, 
591,  40  P.  810   (referred  to);  124  C.  45,  47,  56  P.  781   (applied). 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

§  1372.    POWER  TO  APPOINT  IS  INVALID.    An  authority 
to  an  executor  to  appoint  an  executor  is  void. 
History:     Enacted  March   21,  1872. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

§  1373.    EXECUTOR  NOT  TO  ACT  TILL  QUALIFIED.    No 

person  has  any  power,  as  an  executor,  until  he  qualifies, 
except  that,  before  letters  have  been  issued,  he  may  pay 
funeral  charges  and  take  necessary  measures  for  the  preser- 
vation of  the  estate. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

§1374.  PROVISIONS  AS  TO  REVOCATIONS.  The  pro- 
visions of  this  title  in  relation  to  the  revocation  of  wills 
apply  to  all  wills  made  by  any  testator  living  at  the  expira- 
tion of  one  year  from  the  time  it  takes  effect. 

History:     Enacted  March   21,  1872. 

As  to  property  passing  by  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

744 


Tit.VI.Ch.III.]        VALIDITY.  ETC.,  OF  WILLS.  §§  1370-1377 

§  1375.    EXECUTION    AND    CONSTRUCTION    OF    PIJIOH 

WILLS  NOT  AFFECTED.  The  provisions  of  this  title  do  not 
impair  the  validity  of  the  execution  of  any  will  made  before 
it  takes  ejfect,  or  affect  the  construction  of  any  such  will. 

Hi-story:     Enacted  March   '21,  1S72. 

As  to  property  passing  by  wiU,  and  vesting  of  interests,  see 
note  §  13.57,  ante;  2  Church's  New  Probate  Law  and  Practice. 
1580,  1588-1610. 


§  137(5.  LAW  GOVERNING  VALIDITY  AND  INTERPRE- 
TATIO>'  OF  WILLS.  The  validity  and  interpretation  of  wil.ls. 
wherever  made,  are  governed,  when  relating  to  property 
within  this  state,  by  the  law  of  this  state,  except  as  provided 
in  section  twelve  hundred  and  eighty-five. 

HLstory:  Enacted  March  21,  1872;  amended  March"  30,  1S74. 
Code  Amdts.  1873-4,  p.  235;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  404,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-onactod  Marcli  2L 
1905,  Stats,  and  Amdts.  1905,  p.  607. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  property  passing-  by  wiU.  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Cliurcb's  New  Probate  Law  and  Practice, 
1580,  1588-1610. 

Statute  not  retroactive. — See  Kerr's  Cyc.  C.  C.  §  1375  and  note. 

§  1377.  LI  VmLlTV  OF  RENEFK  I.VRIES  FOR  TEST.V- 
TOR'S  OBLIGATIONS.  Those  to  whom  property  is  given  by 
will  are  liable  for  the  obligations  of  the  testator  in  the  cases 
and  to  the  extent  prescribed  by  the  Code  of  Civil  Procedure. 

History:     Enacted  March   21.  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

140  C.  282,  289,  73  P.  976  (in  the  whole  title  on  wills  "devise" 
is  used  with  reference  to  a  testamentary  disposition  of  land, 
and  "legacy"  with  reference  to  a  like  disposition  of  personalty). 

As  to  property  passiiig  b.v  will,  and  vesting  of  interests,  see 
note  §  1357,  ante;  2  Church's  New  Probate  I^aw  and  Practice. 
1580,  1588-1610. 

Common-law  rule. — See  Kerr's  Cyc.  C.  C.  §1358  and  note 
par.  5. 

745 


§  1383  CIVIL  CODE.  [Div.II,Pt.IV. 

"Debts" — What  constitute. — See  Kerr's  Cyc.  C.  C.  §  1358-  and 
note  pars.  6,  7. 

Intestate's  property  liable  for  debts. — See  Kerr's  Cyc.  C.  C. 
§  1358  and  note. 

Maturity  of  debt  after  distribution  to  heirs. — See  Kerr's  Cyc. 
C.  C.  §  1358  and  note  par.  10. 

Order  of  resort  to  propertj^  for  payment  of  debt. — See  Kerr's 
Cyc.  C.  C.  §  1359  and  note. 


TITLE  VII. 
SUCCESSION, 

§  1383.     Succession  defined. 

§  1384.     Intestate's  estate,   to  whom  passes. 

§1385.      Personal    representatives    [repealed]. 

§  1386.     Succession    and    distribution     of     property     of     deceased 
person. 

§  1387.     Illegitimate  children  to  inherit  in  certain  events. 

§  1388.     Property  of  illegitimate  child  is  succeeded  to,  when  and 
how. 

§  1389.     Degrees  of  kindred,  how  computed. 

§  1390.     Same.     [Collateral  line.] 

§  1391.     Same.      [Ascending  and  descending  direct  line.] 

§  1392.     Same.      [Degrees  in   direct  line.] 

s  1393.     Same.      [Degrees  in  collateral  line.] 

§  1394.     Relatives  of  the  half-blood. 

§  1395.     Advancements  constitute  part   of   distributive   share. 

§  1396.     Advancements,  when  too  much,  or  not  enough. 

I  1397.     What  are  advancements. 

§  1398.     Value  of  advancements,   how  determined. 

§  1399.     When  heir,  advanced  to,  dies  before  decedent. 

§  1400.     Inheritance   of  husband  and  wife  from   each   other. 

§  1401.     Distribution  of  community  property  on  death  of  wife. 

§  1402.     Distribution  of  common  property  on  death  of  the  husband. 

§  1403.     Inheritance   by  representation. 

§  1404.     Aliens  may  inherit,  when,  and  how. 

§  1405.     Succession    not    claimed,    attorney-general    to    cause    to 
be  sold,  and  proceeds  deposited  with  state  treasurer. 

§  1406.     When  the  property  and  estate  escheat  to  the  state. 

§  1407.     Property   escheated   subject   to   charges   as   other   prop- 
erty. 

§  1408.     Successor  liable  for  decedent's  obligations. 

§  1409.     Persons   convicted   of   murder   of   decedent,   not   to   suc- 
ceed. 

746 


Tit.  VII.]  SUCCESSION,  GENERALLY.  §1383 

§  1383.  SUCCESSIOX  DEFINED.  Succession  is  the  com- 
ing in  of  another  to  take  the  property  of  one  who  dies  without 
disposing  of  it  by  will. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

52  C.  294,  298  (cited);  88  C.  582,  586,  22  A.  S.  336,  26  P.  521. 
522,  12  L.  46  (cited);  40  P.  35,  36  (cited):  112  C.  387,  394,  399,  44 
P.  734  (construed  and  applied);  132  C.  609,  612,  64  P.  995  (cited); 
136  C.  110,  112,  68  P.  499  (cited);  143  C.  194,  198,  76  P.  968  (cited). 

SUCCESSION — GE1VERAI.L.Y. 

Acknowledgment  of  illegitimate  child,  sufficiency  of. — See 
Kerr's  Cyc.  C.  C.  §1387,  note  par.  27;  1  Church's  New  Probffte 
Law  and  Practice  55;  11  L.  N.  S.  1052. 

Adopted  children — As  to  inheritance  by. — See  "Inheritance  by 
adopted  children,"  this  note. 

Same— Inheritance  from. — See  17  L.  437. 

Same — Right  to  inherit  property  from  a  relative  of  adoptive 
parent. — See  8  L.  N.  S.   117. 

Aliens — Effect  of  naturalization  on  right  to  inherit. — See  31  L. 
181. 

Same — Effect  of  state  statutes  and  constitutions  upon  right 
to  inherit.— See  31  L.  85;  31  L.  146. 

Same — Effect  of  treatise  upon  right  to  inherit. — See  32  L.  177. 

Same — Inheritance  by. — See  Kerr's  Cyc.  C.  C.  §S  672,  1404  and 
notes;  1  Church's  New  Probate  Law  and  Practice  52;  12  A.  S. 
93;  31  L..177. 

Same — Nonresident  illegitimate,  rights  of  inheritance  of. — 
See  1   Church's  New  Probate  Law  and  Practice  57. 

Children's  right  of  inheritance — As  to  generally. — See  1 
Church's  New  Probate  Law  and  Practice  46. 

Same— Heirs  of  half-blood.— See  Kerr's  Cyc.  C.  C.  §§  1386. 
1394  and  notes;  1  Church's  New  Probate  Law  and  Practice  47; 
61  A.  D.  655;  29  L.  451. 

Community  property — Distribution  of — On  death  of  husband. 
— See  Kerr's  Cyc.  C.  C.  8  1402  and  note. 

Same — Same — On  death  of  wife. — See  Kerr's  Cyc.  C.  C.  §1101 
and  note. 

Construction  of  statutes. — See  1  Church's  New  Probate  Law 
and  Practice  46. 

Deflection  of  descent. — See  1  Church's  New  Probate  Law  and 
Practice  40. 

Degrees  of  consanguinity  and  afflnity.  how  computed. — See 
Kerr's  Cyc.  C.  C.   §§  1389-1393  and  notes;  56  A.  D.  293. 

Descent — Deflection'  of. — See  1  Church's  New  Probate  Law 
and  Practice  40. 

747 


§  1383  CIVIL  CODE.  [Div.II,Pt.IV. 

Same — Of  unpatented  mining  claim. — See  4  L.  N.  S.  919. 

Descent  and  distribution  among  kindred  of  half-blood. — See 
29  L.   541-567. 

Descent  and   distribution,   law  governing-. — See   10  L.    766. 

Descent  of  title  to  personal  property. — See   112  A.  S.   727. 

Descent  on  death  of  unmarried  minor. — See  1  Church's  New 
Probate  Law  and  Practice  48. 

Descent  to  father. — See  Kerr's  Cyc.  C.  C.  §  1386,  note  par. 
44;  1  Church's  New  Probate  Law  and  Practice  50. 

Descent  to  grandparents. — See  1  Church's  New  Probate  Law 
and  Practice  50. 

Distribution  of  community  property  on — Death  of  husband. — 
See  Kerr's  Cyc.  C.  C.  §  104  and  note. 

Same — Death   of  wife. — See  Kerr's  Cyc.  C.  C.  §  1401   and  note. 

Election  of  widow  to  take  under  will. — See  1  Church's  New 
Probate  Law  and  Practice  46. 

Homesteads — Taking  by  descent. — See  1  Church's  New  Pro- 
bate Law  and  Practice   43. 

Illegitimacy,  how  inferred. — See  1  Church's  New  Probate  Law 
and  Practice  57. 

Illegitimate  children — Acknowledgment  of,  effect  upon  right 
to   inherit. — See   1  Church's  New   Probate  Law  and  Practice   54. 

Same — Inheritance  by  or  through,  as  to  generally. — See  Kerr's 
Cyc.  C.  C.  §1387  and  note;  §1388,  note  par.  2;  1  Church's  New 
Probate  Law  and  Practice  16,  54-56. 

Same — Nonresident  alien. — See  1  Church's  New  Probate  Law 
and  Practice  57. 

Same — Presumption  of  legitimacy. — See  1  Church's  New  Pro- 
bate Law  and  Practice  56. 

Same — Pretermitted  illegitimate  child. — See  1  Church's  New 
Probate  Law  and  Practice  58. 

Same — Succession  of  estate  where  not  acknowledged. — See  1 
Church's  New  Probate  Law  and  Practice  55. 

Same — Sufficiency  of  acknowledgment. — See  Kerr's  Cyc.  C.  C. 
§  1387,  note  par.  27;  1  Church's  New  Probate  Law  and  Practice 
55;   11  L.  N.  S.   1502. 

Same — What  law  governs. — See  1  Church's  New  Probate  Law 
and  Practice  58. 

Indians — Inheritance  by. — See  1  Church's  New  Probate  Law 
and  Practice  53. 

Inheritance  by  adopted  children. — See  Kerr's  Cyc.  C.  C.  §  1386, 
note  par.  2;  1  Church's  New  Probate  Law  and  Practice  20,  48; 
118  A.  S.   684;   see  "Adopted  Children,"   this  note. 

Inheritance  by  aliens. — See  "Aliens,"  this  note. 

Inheritance  by  convict. — See  Kerr's  Cyc.  C.  C.  §  1409  and  note; 
1  Church's  New  Probate  Law  and  Practice  51;  2  A.  C.  658;  7 
A.  C.  976;  5  L.  344. 

748 


Tit.  VII.]  SUCCESSION,  GENERALLY.  §  1383 

Inlieritance  by  Indians. — See  1  Church's  New  Probate  Law 
and  Practice  53. 

Inheritance  by  wife. — See  Kerr's  Cyc.  C.  C.  §  1386  and  note 
par.  57. 

Law  governing   descent  and  distribution. — See   10   L.    766. 

Minor,  unmarried,  descent  on  death  of. — See  1  Church's  New 
Probate  Law  and  Practice  48. 

Murderer  of  decedent — Not  entitled  to  succeed. — See  Kerr's 
Cyc.  C.  C.  §  1409  and  note;  2  A.  C.  658;  7  A.  C.  976;  3  L.  726;  5 
L.   344. 

"Next  of  kin,"  wlio  are. — See  15  L.  300. 

Personal  property,  descent  of  title  to. — See  112  A.  S.  727. 

Presumption  as  to  legitimacy  of  child  born  out  of  wedlock. — 
See  1  Church's  New  Probate  Law  and  Practice  56. 

Pretermitted  illegitimate  child,  inheritance  by. — See  1  Church's 
New  Probate  Law  and  Practice  58. 

Procedure  where  succession  is  not  claimed. — See  Kerr's  Cyc. 
C.  C.   §  1405  and  note. 

Relatives  of  the  half-blood — Taking  by  descent. — See  Kerr's 
Cyc.  C.  C.  §§  1386,  1394  and  notes;  51  A.  D.  655;  29  L.  541-567. 

Right  to  take  property  by  inheritance  of  will,  as  a  natural 
right  protected  by  the  constitution. — See  9  A.  C.  726. 

Rights  of  widow — As  to  generally,  see  1  Church's  New  Pro- 
bate Law  and  Practice  44. 

Same — As  survivor. — See  1  Church's  New  Probate  Law  and 
Practice  45. 

Same — Construction  of  statutes. — See  1  Church's  New  Probate 
Law  and  Practice  46. 

Same — Election  to  take  under  will. — See  1  Church's  New  Pro- 
bate Law  and  Practice  46;  see  also  "Election,"  this  note. 

Same — Inheritance  by. — See  Kerr's  Cyc.  C.  C.  §  1386  and  note 
par.  57. 

Same — Under  agreements. — See  1  Church's  New  Probate  Law 
and  Practice  45. 

Succession  to  estate  of  illegitimate  child  not  acknowledged 
or  adopted. — See  1  Church's  New  Probate  Law  and  Practice   55. 

Succession  to  estate  of  intestate. — See  12  A.  S.  81-113. 

Taking  by  contract  and  not  by  succession. — See  1  Church's 
New  Probate  Law  and  Practice  54. 

Taking  by  descent — In  general. — See  Kerr's  Cyc.  C.  C.  §§  1.j89- 
1393  and  note;  1  Church's  New  Probate  Law  and  Practice  38; 
56  A.  D.    293. 

Same — Deflection  of  descent. — See  1  Church's  New  Probate 
Law  and  Practice  40. 

Same — Degrees  of  consanguinity  and  affinity,  how  computed 
on. — See  Kerr's  Cyc.  C.  C.  §§  1389,  1393  and  notes:  56  A.  D.  293. 

Same — In  cases  of  intestacy. — See  12  A.  S.  81-113. 

749 


§  1384  CIVIL  CODE.  [Div.II.Pt.IV. 

Same — Law  governing  descent  and  distribution. — See  10  L. 
766. 

Same — Personal  property. — See  112  A.  S.  727. 

Same — Procedure  where  succession  is  not  claimed. — See  Kerr's 
Cyc.  C.  C.  §  104  and  note. 

Same — Right  to  take  by  inheritance  or  will  as  a  natural  right 
protected  by  the  constitution. — See  9  A.  S.  726. 

Same — Tiite.  passes  how. — See  1  Church's  New  Probate  Law 
and  Practice  40. 

Same- — Who  are  "next  of  kin." — See  15  L.  300. 

Timber-culture  claims — Taking  by  descent. — See  1  Church's 
New  Probate  Law  and  Practice  44. 

Title  passes  how. — See  1  Church's  New  Probate  Law  and 
Practice  40. 

What  property  descends — As  to  generally,  see  1  Church's  New 
Probate  Law  and  Practice  40. 

Same — Community  property. — See  Kerr's  Cyc.  C.  C.  §§  1401, 
1402  and  notes;  1  Church's  New  Probate  Law  and  Practice  42. 

Same — ^Homesteads. — See  1  Church's  New  Probate  Law  and 
Practice  43. 

Same — Timber-culture  claims. — See  1  Church's  New  Probate 
Law  and  Practice  44. 

Same — Unpatented  mining  claim. — See  4  L.  N.  S.  919. 

Who  can  inherit.- — See  1  Church's  New  Probate  Law  and 
Practice  51. 

§  1384.    INTESTATE'S  ESTATE,  TO  WHOM  PASSES.    The 

property,  both  real  and  personal,  of  one  who  dies  without 
disposing  of  It  by  will,  passes  to  the  heirs  of  the  intestate, 
subject  to  the  control  of  the  probate  court,  and  to  the  posses- 
sion of  any  administrator  appointed  by  that  court,  for  the 
purposes  of  administration. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  236. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

86  C.  500,  527,  24  P.  172,  180,  25  P.  64  (construed);  88  C.  582, 
586,  588,  22  A.  S.  336,  26  P.  521,  522,  12  L.  46  (construed);  100  C. 
158,  164,  34  P.  667  (construed);  105  C.  173,  183,  38  P.  715  (con- 
strued); 40  P.  35  (applied);  109  C.  417,  422,  42  P.  139  (applied); 
114  C.  526,  528,  43  P.  613,  46  P.  460  (applied);  123  C.  681,  687,  56 
P.  547  (cited);  137  C.  172,  174,  69  P.  968  (applied);  143  C.  194, 
198,  76  P.  968  (cited);  149  C.  208,  210,  85  P.  609  (title  to  estate 
of  intestate  vests  in  heirs,  whether  known  or  unknown,  imme- 
diately upon  his  death);  149  C.  521,  529,  86  P.  1084,  8  L.  N.  S. 
1210    (intestate's   estate,  upon    his   death,   descends  to   and  vests 

750 


Tit.  VII.]  SUCCESSION  AND  DISTRIBUTION.      §§1385,1386 

in  his  heirs,  subject  to  what);  149  C.  712,  717,  87  P.  573  (property 
of  decedent  vests  immediately  upon  his  death,  either  in  his 
heirs  or  in  the  devisees  and  legatees);  152  C.  760.  763,  93  P. 
1010,  1011  (passing  of  title  to  heirs,  devisees,  or  legatees  is 
subject  to  what  control);  128  U.  S.  53,  54,  32  L,.  ed.  415,  418 
(cited). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

Absence  of  heirs,  to  whom  intestate's  estate  passes. — See 
Kerr's  Cyc.  C.  C.  §  1386,  subd.  10  and  note;  Kerr's  Cyc.  C.  C.  P. 
§§  1452,  1581  and  note;  Kerr's  Cyc.  Pol.  C.  §  474  and  note. 

Administrator  and  executor  are  entitled  to  possession. — See 
Kerr's  Cyc.  C.  C.  P.   §  1452  and  notes. 

Determination  of  heirship,  by  whom  made. — See  Kerr's  Cyc. 
C.  C.  P.   §  1664  and  notes. 

§1385.    PEESONAL  EEPRESENTATIVES    (repealed). 

History:  Enacted  March  21,  1872,  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  236. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§1386.  SUCCESSION  AND  DISTRIBUTION  OF  PROP- 
ERTY OF  DECEASED  PERSON.  When  any  person  having 
title  to  any  estate  not  otherwise  limited  by  marriage  contract, 
dies  without  disposing  thereof  by  will,  it  is  succeeded  to  and 
must  be  distributed,  unless  otherwise  expressly  provided  in 
this  code  and  the  Code  of  Civil  Procedure,  subject  to  the 
payment  of  his  debts,  in  the  following  manner: 

1.  If  the  decedent  leaves  a  siirviviiijr  Iiiisbaud  or  wife,  and 
only  one  child,  or  the  lawful  issue  of  one  child,  in  equal 
shares  to  the  surviving  husband,  or  wife  and  child,  or  issue 
of  such  child.  If  the  decedent  leaves  a  surviving  husband  or 
wife,  and  more  than  one  child  living,  or  one  child  living  and 
the  lawful  issue  of  one  or  more  deceased  children,  one- 
third  to  the  surviving  husband  or  wife,  and  the  remainder  in 
equal  shares  to  his  children  and  to  the  lawful  issue  of  any 
deceased  child,  by  right  of  representation;  but  if  there  is  no 
child  of  decedent  living  at  his  death,  the  remainder  goes  to 
all  of  his  lineal  descendants;  and  if  all  of  the  descendants 
are  in  the  same  degree  of  kindred  to  the  decedent,  they  share 

751 


§  1386  CIVIL  CODE.  [Div.II.Pt.IV. 

equally,  otherwise  they  take  according  to  the  right  of  repre- 
sentation. If  the  decedent  leaves  no  surviving  husband  or 
wife,  but  leaves  issue,  the  whole  estate  goes  to  such  issue; 
and  if  such  issue  consists  of  more  than  one  child  living,  or 
one  child  living  and  the  lawful  issue  of  one  of  more  deceased 
children,  then  the  estate  goes  in  equal  shares  to  the  children 
living,  or  to  the  child  living  and  the  issue  of  the  deceased 
child  or  children  by  right  of  representation; 

2.  If  the  decedent  leaves  no  issue,  the  estate  goes  one-half 
to  the  surviving  husband  or  wife,  and  the  other  half  to  the 
decedent's  father  and  mother  in  equal  shares,  and  if  either  is 
dead  the  whole  of  said  half  goes  to  the  other.  If  there  is  no 
father  or  mother,  then  one-half  goes  in  equal  shares  to  the 
brothers  and  sisters  of  decedent  and  to  the  children  or  grand- 
children of  any  deceased  brother  or  sister  by  right  of  repre- 
sentation. If  the  decedent  leaves  no  issue,  nor  husband  nor 
wife,  the  estate  must  go  to  his  father  and  mother  in  equal 
shares,  or  if  either  is  dead  then  to  the  other; 

3.  If  there  is  neitlier  issue,  husband,  wife,  father,  nor 
mother  then  in  equal  shares  to  the  brothers  and  sisters  of 
decedent  and  to  the  children  or  grandchildren  of  any  deceased 
brother  or  sister,  by  right  of  representation; 

4.  If  the  decedent  leaves  a  surviving  husband  or  wife,  and 
neither  issue,  father,  mother,  brother,  sister,  nor  the  children 
or  grandchildren  of  a  deceased  brother  or  sister,  the  whole 
estate  goes  to  the  surviving  husband  or  wife; 

5.  If  the  decedent  leaves  neither  issue,  husband,  wife,  father, 
mother,  brother,  nor  sister,  the  estate  must  go  to  the  next 
of  kin,  in  equal  degree,  excepting  that,  when  there  are  two 
or  more  collateral  kindred,  in  equal  degree,  but  claiming 
through  different  ancestors,  those  who  claim  through  the 
nearest  ancestor  must  be  preferred  to  those  claiming  through 
an  ancestor  more  remote; 

6.  If  the  decedent  leaves  several  children,  or  one  child  and 
the  issue  of  one  or  more  children,  and  any  such  surviving 
child  dies  under  age  and  not  having  been  married,  all  the 
estate  that  came  to  the  deceased  child  by  inheritance  from 

752 


Tit.  VII.]  SUCCESSION,  ON  DEATH.  §  1386 

such  decedent  descends  in  equal  shares  to  the  other  children 
of  the  same  parent  and  to  the  issue  of  any  such  other  children 
who  are  dead,  by  right  of  representation; 

7.  If,  at  the  death  of  such  child,  ^ho  dies  under  age,  not 
having  been  married,  all  the  other  children  of  his  parents  are 
also  dead,  and  any  of  them  has  left  issue,  the  estate  that 
came  to  such  child  by  inheritance  from  his  parent  descends 
to  the  issue  of  all  other  children  of  the  same  parent;  and  if 
all  the  issue  are  in  the  same  degree  of  kindred  to  the  child, 
they  share  the  estate  equally,  otherwise  they  take  according 
to  the  right  of  representation; 

8.  If  the  deceased  is  a  widow,  or  widower,  and  leaves  no 
issue,  and  the  estate,  or  any  portion  thereof,  was  common 
property  of  such  decedent  and  his  or  her  deceased  spouse, 
while  such  spouse  was  living,  such  pi'operty  goes  in  equal 
shares  to  the  children  of  such  deceased  spouse  and  to  the 
descendants  of  such  children  by  right  of  representation,  and 
if  none,  then  one-half  of  such  common  property  goes  to  the 
father  and  mother  of  such  decedent  in  equal  shares,  or  to  the 
survivor  of  them  if  either  be  dead,  or  if  both  be  dead,  then  in 
equal  shares  to  the  brothers  and  sisters  of  such  decedent  and 
to  the  descendants  of  any  deceased  brother  or  sister  by  right 
of  representation,  and  the  other  half  goes  to  the  father  and 
mother  of  such  deceased  spouse  in  equal  shares,  or  to  the 
survivor  of  them  if  either  be  dead,  or  if  both  be  dead,  then 
in  equal  shares  to  the  brothers  and  sisters  of  such  deceased 
spouse  and  to  the  descendants  of  any  deceased  brother  or  sis- 
ter by  right  of  representation. 

If  the  estate,  or  any  ]><»rtion  thereof,  was  separate  property 
of  such  deceased  spouse,  while  living,  and  came  to  such 
decedent  from  such  spouse  by  descent,  devise,  or  bequest, 
such  property  goes  in  equal  shares  to  the  children  of  such 
spouse  and  to  the  descendants  of  any  deceased  child  by  right 
of  representation,  and  if  none,  then  to  the  father  and  mother 
of  such  spouse,  in  equal  shares,  or  to  the  survivor  of  them 
if  either  be  dead,  or  if  both  be  dead,  then  in  equal  shares 
to  the  brothers  and  sisters  of  such  spouse  and  to  the  descend- 

753 


§  1386  CIVIL  CODE.  [Div.II.Pt.IV. 

ants  of  any  deceased  brother  or  sister  by  right  of  represen- 
tation. 

9.  If  the  decedent  leaves  no  husband,  wife,  or  kindred,  and 
there  are  no  heirs  to  take  his  estate  or  any  portion  thereof, 
under  subdivision  eight  of  this  section,  the  same  escheats  to 
the  state  for  the  support  of  the  common  schools. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  236;  April  23,  1880,  Code  Amdts.  1880 
(C.  C.  pt.),  p.  14;  by  Code  Commission,  Act  March  16,  1901,  Stats. 
and  Amdts.  1900-1,  p.  404,  held  unconstitutional,  see  history,  §  4 
ante;  amendment  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  pp.  607,  608;  amended  March  18,  1907,  Stats,  and  Amdts. 
1907,  pp.  567-569,  Kerr's  Stats,  and  Amdts.  1906-7,  pp.  424,  425. 

See  Kerr's  Cyc.  C.  C.  for  67  pars,  annotation. 

63  C.  414,  416,  417  (construed);  75  C.  213,  219,  16  P.  887,  888,  7 
A.  S.  146  (construed  with  §§  227,  228 — right  of  adopted  child  to 
succeed  by  inheritance);  76  C.  527,  531,  18  P.  650,  652  (applied); 
78  C.  586,  587  (construing  subd.  5),  588  (construing  subd.  2),  12 
A.  S.  80,  21  P.  435;  81  C.  408,  438,  21  P.  976,  978,  22  P.  742,  1028, 
6  L.  594  (construed  and  applied);  84  C.  489,  495,  24  P.  269,  270 
(subd.  2  construed  and  applied);  88  C.  582,  586,  22  A.  S.  336,  26 
P.  521,  522,  12  L.  46  (construed  with  other  sections);  88  C.  616, 
620,  26  P.  373,  374  (construing  subd.  5);  110  C.  524,  526,  527  (con- 
strued with  §1394),  42  P.  950  (subd.  6  construed  and  applied); 
114  C.  464,  465,  46  P.  380  (subds.  2  and  3  construed);  117  C.  281, 
285,  286,  49  P.  181  (construed  and  applied);  123  C.  681,  687,  688, 
56  P.  547  (referred  to — 'meaning  of  "heirs"  in .  instrument  of 
conveyance);  124  C.  128,  129,  56  P.  789  (subd.  5  construed);  130 
C.  316,  322,  80  A.  S.  127,  62  P.  559  (applied);  131  C.  433,  434,  435, 
82  A.  S.  358,  63  P.  729  (construed);  132  C.  214,  215,  217,  64  P. 
284  (subd.  5  applied — right  of  brothers  and  sisters  of  half-blood 
to  inherit);  132  C.  523,  526,  84  A.  S.  70,  60  P.  442,  64  P.  1000 
(referred  to);  132  C.  609,  612,  613,  64  P.  995  (applied);  136  C. 
110,  112,  68  P.  499  (cited);  138  C.  546,  548  (referred  to),  549 
(subd.  9  construed  and  applied),  550,  551  (construed  and 
applied),  71  P.  458;  140  C.  468,  469,  74  P.  10  (construed — sense  in 
which  word  "issue"  is  used — right  of  adopted  child  to  succeed 
to  estate  of  adoptive  parents);  143  C.  194,  197  (construed),  198 
(construed),  202,  205,  207  (cited  in  dis.  op.),  76  P.  968;  146  C.  577, 
579,  80  P.  860  (subds.  2  and  7  applied);  147  C.  606,  607,  82  P.  246 
(subd.  9  applied);  149  C.  208,  212,  85  P.  609  (subd.  9  applied- 
pleading);  149  C.  702,  703,  87  P.  384  (former  law — rule  of  prop- 
erty— nephews  and  nieces  do  not  succeed  when);  150  C.  682-689, 
89  P.  833  (construed  with  §§1387  and  1388 — what  rule  as  to 
succession   from    illegitimates   must   prevail    over   this    section); 

754 


Y  Tit.  VII.]  LEGITIMATE    CHILDREN.  §  1387 

152  C.  201,  207  (applied,  but  erroneously  cited  as  §  1386  C.  C.  P.), 
92  P.  184,  186  (correct  citation);  92  P.  210,  211  (referred  to); 
128  U.  S.  53,  54,  32  L.  ed.  415,   418    (cited). 

As  to  inheritance  by  kindred  of  half-blood,  see  Kerr's  Cyc. 
C.  C.  §  1394  and  note. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  rights  of  succession  of  pretermitted  children,  see  Kerr's 
Cyc.  C.  C.  §  1307  and  note. 

As  to  who  entitled  to  succeed  to  estates  of  inheritance,  see  12 
A.  S.  81-113. 

As  to  who  are  "heirs"  and  meaning  of  word,  see  8  L.  732,  747; 
12  L.  721;  13  L.  46. 

Same — Within  meaning  of  insurance  policy,  see  30  L.  593. 

§1387.  ILLEGITIMATE  CHILDREN  TO  IJfHERIT  IN 
CERTAIN  EVENTS.  Every  illegitimate  child  is  an  heir  of 
the  person  who,  in  writing,  signed  in  the  presence  of  a  com- 
petent witness,  acknowledges  himself  to  be  the  father  of  such 
child;  and  in  all  cases  is  an  heir  of  his  mother;  and  inherits 
his  or  her  estate,  in  whole  or  in  part,  as  the  case  may  be,  in 
the  same  manner  as  if  he  had  been  born  in  lawful  wedlock; 
but  he  does  not  represent  his  father  or  mother  by  inheriting 
any  part  of  the  estate  of  his  or  her  kindred,  either  lineal  or 
collateral,  unless,  before  his  death,  his  parents  shall  have 
intermarried,  and  his  father,  after  such  marriage,  acknowl- 
edges him  as  his  child,  or  adopts  him  into  his  family;  in 
which  case  such  child  and  all  the  legitimate  children  are  con- 
sidered brothers  and  sisters,  and  on  the  death  of  either  of 
them,  intestate,  and  without  issue,  the  others  inherit  his 
estate,  and  are  heirs,  as  hereinbefore  provided,  in  like  manner 
as  if  all  the  children  had  been  legitimate;  saving  to  the  father 
and  mother,  respectively,  their  rights  in  the  estates  of  all  the 
children  in  like  manner  as  if  all  had  been  legitimate.  The 
issue  of  all  marriages  null  in  law,  or  dissolved  by  divorce, 
are  legitimate. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  405,  held 
unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  40  pars,  annotation. 
52  C.  84,  87    (applied);  57  C.  484,  491,  492    (applied);   63  C.  414, 

755 


§§  1388,  1389  CIVIL  CODE.  [Div.II.Pt.IV. 

415,  416,  417  (construed  and  applied);  81  C.  408,  421,  422,  442, 
447,  21  P.  976,  979,  980.  981,  22  P.  742,  745.  1028,  6  L.  594  (con- 
strued and  applied);  96  C.  532,  557,  581,  582,  588,  591,  593,  594, 
31  P.  915,  19  L.  40  (construed);  102  C.  254.  262,  263,  36  P.  522 
(construed);  40  P.  35  (referred  to);  112  C.  689,  693,  45  P.  6  (con- 
strued); 127  C.  431,  434,  59  P.  787  (applied);  142  C.  158,  168,  170, 
171,  75  P.  790  (applied  in  case  of  legitimation  by  adoption);  150 
C.  682,r684,  685,  686,  687,  689,  89  P.  833  (construed  with  §§  1386, 
1388 — right  of  illegitimate  half-sister  of  illegitimate  to  inherit); 
173  U.  S.  501,  504,  43  L.  ed.  783,  784,  785  (referred  to);  180  U.  S. 
333,  334,  335,  45  L.  ed.  557,  558,  21  Sup.  Ct.  Rep.  390  (referred  to). 

As  to  succession  by  or  througli  illegitimate  children,  see  note 
§  1383,  ante;  and  12  A.  S.  101. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

Illegitimate  children. — See  Kerrs  Cyc.  C.  C.  §§  84,  215,  224, 
227,   228,  230  and  notes. 

§  1388.  PROPEKTY  OF  ILLEGITIMATE  CHILD  IS  SUC- 
CEEDED TO,  WHEN  A>D  HOW.  The  estate  of  an  illegiti- 
mate child,  who  has  been  legitimated  by  the  subsequent  mar- 
riage of  its  parents,  or  adopted  by  the  father  as  provided  by 
section  two  hundred  and  thirty,  and  who  dies  intestate,  is  suc- 
ceeded to  as  if  he  were  born  in  lawful  wedlock.  If  such  child 
has  not  been  so  legitimated  or  adopted,  his  estate  goes  to  his 
lawful  issue,  or,  if  he  leaves  no  issue,  to  his  mother,  or  in 
case  of  her  decease,  to  her  heirs  at  law. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  609. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

63  C.  414,  415,  417  (applied);  40  P.  35,  36  (referred  to  with 
other  sections  in  discussion);  150  C.  682,  684,  686,  687,  688,  689, 
89  P.   833    (construed  with   §§  1386,   1387  applied). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Cliurch's  New 
Probate  Law  and  Practice,  22,  38-58. 

§1389.     DEGREE  OF   KINDRED,  HOW   COMPITED.     The 

degree  of  kindred'  is  established  by  the  number  of  generations, 
and  eacli  generation  is  called  a  degree. 

History:     Enacted  March  21,  1872. 
756 


Tit.  VII.]  COLLATERAL  LINE.  §§1390-1392 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

(C.  April  2,  1895),  40  P.  35,  36  (referred  to  with  other  sections 
in  discussion). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Ciiurch's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  degrees  of  consanguinity  and  affinity — How  computed 
for  purposes  of  succession,  see  56  A.  D.  293. 

As  to  who  are  next  of  kin,  see  12  A.  S.  107;  15  L.  300. 

§1390.  SAME.  [COLLATEBAL  LINE.]  The  series  of 
degrees  forms  the  line;  the  series  of  degrees  between  per- 
sons who  descend  from  one  another  is  called  direct  or  lineal 
consanguinity;  and  the  series  of  degrees  between  persons  who 
do  not  descend  from  one  another,  but  spring  from  a  common 
ancestor,  is  called  the  collateral  line,  or  collateral  consan- 
guinity. 

History:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil  Code,  art.  886. 

40  P.  35,  36   (referred  to  with  other  sections  in  discussion). 
As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§  1391.  SAME.  [ASCENDING  AND  DESCENDING  DIRECT 
LINE.]  The  direct  line  is  divided  into  a  direct  line  descend- 
ing and  a  direct  line  ascending.  The  first  is  that  which  con- 
nects the  ancestors  with  those  who  descend  from  him.  The 
second  is  that  which  connects  a  person  with  those  from  whom 
he  descends. 

History:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil  Code,  art.  886. 

40  P.  35,  36  (referred  to  with  other  sections  in  discussion). 
As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§1392.     SAME.      [DEGREES   IN  DIRECT  LINE.]      In   the 

direct  line  there  are  as  many  degrees  as  there  are  generations. 
Thus,  the  son  is,  with  regard  to  the  father,  in  the  first  degree; 
the  grandson  in  the  second;  and  vice  versa  with  regard  to 
the  father  and  grandfather  toward  the  sons  and  grandsons. 

History:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil  Code,  art.  887. 

757 


§§  1393-1395  CIVIL  CODE.  [Div.II,Pt.IV. 

40  P.  35,  36  (referred  to  with  other  sections  in  discussion). 
As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§  1393.    SAME.     [DEGREES  IN  COLLATERAL  LINE.]     In 

the  collateral  line  the  degrees  are  counted  by  generations, 
from  one  of  the  relations  up  to  the  common  ancestor,  and 
from  the  common  ancestor  to  the  other  relations.  In  such 
computation  the  decedent  is  excluded,  the  relative  included, 
and  the  ancestor  counted  but  once.  Thus,  brothers  are 
related  in  the  second  degree;  uncle  and  nephew  in  the  third 
degree;  cousins  german  in  the  fourth,  and  so  on. 

Hi.story:  Enacted  March  21,  1872,  founded  upon  Louisiana 
Civil  Code,  art.  888;  Mon-tesq.  Esprit  des  Lois,  liv.  27. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

105  C.  526,  557,  558,  38  P.  94,  722,  28  L.  773  (construed);  40  P. 
35,   36   (referred  to  with  other  sections  in  discussion). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§  1394.  RELATIVES  OF  THE  HALF-BLOOD.  Kindred  of 
the  half-blood  inherit  equally  with  those  of  the  whole-blood 
in  the  same  degree,  unless  the  inheritance  come  to  the  intes- 
tate by  descent,  devise,  or  gift  of  some  one  of  his  ancestors, 
in  which  case  all  those  who  are  not  of  the  blood  of  such 
ancestors  must  be  excluded  from  such  inheritance. 

History:  Enacted  March  21,  1872,  founded  upon  §  4  Act  April 
13,   1850,  Stats.   1850,  p.   221. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

40  P.  35,  36^  (referred  to  with  other  sections  in  discussion); 
110  C.  524,  527  (construed  and  applied),  42  P.  960;  131  C.  433, 
434,  435,  436,  82  A.  S.  358  (construed  and  applied),  63  P.  729; 
132  C.   214,  216    (applied),  217    (applied),  64  P.   284. 

As  to  inheritance  by  half-blood,  see  61  A.  D.  655;  29  L.  541,  567. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

Kindred  of  half-blood  as  administrators. — See  Kerr's  Pocket 
C.  C.  P.  §  1366. 

§1395.  ADVANCEMEIVTS  CONSTITUTE  PART  OF  DIS- 
TRIBUTIVE  SHARE.    Any  estate,  real  or  personal,  given  by 

758 


Tit.  VII.]  ADVANCEMENTS.  §§  1396,  1397 

the  decedent  in  his  lifetime  as  an  advancement  to  any  child, 
or  other  heir,  is  a  part  of  the  estate  of  the  decedent  for  the 
purposes  of  division  and  distribution  thereof  among  his  heirs, 
and  must  be  taken  by  such  child,  or  other  heir,  toward  his 
share  of  the  estate  of  the  decedent. 

Hi-story:  Enacted  March  21,  1872,  founded  upon  §  5  Act  April 
13,  18.50,  Stats.  1850,  p.  221;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  p.  609. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

74  C.  125,  132,  15  P.  455,  457  (cited  in  discussion);  40  P.  35,  36 
(referred  to  in  discussion). 

As  to  doctrine  of  advancements  to  heirs,  see  12  L.  566. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§1396.  ADVANCEMENTS,  WHEN  TOO  MXTH,  OR  NOT 
ENOUGH.  If  the  amount  of  such  advancement  exceeds  the 
share  of  the  heir  receiving  the  same,  he  must  be  excluded 
from  any  further  portion  in  the  division  and  distribution  of 
the  estate,  but  he  must  not  be  required  to  refund  any  part 
of  such  advancement;  and  if  the  amount  so  received  is  less 
than  his  share,  he  is  entitled  to  so  much  more  as  will  give 
him  his  full  share  of  the  estate  of  the  decedent. 

History:  Enacted  March  21,  1872,  founded  upon  §  6  Act  April 
13,    1850,    Stats.    1850,    p.    221. 

40  P.  35,  36  (referred  to  in  discussion);  74  C.  125.  132,  15  P. 
455    (cited   with   other  sections   in  discussion). 

See  Kerr's  Cyc.  C.  C.  §§  1395,  1397  and  notes. 

As  to  interest  on  advancements  to  equalize,  see  note  14  Ij.  716. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  valuation  of,  see  80  A.  D.  564. 

§1397.  ^YHAT  ARE  ADVANCEMENTS.  All  gifts  and 
grants  are  made  as  advancements,  if  expressed  in  the  gift  or 
grant  to  be  so  made;  or  if  charged  in  writing  by  the  decedent 
as  an  advancement,  or  acknowledged  in  writing  as  such,  by 
the  child  or  other  successor  or  heir. 

759 


§§  1398,  1399  CIVIL  CODE.  [Div.II.Pt.IV. 

History:  Enacted  March  21,  1872,  founded  upon  §  7  Act  April 
13,   1850,   Stats.    1850,   p.    221. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

40  P.  35,  36  (referred  to  in  discussion);  74  C.  125,  132,  15  P. 
455    (cited  with  other  sections  in  discussion). 

As  to  advancements,  wliat  constitute,  see  80  A.  D.  559. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Cliurch's  New 
Probate  Law  and  Practice,  22,  38-58. 

§1398.  VALUE  OF  ADVANCEMENTS,  HOW  DETER- 
MINED. If  the  value  of  the  estate  so  advanced  is  expressed 
in  the  conveyance,  or  in  the  charge  thereof  made  by  the  dece- 
dent, or  in  the  acknowledgment  of  the  party  receiving  it,  it 
must  be  held  as  of  that  value  in  the  division  and  distribution 
of  the  estate;  otherwise,  it  must  be  estimated  according  to  its 
value  when  given,  as  nearly  as  the  same  can  be  ascertained. 

History:  Enacted  March  21,  1872,  founded  upon  §  8  Act  April 
13,   1850,   Stats.    1850,   p.    221. 

40  P.  35,  36  (referred  to  in  discussion);  74  C.  125,  132,  15  P. 
455   (cited  with   other  sections  in  discussion). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

§  1399.     WHEN    HEIR,    ADVANCED    TO,    DIES    BEFORE 

DECEDENT.  If  any  child,  or  other  heir  receiving  advance- 
ment, dies  before  the  decedent,  leaving  heirs,  the  advancement 
must  be  taken  into  consideration  in  the  division  and  distribu- 
tion of  the  estate,  and  the  amount  thereof  must  be  allowed 
accordingly  by  the  representatives  of  the  heirs  receiving  the 
advancement,  in  like  manner  as  if  the  advancement  had  been 
made  directly  to  them. 

History:  Enacted  March  21,  1872,  founded  upon  §  9  Act  April 
13,  1850,  Stats.  1850,  p.  221;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.   1905,  p.  609. 

74  C.  125,  132,  15  P.  455  (cited  with  other  sections  in  discus- 
sion); 40  P.  35,  36  (referred  to  in  discussion). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

"Advancements." — See  Kerr's  Cyc.  C.  C.  §§  1309,  1351  and  1395 
and  notes. 

760 


Tit.  VII.]  COMMUNITY  PROPERTY.  §§1400,1401 

§  1400.  IIVHERITANCE  OF  HI  SBA>D  AND  ^VIFE  FROU 
EACH  OTHER.  The  provisions  of  the  preceding  sections  of 
this  title,  as  to  the  inheritance  of  the  husband  and  wife  from 
each  other,  apply  only  to  the  separate  property  of  the  dece- 
dents. 

History:  Enacted  March  21,  1872,  founded  upon  §  10  Act 
April  13,  1850,  Stats.  1850,  p.  221. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

40  P.  35,  36  (cited);  112  C.  387,  394,  44  P.  734  (construed);  150 
C.  682,  689,  89  P.  833   (referred  to). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  succession  of  husband  and  wife  to  each  otlier,  see  12 
A.  S.  82. 


§  1401.     DISTRIBUTION  OF  COMMUNITY  PROPERTY  ON 

DEATH  OF  WIFE.  Upon  the  death  of  the  wife,  the  entire 
community  property,  without  administration,  belongs  to  the 
surviving  husband,  except  such  portion  thereof  as  may  have 
been  set  apart  to  her  by  judicial  decree,  for  her  support  and 
maintenance,  which  portion  is  subject  to  her  testamentary 
disposition,  and  in  the  absence  of  such  disposition,  goes  to 
her  descendants,  or  heirs,  exclusive  of  her  husband. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
17,  1850,  Stats.  1850,  p.  255,  as  amended  April  4.  1864.  Stats. 
1863-4,  p.  363;  amended  April  30,  1874,  Code  Anidts.  1873-4,  p. 
238. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

63  C.  12,  14  (cited  in  discussion);  74  C.  523,  525,  5  A.  S.  464. 
16  P.  315,  316  (construed  and  applied);  80  C.  208,  209,  13  A.  S. 
116,  22  P.  141,  142  (applied);  88  C.  283,  287,  26  P.  91,  92  (applied); 
40  P.  35  (cited);  110  C.  277,  290,  42  P.  822  (held  not  applicable^; 
112  C.  387,  395,  44  P.  734  (construed);  126  C.  30,  33.  58  P.  324 
(applied);  143  C.  292,  295,  76  P.  1108  (applied);  148  C.  695,  698, 
84  P.  175  (applied);  149  C.  200,  206,  85  P.  147  (applied);  150  C. 
682,  689,  89  P.  833  (referred  to). 

As  to  law  of  succession,  see  note  §  1383,  ante:  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  succession  to  community  property,  see  12  A.  S.  90. 

761 


§§  1402, 1403  CIVIL  CODE.  [Div.II.PtJV. 

§1402.  DISTRIBUTION  OF  COMMON  PROPERTY  ON 
DEATH  or  THE  HUSBAND.  Upon  the  death  of  the  husband, 
one-half  of  the  community  property  goes  to  the  surviving 
wife,  and  the  other  half  is  subject  to  the  testamentary  dispo- 
sition of  the  husband,  and  in  the  absence  of  such  disposition, 
goes  to  his  descendants,  equally,  if  such  descendants  are  in 
the  same  degree  of  kindred  to  the  decedent;  otherwise,  accord- 
ing to  the  right  of  representation;  and  in  the  absence  of  both 
such  disposition  and  such  descendants,  is  subject  to  distribu- 
tion in  the  same  manner  as  the  separate  property  of  the 
husband.  In  case  of  the  dissolution  of  the  community  by 
the  death  of  the  husband,  the  entire  community  property  is 
equally  subject  to  his  debts,  the  family  allowance,  and  the 
charges  and  expenses  of  administration. 

History:       Enacted    March    21,    1872,    founded    upon    §   11    Act 
♦April  17,  1850,  Stats.  1850,  p.  255,  as  amended  April  4,  1864,  Stats. 
1863-4,  p.  363. 

See  Kerr's  Cyc.  C.  C.  for  67  pars,  annotation. 

77  C.  313.  314,  19  P.  527,  528  (applied);  81  C.  240,  242,  243 
(applied),  22  P.  655,  656,  657;  88  C.  582,  586  (cited  with  other 
sections  in  discussion),  588  (applied),  22  A.  S.  336,  26  P.  521,  522, 
12  L.  46;  100  C.  158,  163  (cited  in  discussion),  164  (applied),  34 
P.  667;  106  C.  608,  612,  39  P.  939  (applied);  (C.  April  2,  1895),  40 
P.  35,  36  (applied);  112  C.  387,  395  (construed  and  applied),  396 
(cited),  399  (construed  and  applied),  44  P.  734;  113  C.  682,  688, 
45  P.  858  (applied);  117  C.  509,  515,  49  P.  463  (applied);  120  C. 
89,  92,  52  P.  134,  586  (applied);  148  C.  102,  106,  82  P.  668  (con- 
strued— ^rule  applicable  in  absence  of  descendants);  149  C.  200, 
206,  85  P.  147  (applied);  150  C.  682,  689,  89  P.  833  (referred  to); 
128  U.  S.   53,  54,  32  L.  ed.   415,    418   (cited). 

As  to  husband  or  wife's  power  of  testamentary  disposition  of 
community  property,  see  Kerr's  Cyc.  C.  C.  §  172  and  note. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  succession  to  community  property,  see  12  A.  S.  90. 

Community  property  defined. — See  Kerr's  Cyc.  C,  C.  §§  162  and 
164  and  notes;  also   §1401  and  note. 

Wife  takes  cominunity  as  heir  on  death  of  husband. — See 
Kerr's  Cyc.  C.  C.  §  1334  and  note. 

§  1403.  INHERITANCE  BY  REPRESENTATION.  Inher- 
itance or  succession  "by  right  of  representation"  takes  place 

762 


Tit.  VII.]  ALIENS  MAY  INHERIT.  §1404 

when  the  descendants  of  any  deceased  heir  take  the  same 
share  or  right  in  the  estate  of  another  person  that  their  par- 
ents would  have  taken  if  living.  Posthumous  children  are 
considered  as  living  at  the  death  of  their  parents. 

Ili.story:      Enacted    March    21,    1872,    founded    upon    §    11     Art 
April   13,  1850,  Stats.   1850,  p.   221. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 


§1404.    ALIEJfS    MAT    INHERIT,     ^VHEX,    AND     HOW. 

Resident  aliens  may  take  in  all  cases  by  succession  as  citi- 
zens; and  no  person  capable  of  succeeding  under  the  provis- 
ions of  this  title  is  precluded  from  such  succession  by  reason 
of  the  alienage  of  any  relative;  but  no  non-resident  foreigner 
can  take  by  succession  unless  he  appears  and  claims  such 
succession  within  five  years  after  the  death  of  the  decedent 
to  whom  he  claims  succession. 

History:  Enacted  March  21,  1872,  founded  upon  Const.  1849, 
art.  I,  §   17,  and  §   1  Act  April  19,  1856,  Stats.  1856,  p.  137. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

65  C.  593,  594,  4  P.  639,  640  (construed  with  other  sections). 
67  C.  380,  383,  7  P.  763,  764  (construed  with  otlier  sections):  129 
C.  86,  90,  79  A.  S.  78,  61  P.  659  (cited):  143  C.  135,  140,  76  P.  962 
(applied);  148  C.  55,  56,  82  P.  672,  2  L.  N.  S.  643  (state  has  no 
right  to  contest  probate  of  will  of  one  dying  witiiout  iielrs 
therein,  where  it  shows  no  interest):  149  C.  208,  210,  85  P.  609 
(bar  of  non-resident  alien's  title). 

As  to  alien's  right  to  inherit,  seo  31  L.  177. 

As  to  effect  of  state  constitutions  and  statutes  upon  (luostion 
of  inlieritance  by  or  from  an  alien,  see  31  L.  85,  146. 

As  to  effect  of  treaties  upon  an  alien's  riglits  to  inlierlt,  see 
32  L.   177-189. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Churcli's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  rights  of  aliens  to  transmit  or  receive  an  inlieritance. 
see  12  A.  S.  93. 

As  to  who  are  aliens,  see  84  A.  D.  210. 

Aliens  may  take  by  succession. — See  Kerr's  Cyc.  C.  C.  §|  671 
and  672  and  notes;  also  §§  1405,  1406  and  notes. 

763 


§§  1405,  1406  CIVIL  CODE.  [Div.II.Pt.IV.       - 

§1405.  SUCCESSION  NOT  CLAIMED,  ATTORNEY-GEN- 
ERAL  TO  CAUSE  TO  BE  SOLD,  AND  PROCEEDS  DEPOS- 
ITED IVITH  STATE  TREASURER.  When  succession  is  not 
claimed  as  provided  in  the  preceding  section,  the  superior 
court,  on  information,  must  direct  the  attorney-general  to 
reduce  the  property  to  his  possession  or  that  of  the  state,  or 
to  cause  it  to  be  sold,  and  it  or  its  proceeds  to  be  deposited 
in  the  state  treasury  for  the  benefit  of  the  person  entitled 
thereto,  to  be  paid  to  him,  if,  within  five  years  after  such 
deposit,  he  appears  in  the  court  in  which  such  information 
was  filed  and  asks  for  a  judgment  or  order  entitling  him 
thereto. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
19,  1856,  Stats.  1856,  p.  137;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  406,  held  unconstitu- 
tional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  609. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

76  C.  294,  297  (presumption  that  intestate  has  left  heir),  298 
(construed),  18  P.  407,  409  (erroneously  cited  as  §1445);  129  C. 
86,  90,  79  A.  S.  78,  61  P.  659    (cited). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

When  property  escheats. — See  Kerr's  Cyc.  C.  C.  §  1386  subd.  10, 
post  §  1406;  1  Church's  New  Probate  Law  and  Practice,  59,  68-74. 


§  1406.  WHEN  THE  PROPERTY  AND  ESTATE  ESCHEAT 
TO  THE  STATE.  When  such  judgment  or  order  is  obtained, 
a  certified  copy  thereof  must  be  filed  with  the  state  treasurer 
as  his  voucher.  Thereupon  the  property  must  be  delivered, 
or  the  proceeds  paid,  to  the  claimant,  on  filing  his  receipt 
therefor.  If  no  one  succeeds  to  the  estate  or  the  proceeds, 
as  herein  provided,  the  property  of  the  decedent  devolves 
and  escheats  to  the  people  of  the  state,  and  must  be  placed 
by  the  state  treasurer  to  the  credit  of  the  school  fund. 

History:  Enacted  March  21,  1872,  founded  upon  §  1  Act  April 
19,  1856,  Stats.  1856,  p.  137:  amended  by  Code  Commission,  Act 
March  16,   1901,  Stats,  and. Amdts.   1900-1,  p.  407,  held  unconsti- 

764 


Tit.  VII.]  ESCHEATED  PROPERTY.  §§  1407, 1408 

tutional,  see  history,  §   4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  610. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

76  C.  294,  297  (cited),  298  (construed  and  applied),  18  P.  407. 
409;  129  C.  86,  90,  79  A.  S.  78,  61  P.  659   (cited). 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Cliurcli's  New 
Probate  Law  and  Practice,  22,  38-58. 


§  1407.  PROPERTY  ESCHEATED  SUBJECT  TO  CHARGE 
AS  OTHER  PROPERTY.  Real  property  passing  to  the  state 
under  the  last  section,  whether  held  by  the  state  or  its  officers, 
is  subject  to  the  same  charges  and  trusts  to  which  it  would 
have  been  subject  if  it  had  passed  by  succession,  and  is  also 
subject  to  all  the  provisions  of  title  eight,  part  three,  of  the 
Code  of  Civil  Procedure. 

Hi.story:  Enacted  March  21,  1872,  founded  upon  Act  April  30, 
1855,  Stats.  1855,  pp.  221,  222,  as  amended  by  Act  February  16, 
1870,    Stats.    1869-70,   pp.    72,    73. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

76  C.  294,  297  (cited  in  discussion),  298  (cited),  299  (title  8. 
part  3,  of  the  C.  C.  P.  referred  to  in  this  section  makes  no  pro- 
vision for  the  payment  of  funeral  expenses,  expenses  of  last 
sickness,  or  the  debts  of  decedent),  18  P.  407,  409. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Churcli's  New 
Probate  Law  and  Practice,  22,  38-58. 


§  1408.  SUCCESSOR  LIABLE  FOR  DECEDENT'S  OBLI- 
GATIONS. Those  who  succeed  to  the  property  of  a  decedent 
are  liable  for  his  obligations  in  the  cases  and  to  the  extent 
prescribed  by  the  Code  of  Civil  Procedure. 

History:     Enacted  March   21,  1872. 

As  to  debts  being-  paid  before  distribution,  see  8  Prob.  Rep. 
194. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  liability  of  heirs  for  debts  of  ancestor,  see  48  A.  D.  395; 
21  L.  89. 

765 


§  1409  CIVIL  CODE.  [Div.II.Pt.IV. 

§1409.  PERSON  CONVICTED  OF  MURDER  OF  DECE- 
DENT, NOT  TO  SUCCEED.  No  person  who  has  been  con- 
victed of  the  murder  of  the  decedent  shall  be  entitled  to  suc- 
ceed to  any  portion  of  his  estate;  but  the  portion  thereof  to 
which  he  would  otherwise  be  entitled  to  succeed  descends 
to  the  other  persons  entitled  thereto  under  the  provisions  of 
this  title. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
610. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  how  far  statutes  will  be  regarded  as  having  abrogated 
the  maxim  that  one  cannot  profit  by  liis  own  wrong,  see  25  L. 
564-573. 

As  to  law  of  succession,  see  note  §  1383,  ante;  1  Church's  New 
Probate  Law  and  Practice,  22,  38-58. 

As  to  right  of  murderer  to  take  by  descent,  see  5  L.  340- 
34G;  1  Church's  New  Probate  Law  and  Practice,  52. 


766 


Tit.  VIII.]  APPROPRIATION.  §  1410 

TITLE  VIII. 

WATER-RIGHTS. 

§  1410.  Rifflits  to   water  may  be  acquired   by  appropriation. 

§  1411.  Appropriation  must  be  for  a  useful   purpose. 

§1412.  Point   of   diversion   may   be   clianged. 

§  1413.  Water  may   be  turned   into  natural   clianncls. 

§1414.  First   in   time,   first   in    right. 

§  1415.  Notice  of  appropriation  of  water;  contents.     Recording. 

§  1416.  Diligence  in  appropriation  of  water. 

§1417.  Completion  defined. 

§1418.  Doctrine  of   relation   applied. 

§  1419.  Forfeiture. 

§  1420.  Riglits  of  present  claimant. 

§  1421.  Recorder  to  keep  book  in  wliich  to  record  notices. 

§  1422.  Time   witliin   whlcli   to   commence   excavation    on    public 
reservations. 

§  1410.  RIGHTS  TO  WATER  MAY  BE  ACQUIRED  BY 
APPROPRIATION.  The  right  to  the  use  of  running  water 
flowing  in  a  river  or  stream  or  down  a  canyon  or  ravine  may 
be  acquired  by  appropriation. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  180  pars,  annotation. 

4  P.  919,  924,  925  (applied),  936  (dis.  op.,  construed  and 
applied);  69  C.  2r35,  368  (applied).  370  (referred  to).  371,  372 
(construed),  427,  452  (applied).  10  P.  674.  739.  775;  91  C.  187.  190. 
27  P.  587,  588  (construed);  95  C.  615.  61G,  30  P.  783,  19  L.  92 
(applied);  101  C.  107,  112,  35  P.  432  (construed  and  applied);  122 
C.  152,  158,  54  P.  726  (applied);  5  C.  A.  175,  180,  89  P.  1001  (water 
flowing  from  springs  upon  public  lands  is  subject  to  appropria- 
tion): 75  F.  379,  381  (construed  and  applied — abandonment  of 
right  to  use  of  water). 

IHRIGATION   AND  WATEK-RIOHTS. 

As  to  abandonment  of  wator-riglits. — See  Kerr's  Cyc.  C.  C. 
§  1411  and  note. 

As  to  acquisition  of  water-rights  by  prescription  or  adverse 
enjoyment. — See  Kerr's  Cyc.  C.  C.  §§315,  328  and  note. 

As  to  acts  relating  to  irrigation. — See  Hen.  G.  L.  tit.  "Irriga- 
tion." 

As  to  appropriation  of  percolating  waters  on  public  lands. — 
See  30  L.   186. 

767 


§  1410  CIVIL.  CODE.  [Div.II.Pt.IV. 

As  to  drainag-e. — See  Hen.  G.  L.  tit.  "Drainage";  and  Kerr's 
Cyc.  Pol.  C.  §  3446  and  note. 

As  to  duty  of  owners  or  users  of  any  canal,  flume,  etc.,  cross- 
ing highway  to  construct  and  keep  in  repair  bridges  across 
same. — See  Kerr's  Cyc.  C.  C.   §  551  and  note. 

As  to  general  subject  of  right  of  prior  appropriation  of  water. 
— See  30  L.  665. 

A§..to  periodical  appropriation  of  water. — See  46  L.   175. 

As  to  posting  notice. — See  Kerr's  Cyc.  C.  C.  §§  1415  et  seq. 
and   notes. 

As  to  relative  rights  of  prior  and  subsequent  appropriators. — 
See  Kerr's  Cyc.  C.  C.  §  1414  and  note. 

As  to  water  commissioners. — See  Hen.  G.  L.  tit.  "Water  com- 
missioners"; 48  Cent.  Dig.  col.   2744,  §  306. 

Abandonment  or  loss  of  rights  of  prior  appropriators. — See 
30  L.   265-267. 

Appropriation  of  irrigation  water  by  town. — See  1  L.   466. 

Appropriation  of  waste  water  not  in  channel. — See  6  L.  N.  S. 
1104. 

Appropriation  of  waters  for  irrigation  purposes — As  to  right 
of. — See  98  A.  D.  542;   17  Bncyc.  L.  494-505. 

Same — Doctrine  of  riparian  rights. — See  17  Encyc.  L.   491. 

Same — What  constitutes. — See  60  A.  S.  799;  17  Encyc.  L.  494- 
505. 

Appropriator — Right  to  enter  upon  land  of  an  upper  appro- 
priator  to  clean  out  ditch. — See  43  L.  130. 

Appropriators  and  riparian  owners— Respective  riglits  of. — 
See  43  A.  D.  269. 

Assessments  and  lien  for  enforcement  thereof. — See  48  Cent. 
Dig.  col.  2763,  §  320. 

Bonds  and  other  securities  of  irrigation  districts. — See  48 
Cent.   Dig.   col.   2760,   §  319. 

Canals,  ditches,  flumes,  etc. — As  to  generally,  see  48  Cent. 
Dig.  col.  2746,  §  309. 

Care  necessary  to  avoid  waste  in  diverting  waters  from 
stream  under  right  of  appropriation. — See  15  L.  N.  S.  238. 

Change  of  vise  of  channel  of  water  appropriated. — See  30  L. 
384-390. 

Condemnation  proceedings — As  to  generally,  see  11  Encyc. 
P.  590. 

Same — Parties  to  action. — See   11  Encyc.   P.   591. 

Dams — Rights  and  liabilities  of  owners  of. — See   57  A.  D.   684. 

Ditcli  companies — Franchises,  privileges,  and  powers  of. — See 
48  Cent.  Dig.  col.  2765,  §  322. 

Diverting  waters  from  stream  for  irrigation  purposes,  right 
of.— See  41  L.   741. 

Injunction  and  mandamus. — See   11   Encyc.  P.   596. 

768 


Tit.  VIII.]  WATER  RIGHTS.  §  1410 

Injuries  incident  to  supply,  use  of  and  action  for,  as  to  gen- 
erally, see  48  Cent.  Dig.  col.  2765,   §§  323,  324. 

Irrigation — As  to  generally,  see  48  Cent.  Dig.  col.  2743,  §§  304- 
314. 

Same — As  to  in  irate  states,  generally,  see  17  Encyc.  D.  489. 

Same — At  common  law. — See  17  Encyc.  L.  487. 

Same — Companies   formed   for  purposes   of. — See   17   Encyc.   L. 
521-527. 

Same — Constitutional    and    statutory    provisions    relating    to, 
generally. — See  48  Cent.  Dig.  col.  2743,  §  305. 

Same — ^Definition  of. — See  17  Encyc.  L.  487;  4  W.  &  P.  3776. 

Same — Riparian    appropriator's    right    to    use    of    water   for. — 
See  20  A.  S.  225. 

Same — State  control   of. — See   17   Encyc.   L.   490. 

Same — Storage   of   water   for   purposes    of. — See    13    Encyc.    L. 
514. 

Irrigation   companies — As   to   generally,    see    17   Encyc.   L.    521- 
527. 

Irrigation  districts,  as   to   generally,   see   11   Encyc.   P.   589:   48 
Cent.  Dig.  col.   2756,   §§315-320;   5  W.  &  P.   4625. 

Irrigation    ditches — As    to    generally,    see    48    Cent.    Dig.    col. 
2764,   §§  321,    322. 

Same — As  to  right  to  construct,   use  of  and  property  in. — See 
17  Encyc.  L.   509-513. 

Same — Franchises,    privileges,    and    powers    of. — See    48    Cent. 
Dig.  col.  2765,  §  322. 

Same — Stock    and    stockholders. — See    48    Cent.    Dig.    col.    2764, 
§  321. 

Liability    for    injury    caused    by    escape    of    water    stored    on 
one's  premises. — See   15  L.  N.  S.   541. 

Liability    for    withdrawing    water    from    reservoir. — See    62    L. 
579. 

Liens  for  materials  and  construction. — See   48  Cent.   Dig.   col. 
2747,.  §  310;  see  also  Kerr's  Cyc.  C.  C.  P.  §§  1183-1203  and  notes. 

Loss  of  rights  of  prior  appropriators. — See  30  L.  265. 

Mandamus  and  injunction. — See   11   Encyc.  P.   596. 

Periodical  appropriation. — See  46  L.   175. 

Percolating  waters — On   public   lands — Appropriation    of. — See 
30  L.  186. 

Power  to  condemn  riparian   rights  apart  from  land  to   which 
they  are  appurtenant. — See  17  L.  N.  S.  1005. 

Prior  appropriation — Rule  of. — See  10  L.  487. 

Prior   appropriator — Abandonment   or   loss   of    rights. — See    30 
L.    265. 

Same — Right  of. — See   30  L.   665-679. 

Priority  of  appropriation,   doctrine  of. — See   17  Encyc.  L.   505, 

Proceedings  to  establish  water-rights. — See  48  Cent.  Dig.  col. 
2755,   §  314.' 

Kerr's    C.    C— 25  769 


§  1411  CIVIL  CODE.  [Div.II.Pt.IV. 

Public  use  under  law  of  eminent  domain. — See  1  A.  C.  304; 
4  A.  C.  1171;  50  A.  S.  585;  29  L.  853;  6  W.  &  P.  5816,  5834. 

Reciprocal  easement  as  to  water  rights. — See  17  L.  N.  S.  945. 

Right  of  appropriation  of  waters  for  irrigation  purposes. — See 
98  A.  D.  542. 

Right  of  prior  appropriator  of  water. — See  30  L.   665-679. 

Right  of  way  and  otlier  interest  in  land. — ^See  48  Cent.  Dig. 
col.   2745,  §  307. 

Right-,  of  way  for  irrigation  ditch — Right  of  fee-owner  to 
cross. — See  3  L.  N.  S.  1148. 

Right  to  divert  waters  from  stream  for  irrigation  purposes. — 
See  41  L.  741. 

Right  to  store  appropriated  water. — See  46  L.  322;  17  L.  N.  S. 
329. 

Riparian  owners  and  appropriators — Respective  rights  of. — 
See  43  A.  D.   269. 

Riparian  rights — Doctrine  in  appropriation  of  water  for  use 
on  land. — See  17  Encyc.  L.  491. 

Sale  of  water  and  supply  and  use  thereof  for  irrigation  pur- 
poses.— See  48  Cent.  Dig.  col.  2749,  §  311. 

State  control  of  irrigation. — See  17  Encyc.  L.  490. 

State  regulation  of  rates  of  irrigation  company. — See  12  L. 
N.  S.   711. 

State  regulation  of  tolls  for  use  of  appropriated  waters. — See 
33   L.   180. 

Stock  and  stockholders  of. — See  48  Cent.  Dig.  col.  2764,  §  321. 

Storage  of  water  and  reservoirs  therefor. — See  48  Cent.  Dig. 
col.  2745,  §  307. 

Storage  of  water  for  purposes  of  irrigation. — See  17  Encyc. 
L.  514. 

Tolls  and  other  charges  for  water — As  to  generally,  see  48 
Cent.   Dig.  col.   2753,   §  312. 

Transfer  of  right  to  use  water  for  irrigation. — See  65  L. 
407-412. 

Use  of  natural  stream  to  convey  appropriated  waters. — See  51 
L.  930. 

Waste — Care  necessary  to  avoid  in  diverting  waters  from 
stream  under  right   of  appropriation. — See   15   L.   N.   S.    238. 

Water  commissioners,  as  to  generally,  see  48  Cent.  Dig.  col. 
2744,   §306;   also  Hen.  G.  L.  tit.   "Water  Commissioners." 

Water-rights  considered  as  property. — See  17  Encyc.  L. 
514-521. 

Water-riglits  used  in  connection  witli  land  mortgaged  prior 
to  its  acquirement — Does  it  pass  on  foreclosure. — See  15  L.  N. 
S.  359. 

§1411.  APPROPRIATION  MtTST  BE  FOR  A  USEFUL 
PURPOSE.     The   appropriation   must  be   for   some   useful   or 

770 


Tit.  VIII.]  POINT  OF  DIVERSION.  §1412 

beneficial  purpose,  and  when  the  appropriator  or  his  succes- 
sor in  interest  ceases  to  use  it  for  such  a  purpose,  the  right 
ceases. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  57  pars,  annotation. 

4  P.  919,  936  (cited  in  dis  op.);  69  C.  255,  307  (cited),  369.  452 
(dis.  op.),  10  P.  674,  701,  739  (cited  with  other  sections);  79  C. 
572,  574,  21  P.  967  (applied);  (C.  Aug.  6,  1892),  30  P.  768 
(applied);  98  C.  63,  66,  32  P.  811,  812  (applied);  110  C.  122,  126. 
127,  42  P.  453  (construed  and  applied);  120  C.  86,  87,  52  P.  139 
(construed  and  applied);  150  C.  520,  533,  89  P.  338  (right  extends 
only  to  water  actually  taken  and  used — it  ceases  witli  disuse); 
75  F.  379,  381  (construed  and  applied — abandonment  of  riglit 
to  use  of  water). 

As  to  irrigation  and  water-riglits  generally,  see  note  §1410, 
ante. 

As  to  appropriation  of  water  for  mining  purposes,  see  24  L.  66. 

As  to  abandonment  of  water-rights,  see   45   C.   C.   A.  Rep.   190. 

As  to  abandonment  or  loss  of  rights  of  prior  appropriators 
of  water,  see  30  L.  265. 

As  to  amount  of  property  appropriated  and  notice  of  appro- 
priation, see  Kerr's  Cyc.  C.  C.  §  415  and  note. 

As  to  for  what  purpose  appropriation  of  water  is  permissible, 
see  30  L.  674. 

As  to  necessary  physical  acts  to  complete  appropriation,  see 
Kerr's  Cyc.  C.  C.  §  1416  and  note. 

As  to  right  of  appropriation  of  water  for  irrigation  purposes, 
see  98  A.  D.  543. 

§1412.     rOIM  OF  DIVEKSION  MAY  BE  (  H.VXJED.     The 

person  entitled  to  the  use  may  change  the  place  of  diversion, 
if  others  are  not  injured  by  such  change,  and  may  extend  the 
ditch,  flume,  pipe,  or  aqueduct  by  which  the  diversion  is  made 
to  places  beyond  that  where  the  first  use  was  made. 

IIiNtor>  :     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

4  P.  919,  936  (cited  in  dis.  op.),  69  C.  255.  369,  452  (dis.  op.), 
(cited  with  other  sections),  10  P.  674,  740;  96  C.  214.  217.  31  P. 
41,  42  (applied);  98  C.  332,  340,  33  P.  119,  122  (construed  and 
applied);  106  C.  660,  665,  668,  39  P.  1060,  30  L.  384  (applied); 
108  C.  72,  81,  41  P.  18.  30  L.  390  (applied);  117  C.  168,  183.  184. 
48  P.  1075  (applied);  134  C.  553.  555,  66  P.  732  (applied);  138  C. 
716,  721,  722,  72  P.  349  (efficient  means  of  diversion  in  lieu 
of   dam — changing    place    of    diversion);    147    C.    401,    410,    81    P. 

771 


§§  1413-1415  CIVIL  CODE.  [Div.II.Pt.IV. 

1107  (place  of  use  may  be  changed  at  will  of  owner  when);  49 
F.  430,  435  (design  of  Idaho  statute,  in  aiming  to  adopt  this 
section,  and  in  permitting  prior  appropriator  to  change  place 
of  use,  as  against  a  subsequent  appropriator). 

As  to  changing  channels  of  artificial  bodies  of  water,  see  50 
L.  844. 

As  to  change  of  use  of  cliannel  of  water  appropriated,  see  30 
L.  384.    .. 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

§1413.  WATER  MAY  BE  TURNED  INTO  NATURAL 
CHANNELS.  The  water  appropriated  may  be  turned  into 
the  channel  of  another  stream  and  mingled  with  its  water, 
and  then  reclaimed;  but  in  reclaiming  it  the  water  already 
appropriated  by  another  must  not  be  diminished. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

4  P.  919,  936  (cited  in  dis.  op.);  69  C  255,  369,  453.  10  P.  674, 
740  (dis.  op.),  (cited  with  other  sections);  134  C.  553,  555,  66  P. 
732   (applied). 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

§  1414.  FIRST  IN  TIME,  FIRST  IN  RIGHT.  As  between 
ai)propriators,  the  one  first  in  time  is  the  first  in  right. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  53  pars,  annotation. 

4  P.  919,  936  (cited  in  dis.  op.);  69  C.  255,  453,  469,  10  P.  674, 
740   (cited  with  other  sections). 

As  to  determination  of  priorities,  see  note  30  L.  677. 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

As  to  nature  of  use  of  water,  see  ante  §  1411  and  note. 

As  to  when  right  begins,  see  post  §  1418. 

§1415.  NOTICE  OF  APPROPRIATION  OF  WATER;  CON- 
TENTS.  RECORDING.  A  person  desiring  to  appropriate 
water  must  post  a  notice,  in  writing,  in  a  conspicuous  place 
at  the  point  of  intended  diversion,  stating  therein: 

1.  That  he  claims  the  water  there  flowing  to  the  extent  of 

772 


I 


Tit.  VIII.]  ■     NOTICES,   ETC.— CONTENTS.  §  1416 

(giving    the     numbei-)    inches,    measured    under   a   four-inch 
pressure; 

2.  The  purpose  for  which  he  claims  it,  and  the  place  of 
intended  use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size 
of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to 
divert  it. 

[Notice  must  be  recorded.]  A  copy  of  the  notice  must, 
within  ten  days  after  it  is  posted,  be  recorded  in  the  office 
of  the  recorder  of  the  county  in  which  it  is  posted. 

After  filing  such  copy  for  record,  the  place  of  intended 
diversion  or  the  place  of  intended  use  or  the  means  by  which 
it  is  intended  to  divert  the  water,  may  be  changed  by  the 
person  posting  said  notice  or  his  assigns,  if  others  are  not 
injured  by  such  change.  This  provision  applies  to  notices 
already  filed  as  well  as  to  notices  hereafter  filed. 

History:  Enacted  March  21,  1872;  amended  March  21,  1903, 
Stats,  and  Amdts.   1903,  p.   361.     In  effect  March   21,   1903. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

69  C.  255,  369,  10  P.  674,  740  (cited  with  other  sections);  SO  C. 
397.  398,  400,  401,  407,  20  P.  563,  565,  22  P.  198,  199  (applied); 
82  C.  564,  566,  567,  568,  569,  23  P.  146,  147  (applied  with  other 
sections);  86  C.  1,  11,  26  P.  523  (applied);  29  P.  780,  782  (what 
is  proper  rule  of  measurement — square  inches,  not  cubic  inches); 
99  C.  583,  584,  586,  587,  34  P.  324  (construed  and  applied  with 
other  sections);  103  C.  421,  423,  37  P.  408  (construed  and 
applied);  149  C.  496,  499,  86  P.  1081,  1082  (what  is  not  necessary 
to  valid  appropriation);  5  C.  A.  175,  183,  184,  89  P.  1001  (copy  of 
notice,  not  notice  itself,  to  be  recorded);  115  F.  543,  547  (applied 
— validity  of  appropriation  depends  upon  requisite  steps  bavins 
been  taken). 

As  to  change  of  place  of  diversion,  see  ante  §  1412. 

As  to  extent  of  use,  see  ante  §  1414  and  note. 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

As  to  necessity  of  compliance  with  code,  see  post  §1419  and 
note. 

As  to  what  constitutes  an  appropriation  of  water,  see  60 
A.   S.   799. 

§1416.    DILIGENCE    IN    APPROPRIATION    OF    WATER. 

Within    sixty   days   after   the   notice   is   posted,    the   claimant 

773 


§  1416  CIVIL  CODE.  •     [Div.II.Pt.IV. 

must  commence  the  excavation  or  construction  of  the  works 
in  which  he  intends  to  divert  the  water,  or  the  survey,  road 
or  trail  building,  necessarily  incident  thereto,  and  must  prose- 
cute the  work  diligently  aud  uninterruptedly  to  completion, 
unless  temporarily  interrupted  by  snows  or  rain;  provided, 
that  if  the  erection  of  a  dam  has  been  recommended  by  the 
California  debris  commission  at  or  near  the  place  where  it 
is  intended  to  divert  the  water,  the  claimant  shall  have  sixty 
days  after  the  completion  of  such  dam  in  which  to  commence 
the  excavation  or  construction  of  the  works  in  which  he 
intends  to  divert  the  water;  ^ 

[When  legal  proceedings  delay  work,  time  extended  for 
diversion.]  And  provided  further,  that  if  it  shall  be  neces- 
sary, by  proceedings  in  eminent  domain,  to  acquire  water- 
rights  held  by  adverse  riparian  owners  or  to  acquire  sites 
for  dams  or  power  plants  at  the  point  of  intended  diversion 
or  the  point  of  intended  use,  as  described  in  the  notice  of 
appropriation  of  said  water,  or  if  there  shall  be  conflicting 
claims  to  the  waters  so  appropriated,  then  the  party  so 
appropriating,  or  his  assigns,  shall  have  sixty  days  after  the 
determination  of  legal  proceedings  by  final  judgment  in  which 
to  commence  to  excavate  or  construct  the  works  in  which  he 
intends  to  divert  the  water  as  provided  in  this  section: 

[When  suits  must  be  commenced.]  And  provided  further, 
that  if  suits  for  such  purpose  are  not  already  pending  at  the 
date  of  the  passage  of  this  act,  they  shall  be  commenced 
within  sixty  days  after  this  act  takes  effect,  and  as  to  future 
appropriations  of  water,  within  sixty  days  after  notice  of 
such  appropriation  is  posted  as  required  by  law,  and  such 
proceedings  shall  be  prosecuted  diligently  to  final  judgment; 
but  nothing  in  this  act  shall  be  construed  to  revive  or  renew 
appropriations  of  water  heretofore  made  which  have  been 
abandoned  and  lost,  as  against  subsequent  claimants  who 
have  complied  with  this  act. 

History:  Enacted  March  21,  1872;  amended  March  23,  1895, 
Stats,  and  Amdts.  1895,  p.  70;  March  24,  1903,  Stats,  and  Amdts. 
1903,  p.  396;  amended  March  21,  1907,  Stats,  and  Amdts.  1907, 
p.  780,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  425. 

774 


Tit.  VIII.]  COMPLETION— RELATION.  §§  1417,  1418 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

69  C.  255,  369,  10  P.  674,  740  (cited  with  otlier  sections);  75 
C  464  486,  17  P.  246,  253  (cited  with  other  sections);  80  C.  397, 
400  4()1  4()3.  20  P.  563,  22  P.  198,  199  (cited  with  other  sections); 
82  C.  564,  566,  568,  569,  23  P.  146,  147  (cited  with  other  sections); 
99  C.  583,  587,  34  P.  324  (cited  with  other  sections);  149  C.  496, 
499  86  P.'  1081,  1082  (what  is  not  necessary  to  valid  appropria- 
tioA)-  5  C.  A.  175,  181,  184,  89  P.  1001  (mere  posting  of  notice 
is  not  appropriation,  but  that  followed  by  construction  of 
means  of  diversion  is— recording  of  copy  of  notice);  115  F.  543, 
547  (applied— validity  of  appropriation  depends  upon  requisite 
steps  having  been  taken). 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

As  to  time  from  which  right  of  appropriation  becomes  vested, 
see  Kerr's  Cyc.  C.  C.  §  1418  and  note. 

§  1417.    COMPLETION     DEFINED.       By    "completion '    is 
meant  conducting  the  waters  to  the  place  of  intended  use. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

69  C.  255,  369,  10  P.  674,  740  (cited  with  other  sections);  75 
C.  464,'  487,'  17  P.  246,  253  (cited  with  other  sections);  149  C. 
496  499  86*  P.  1081,  1082  (what  is  not  necessary  to  valid  appro- 
priation); 115  F.  543,  547  (applied— validity  of  appropriation 
depends   upon  requisite  steps  having   been  taken). 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §1410,  ante. 

§  1418.    DOCTRINE  OF  RELATION  APPLIED.    By  a  com- 
pliance with  the  above  rules  the  claimant's  right  to  the  use 
of  the  water  relates  back  to  the  time  the  notice  was  posted. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

69  C  255  370  10  P.  674,  740  (cited  with  other  sections);  80  C. 
397  401  4()7  408,  20  P.  563,  565,  22  P.  198,  199  (construed  and 
applied 'with' other  sections);  82  C.  564,  569,  23  P.  146,  147  (con- 
strued and  applied  with  other  sections);  99  C.  583.  586.  58  r.  34 
P.  324  (construed  and  applied  with  other  sections);  149  C. 
496  499  86  P.  1081,  1082  (what  is  not  necessary  to  valid  appro- 
priation); 5  C.  A.  175,  182.  89  P.  1001  (applied);  115  F.  543,  547 
(applied— validity  of  appropriation  depends  upon  requisite  steps 
having  been  taken). 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

775 


§§  1419-1421  CIVIL  CODE.  [Div.II,Pt.IV. 

§  1419.  rOFEITURE.  A  failure  to  comply  with  such  rules 
deprives  the  claimants  of  the  right  to  the  use  of  the  water 
as  against  a  subsequent  claimant  who  complies  therewith. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

69  C.  255,  370,  10  P.  674,  740  (cited  with  other  sections);  80  C. 
397,  401,  403,  407,  408,  20  P.  563,  565,  22  P.  198,  199  (construed 
and  applied  with  other  sections);  82  C.  564,  569,  23  P.  146,  147 
(construed  and  applied);  99  C.  583,  586,  587,  34  P.  324  (construed 
With  other  sections);  149  C.  496,  499,  86  P.  1081,  1082  (what  is 
not  necessary  to  valid  appropriation). 

As  to  abandonment,  see  Kerr's  Cyc.  C.  C.  §  1411  and  note. 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

§  1420.  RIGHTS  OF  PBESEXT  CLAIMANT.  Persons  who 
have  heretofore  claimed  the  right  to  water,  and  who  have 
not  constructed  works  in  which  to  divert  it,  and  who  have 
not  diverted  nor  applied  it  to  some  useful  purpose,  must, 
after  this  title  takes  effect,  and  within  twenty  days  there- 
after, proceed  as  in  this  title  provided,  or  their  right  ceases. 

History:     Enacted  March   21,  1872. 

4  P.  919,  924  (applied  with  other  sections),  936  (cited  in  dis. 
op.);  69  C.  255,  370,  453,  10  P.  674,  740  (dis.  op.,  cited  with 
other  sections);  75  C.  464,  487,  17  P.  246,  253  (cited  with  other 
sections);  149  C.  496,  499,  86  P.  1081,  1082  (what  is  not  necessary 
to  valid  appropriation). 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

§1421.  RECORDER  TO  KEEP  BOOK  O  WHICH  TO 
RECORD  NOTICES.  The  recorder  of  each  county  must  keep 
a  book,  in  which  he  must  record  the  notices  provided  for 
in  this  title. 

HLstory:     Enacted  March   21,  1872. 

69  C.  255,  370,  10  P.  674,  740  (cited  with  other  sections);  149  C. 
496,  499  (what  is  not  necessary  to  valid  appropriation — erro- 
neously cited  as  §  1721),  86  P.  1081,  1082   (correct  citation). 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

776 


Tit.  VIII.]  COMMENCING  WORK.  §  1422 

§  1422.  TIME  WITHIN  WHICH  TO  COMMENCE  EXCAVA- 
TION  ON  PUBLIC  RESERVATIONS.  If  the  place  of  intended 
diversion  or  any  part  of  the  route  of  intended  conveyance 
of  water  so  claimed,  be  within,  and  a  part  of,  any  national 
park,  forest  reservation,  or  other  public  reservation,  and  be 
so  shown  in  the  notice  of  appropriation  of  said  water,  then 
the  claimant  shall  have  sixty  days,  after  the  grant  of  author- 
ity to  occupy  and  use  such  park  or  reservation  for  such  in- 
tended purpose,  within  which  to  commence  the  excavation 
or  construction  of  said  works;  provided,  that  within  sixty 
days  after  the  posting  of  said  notice  of  appropriation,  as 
provided  in  section  fourteen  hundred  and  fifteen  of  the  Civil 
Code,  the  claimant  shall  in  good  faith  commence  (and  there- 
after diligently  and  continuously,  except  when  temporarily 
interrupted  by  snow  or  rain,  prosecute  to  completion)  such 
surveys  and  other  work  as  under  the  regulations  govern- 
ing such  park  or  reservation,  may  be  required  as  prelimi- 
nary to,  or  for  use  with,  an  application  for  such  authority; 
and  provided  also  that  the  claimant  shall  in  good  faith  on 
completion  of  said  survey  and  preliminary  work,  apply  to 
the  officer,  board,  or  body,  having  charge  of  such  park  or 
reservation,  for  such  authority,  and  shall  thereafter,  prose- 
cute said  application  with  reasonable  diligence. 

History:  Enacted  March  21,  1872;  repealed  March  15,  1SS7. 
Stats,  and  Amdts.  1887,  p.  114;  present  act,  which  is  entirely 
new,  passed  March  24,  1903,  Stats,  and  Amdts.  1903,  p.  397.  For 
statutes   on   subject   of   irrigation,   see   Hen.  G.   L.   tit.   Irrigation. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

4  P.  919,  924,  925,  935  (dis.  op.),  936  (dis.  op.)  (construed  and 
applied  with  other  sections);  69  C.  255,  300.  368,  370-376,  378. 
379,  426-428,  439,  451  (dis.  op.),  453  (dis.  op.),  10  P.  674,  697. 
740,  774,  775,  783  (construed  and  applied  with  other  sections): 
108  C.  72,  78,  41  P.   18,  30  L.   390    (applied). 

As  to  acts  relating  to  irrigation,  see  Hen.  G.  I^.  tit.  "Irriga- 
tion." 

As  to  many  miscellaneous  matters  as  to  irrigation  and  water- 
rights,  see  note  §  1410,  ante. 

As  to  respective  rights  of  appropriators  and  riparian  owners, 
see   43   A.   D.    269. 

The  annotations  to  tliis  section  are  to  the  section  as  it 
orginally  stood  before  its  repeal,  and  not  to  the  present  section. 

777 


§§  1424,  1425  CIVIL  CODE.  [Div.II.Pt.IV. 

TITLE  IX. 

HYDRAULIC  MINING. 

§  1424.     Where  hydraulic  mining-  can  be  carried  on. 
§  1425.     Meaning   of   hydraulic   mining. 

§  1424.     WHERE  HYDRAULIC  MINING  CAN  BE  CARRIED 

ON.  The  business  of  hydraulic  mining  may  be  carried  on 
within  the  state  of  California  wherever  an(i  whenever  the 
same  can  be  carried  on  without  material  injury  to  the  navi- 
gable streams,  or  the  lands  adjacent  thereto. 

History:  Enacted  March  24,  1893,  Stats,  and  Amdts.  1893,  p. 
337. 

See  Kerr's  Cyc.  C.  C.  for   7  pars,  annotation. 
HYDRAULIC     MINING. 

Authority  to  commence,  revocation,  etc.  by  debris  commission. 
— See  Martin's  Mines  and  Mining-  Law  §  523;  5  F.  S.  A.  65. 

California  debris  commission  and  regulation  of — As  to 
generally,  see  5  F.  S.  A.  61-68. 

Same — Commissioner's  act  under  direction  of  secretary  of  war. 
— See  5  F.  S.  A.  61  note. 

Same — ^Constitutionality  of  statute. — See  5  F.  S.  A.  61  note. 

Same — Injunction — By  Federal  court. — See  5  F.  S.  A.  61  note. 

Same — Same — ^By  state  court. — See  5  F.  S.  A.  61  note. 

Same — Injury  to  navigable  stream. — See  5  F.  S.  A.  65  note. 

Definition  of.— See  Martin's  Mines  and  Mining  Law  §513;  5 
F.   S.   A.    63;    4   W.    &   P.    3376. 

Wilful  injury  to  works,  penalty. — See  Martin's  Mines  and 
Mining-  Law  §  527. 

Without  impounding- works. — See  Martin's  Mines  and  Min- 
ing Law  §  518;  F.  S.  A.  Supp.  1907,  p.  379. 

§1425.  MEANING  OE  HYDRAULIC  MINING.  Hydraulic 
mining,  within  the  meaning  of  this  title,  is  mining  by  means 
of  the  application  of  water,  under  pressure,  through  a  nozzle, 
against  a  natural  bank. 

History:  Enacted  March  24,  1893,  Stats,  and  Amdts.  1893,  p. 
337. 

See  Kerr's  Cyc.  C.  for  16  pars,  annotation. 
Ill    C.    571,    576,    44    P.    243    (applied). 

778 


,j,j^  X.]  LOCATING  MINING  CLAIM.  §  1426 


TITLE  X. 

LOCATING    MINING    CLAIMS.    TUNNEL    RIGHTS.    MILL 
SITES,  ETC. 

[A  new  title  added  by   Act   of  legislature   March    13,   1909.    to 
take  effect  and  be  in  force  on  and  after  July  1,  1909.] 

§  1426.       Who  may   locate   mining   claim,    etc.      Manner   of   loca- 
tion. 

§  1426a.     Locator   must   define   boundaries,    how. 

§  1426b.     Recording  copy  of  notice.     Fee  of  recorder. 

§  1426c.     Location    of   placer   claim.      How    made. 

§  1426d.     Same.      Recording  copy   of   notice.     Fee   of   recorder. 

§  1426e.     Locator  of  tunnel   right.     Posting  notice.     Contents  of 
notice. 

§  1426f.       Boundary    lines    of    tunnel.      How    established. 

§  1426g.     Recording  notice  of  tunnel  location.     Recorder's  fee. 

§  1426h.     Amended    notice    of    location.      Not    to    interfere    with 
existing    rights    of    others. 

§  1426i.      Boundaries   established   by   mineral    surveyor. 

§  1426J.      Mill  site  location.     By  proprietor  of  vein,  etc.     Amount 
of   land   and    manner    of    making. 

§  1426k.     Same.      Recording    copy    of    location    notice.      Fee    of 
recorder. 

§  14261.      Annual   work    or    improvements.      Amount    required. 

§  1426m.    Same.      Affidavit,    contents    of.      Certified    copy    of    evi- 
dence  of  performance. 

§  1426n.      Same.      Recording   affidavit.      Fee   for. 

§  14260.      Co-owner.      Notice    to    delinquent    co-owner.      Proof    ot 

service 
§  1426p.    Record   of   location.      Evidence   of   same   force   as   orig- 

§  1426q.      Record   of   instruments.      Certified  copies   admissible   as 

evidence. 
|1426r.      Mining    district    rules    and    regulations.      Not    affected 

by  act. 
§  1426s.      Development  work.     Failure   or  neglect   to  perform   in 

manner  and   time   required.      Effect   of. 
Sec.  2.        Repealing   clause. 

§U2(J.  WHO  MAY  LOCATE  MIMMJ  CLAIM,  KT(.  MAN- 
NEK  OF  LOCATION.  Any  person,  a  citizen  of  the  United 
States,  or  wlio  has  declared  his  intention  to  become  such,  who 
discovers  a  vein  or  lode  of  quartz,  or  other  rock  in  place, 

779 


§§  1426a,  1426b  CIVIL  CODE.  [Div.II.Pt.IV. 

bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valu- 
able deposit,  may  locate  a  claim  upon  such  vein  or  lode,  by 
defining  the  boundaries  of  the  claim,  in  the  manner  herein- 
after described,  and  by  posting  a  notice  of  such  location,  at 
the  point  of  discovery,  which  notice  must  contain:  First — 
The  name  of  the  lode  or  claim.  Second — The  name  of  the 
locator  or  locators.  Third — The  number  of  linear  feet  claimed 
in  length  along  the  course  of  the  vein,  each  way  from  the 
point  of  discovery,  with  the  width  on  each  side  of  the  center 
of  the  claim,  and  the  general  course  of  the  vein  or  lode,  as 
near  as  may  be.  Fourth — The  date  of  location.  Fifth — Such 
a  description  of  the  claim  by  reference  to  some  natural  object, 
or  permanent  monument,  as  will  identify  the  claim  located. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
313. 

As  to  who  may  locate  mining  claims,  etc.,  see  Martin's  Mining 
Law  and  Land  Offlce  Procedure,  pp.  66-71. 

§  1426a.     LOCATOR  MUST  DEFINE   BOUNDARIES,  HOW. 

The  locator  must  define  the  boundaries  of  his  claim  so  that 
they  may  be  readily  traced,  and  in  no  case  shall  the  claim 
extend  more  than  fifteen  hundred  feet  along  the  course  of  the 
vein  or  lode,  nor  more  than  three  hundred  feet  on  either 
side  thereof,  measured  from  the  center  line  of  the  vein  at  the 
surface. 

HLstory:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
314. 

As  to  marking  boundaries,  see  Martin's  Mining  Law  and  Land 
Offlce  Procedure,  pp.   98-110. 

As  to  tunnel-sites,  see  Martin's  Mining  Law  and  Land  Office 
Procedure,  pp.   56-60. 

As  to  mill-sites,  see  Martin's  Mining  Law  and  Land  Office 
Procedure,  pp.  61-65. 

§14261).  RECORDING  COPY  OF  NOTICE.  FEE  OF 
RECORDER.  Within  thirty  days  after  the  posting  of  his 
notice  of  location  upon  a  lode  mining  claim,  the  locator  shall 
record  a  true  copy  thereof  in  the  office  of  the  county  recorder 

780 


Tit.  X.]  PLACER  CLAIM.  §§  1426c-1426e 

of  the  couiitj^  in  which  such  claim  is  situated,  for  which 
service  the  county  recorder  shall  receive  a  fee  of  one  dollar. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
314. 

As  to  notices  of  location,  recording,  etc.,  see  Martin's  Mining- 
Law  and  Land  Office  Procedure,  pp.  111-119,  682,  689,  694. 

§  1426c.     LOCATION   OF   PLACER   CLAIM.     HOW   UADE. 

The  location  of  a  placer  claim  shall  be  made  in  the  following 
manner:  By  posting  thereon,  upon  a  tree,  rock  in  place, 
stone,  post  or  monument,  a  notice  of  location,  containing  the 
name  of  the  claim,  name  of  locator  or  locators,  date  of  loca- 
tion, number  of  feet  or  acreage  claimed,  such  a  description  of 
the  claim  by  reference  to  some  natural  object  or  jiermanent 
monument  as  will  identify  the  claim  located,  and  by  marking 
the  boundaries  so  that  they  may  be  readily  traced;  provided, 
that  where  the  United  States  survey  has  been  extended  over 
the  land  embraced  in  the  location,  the  claim  may  be  taken  by 
legal  subdivisions  and  no  other  reference  than  those  of  said 
survey  shall  be  required  and  the  boundaries  of  the  claim  so 
located  and  described  need  not  be  staked  or  monumented. 
The  description  by  legal  subdivisions  shall  be  deemed  the 
equivalent  of  marking. 

History:  Enacted  Marcli  13,  1909,  Stats,  and  Amdts.  1909.  p. 
314. 

As  to  location  of  placer  claim,  see  Martin's  Mining  Law  and 
Land  Office  Procedure,  pp.  44-55. 

§1426d.  SAME.  RE{(M{I)I>G  COPY  OF  NOTICE.  FEE 
OF  RECOKDEK.  Within  thirty  days  after  the  posting  of  the 
notice  of  location  of  a  placer  claim,  the  locator  shall  record  a 
true  copy  thereof  in  the  office  of  the  county  recorder  of  the 
county  in  which  sucli  claim  is  situated,  for  which  service  the 
recorder  shall  receive  a  fee  of  one  dollar. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909.  p. 
314. 

§1426e.  LOCATOR  OF  TUNNEL  RIGHT.  POSTING 
NOTICE.  CONTENTS  OF  NOTICE.  The  locator  of  a  tunnel 
right  or  location,  shall  locate  his  tunnel  right  or  location  by 

781 


§§  1426f-1426h  CIVIL  CODE.  [Div.II.,Pt.IV. 

posting  a  notice  of  location  at  the  face  or  point  of  commence- 
ment of  the  tunnel,  which  must  contain:  First — The  name  of 
the  locator  or  locators.  Second — The  date  of  the  location. 
Third — The  proposed  course  or  direction  of  the  tunnel. 
Fourth — A  description  of  the  tunnel,  with  reference  to  some 
natural  object  or  permanent  monument  as  shall  identify  the 
claim  or  tunnel  right. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  *1909,  p. 
314. 

As  to  tunnel  rights,  location,  etc.,  see  Martin's  Mining  Law 
and  Land  Office  Procedure,  pp.   56-60. 

§  1426f.  BOUNDARY  LINES  OF  TUNNEL.  HOW  ESTAB- 
LISHED. The  boundary  lines  of  the  tunnel  shall  be  estab- 
lished by  stakes  or  monuments  placed  along  the  lines  at  an 
interval  of  not  more  than  six  hundred  feet  from  the  face  or 
point  of-  commencement  of  the  tunnel  to  the  terminus  of  three 
thousand  feet  therefrom. 

HLstory:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
314. 

As  to  marking  boundaries  of  tunnel,  see  Martin's  Mining  Law 
and  Land  Office  Procedure,  §  86. 

§1426g.  RECORDING}  NOTICE  OF  TUNNEL  LOCATION. 
RECORDER'S  FEE.  Within  thirty  days  after  the  posting  the 
notice  of  location  of  the  tunnel  right  or  location,  the  locator 
shall  record  a  true  copy  thereof,  in  the  office  of  the  county 
recorder  of  the  county  in  which  such  claim  is  situated,  for 
which  service  the  recorder  shall  receive  a  fee  of  one  dollar. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
314. 

As  to  recording  notice  of  location,  see  ante   §  1426b,   note. 

§142611.  AMENDED  NOTICE  OF  LOCATION.  NOT  TO 
INTERFERE  WITH  EXISTING  RIGHTS  OF  OTHERS.    If  at 

any  time  the  locator  of  any  mining  claim  heretofore  or  here- 
after located,  or  his  assigns,  shall  apprehend  that  his  original 
location  notice  was  defective,  erroneous,  or  that  the  require- 
ments of  the  law  had  not  been  complied  with  before  filing; 
or  in  case  the  original  notice  was  made  prior  to  the  pas- 

782 


Tit.  X.]  BOUNDARIES— MILL-SITE.  §§  14261,  1426J 

sage  of  this  act,  and  he  shall  be  desirous  of  securing  the 
benefit  of  this  act,  such  locator,  or  his  assigns,  may  file  an 
additional  otice,  subject  to  the  provisions  of  this  act;  pro- 
vided, that  such  amended  location  notice  does  not  interfere 
with  the  existing  rights  of  others  at  the  time  of  posting  and 
filing  such  amended  location  notice,  and  no  such  amended 
location  notice  or  the  record  thereof,  shall  preclude  the 
claimant,  or  claimants  from  proving  any  such  title  as  he  or 
they  may  have  held  under  previous  locations. 

HiMtory:  Enacted  Marcli  13,  1909,  Stats,  and  Amdts.  1909,  p. 
315. 

As  to  amended  notice  of  location,  see  Martin's  Mining  Law 
and  Land  Office  Procedure,  pp.  118,  414,  533,  761. 

§1426i.  BOUNDARIES  ESTABLISHED  BY  MINERAL 
SURVEYOR.  Where  a  locator,  or  his  assigns,  has  the  bound- 
aries and  corners  of  his  claim  established  by  a  United  States 
deputy  mineral  survey,  or  a  licensed  surveyor  of  this  state, 
and  his  claim  connected  with  the  corner  of  the  public  or 
minor  surveys  of  an  established  initial  point,  and  in  cor- 
porates  into  the  record  of  the  claim,  the  field  notes  of  such 
survey,  and  attaches  to  and  files  with  such  location  notice, 
a  certificate  of  the  surveyor,  setting  forth:  First,  that  said 
survey  was  actually  made  by  him,  giving  the  date  thereof; 
Second,  the  name  of  the  claim  surveyed  and  the  location 
thereof;  Third,  that  the  description  incorporated  in  the 
declaratory  statement  is  sufficient  to  identify;  such  survey 
and  certificate  becomes  a  part  of  the  record,  and  such  record 
is  prima  facie  evidence  of  the  facts  therein  contained. 

History:  Enacted  Marcli  13,  1909,  Stats,  and  Amdts.  19o9.  i). 
315. 

§1426j.  MILL-SITE  LOCATION.  BY  PROPRIETOR  OF 
VEIN,  ETC.  A.MOUNT  OF  LAND  AND  MANNER  OF  3IAK. 
ING.  The  proprietor  of  a  vein  or  lode  claim  or  mine,  or  the 
owner  of  a  quartz  mill  or  reduction  works,  or  any  person 
qualified  by  the  laws  of  the  United  States,  may  locate  not 
more  than  five  acres  of  non-mineral  land  as  a  mill-site.    Such 

783 


§§  1426k,  1426m  CIVIL  CODE.  [Div.II.Pt.IV. 

location  shall  be  made  in  the  same  manner  as  hereinbefore 
required  for  locating  placer  claims. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
315. 

As  to  mill-site  location,  see  Martin's  Mining-  Law  and  Land 
Office  Procedure,  pp.  61-65. 

§  1426k.  SAarE.  EECORDIXG  COPY  OF  LOCATION 
NOTICE.  FEE  OF  RECORDER.  The  locator  of  a  mill  site 
claim  or  location  shall,  within  thirty  days  from  the  date  of 
his  location,  record  a  true  copy  of  his  location  notice  with 
the  county  recorder  of  the  county  in  which  such  location  is 
situated,  for  which  service  the  recorder  shall  receive  a  fee  of 
one  dollar. 

HLstory:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
315. 

§  14261.  ANNUAL  WORK  OR  I^IPROVEMENTS.  AMOUNT 
REQUIRED.  The  amount  of  work  done  or  improvements 
made  during  each  year  to  hold  possession  of  a  mining  claim 
shall  be  that  prescribed  by  the  laws  of  the  United  States, 
to-wit:     One  hundred  dollars  annually. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
315. 

As  to  annual  work  or  improvement,  see  Martin's  Mining-  Law 
and  Land  Office  Procedure,  pp.  132-143. 

§1426ni.  SAME.  AFFIDAVIT,  CONTENTS  OF.  CER- 
TIFIED  COPY  EVIDENCE  OF  PERFORMANCE.  Whenever 
mine  owner,  company,  or  corporation  shall  have  performed 
the  labor  and  made  the  improvements  required  by  law  upon 
any  mining  claim,  the  person  in  whose  behalf  such  labor  was 
performed  or  improvements  made,  or  some  one  in  his  behalf, 
shall  within  thirty  days  after  the  time  limited  for  performing 
such  labor  or  making  such  improvements  make  and  have 
recorded  by  the  county  recorder,  in  books  kept  for  that  pur- 
pose, in  the  county  in  which  such  mining  claim  is  situated,  an 
affidavit  setting  forth  the  value  of  labor  or  improvements 
made,  the  name  of  the  claim,  and  the  name  of  the  owner  or 
claimant  of  said  claim  at  whose  expense  the  same  was  made 

784 


Tit.  X.]  CO-OWNER— NOTICE   TO.  §§  1426n,  1426o 

or  performed.  Such  affidavit,  or  a  copy  thereof,  duly  cer- 
tified by  the  county  recorder,  shall  be  prima  facie  evidence 
of  the  performance  of  such  labor  or  the  making  of  such 
improvements,  or  both. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909. 
p.    315. 

As  to  form  of  affidavit  of  annual  work,  improvement,  etc., 
see  Martin's  Mining  Law  and  Land  Office  Procedure,  pp.  534,  578, 
579,  587,  770,  771,   772,  773. 

§U26ii.     SAME.     RECORDING   AFFIDAVIT.     FEE    FOR. 

For  recording  the  affidavit  herein  required,  the  county 
recorder  shall  receive  a  fee  of  fifty  cents. 

History:  Enacted  Marcli  13,  1909,  Stats,  and  Amdts.  1909,  p. 
316. 


§14260.  CO-OWNER.  NOTICE  TO  DELINQUENT 
CO-OWNER.  PROOF  OF  SERVICE.  Whenever  a  co-owner 
or  co-owners  of  a  mining  claim  shall  give  to  a  delinquent 
co-owner  or  co-owners  the  notice  in  writing  or  notice  by  pub- 
lication provided  for  in  section  twenty-three  hundred  and 
twenty-four.  Revised  Statutes  of  the  United  States,  an  affida- 
vit of  the  person  giving  such  notice,  stating  the  time,  place, 
manner  of  service,  and  by  whom  and  upon  whom  such  service 
was  made,  shall  be  attached  to  a  true  copy  of  such  notice,  and 
such  notice  and  alfHdavit  nnist  be  recorded  in  the  office  of  the 
county  recorder,  in  books  kept  for  that  purpose,  in  the  county 
in  which  the  claim  is  situated,  within  ninety  days,  after  the 
giving  of  such  notice;  for  the  recording  of  which  said 
recorder  shall  receive  the  same  fees  as  are  now  allowed  by 
law  for  recording  deeds; 

[Notice  by  publication— Proof  of  service.]  Or  if  such  notice 
is  given  by  publication  in  a  newspaper,  there  shall  be  attached 
to  a  printed  copy  of  such  notice  an  affidavit  of  the  printer  or 
his  foreman,  or  principal  clerk  of  such  paper,  stating  the  date 
of  the  first,  last  and  each  insertion  of  such  notice  therein, 
and  where  the  newspaper  was  published  during  that  time, 
and  the  name  of  such  newspaper.     Such  affidavit  and  notice 

785 


§  14260  CIVIL  CODE.  [Div.II.Pt.IV. 

shall  be  recorded  as  aforesaid,  within  one  hundred  and  eighty 
days  after  the  first  publication  thereof. 

[Notice  and  certified  copj — Prima  facie  eyideiice.]  The 
original  of  such  notice  and  affidavit,  or  a  duly  certified  copy 
of  the  record  thereof,  shall  be  prima  facie  evidence  that  the 
delinquent  mentioned  in  section  twenty-three  hundred  and 
twenty-four  has  failed  or  refused  to  contribute  his  propor- 
tion of  the  expenditure  required  by  that  section,  and  of  the 
service  of  publication  of  said  notice;  provided,  the  writing 
or  affidavit  hereinafter  provided  for  is  not  of  record. 

[Contribution  by  co-owner — Payment  of  costs — Receipt  to 
delinquent.]  If  such  delinquent  shall,  within  the  ninety  days 
required  by  section  twenty-three  hundred  and  twenty-four, 
aforesaid,  contribute  to  his  co-owner  or  co-owners,  his  pro- 
portion of  such  expenditures,  and  also  all  costs  of  service 
of  the  notice  required  by  this  section,  whether  incurred  for 
publication  charges,  or  otherwise,  such  co-owner  or  co-owners 
shall  sign  and  deliver  to  the  delinquent  or  delinquents  a 
writing,  stating  that  the  delinquent  or  delinquents  by  name 
has  within  the  time  required  by  section  twenty-three  hundred 
and  twenty-four  aforesaid,  contributed  his  share  for  the  year 

,  upon  the  mine,  and  further  stating  therein 

the  district,  county  and  state  wherein  the  same  is  situated, 
and  the  book  and  page  where  the  location  notice  is  recorded, 
if  said  mine  was  located  under  the  provisions  of  this  act; 

[Receipt  to  co-owner  to  be  recorded — Fees.]  Such  writing 
shall  be  recorded  in  the  office  of  the  county  recorder  of  said 
county,  for  which  he  shall  receive  the  same  fees  as  are  now 
allowed  by  law  for  recording  deeds. 

[Failure  to  give  co-owner  receipt^ — Penalty.]  If  such 
co-owner  or  co-owners  shall  fail  to  sign  and  deliver  such 
writing  to  the  delinquent  or  delinquents  within  twenty  days 
after  such  contribution,  the  co-owner  or  co-owners  so  failing 
as  aforesaid  shall  be  liable  to  the  penalty  of  one  hundred 
dollars  to  be  recovered  by  any  person  for  the  use  of  the 
delinquent  or  delinquents  in  any  court  of  competent  jurisdic- 
tion. 

[Failure  to  give  receipt — Affidayit  of  contribution.]     If  such 

786 


,j,j^  X.]  RECORD  OF  LOCATION.  §§  1426p-1426r 

co-owner  or  co-owners  fail  to  deliver  such  writing  within 
said  twenty  days,  the  delinquent,  with  two  disinterested 
persons  having  personal  knowledge  of  such  contribution, 
may  make  affidavit  setting  forth  in  what  manner,  the  amount 
of,  to  whom,  and  upon  what  mine,  such  contribution  was 
made.  Such  affidavit,  or  a  record  thereof,  in  the  office  of  the 
county  recorder,  of  the  county  in  which  such  mine  is  situated, 
shall  be  prima  facie  evidence  of  such  contribution. 

History:      Enacted   March    13,    1909,   Stats,  and   Amdts.    1909,    p. 

As  to  notice  to  delinquent  co-owner,  see  Martin's  Mining  Law 
and  Land  Office  Procedure,  §§  182-185. 

§  14261).  RECORD  OF  LOCATION.  EVIDENCE  OF  SAME 
'force  as  original  notice.  The  record  of  any  location 
of  a  mining  claim,  mill  site  or  tunnel  right,  in  the  office  of  the 
county  recorder,  as  herein  provided  shall  be  received  in 
evidence,  and  have  the  same  force  and  effect  in  the  courts 
of  the  state  as  the  original  notice. 

History:     Enacted  March   13,   1909,  Stats,  and  Amdts.   1909.   p. 

317 

As  to  record  as  evidence,  see  Martin's  Mining  Law  and  Land 

Office  Procedure,  §  166. 

§1426q.  RECORD  OF  INSTRUMENTS.  CERTIFIED 
COPIES  ADMISSIBLE  AS  EVIDENCE.  Copies  of  the  records 
of  all  instruments  required  to  be  recorded  by  the  provisions 
of  this  act,  duly  certified  by  the  recorder,  in  whose  custody 
such  records  are,  may  be  read  in  evidence,  under  the  same 
circumstances  and  rules  as  are  now,  or  may  be  hereafter 
provided  by  law,  for  using  copies  of  instruments  relating  to 
real  estate,  duly  executed  or  acknowledged  or  proved  and 
recorded. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909.  p. 
317. 

§  1426r.  MINING  DISTRICT  RULES  AND  REGULATIONS. 
NOT  AFFECTED  BY  ACT.  The  provisions  of  this  act  shall 
not  in  any  manner  be  construed  as  affecting  or  abolishing  any 

787 


§  1426s  CIVIL  CODE.  [Div.II,Pt.IV. 

mining  district  or  the  rules  and   regulations  thereof  within 
the  State  of  California. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
317. 

As  to  miners'  rules  and  regulations,  see  Martin's  Mining  Law 
and  Land  OfRce  Procedure,  pp.  8-17. 

§  1426s.  DEVELOPMENT  WORK.  FAILURE  OR  NEGLECT 
TO  PERFORM  IN  MANNER  AND  TIME  REQUIRED. 
EFFECT  OF.  The  failure  or  neglect  of  any  locator  of  a 
mining  claim  to  perform  development  work  of  the  character, 
in  the  manner  and  within  the  time  required  by  the  laws  of 
the  United  States,  shall  disqualify  such  locators  from  relocat- 
ing the  ground  embraced  in  the  original  location  or  mining, 
claim  or  any  part  thereof  under  the  mining  laws,  within 
three  years  after  the  date  of  his  original  location  and  any 
attempted  re-location  thereof  by  any  of  the  original  locators 
shall   render  such  location  void. 

[Repealing  clause.]  Sec.  2.  All  acts  and  parts  of  acts 
in  conflict  with  this  act,  are  hereby  repealed. 

History:  Enacted  March  13,  1909,  Stats,  and  Amdts.  1909,  p. 
317. 

As  to  development  work,  amount  required,  sufficiency,  etc., 
see  Martin's  Mining-  Law  and  Land  Office  Procedure,  pp.  132-143. 

Defect  in  Act — Effect  on  validity  of  section.  Tlie  above  sec- 
tion is  enumerated  in  tlie  title  to  tlie  Act,  but  is  not  set  out 
in  the  seratim  enumeration  of  the  new  sections  to  be  added 
to  the  code,  contained  in  the  introductory  part  of  section  one 
of  the  Act;  yet  tlie  above  new  section  purports  to  be  a  part 
of  said  section  one  of  the  Act.  Wliat  the  effect  of  this  omis- 
sion will  be  raises  a  novel  question,  which  question  is  for 
tlie  courts  to  determine. 


788 


DIYISIOX  THIRD. 

Part  I.  Obligations  in  General  §§  1427-1543. 

II.  Contracts,  §§  1549-1701. 

III.  Obligations  Imposed  by  Law,  §§  1708-1715. 

IV.  Obligations  Arising  from  Particular  Transac- 

tions, §§  1721-3268. 


789 


I 


I 


DiV.III,Pt.I,Tit.I.]  INCURRING  OF,  ETC.  §§  1427,  1428 


PART   I. 

OBLIGATIONS   IN   GENERAL. 

Title    I.  Definition  of  Obligations,  §§  1427,  1428. 

II.  Interpretation  of  Obligations,  §§  1429-1451. 

III.  Transfer  of  Obligations,  §§  1457-1468. 

IV.  Extinction  of  Obligations,  §§  1473-1543. 


TITLE  I. 

DEFINITION    OF    OBLIGATIONS. 

§  1427.     Obligation,    what. 

§  1428.     How  incurred  and  enforced. 

§  1427.  OBLIGATION,  WHAT.  An  obligation  is  a  legal 
duty,  by  which  a  person  is  bound  to  do  or  not  to  do  a  certain 
thing. 

History:     Enacted  March   21,  1872. 

56  C.  217,  218  (construed  with  other  sections);  134  C.  586,  588. 
66  P.  856  (referred  to);  54  F.  320,  331  (applied,  with  other 
sections,  to  cause  of  action  surviving  to  administrator  as 
assets  in  his  hands). 

Obligation. — See  Kerr's  Cyc.  C.  C.  §  1428  and  note. 

Same — Damages  for  breach. — See  Kerr's  Cyc.  C.  C.  §  1427  and 
note. 

§1428.  now  INCURRED  AND  ENFORCED.  An  obliga- 
tion arises  either  from: 

1.  The  contract  of  the  parties;   or, 

2.  The   operation   of   law. 

An  obligation  arising  from  operation  of  law  may  be  en- 
forced in  the  manner  provided  by  law  or  by  civil  action  or 
proceeding. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   239. 

791 


§  1428  CIVIL  CODE.  [Div.III.Pt.I. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

56  C.  217,  218  (construed  with  other  sections);  110  C.  374,  385, 
42  P.  896  (applied);  134  C.  586,  588,  66  P.  856  (referred  to);  150 
C.  667,  670,  89  P.  1083  (crystallizing  principle  that  where  right 
is  given  by  statute  without  any  prescribed  remedy,  it  may  be 
enforced  by  any  appropriate  method  recognized  by  general  law 
of  procedure);  54  F.  320,  331  (applied,  with  other  sections,  to 
cause  of  action  surviving  administrator  as  assets  in  his 
hands). 

Obligation  of  contracts — Changing  charter  of  corporation  as 
impairing.— See  8  A.  C.  614;  also  3  A.  C.  86,  88;  4  A.  C.  93;  9 
A.  C.  1121;  10  Cent.  Dig.  col.  1619  §§271  et  seq.;  4  Decen.  Dig. 
p.  1679,  §§  113  et  seq. 


792 


Tit.II.chs.I.IL]  JOINT  AND  SEVERAL.  \  §  1432 


TITLE    II. 

INTERPRETATION  OF  OBLIGATIONS 

Chapter  I.  General  Rules  of  Interpretation,  §  1429. 

II.  Joint  and  Several  Obligations,  §§  1430-14 

III  Conditional  Obligations,  §§  1431-1442. 

IV.  Alternative  Obligations,  §§  1448-1451. 

CHAPTER  I. 

GENERAL  RULES  OF  INTERPRETATION. 

§  1429.     General  rules. 

§  1429.  GENERAL  RULES.  The  rules  which  govern  the 
interpretation  of  contracts  are  prescribed  by  part  two  of 
this  division.  Other  obligations  are  interpreted  by  the  same 
rules  by  which  statutes  of  a  similar  nature  are  interpreted. 

History:     Enacted  March   21.   1872. 

CHAPTER   II. 

JOINT   OR   SEVERAL   OBLIGATIONS. 

§  1430.     Obligations,  joint  or  several,  etc. 

§  1431.     When  joint. 

§  1432.     Contribution  between  joint  parties. 

§1430.    OBLIGATIONS,   JOINT  OR   SEVERAL,   ETC.     An 

obligation  imposed  upon  several  persons,  or  a  right  created 
in  favor  of  several  persons,  may  be : 

1.  Joint; 

2.  Several;   or, 

3.  Joint  and   several. 

Hlstorj-:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

69  C.  616,  620,  11  P.  456,  458  (applied);  129  C.  239.  241,  243, 
61  P.   1088   (construed  and  applied). 

793 


§  142R  CIVIL  CODE.  [Div.III.Ptl. 

§  1431.  WHEN  JOINT.  An  obligation  imposed  upon  sev- 
eral persons,  or  a  right  created  in  favor  of  several  persons, 
is  presumed  to  be  joint,  and  not  several,  except  in  the 
special  cases  mentioned  in  the  title  on  the  interpretation 
of  contracts.  This  presumption,  in  the  case  of  a  right,  can 
be  overcome  only  by  express  words  to  the  contrary. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  30  pars,  annotation. 

69  C.  616,  620,  11  P.  456,  458  (applied);  127  C.  142,  150,  78  A.  S. 
35,  42,  59  P.  390  (cited);  129  C.  239,  243,  61  P.  1088  (cited);  (C. 
Dec.  26,  1902),  70  P.  1071  (construed  witli  other  sections);  140 
C.  535,  537,  74  P.  26  (cited);  3  C.  A.  583,  589,  590,  591,  86  P.  825 
(construed^section  does  not  purport  to  determine  rights  of 
parties  as  between  themselves — presumption  may  be  rebutted). 

JOINT      DEBTORS. 

Accord  and  satisfaction  by  one  or  more. — See  1  Cent.  Dig.  col. 
461,  §  24;  col.  473,  §  50  [d,  e] ;  col.   474,  §  55. 

Act  of  joint  debtor  not  a  co-partner  as  ground  for  adjudica- 
tion in  bankruptcy  against  the  other. — See  6  Cent.  Dig.  col  167, 
§63. 

Action — For  damages  for  joint  tort. — See  6  L.  630. 

Same — May   be  brought  against  by  whom. — See   64  L.   604. 

Attachment  against. — 'See  5  Cent.  Dig.  col.  246,  §51;  col.  494, 
§279. 

Character  of  the  liability  of  several  persons  whose  independ- 
ent wrongs  of  the  same  kind  contribute  to  enhance  the  degree 
or  extent  of  the  injury. — See  10  L.  N.  S.  167. 

Contribution  between. — See  11  Cent.  Dig.  col.  2185,  §§  3,  4. 

Curing  separate  verdict  rendered  in  action  for  joint  tort. — 
See  10  L.  N.  S.  191. 

Due  process  in  service  on. — See   50  L.   595. 

Effect  of  transfer  by  one  joint  debtor,  without  indorsement, 
of  worthless  check  or  note  to  third  person. — See  10  L.  N.  S.  549. 

Joint  liability  of  master  and  servant — For  negligence  or 
nonfeasance  of  servant. — See  28  L.  441. 

Same — For  tort  of  servant. — See  12  L.  N.  S.  669. 

Judgment  against — As  to  generally,  see  30  Cent.  Dig.  col.  582, 
§§  415-426. 

Same — Two,  service  being  on  only  one. — See  1  K  311. 

Part  payment  by  one  joint  debtor  as  preventing  bar  of 
statute  of  limitations. — See  33  Cent.  Dig.  col.   1159.  §§  624-626. 

Release — Effect  of  judgment  against  one  joint  tort-feasor 
upon  liability  of  the  others. — See  58  L.  410. 

Same — Effect  of  judgment  in   favor  of  one  defendant  charged 

794 


Tit.II,clx.II.]  CONTRIBUTION.  §  1432 

with  negligence  on  liability,  of  co-defendant. — See  2  L.  N.  S.  764. 

Same — Effect  of  release  of  one  joint  tort-feasor  on  liability  of 
others. — See   58  L.   293. 

Same — Effect  of  verdict  for  servant  in  action  against  master 
and  servant  for  servant's  misfeasance. — See  9  L.  N.  S.  880. 

Same — Effect  on  pre-existing  judginents  of  statutes  permitting 
release  of  one  joint  judgment  debtor  without  affecting  the 
others. — See  9  L,.  N.  S.  1066. 

Same — Judgment  in  action  against  part  of  joint  obligators, 
effect  to  release  or  limit  liability  of  other  obligators. — See  43 
L.   161. 

Same — rOf  one  joint  debtor,  effect  on  others. — See  5  L.  596. 

Same — Payment  by  one  joint  debtor,  effect  to  distinct  debt. — 
See  68  L.  514. 

Same — Previous  release  of  joint  tort-feasor  by  servant 
executing  release  on  accepting  benefits  of  relief  fund. — See  11 
L.  N.  S.   201. 

Same — Where  prior  proceedings  affect  subsequent  proceedings 
in  the  same  action. — See  43  L.  164. 

Same — Where  some  of  debtors  are  non-residents. — See  43  L. 
162. 

Same — Where  the  common-law  rule  is  affected  by  statute. — 
See  43  L.   162. 

Removal  of  cause,  because  of  separable  controversy,  of  action 
based  upon  joint  or  joint  and  several  liability. — See  5  L.  N.  S. 
91. 

Service  of  process  on. — See  40  Cent.  Dig.  col.  2575,  §  49. 

§  1432.     CONTRIBUTIOIf     BETWEEN     JOINT     PARTIES. 

A  party  to  a  joint,  or  joint  and  several  obligation,  who 
satisfies  more  than  his  share  of  the  claim  against  all,  may 
require  a  proportionate  contribution  from  all  the  parties 
joined   with   him. 

History:     Enacted  March  21,   1872. 

See  'Kerr's  Cyc.  C.  C.  for  84  pars,  annotation. 

117  C.  195,  202,  49  P.  8  (construed);  130  C.  245,  254,  62  P.  466, 
600  (applied  with  other  sections);  132  C.  480,  482,  64  P.  853 
(applied);  135  C.  91,  93,  67  P.  7  (applied  with  §709);  6  C.  A, 
686,  688,  92  P.  1035  (applied  to  cosureties — contribution — sub- 
rogation). 

As  to  joint  debtors  generally,  see  note  §  1431,  ante. 


795 


§§  1434,  1435  CIVIL  CODE.  [Div.III.Pt.I. 

CHAPTER    III. 
CONDITIONAL.    OBLIGATIONS. 

§  1434.  Obligation,  when  conditional. 

§  1435.  Conditions,    kinds    of. 

§  1436.  Conditions    precedent. 

§  1437.  Conditions  concurrent. 

§  1438.  Condition    subsequent. 

§  1439.  Performance,  etc.,  of  conditions,  when  essential. 

§  1440.  When    performance,    etc.,    excused. 

§  1441.  Impossible  or  unlawful  conditions  void. 

§  1442.  Conditions  involving  forfeiture,   how  construed. 

§  1434.     OBLIGATION,  >VHEN  CONDITIONAL.    An  obliga- 
tion is  conditional,   when  the   rights  or  duties  of  any  party 
thereto  depend  upon  the  occurrence  of  an  uncertain  event. 
History:     Enacted  March  21,   1872. 

See   Kerr's   Cyc.   C.   C.   for   3   pars,   annotation. 

As  to  condition  concurrent,  precedent,  and  subsequent,  see 
Kerr's  Cyc.  C.  C.  §§1436,  1437,  1438  and  notes;  also  note  §1435, 
post. 

§1435.  CONDITIONS,  KINDS  OF.  Conditions  may  be 
precedent,  concurrent  or  subsequent. 

Hi-story:     Enacted  March  21,   1872. 

CONDITIONS — GENERALLY. 

As  to  conditions  concurrent,  see  Kerr's  Cyc.  C.  C.  §  1437  and 
note. 

As  to  conditional  legacies,  see  Kerr's  Cyc.  C.  C.  §§  1345,  1346 
and   notes. 

As  to  conditions  of  ownership,  see  Kerr's  Cyc.  C.  C.  §§  707, 
708  and  notes. 

As  to  conditions  precedent,  see  Kerr's  Cyc.  C.  C.  §§  1346,  1436 
and  notes. 

As  to  conditions  subsequent,  see  Kerr's  Cyc.  C.  C.  §  1438  and 
note. 

As  to  various  kinds  of  conditions,  see  8  Cyc.  558. 

Breach  of — Who  may  take  advantage  of. — See  6  Encyc.  L. 
506. 

Conditional  limitations. — See  6  Encyc.  L.   514. 

Conditions  against  contesting  will. — See  6  Encyc.  L.   512. 

796 


Titll.ch.IIL]  CONDITIONS,  GENERALLY.  §1435 

Conditions  subsequent— General   nature.— See   6   Encyc.    L.   504^ 
Same— As  to  what  are— Effect  of  on  a  succeeding  law  or  act  of 
God  preventing  performance.— See  5  L.  422;  21  L.  o8. 

Creation    and    construction    of    conditions    precedent.— See     . 

W    &   P.    1402. 

Distinctions  as  to  conditions.— See  6  Encyc.  L.  503. 
Exemptions  and  reservations.- See  6  Encyc.  L.  oId. 
E.xpress  and  implied  conditions.— See  6  Encyc^  L.   500. 
Form  and  construction  of  conditions.— See  6  Encyc^  L.  501. 
In  deeds— Conditions— As   to  generally,   see  4  L.   3^3. 
Same— Same— Covenants    distinguished    from.— See    1    L.    380. 

'   Same-Same-Equitable    relief    against    forfeiture    for    breach 

of —See   69   L.   836,   841.   842. 

Same-Same-Forbidding    sale    of    intoxicating    liquors    upon 

premises. — See   4   L.   373. 

Same— Same— Forefeiture  of  estate  for  breach   of— As  manu- 
facture or  sale  of  liquors.— See   2  L.   526;   5  L.   423. 

Same— Same— Liability    of    grantee    upon,    in    deed    poll.— See 

OO    T       ^96 

Same— Same— Limited  to  use  of  land  for  a  specified  charitable 
or  quasi   public  purpose. — See   19   L.    262. 

Same— Same— Riglit  of  re-entry  for.— See  5  L.  4l4. 

Same— Same— Rule    that    must    be    express    and    certain.- bee 

^%ame— Same— Transferability  of  right  of  entry  for.  broken.— 

See  60  L.  750-764. 

Same— Conditions    and    restrictions,     validity    of.— See    95    a. 

'same— Conditions  precedent  and   subsequent,    impossibility   of 

performance. — See  70  A.  S.  289.  ^ 

Same— Conditions   precedent,   what  are.— See    102    A.   S.    366;    - 

Same— Conditions    subsequent— As    to    generally,    see    31    A.    b. 

46;  2  W.  &  P.  1402.  .,    tx-     x.    p 

Same— Same— Creation   and    construction    of.— See    .    \\ .    ^    ^- 

1404 

Same— Same— Distinguished    from    conditions    precedent.— vSee 

2  W.  &  P.   1401. 

Same— Same— Mode  of  taking  advantage  of  breaches  of.— bee 

93  A.  S.  372.  .,     .      T?     «•?-    79 

Same— Same— What    language    creates.— See    57    A.    K.    b.i. 

"same-^Same— When    and   at    whose    instance   may    be   avoided 
for  breach  of. — See  44  A.  D.  743. 

Same— Same— Condition     of     payment     of     money^Equitable 
relief  against  forfeiture  for  breach  of. — See  69  L.  842. 

797 


§§  1436, 1437  CIVIL  CODE.  [Div.III.Pt.I. 

Same — Same — Conditions  for  support — Equitable  relief  against 
forfeiture  for  breach  of. — See  69  L.  841. 

In  wills — Conditions  in  restraint  of  marriage. — See  1  L.  387. 

Same — Same — Meaning  of  words  "Unmarried,"  and  "Without 
having  been  married",  in  will. — See  15  L.  292. 

In  wills — Condition  precedent,  condition  subsequent,  and  con- 
ditional  devises — Operation  and   effect. — See   9   L.   165. 

In  wills — Conditions  precedent — What  are. — See   102   A.  S.   366. 

Same-^^Conditions  providing  forfeiture  by  contesting,  validity. 
— See   68   L.    447-457. 

Same — Enforcement  of  condition. — See  9  L.  165. 

Same — Devise  during  widowhood. — See  1  L.  432;  9  L.  573. 

Same — Distinction  between  words  of  limitation  and  condition. 
— See  9  L.   165. 

Same — Occurrence  of  contingencies. — See  10  L.  816. 

Performance  of  conditions — As  to  generally,  see  6  Encyc.  L. 
504. 

Restraint  on  alienation. — See  6  Encyc.  L.  509. 

Restraint  on  marriage. — See  6  Encyc.  L.  512. 


§  1436.  CONDITIONS  PRECEDENT.  A  condition  prece- 
dent is  one  which  is  to  be  performed  before  some  right 
dependent  thereon  accrues,  or  some  act  dependent  thereon 
is   performed. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  65  pars,  annotation. 

98  C.   433,   440,  33  P.   332,  334    (applied). 

As  to  conditions  generally,  see  note  §  1435,  ante. 

As  to  conditions  precedent,  see  38  A.  D.  54;  62  A.  D.  54;  70  A. 
S.  829-837. 

As  to  impairment  of  state  contracts,  see  13  L.  170. 

As  to  impairment  of  vested  rights,  see  10  L.  405. 

As  to  waiver  of  condition  precedent,  see  notes  and  briefs  6 
L.   342;   60  L.   18. 

§  1437.  CONDITIONS  CONCURRENT.  Conditions  concur- 
rent are  those  which  are  mutually  dependent,  and  are  to  be 
performed  at  the  same  time. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

53  C.   721,   723    (applied);   87   C.   49,   59,   25   P.   249,   252    (applied). 
As  to  conditions  generally,  see  note  §  1435,  ante. 

798 


Tit.II,ch.III.]  PERFORMANCE.  §§  1438,  1439 

§  1438.  CONDITION  SUBSEQUENT.  A  condition  subse- 
quent is  one  referring  to  a  future  event,  upon  the  happening 
of  which  the  obligation  becomes  no  longer  binding  upon  the 
other  party,  if  he  chooses  to  avail  himself  of  the  condition. 

History:     Enacted  March  21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

As  to  conditions  generally,  see  note  §  1435,  ante. 

As  to  conditions  subsequent  in  deeds,  see  Kerr's  Cyc.  C.  C. 
§1109  and  note  pars.  10-13. 

As  to  construction  of  conditions  subsequent,  see  Kerr's  Cyc.  C. 
C.  §1438,  note  pt.  IV;  also  75  A.  D.  171-173;  80  A.  D.  189;  79 
A.  S.   747,  769. 

As  to  what  words  will  or  will  not  create  condition  subsequent, 
see   44  A.  D.   741-759;   57  A.  R.   63-68;   79   A.   S.   747-769. 

§1439.    PERFORMANCE,  ETC.,   OF   CONDITIONS,   WHEN 

ESSENTIAL.  Before  any  party  to  an  obligation  can  require 
another  party  to  perform  any  act  under  it,  he  must  [1]  fulfil 
all  conditions  precedent  thereto  imposed  upon  himself;  and 
must  [2]  be  able  and  offer  to  fulfil  all  conditions  concurrent 
so  Imposed  upon  him  on  the  like  fulfilment  by  the  other  party, 
except  as  provided  by  the  next  section. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  209  pars,  annotation. 

87  C.  49,  59,  25  P.  249,  252  (applied);  98  C.  377,  381,  33  P.  266 
(construed);  107  C.  55,  65,  40  P.  45  (applied);  117  C.  669.  671, 
49  P.  840  (applied);  133  C.  456,  458,  65  P.  968  (applied):  146  C. 
580,  584,  80  P.  929  (he  who  seeks  to  enforce  a  contract  must 
show  that  he  lias  complied  with  conditions  and  agreements  of 
contract  on  his  part  to  be  performed);  153  C.  234,  240,  94  P. 
889  (no  right  of  redeinption  of  pledge  arises  until  when);  4  C.  A. 
361,  367,  88  P.  287  (obligation  of  contract  is  not  condition 
precedent   unless   made   so,   how). 

As  to  admissibility  of  evidence  of  waiver  or  in  excuse  of  per- 
formance, see  62  A.  D.  54. 

As  to  averment  of  performance  of  conditions,  see  Kerr's  Cyc. 
C.  C.  §  1439,  note  pars.  35-45. 

As  to  avoidance  of  deed  on  breacli  of  condition  subsequent,  see 
44   A.   D.   743,   759. 

As  to  conditions  generally,  see  note  §  1435,  ante. 

As  to  dependent  and  independent  covenants  and  conditions, 
see  5  L.  ed.  600. 

799 


§  1440  CIVIL  CODE.  [Div.III.Pt.I. 

As  to  duration  of  condition  subsequent  and  who  bound  by,  see 
44  A.  D.  745. 

As  to  effect  of  breach  of  condition  subsequent,  see  44  A.  D. 
754,  755. 

As  to  evidence  of  waiver  or  in  excuse  of  performance,  see  62 
A.  D.   55. 

As  to  excuses  for  non-performance,  see  Kerr's  Cyc.  C.  C.  §  1441 
and   note. 

As  to  forfeiture  of  a  corporate  franchise,  see  Kerr's  Cyc.  C. 
C.  §  1439,  note  par.  75. 

As  to  impossibility  of  performance,  see  Kerr's  Cyc.  C.  C.  §  1441 
and  note. 

As  to  improvements. — See  Kerr's  Cyc.  C.  C.  §  1439,  note  par. 
146. 

As  to  independent  conditions,  see  5  L.  ed.  600. 

As  to  performance  and  time  in  wliich  condition  must  be  per- 
formed, see  44  A.  D.  748. 

As  to  performance  of  conditions  precedent,  see  62  A.  D.  54. 

As  to  refusal  to  perform  and  its  effect,  see  Kerr's  Cyc.  C.  C. 
§  1439,  note  pars.  29-34. 

As  to  relief  in  equity  against  forfeiture,  see  68  A.  D.   85-88. 

As  to  substantial  compliance,  see  9  L.  52. 

As  to  time  being  of  the  essence  of  the  contract,  see  note 
2  Edw.  Ch.    (N.  Y.)    78,  6  L.  ed.   315. 

As  to  vesting  of  legacy  upon  failure  to  perform  conditions 
subsequent,  see  78  A.  D.  234-336. 

As  to  waiver  and  excuse  of  performance,  see  44  A.  D.  745. 

As  to  waiver  and  excuse  for  non-performance,  see  44  A.  D. 
745-748. 

As  to  what  constitutes  breach  of  condition  subsequent,  see  44 
A.  D.  749. 

As  to  when  entire  performance  is  necesary  and  where  recovery 
can  be  had  for  past  performance,  see  72  A.  D.  454. 

As  to  when  equity  will  relieve,  though  time  is  of  essence 
of  contract,  see  note  2  Edw.  Ch.  (N.  Y.)  78,  6  L.  ed.  315. 

Architects'  certificates,  see  Kerr's  Cyc.  C.  C.  §  1439,  note 
pars.  8,   9,  10,   203-209  this  note. 


§1440.    WHEN   PERFORMANCE,   ETC.,  EXCUSED.     If   a 

party  to  an  obligation  gives  notice  to  another,  before  the 
latter  is  in  default,  that  he  will  not  perform  the  same  upon 
his  part,  and  does  not  retract  such  notice  before  the  time 
at  which  performance  upon  his  part  is  due,  sucli  other  party 
is  entitled  to  enforce  the  obligation  without  previously  per- 

800 


Tit.II.Ch.III.]  CONDITIONS  VOID.  §  1441 

forming  or  offering  to  perform  any  conditions  upon  his  part 
in  favor  of  the  former  party. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

88  C.  537,  541,  26  P.  355,  356  (applied);  54  C.  587  (applied); 
128  C.  250,  253,  60  P.  860  (applied);  144  C.  397,  401,  77  P.  996  (If 
party  declares  himself  not  bound  by  contract,  he  cannot  set  up 
failure  in  either  demand  or  tender);  148  C.  357,  360,  83  P.  151, 
113  A.  S.  276,  3  L.  N.  S.  908,  7  A.  C.  541  (section  has  no  applica- 
tion to  cases  where  performance  is  not  yet  due  upon  part  of 
party  who  has  previously  given  notice  that  he  will  not  perform 
when  performance  is  due);  3  C.  A.  190,  192,  85  P.  665  (cause  of 
action  accrues  when  defendants  refuse  to  perform);  7  C.  A.  241, 
243,    94   P.    82,    83    (applied). 

As  to  conditions  generally,  see  note  §  1435,  ante. 

As  to  demand  and  notice  to  perform,  see  Kerr's  Cyc.  C.  C. 
§  1439,  note  pars.  156  et  seq. 

As  to  right  of  party  discharged  by  refusal  to  recover,  see 
Kerr's  Cyc.  C.  C.  §  1440,  note  par.  9. 

§  1441.   DIPOSSIBLE  OR  UJVLAWFUL  CONDITIONS  VOID. 

A  condition  in  a  contract,  the  fulfilment  of  which  is  [1]  im- 
possible or  [2]  unlawful,  within  the  meaning  of  the  article 
on  the  object  of  contracts,  or  [3]  which  is  repugnant  to  the 
nature  of  the  interest  created  by  the  contract,  is  void. 

Hiistory:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.   C.  for   69  pars,   annotation. 

As  to  act  of  party  himself  causing  impossibility,  sec  Kerr's 
Cyc.  C.  C.  §  1441,  note  pars.  24,  25. 

As  to  conditions  generally,  see  note  §  1435,  ante. 

As  to  constitutionality  of  statutes  limiting  the  right  to  con- 
tract, see  46  A.  S.  334. 

As  to  constitutionality  of  statutes  restricting  contract  and 
business,  see  21  L.  789. 

As  to  the  effect  of  a  succeeding  law  or  act  of  God  upon  a 
condition  subsequent,  as  preventing  its  perform.ance,  see  21 
L.    58. 

As  to  impossibility  of  performance  of  conditions  precedent 
and  subsequent,  see  62  A.  D.  54,  70  A.  S.  829-837. 

As  to  imprisonment  causing  impossibility,  see  Kerr's  Cvc.  C.  C. 
§  1441,  note  par.   28. 

As  to  liability  upon  breach  of  condition  by  reason  of  its  impos- 
sibility, see  31  A.  R.  100,  70  A.  S.  829-837. 
Kerr's    C.    C— 26  801 


§  1442  CIVIL  CODE.  [Div.III.Pt.I. 

As  to  relief  against  forfeiture  on  conditions  precedent  and 
subsequent,  see  Kerr's  Cyc.  C.  C.   §  1439  note  pars.   121-137. 

As  to  statutory  restriction  upon  contracts  between  master  and 
servant,  see   14  L.   325. 

Act  of  God  as  an  impossibility  of  performance,  see  Kerr's 
Cyc.  C.  C.   §  1441,  note  par.   26. 

§1442.  CONDITIONS  INVOLVING  FORFEITURE,  HOW 
CONSTRUED.  A  condition  involving  a  forfeiture  must  be 
strictly  interpreted  against  the  party  for  whose  benefit  it 
is  created. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

78  C.  49,  56,  20  P.  41,  44  (applied);  87  C.  34,  37,  25  P.  153,  154 
(construed);  92  C.  514,  522,  27  A.  S.  158,  28  P.  593,  595  (applied); 
110  C.  590,  595,  42  P.  976  (applied);  128  C.  285,  288,  60  P.  855 
(applied);  130  C.  16,  19,  62  P.  295  (applied);  145  C.  181,  184,  78 
P.  638  (conditions  providing-  for  forfeiture  of  estate  are  to  be 
construed  liberally  in  favor  of  holder  of  estate,  and  strictly 
against  enforcement  of  forfeiture);  148  C.  223,  227,  82  P.  964,  113 
A.  S.  223,  7  A.  C.  396  (applied  to  insurer  who  prepared  policy  of 
fire   insurance). 

As  to  conditions  generally,  see  note  §  1435,  ante. 

As  to  relief  in  case  of  forfeiture,  see  Kerr's  Cyc.  C.  C.  §  3275. 

As  to  relief  against  forfeiture  in  equity,  see  68  A.  D.  85-88; 
also   Kerr's  Cyc.   C.   C.   §  1439   and  note. 


802 


Tit.II.ch.IV.]  OBLIGATIONS.  §§  1448-1450 

CHAPTER  IV. 

ALTERNATIVE    OBLIGATIONS. 

§  144S.  Who   has    the   right  of   selection. 

§  1449.  Right  of  selection,   how  lost. 

§  1450.  Alternatives   indivisible. 

§  1451.  Nullity  of  one   or   more   of   alternative   obligations. 

§1448.    >VHO   HAS  THE  RIGHT  OF   SELECTION.     If  an 

obligation  requires  the  performance  of  one  of  two  acts,  in 
the  alternative,  the  party  required  to  perform  has  the  right 
of  selection,  unless  it  is  otherwise  provided  by  the  terms  -of 
the  obligation. 

HlHt«i.ry:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C  for  2  pars,  annotation. 
119  C.   599,  601,   51   P.   962. 

§  1449.  RIGHT  OF  SELECTION,  HOW  LOST.  If  the  party 
having  the  right  of  selection  between  alternative  acts  does 
not  give  notice  of  his  selection  to  the  other  party  within 
the  time,  if  any,  fixed  by  the  obligation  for  that  purpose,  or, 
if  none  is  so  fixed,  before  the  time  at  which  the  obligation 
ought  to  be  performed,  the  right  of  selection  passes  to  the 
other  party. 

History:     Enacted  March  ill,   1872. 

Contract  in  alternative,  failure  to  elect,  effect  of. — See  Kerr's 
Cyc.  C.  C.  §  1449  and  note. 

§14o0.  ALTERNATIVES  INDIVISIBLE.  The  party  hav- 
ing the  right  of  selection  between  alternative  acts  must 
select  one  of  them  in  its  entirety,  and  cannot  select  part 
of  one  and  part  of  another  without  the  consent  of  the  other 
party. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc  C.  C.  for  2  pars,  annotation. 
82  C.  46,  50,  22  P.  1131   (applied). 

803 


§  1451  CIVIL  CODE.  [Div.III,Pt.I. 

§  1451.  NULLITY  OF  ONE  OB  MORE  OF  ALTERNATIVE 
OBLIGrATlONS.  If  one  of  the  alternative  acts  required  by 
an  obligation  is  such  as  the  law  will  not  enforce,  or  becomes 
unlawful  or  impossible  of  performance,  the  obligation  is  to 
be  interpreted  as  though  the  other  stood  alone. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

55  C.  564,  566  (meaning  of  "instrument" — It  does  not  embrace 
what);   123  C.   240,  243,  55  P.   804. 


804 


rpij.   jjj  "I  BURDEN— RIGHTS.  §§  1407,  1458 


TITLE   III. 

TRANSFER    OF    OBLIGATIONS. 

§  1457.  Burden   of  obligation  not   transferable. 

§  1458.  Rights  arising  out  of  obligation  transferable. 

§  1459.  Non-negotiable   instruments    may   be  transferred. 

§  1460.  Covenants   running  with   land,   what. 

§  1461.  What   covenants   run   with   land. 

§  1462.  Same.     [Covenant  for  benefit  of  property.] 

§  1463.  Same.      [Covenants   to   pay   rent,    etc.] 

§  1464.  What  covenants  run  with  land  when  assigns  are  named. 

§  1465.  Who  are  bound  by  covenants. 

§  1466.  Who    are   not. 

§  1467.  Apportionment   of    covenants. 

§1468.  Transfer  of  obligations;   covenants  to  run   with  land. 

§1457.  BUKDEN  OF  OBLIGATION  NOT  TRANSFER- 
ABLE.  The  burden  of  an  obligation  may  be  transferred  with 
the  consent  of  the  party  entitled  to  its  benefit,  but  not  other- 
wise,  except  as   provided   by   section   fourteen   hundred   and 

sixty-six. 

History:     Enacted  Mircli  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

84  C  281  ''89  18  A.  S.  179,  24  P.  42,  45  (cited  and  construed): 
86  C  574  576,  577,  21  A.  S.  63,  25  P.  52,  53  10  L.  369  (applied  and 
construed);  96  C.  404,  407,  408.  31  P.  266  (construed);  (C.^Oct.  3, 
1894)  38  P.  39,  40  (applied  and  construed);  124  C.  255.  257.  56  P. 
1109  "(applied  and  construed);  135  C.  636,  643,  68  P.  92  (applied 
and  cited);  1  C.  A.  587,  591,  82  P.  542  (applied  to  assignment 
of  charter  party);  1  C.  A.  659,  664,  82  P.  1075  (party  dead  cannot 
consent— heir  is  entitled  to  benefit  of  obligations  descending  to 
him). 

§  1458.  RIGHT  ARISING  OUT  OF  OBLIGATION  TRANS- 
FERABLE. A  right  arising  out  of  an  obligation  is  the  prop- 
erty of  the  person  to  whom  it  is  due  and  may  be  transferred 

as  such. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

84  C  281.  283,  288.  18  A.  S.  179.  24  P.  42.  43.  44  (applied  and 
construed  with   §§1044  and  1059);    (C.  Dec.   22.  1900).  63  P.   168. 

806 


§  1459  CIVIL  CODE.  [Div.III.Pt.I. 

169,  170  (applied  and  cited  with  §954);  144  C.  256,  260,  79  P. 
451,  1  A.  C.  850  (applied  to  contract  granting  exclusive  option 
to  purchase  land);  3  C.  A.  561,  568,  86  P.  820  (rights  and  things 
arising  out  of  agreement  concerning  shipment  of  wheat,  includ- 
ing profits,  are  capable  of  assignment);  54  F.  320,  331  (applied, 
with  other  sections,  to  cause  of  action  surviving  to  administra- 
tor as  assets  in   his   hands). 

As  to  action  by  assignee,  see  Kerr's  Cyc.  C.  C.  P.  §  368  and 
note. 

As  to  assignment   by  heir,  see  'Kerr's  Cyc.  C.  C.   §  2909. 

As  to  assignment  of  non-negotiable  written  contracts  for 
payment  of  money  or  personal  property,  see  Kerr's  Cyc.  C.  C. 
§  1459  and  note. 

As  to  assignment  of  things  in  action  generally,  other  than 
those  arising  out  of  breach  of  written  contracts,  see  Kerr's 
Cyc.  C.  C.  §  954  and  note. 

§1459.  NON-NEGOTIABLE  INSTRUMENTS  MAT  BE 
TRANSFERRED.  A  non-negotiable  written  contract  for  the 
payment  of  monej^  or  personal  property  may  be  transferred 
by  indorsement,  in  like  manner  with  negotiable  instruments. 
Such  indorsement  shall  transfer  all  the  rights  of  the  assignor 
under  the  instrument  to  the  assignee,  subject  to  all  equities 
and  defenses  existing  in  favor  of  the  maker  at  the  time  of 
the  indorsement. 

Hi.story:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  73  pars,  annotation. 

55  C.  126,  129  (applied  with  C.  C.  P.  §368);  55  C.  564, 
566  (referred  to  with  other  sections);  84  C.  281,  283,  18  A.  S. 
179,  24  P.  42,  43  (referred  to  with  §§1044,  1458);  86  C.  574,  576, 
21  A.  S.  63,  25  P.  52,  53,  10  L.  369  (construed);  94  C.  141,  145,  29  P. 
866,  867  (construed);  101  C.  286,  288,  35  P.  876  (construed 
With  C.  C.  P.  §368);  107  C.  55,  62,  40  P.  45  (construed  with 
C.  C.  P.  §§368,  440);  108  C.  25,  29,  41  P.  24  (applied);  129 
C.  409,  412,  62  P.  36  (applied  with  C.  C.  P.  §1184);  132  C. 
582,  584,  64  P.  1097  (applied);  133  C.  681,  685,  65  P.  1110 
(applied  with  C.  C.  P.  §368);  134  C.  408,  410,  66  P.  494 
(applied  with  §324);  69  P.  228,  232  (applied);  144  C.  19,  35,  77 
P.  712,  713  (applied — assignment  of  mortgage);  1  C.  A.  587,  591, 
592,  82  P.  542  (charter  party  and  contract  may  be  transferred). 

As  to  assignment  of  judgment  at  common  law,  form  of  trans- 
fer, validity  and  effect,  and  rights  of  assignee,  see  54  A.  D.  366, 
369. 

As  to  city,  county,  and  state  warrants,  see  Kerr's  Cyc.  C.  C. 
§  1549,   note  pars.   45,   49. 

806 


Tit.  III.]  COVENANTS.  §§1460,1461 

As  to  liability  of  assignor  as  indorser,  see  Kerr's  Cyc.  C.  C. 
§  1549,  note  par.  25. 

As  to  parties — Assignee  is  proper  party  to  sue. — See  Kerr's 
Cyc.  C.  C.  P.  §  367  and  note. 

Counterclaim  not  barred  by  assignment,  when. — See  Kerr's 
Cyc.  C.  C.  P.  §  440  and  note. 

Notice  to  party  liable  is  necessary  upon  assignment  of  chose 
in  action,  when. — See  Kerr's  Cyc.  C.  C.  §  954  and  note. 


§1460.    COTENANTS    RUNNING    WITH    LAND,    WHAT. 

Certain  covenants,  contained  in  grants  of  estates  in  real 
property,  are  appurtenant  to  such  estates,  and  pass  with 
them,  so  as  to  bind  the  assigns  of  the  covenantor  and  to 
vest  in  the  assigns  of  the  covenantee,  in  the  same  manner 
as  if  they  had  personally  entered  into  them.  Such  covenants 
are  said  to  run  with  the  land. 

Hi-story:     Enacted   March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

80  C.  114,  118,  13  A.  S.  112,  22  P.  53,  54  (referred  to  in  discus- 
sion); 80  C.  530,  534,  538.  22  P.  275,  276,  277,  278  (referred  to  in 
discussion);  119  C.  283,  294,  63  A.  S.  108,  51  P.  2,  542  (referred  to 
with  §1113);  1  C.  A.  701,  704,  82  P.  1082  (what  covenants  affect 
title  to  land). 

As  to  liability  of  heirs  and  assigns,  see  Kerr's  Cyc.  C.  C. 
§§  1465,    1466   and   notes. 

Privity  of  estate  between  grantor  and  grantee's  assigns. — See 
10   A.   S.   557-565. 

§  1461.  WHAT  COVENANTS  RUN  WITH  LAND.  The  only 
covenants  which  run  with  the  land  are  those  specified  in 
this  title,  and  those  which  are  incidental  thereto. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

80  C.  114,  118,  13  A.  S.  112,  22  P.  53,  54  (referred  to  in  discus- 
sion); 80  C.  530,  534,  22  P.  275  (referred  to  in  discussion  with 
§§1460  and  1462-1466);  120  C.  571,  573,  65  A.  S.  203,  52  P.  813 
(referred  to  with  following  sections);  136  C.  36,  42,  68  P.  308 
(referred  to  with  §  1462);  1  C.  A.  701,  704,  82  P.  1082  (what  cov- 
enants affect  title  to  land). 

As  to  covenants  running  with  land,  see  Kerr's  Cyc.  C.  C. 
P.   §§  1460,    1462-1464  and  notes;  also  47  A.  D.   577. 

807 


§§  1462-1464  CIVIL  CODE.  [Div.III.Pt.I. 

§1462.  SAME.  [COYENANT  FOR  BENEFIT  OF  PROP- 
ERTY.] Every  covenant  contained  in  a  grant  of  an  estate 
in  real  property,  which  is  made  for  the  direct  benefit  of  the 
property,  or  some  part  of  it  then  in  existence,  runs  with 
the  land. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

80  C.  114,  118,  13  A.  S.  112,  22  P.  53,  54  (construed  and  applied); 
80  C.  530,  534,  22  P.  275  (construed  and  applied);  92  C.  93,  95,  28 
P.  103  (construed);  136  C.  36,  41,  42,  68  P.  308  (construed  and 
applied);  152  C.  618,  627,  93  P.  881  (what  covenants  only  run 
with  land);  1  C.  A.  701,  704,  82  P.  1082  (what  covenants  affect 
title  to  land). 

§  1463.    SAME.     [COYENAJ^TS  TO  PAY  RENT,  ETC.]    The 

last  section  includes  covenants  "of  warranty,"  "for  quiet  en- 
joyment," or  for  further  assurance  on  the  part  of  a  grantor, 
and  covenants  for  the  payment  of  rent,  or  of  taxes  or  assess- 
ments upon  the  land,  on  the  part  of  a  grantee. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

152  C.  618,  627,  93  P.  881  (what  covenants  only  run  with 
land);  5  C.  A.  475,  480,  90  P.  962  (covenant  to  pay  rent  runs 
with   land). 

§1464.  WHAT  COYENANTS  RUN  WITH  LAND  WHEN 
ASSIGNS  ARE  NAMED.  A  covenant  for  the  addition  of  some 
new  thing  to  real  property,  or  for  the  direct  benefit  of  some 
part  of  the  property  not  then  in  existence  or  annexed  thereto, 
when  contained  in  a  grant  of  an  estate  in  such  property, 
and  made  by  the  covenantor  expressly  for  his  assigns  or  to 
the  assigns  of  the  covenantee,  runs  with  land  so  far  only 
as  the  assigns  thus  mentioned  are  concerned. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

66  C.  416,  420,  5  P.  910  (construed  and  applied);  80  C.  530,  534, 
22  P.  275  (referred  to  with  §§60-63,  65,  66);  152  C.  618,  627,  93 
P.   881    (what  covenants  only   run   with   land). 

As  to  covenants  for  direct  benefit  of  property,  see  Kerr's  Cyc. 
C.   C.   §  1462   and  note. 


rpj^.  jjj  -J  WHO  BOUND  BY.  §§  1465-1467 

§  1465.  WHO  ARE  BOUND  BY  COYEXANTS.  A  covenant 
running  with  tlie  land  binds  those  only  who  acquire  the 
whole  estate  of  the  covenantor  in  some  part  of  the  property. 

History:     Enacted  March  21,  1872. 

80  C.  530,  534,  22  P.  275  (referred  to  by  the  court  in  the  dis- 
cussion  with   §§  1460-1464   and    1466). 

See  Kerr's  Cyc.  C.  C.  §  1461  and  note  par.  8. 

§  U66.  WHO  ARE  NOT.  No  one,  merely  by  reason  of  hav- 
ing acquired  an  estate  subject  to  a  covenant  running  with 
the  land,  is  liable  for  a  breach  of  the  covenant  before  he 
acquired  the  estate,  or  after  he  has  parted  with  it  or  ceased 
to  enjoy  its  benefits. 

Hi.slory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

66  C.  416,  421,  5  P.  910  (referred  to  in  discussion);  80  C.  530, 
534,  22  P.  275,  276,  277  (referred  to  with  §§1460-1465);  96  C.  404. 
407',  31  P.  266  (referred  to  as  part  of  §1457);  116  C.  84,  88,  58 
A.  S.   135,  47  P.  935   (construed  and  applied). 

§  1467.  APPORTIONMENT  OF  COYENANTS.  Where  sev- 
eral persons,  holding  by  several  titles,  are  suljject  to  the 
burden  or  entitled  to  the  benefit  of  a  covenant  running  with 
the  land,  it  must  be  apportioned  among  them  according  to 
the  value  of  the  property  subject  to  it  held  by  them  respect- 
ively, if  such  value  can  be  ascertained,  and  if  not,  then 
according  to  their  respective  interests  in  point  of  quantity. 
History:     Enacted  March  21,   1872. 

As  to  apportionment  on  partial  destruction  of  leased 
premises,  see  Kerr's  Cyc.  C.  C.  §§  1467,  1514  and  notes;  also  30 
L.   716;   36  L.   424;   61    A.   S.   570-573. 

As  to  apportionment  of  rent  notes  not  duo  at  life  tenant's 
death,  see  48  L.  735. 

Apportionment  of  loss  between  tenant  and  remainderman.— 
See  35  L.  790. 

For  general  decision  of  doctrine  of  apportionment  of  rent,  see 
18  Encyc.  L.  289. 

809 


§  1468  CIVIL  CODE.  [Div.III,Pt.I. 

§1468.  TRANSFER  OF  OBLIGATIONS;  COVENANTS  TO 
RUN  WITH  LAND.  A  covenant  made  by  the  owner  of  land 
with  the  owner  of  other  land  to  do  or  refrain  from  doing 
some  act  on  his  own  land,  which  doing  or  refraining  is 
expressed  to  be  for  the  benefit  of  the  land  of  the  covenantee, 
and  which  is  made  by  the  covenantor  expressly  for  his  assigns 
or  to  the  assigns  of  the  covenantee,  runs  with  both  of  such 
parcels  of  land. 

History:  Enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p. 
610. 


810 


Tit  IV  ch.L]  PERFORMANCE.  §  1473 

TITLE   IV. 

EXTINCTION    OF    OBLIGATIONS. 

Chapter  I.     Performance,  §§  1473-1479. 

II.     Offer  of  Performance,   §§  1485-1505. 

III.  Prevention    of    Performance    or    Offer.    §§  1511- 

1515. 

IV.  Accord   and   Satisfaction,    §§  1521-1524. 
V.     Novation,  §§  1530-1533. 

VI.     Release,   §§  1541-1543. 


CHAPTER  I. 

PERFORMANCE. 

§  1473.  Obligation    extinguished    by    performance. 

§  1474.  Performance  by  one  of  several  joint  debtors. 

§  1475.  Performance  to  one  of  joint  creditors. 

§  1476.  Effect  of  directions  by  creditors. 

§  1477.  Partial    performance. 

§  1478.  Payment,    what. 

§  1479.  Application    of    general  performance. 

§1473.  OBLIGATION  EXTINGUISHED  BY  PERFORM- 
ANCE.  Full  performance  of  an  obligation,  by  the  party  whose 
duty  it  is  to  perform  it,  or  by  any  other  person  on  his  behalf, 
and  with  his  assent,  if  accepted  by  the  creditor,  extin- 
guishes it. 

HLstorr:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  April  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  407.  held 
unconstitutional,  see  history,  §   4  ante. 

See   Kerr's  Cyc.   C.   C.  for   128   pars,   annotation.  ^.  .    _   ^ 

76  C.  465,  468,  IS  P.  645,  646  (construed  and  applied),  8b  <^. 
184  187  (applied  but  erroneously  cited  as  §1473  C.  C.  P.) 
P  1005  (same  error);  62  P.  68,  69  (applied  to  indorser  s  pay- 
ment of  corporation  note,  and  who  took  an  assignment  thereof 
from  payee);  133  C.  574,  577,  579-582,  6^P,-1094  (construed  and 
applied)-  134  C.  580,  582,  66  P.  785  (applied);  1  C.  A.  251,  253,  81 
P    1115    (construed  with  other  sections  and  applied  to  payment 

811 


§§1474,1475  CIVIL  CODE.  [Div.III.Pt.I. 

by  surety,  of  note  on  which  he  appealed  as  co-maker;  1  C.  A. 
&59,  664,  82  P.  1075  (promissory  notes — distinction  between  "suc- 
cession" and  "transfer  of  obligation"). 

As  to  accord  and  satisfaction,  see  post  §§  1521-1524  and  notes; 
see  also  note  §1521  post;  and  20  L.  785-812. 

As  to  burden  of  proof  when  note,  check,  etc.,  are  taken  for 
debt,  see  Kerr's  Cyc.  C.  C.  §  1478  and  note. 

As  to  estoppel  by  acceptance  to  object  to  performance,  see 
Kerr's  Cyc.  C.  C.  §  1477  and  note  par.  9. 

As  to  extinguishment  of  negotiable  instruments  by  payment, 
see  Kerr's  Cyc.  C.  C.  P.  §  1473,  note,  par.   2,  and  §  3164  and  note. 

As  to  payment  of  negotiable  instrument  to  payee  after  trans- 
fer to  bona  fide  holder,  see  Kerr's  Cyc.  C.  C.  §  3164  and  note. 

As  to  place  where  negotiable  instrument  must  be  paid,  see 
Kerr's   Cyc.    C.    C.    §  3100  and   note. 

As  to  plea  of  satisfaction,  see  Kerr's  Cyc.  C.  C.  §  1523  and  note. 

As  to  question  of  fact  where  note,  check,  or  like  is  taken 
for  debt,  see  Kerr's  Cyc.  C.  C.   §  1478  note  par.   35. 

As  to  railroad  fare — Payment  and  tender  of,  see  Kerr's  Cyc. 
C.  C.  §§  2187-2190  and  notes. 

As  to  surrender  of  negotiable  instrument  on  payment,  see 
Kerr's  Cyc.  C.  C.   §  3137  and  note. 

As  to  tender  under  protest  against  liability,  see  Kerr's  Cyc. 
C.  C.   §  1494  and  note. 

Mortgage  discharged  by  payment  of  debt. — See  76  A.  D.  76;  51 
A.  S.   689;   54  A.   S.   300. 

Surety  discharged  by  payment  by  principal. — See  Kerr's  Cyc. 
C.  C.  §  2839  and  note. 

§1474.  PERFORHTANCE  BY  O^E  OF  SEVERAL  JOI?fT 
DEBTORS.  Performance  of  an  obligation,  by  one  of  several 
persons  who  are  jointly  liable  under  it,  extinguishes  the  lia- 
bility of  all. 

Hi.story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.   C.  for   7   pars,  annotation. 

1  C.  A.  659,  664,  82  P.  1075  (cited);  2  C.  A.  659,  660,  84  P.  466, 
468    (extinguishment  of  judgment). 

As  to  release  and  discharge,  see  Kerr's  Cyc.  C.  C.  §§  1541- 
1543   and   notes. 

As  to  waiver  in  performance  by  one,  see  Kerr's  Cyc.  C.  C. 
§  1474,   note   par.    7. 

§  1475.    PERFORMANCE  TO  ONE  OF  JOINT  CREDITORS. 

An  obligation  in  favor  of  several  persons  is  extinguished  by 

812 


I 


Tit.IV,ch.I.]  PARTIAL  PERFORMANCE.  §|  1476,  1477 

performance  rendered  to  any  of  them,  except  in  the  case  of 
a  deposit  made  by  owners  in  common,  or  in  joint  ownership, 
wliich  is  regulated  by  the  title  on  deposit. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

96  C.  275,  278,  31  A.  S.  201,  31  P.  290  (applied);  131  C.  421,  425, 
63  P.   732    (applied). 

§  U76.     EFFECT  OF  DI«E('TIO\S  BY  (  KEDITORS.     If  a 

creditor,  or  any  one  of  two  or  more  joint  creditors,  at  any 
time  directs  the  debtor  to  perform  his  obligation  in  a  particu- 
lar manner,  the  obligation  is  extinguished  by  performance 
in  that  manner,  even  though  the  creditor  does  not  receive 
the  benefit  of  such  performance. 

HLstory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

76  C.  639,  644,  18  P.  805,  806,  807  (indefinite  citation— it  refers 
to   §  1476  C.  C.   P.). 

§1477.  PARTIAL  TERFORMA.Nt  E.  A  partial  perform- 
ance of  an  indivisible  obligation  extinguishes  a  corresponding 
proportion  thereof,  if  the  benefit  of  such  performance  is  vol- 
untarily retained  by  the  creditor,  but  not  otherwise.  If  such 
partial  performance  is  of  such  a  nature  that  the  creditor 
cannot  avoid  retaining  it  without  injuring  his  own  property, 
his  retention  thereof  is  not  presumed  to  be  voluntary. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

88  C.  543,  552,  26  P.  515,  518  (applied):  4  C.  A.  361,  368,  88  P. 
287  (partial  breach  of  contract — forfeiture  of  plaintiff's  cor- 
responding right — relief  in  equity);  4  C.  A.  527,  532,  88  P.  493 
(applied  to  contract  to  furnish  pumping  plant  of  specified 
capacity). 

As  to  entirety  of  contract — Complete  performance,  when 
essential  to  cause  of  action  ex  contractu. — See  59  A.  S.  277-295. 

As  to  impossibility  of  performance,  see  Kerr's  Cyc.  C.  C.  §  1511 
and    note. 

As  to  offer  of  partial  performance,  see  Kerr's  Cyc.  C.  C.  §  1486 
and  note;  also  100  A.  S.   390  et  seq. 

813 


§§  1478,  1479  CIVIL  CODE.  [Div.III,Pt.I. 

As  to  partial  payment  by  one  of  joint  obligors,  see  Kerr's 
Cyc.   C.   C.    §  1474  and  note  par.   4. 

As  to  prevention  of  performance,  see  Kerr's  Cyc.  C.  C.  §  1512 
and  note. 

As  to  prevention  of  full  performance,  see  Kerr's  Cyc.  C.  C. 
§  1511  and  note. 

Answer — Admission  of  partial  performance. — See  Kerr's  Cyc. 
C.  C.  §  1473  and  note  pars.  39  et  seq. 

§  1478.  PAYMENT,  WHAT.  Performance  of  an  obligation 
for  the  delivery  of  money  only,  is  called  payment. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

99  C.  89,  94,  37  A.  S.  32,  33  P.  737,  739  (referred  to);  69  P. 
481,  482  (cited);  1  C.  A.  659,  664,  82  P.  1075  (cited  with  other 
sections). 

As  to  payment  by  check,  see  note  7  L.  442,   443. 

Partial  payment.- — See  Kerr's  Cyc.  C.  C.  §  1477  and  note  pars. 
16  et  seq. 

§1479.    APPLICATION    OF    GENERAL    PERFORMANCE. 

Where  a  debtor,  under  several  obligations  to  another,  does 
an  act,  by  way  of  performance,  in  whole  or  in  part,  which 
is  equally  applicable  to  two  or  more  of  such  obligations,  such 
performance  must  be  applied  as  follows: 

1.  If,  at  the  time  of  performance,  the  intention  or  desire 
of  the  debtor  that  such  performance  should  be  applied  to  the 
extinction  of  any  particular  obligation,  be  manifested  to  the 
creditor,  it  must  be  so  applied. 

2.  If  no  such  application  be  then  made,  the  creditor,  within 
a  reasonable  time  after  such  performance,  may  apply  it 
toward  the  extinction  of  any  obligation,  performance  of  which 
was  due  to  him  from  the  debtor  at  the  time  of  such  perform- 
ance; except  that  if  similar  obligations  were  due  to  him 
both  individually  and  as  a  trustee,  he  must,  unless  other- 
wise directed  by  the  debtor,  apply  the  performance  to  the 
extinction  of  all  such  obligations  in  equal  proportion;  and 
an  application  once  made  by  the  creditor  cannot  be  rescinded 
without  the  consent  of   [the]   debtor. 

3.  If  neither  party  makes  such  application  within  the  time 

814 


Tit.IV.ch.I.]  APPLICATION.  §  1479 

prescribed  herein,  the  performance  must  be  applied  to  the 
extinction  of  obligations  in  the  following  order;  and,  if  there 
be  more  than  one  obligation  of  a  particular  class,  to  the 
extinction  of  all  in  that  class,  ratably: 

1.  Of  interest  due  at  the  time  of  the  performance. 

2.  Of  principal  due  at  that  time. 

3.  Of  the  obligation  earliest  in  date  of  maturit}'. 

4.  Of  an  obligation  not  secured  by  a  lien  or  collateral 
undertaking. 

5.  Of  an  obligation  secured  by  a  lien  or  collateral  under- 
taking. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  239,  240;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  407,  held  uncon- 
stitutional, see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  58  pars,  annotation. 

69  C.  120,  121,  10  P.  321,  322  (applied);  81  C.  56,  58,  22  P.  297 
(applied);  81  C.  398,  406,  22  P.  871,  873  (referred  to);  88  C.  384. 
391,  392,  26  P.  601,  603  (construed);  96  C.  441.  443,  31  P.  457 
(construed  and  applied);  97  C.  290,  292,  32  P.  248  (applied); 
114  C.  620,  625,  46  P.  613  (cited);  119  C.  283,  302,  63  A.  S.  108, 
51  P.  2,  542  (referred  to);  125  C.  472,  488,  73  A.  S.  64,  58  P. 
164  (subd.  3  applied  to  deposits  made  by  corporation);  141  C. 
335,  338,  74  P.  999  (applied);  144  C.  776,  782,  78  P.  254  (referred 
to);  145  C.  30,  34.  78  P.  245  (defendant  is  equitably  bound,  when, 
to  apply  money  to  payment  of  debt);  2  C.  A.  47,  48,  83  P.  70 
(debtor's  right  to  direct  application  of  payments);  4  C.  A.  470, 
473,  474,  88  P.  497  (application  of  payment  ratably  where  various 
items  of  account   belong  to   one   class). 

As  to  application  on  several  notes  or  barred  note,  see  14 
L.   208. 

Application  of  payments. — See  13  A.  D.  505;  14  A.  D.  694:  96 
A.   S.   44-82;    12   L.    712. 


815 


§  1485  CIVIL  CODE.  [Div.III,Pt.I. 

CHAPTER     II. 

OFFER  OF  PERFORMANCE. 

§  1485.  Obligation  extinguished  by  offer  of  performance. 

§  1486.  Offer  of  partial  performance. 

§  1487.  By  whom  to  be  made. 

§  1488.  To   whom    to    be   made. 

§  1489.  Where  offer  may  be  made. 

§  1490.  When  offer  must  be  made. 

§  1491.  Same.     [When  obligation  does  not  fix  time.] 

§  1492.  Compensation  after  delay  in  performance. 

§  1493.  Offer  to  be  made  in  good  faith. 

§  1494.  Conditional    offer. 

§  1495.  Ability   and   willingness   essential. 

§  1496.  Production  of  thing  to  be  delivered  not  necessary. 

§  1497.  Thing  offered  to  be  kept  separate. 

§  1498.  Performance  of  condition  precedent. 

§  1499.  Written   receipts. 

§  1500.  Extinction    of   pecuniary   obligation. 

§  1501.  Objections  to  mode  of  offer. 

§  1502.  Title   to  thing  offered. 

§  1503.  Custody  of   thing  offered. 

§  1504.  Effect  of  offer  on  accessories  of  obligation. 

§  1505.  Creditor's  retention  of  thing  which  he  refuses  to  accept. 

§1485.  OBLIGATION  EXTOGUISHED  BY  OFFER  OF 
PERFORMAIVCE.  An  obligation  is  extinguished  by  an  offer 
of  performance,  made  in  conformity  to  the  rules  herein  pre- 
scribed, and  with  intent  to  extinguish  the  obligation. 

History:     Enacted  March  21,   1872.      ' 

See  Kerr's  Cyc.  C.  C.  for  66  pars,  annotation. 

11  P.  782  (applied);  83  C.  246,  259,  23  P.  869,  873,  17  A.  S.  233 
(applied  to  tender  of  payment  of  premium  on  policy  of  fire 
insurance);  98  C.  377,  382,  33  P.  266,  267  (applied);  80  F.  54,  62 
(mode  of  offering  performance  applies  to  what  offers). 

As  to  concurrent  and  dependent  acts,  see  Kerr's  Cyc.  C.  C. 
§  1511  and  note. 

As  to  necessity  of  giving  indemnity  in  such  case,  see  13  A.  D. 
481;    24   A.   S.    566. 

As  to  payment  by  note,  etc.,  see  Kerr's  Cyc.  C.  C.  §  1478  and 
note  par.    15. 

816 


Tit.IV.ch.II.]  BY   WHOM   MADE.  §§  i486,  1487 

As  to  penalty — Offer  to  pay  being  insufficient. — See  Kerr's 
Cyc.   C.   C.   §  1486   and  note  par.    10. 

As  to  sufficiency  and  effect  of  tender,  see  77  A.  D.  470-491. 

Ability  and  willingness  to  perform  essential. — See  Kerr's  Cyc. 
C.  C.   §  1495  and  note. 

Assessment  for  reclamation  of  swampland — Tender  of  war- 
rant.— See  Kerr's  Cyc.  Pol.  C.   §  3465  and  note. 

Compromise — Offer  of. — See  Kerr's  Cyc.  C.  C.  P.  §§  997,  2078 
and   notes. 

Conditional  offer. — See  Kerr's   Cyc.   C.   C.   §  1494   and  note. 

Cost  not  recoverable  when  tender  made  before  action,  if  suffi- 
cient.— See  Kerr's  Cyc.  C.  C.  P.  §  1030  and  note. 

Good  faith  necessary. — See  Kerr's  Cyc.  C.  C.  §  1493  and  note. 

Indemnity  for  lost  instrument — Costs. — See  45  A.  D.  307;  53 
A.    D.    513. 

Partial  performance — Offer  of  insufficient. — See  Kerr's  Cyc. 
C.  C.   §  1486  and  note. 

Production  of  thing  unnecessary  unless  offer  accepted. — See 
Kerr's  Cyc.  C.  C.  §  1496  and  note. 

Railroad  fare — Tender  and  payment  of. — See  Kerr's  Cyc.  C.  C. 
§§  2187-2190   and   notes. 

Surety  discharged  by  tender  by  principal  where  sufficient. — 
See  Kerr's  Cyc.  C.  C.  §  2839  and  note. 

Time  when  offer  must  be  made. — See  Kerr's  Cyc.  C.  C.  §§  1490, 
1491  and  notes. 

Written  offer  equivalent  to  payment. — Sec  Kerr's  Cyc.  C.  C. 
P.    §  2074    and    note. 

§  14S6.  OFFER  OF  PARTIAL  PERFORMANCE.  An  offer 
of  partial  performance  is  of  no  effect. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

127  C.  480,  483,  59  P.  901  (referred  to  as  inapplicable):  80  F. 
54,   62    (mode  of  offering  performance  applies   to   what  offers). 

Waiver  of  obj(!Ction  to  amount. — Sro  Kim'i's  (""ye.  C  C\  ?  I'lOl 
note. 

§  14S7.  IJY  >VnO>r  TO  BE  MADE.-  An  offer  of  perform- 
ance must  be  made  by  the  debtor,  or  by  some  person  on  his 
behalf  and  with  his  assent. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

63  C.  129,  139,  49  A.  R.  83  (referred  to  erroneously  in  dis.  op. — 
see   §1093  C.  C);    119  C.    283,   303.   63   A.   S.    108,   51   P.   2,  542    (re- 

817 


§§1488,1489  CIVIL  CODE.  [Div.III.Pt.I. 

ferred  to);    80  F.   54,   62    (mode   of  offering  performance  applies 
to  what  offers). 

As  to  duty  of  debtor  to  seek  creditor  and  make  tender  of 
amount  due,   see  86  A.  D.   520,   521. 

§  1488.  TO  ^VHOar  TO  BE  MADE.  An  offer  of  perform- 
ance must  be  made  to  the  creditor,  or  to  any  one  of  two  or 
more  joint  creditors,  or  to  a  person  authorized  by  one  or 
more  of  them  to  receive  or  collect  what  is  due  under  the 
obligation,  if  such  creditor  or  authorized  person  is  present  at 
the  place  where  the  offer  may  be  made;  and  if  not,  wherever 
the  creditor  may  be  found. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Stats,   and  Amdts.   1873-4,   p.   240. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

125  C.  687,  690,  58  P.  308  (applied);  141  C.  314,  316,  74  P.  855. 
65  L.  90  (promise  to  repay  money  advanced  by  bank  is  a  prom- 
ise to  pay  at  the  bank);  80  F.  54,  62  (mode  of  offering  perform- 
ance applies  to  what  offers). 

As  to  place  where  tender  should  be  made,  see  Kerr's  Cyc. 
C.  C.  §  1489  and  note;  also  77  A.  D.   479. 

§  1489.  WHERE  OFFER  MAY  BE  MADE.  In  the  absence 
of  an  express  provision  to  the  contrary,  an  offer  of  perform- 
ance may  be  made,  at  the  option  of  the  debtor: 

1.  At  any  place  appointed  by  the  creditor;  or, 

2.  Wherever  the  person  to  whom  the  offer  ought  to  be  made 
can  be  found;  or, 

3.  If  such  person  cannot,  with  reasonable  diligence,  be 
found  within  this  state,  and  within  a  reasonable  distance 
from  his  residence  or  place  of  business,  or  if  he  evades  the 
debtor,  then  at  his  residence  or  place  of  business,  if  the  same 
can,  with  reasonable  diligence,  be  found  within  the  state;  or, 

4.  If  this  cannot  be  done,  then  at  any  place  within  this  state. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

98  C.  406,  407,  33  P.  273  (referred  to);  113  C.  21,  24,  45  P.  12 
(cited);  125  C.  215,  219,  57  P.  989  (cited);  141  C.  314,  316,  74 
P.  855,  65  L.   90    (promise  to  repay  money  advanced  by  bank   is 

818 


Tit.IV.ch.II.]  WHEN  OFFER  MADE.  §§  1490-1492 

a  promise  to  pay  at  the  bank);  80  F.  54,  62  (mode  of  offering 
performance  applies  to  what  offers). 

As  to  place  of  tender,  see  Kerr's  Cyc.  C.  C.  §  1488  note  pars. 
8,  9,  and  26  A.  D.  546. 

Sale  of  goods — Place  of  delivery. — See  Kerr's  Cyc.  C.  C.  §  1754 
and  note. 

§  1490.  WHEN  OFFER  MUST  BE  MADE.  Where  an  obli- 
gation fixes  a  time  for  its  performance,  an  offer  of  perform- 
ance must  be  made  at  that  time,  within  reasonable  hours, 
and  not  before  nor  afterwards. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

74  C.  250,  255,  5  A.  S.  435,  14  P.  369,  371,  15  P.  773  (referred 
to);  86  C.  367,  373,  24  P.  1072,  1073  (referred  to  as  inapplicable); 
123  C.  1,  20,  69  A.  S.  17,  55  P.  713,  43  L.  199  (applied);  127  C. 
114,  117,  59  P.  290  (referred  to);  80  F.  54,  62  (mode  of  offering 
performance  applies  to  what  offers). 

As  to  computation  of  time,  see  Kerr's  Cyc.  C.  C.  §  10  and  note. 

As  to  holidays  and  Sundays,  see  Kerr's  Cyc.  C.  C.  §§7,  10  and 
notes. 

§1491.  SAME.  [WHEX  OBLIGATION  DOES  NOT  FIX 
TIME.]  Where  an  obligation  does  not  fix  the  time  for  its 
performance,  an  offer  of  performance  may  be  made  at  any 
time  before  the  debtor,  upon  a  reasonable  demand,  has 
refused  to  perform. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9   pars,  annotation. 

74  C.  250,  255,  5  A.  S.  435,  14  P.  369,  371,  15  P.  773  (applied); 
80  F.  54,  62  (mode  of  offering  performance  applies  to  what 
offers). 

"As  soon  as  practicable." — See  Kerr's  Cyc.  C.  C.  §  1490  and 
note    par.    4. 

Negotiable  instrument  which  does  not  specify  time  of  pay- 
ment, when  due. — See  Kerr's  Cyc.  C.  C.  §  3099  and  note. 

Notice  of  election  as  to  delivery  of  goods  sold. — See  Kerr's 
Cyc.   C.   C.    §  1753   and   note. 

§1492.  COMPENSATION  AFTER  DELAY  IN  PERFORM- 
ANCE. Where  delay  in  performance  is  capable  of  exact  and 
entire   compensation,    and   time   has   not   been    expressly   de- 

819 


§§  1493,  1494  CIVIL  CODE.  [Div.III,Pt.I. 

Glared  to  be  of  the  essence  of  the  obligation,  an  offer  of  per- 
formance, accompanied  with  an  offer  of  such  compensation, 
may  be  made  at  any  time  after  it  is  due,  but  without  preju- 
dice to  any  rights  acquired  by  the  creditor,  or  by  any  other 
person,  in  the  meantime. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

74  C.  250,  256,  5  A.  S.  435,  14  P.  369,  371,  15  P.  773  (construed 
and  applied);  92  C.  131,  133,  28  P.  104,  105  (construed  and  ap- 
plied); 93  C.  139,  142,  28  P.  813,  814  (construed  and  applied); 
96  C.  339,  343,  344,  31  P.  161,  162  (construed  and  applied);  123 
C.  1,  10,  20,  69  A.  S.  17,  55  P.  713,  43  L.  199  (construed  and 
lield  inapplicable);  133  C.  441,  445,  65  P.  894  (referred  to);  80 
F.  54,  62   (mode  of  offering  performance  applies  to  what  offers). 

Time  as  essence  of  contract. — See  50  A.  D.  597-600. 

§  1493.  OFFER  TO  BE  MADE  IN  GOOD  FAITH.  An  offer 
of  performance  must  be  made  in  good  faith,  and  in  such  man- 
ner as  is  most  likely,  under  the  circumstances,  to  benefit 
the  creditor. 

HLstory:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.   C.   for   7  pars,  annotation. 

130  C.  142,  143,  62  P.  400  (applied);  152  C.  17,  21,  23,  91  P.  1001 
(cited  and  applied  with  other  sections);  80  F.  54,  62  (mode  of 
offering'  performance  applies  to  wliat  offers). 

Ability  and  willingness  essential. — See  Kerr's  Cyc.  C.  C.  §  1495 
and   note. 

Burden  of  proof  on  tenderer. — See  Kerr's  Cyc.  C.  C.  §  1495 
note  par.  2. 

§  1494.  CONDITIONAL  OFFER.  An  offer  of  performance 
must  be  free  from  any  conditions  which  the  creditor  is  not 
bound,  on  his  part,  to  perform. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

71  C.  498,  503,  12  P.  505,  507  (applied);  122  C.  314,  320,  54  P. 
1115  (referred  to);  38  P.  39,  41  (construed);  125  C.  687,  690,  58 
P.  308  (construed);  126  C.  657,  668,  59  P.  146,  47  L.  334  (referred 
to);  80  F.  54,  62  (mode  of  offering  performance  applies  to  what 
offers). 

820 


Tit.IV.ch.II.]  ABILITY,  ETC.,  NECESSARY.  §§  1495-1497 

Answer  alleging  conditional  tender. — See  Kerr's  Cyc.  C.  C. 
§  1485  and  note. 

Condition  precedent — Riglit  to  demand  performance  of,  and 
effect  of  failure  to  comply. — See  Kerr's  Cyc.  C.  C.  §  1*498  and  note. 

Receipt  may  be  required. — See  Kerr's  Cyc.  C.  C.  §  1499  and 
note  par.   5. 

Waiver  of  conditions  annexed  to  tender. — See  Kerr's  Cyc.  C. 
C.   §  1501  and  note  par.  4. 

§1495.    ABILITY   AND   WILLINGNESS   ESSENTIAL.     An 

offer  of  performance  is  of  no  effect  if  the  person  making  it 
is  not  able  and  willing  to  perform  according  to  the  offer. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

74  C.  250,  256,  5  A.  S.  435,  14  P.  369,  372,  15  P.  773  (applied); 
109  C.  630,  633,  42  P.  298  (applied);  152  C.  17,  22.  23,  91  P.  1001, 
1003  (cited  and  applied  with  other  sections);  80  F.  54.  62  (mode 
of  offering  performance  applies  to  what  offers). 

Readiness  and  willingness  to  pay  alone  not  sufficient. — See 
Kerr's  Cyc.   C.   C.    §  1493   and   note   par.    2. 

§  1496.  PRODUCTION  OF  THING  TO  BE  DELIVERED 
NOT  NECESSARY.  The  thing  to  he  delivered,  if  any,  need 
not  in  any  case  he  actually  produced,  upon  an  offer  of  per- 
formance, unless  the  offer  is  accepted. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

97  C.  147,  151,  31  P.  928  (construed  and  applied);  36  P.  1026, 
1027,  1028  (applied);  137  C.  286,  288,  70  P.  82,  83  (applied);  152 
C.  17,  22,  91  P.  1001  (construed  with  §  2074  C.  C.  P.  as  not  dis- 
pensing with  requirements  of  §§1493,  1495  C.  C);  3  C.  A.  190, 
192,  85  P.  665  (applied  to  sale  of  horses);  80  F.  54,  62  (mode 
of  offering  performance  applies  to  what  offers). 

§  1497.     THING  OFFERED  TO  BE   KEPT  SEPARATE.     A 

thing,  when  offered  hy  way  of  performance,  must  not  be 
mixed  with  other  things  from  which  it  cannot  be  separated 
immediately  and  without  difficulty. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
80   F.   54,   62    (mode   of  offering  performance  applies   to   what 
offers). 

821 


§§  1498-1500  CIVIL  CODE.  [Div.III,Pt.I. 

As  to  duty  of  seller  of  chattel  to  put  it  in  condition  fit  for 
delivery,  see  Kerr's  Cyc.  C.  C.   §  1753  and  note. 

§  1498.    PERFOBMANCE    OF    CONDITION    PRECEDENT. 

When  a  debtor  is  entitled  to  the  performance  of  a  condition 
precedent  to,  or  concurrent  with,  performance  on  liis  part, 
he  may  make  liis  offer  to  depend  upon  the  due  performance 
of  such  condition. 

HKstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

49  C.  18,  25  (referred  to  in  construing  antenuptial  contract); 
74  C.  250,  255,  5  A.  S.  435,  14  P.  369,  371,  15  P.  773  (applied  and 
construed);  87  C.  49,  59,  25  P.  249,  252  (cited);  122  C.  314,  321, 
54  P.  1115  (applied);  123  C.  535,  543,  56  P.  453  (cited);  125  C. 
687,  690,  58  P.  308^(cited  with  §  1499);  137  C.  286,  289,  70  P.  82,  83, 
(applied);  149  C  627,  642,  87  P.  93  (applied — right  to  have  recon- 
veyance of  mortgaged  property  delivered  upon  payment  of  mort- 
gage debt);  152  C.  17,  22,  91  P.  1001  (not  applicable  to  what 
case);  4  C.  A.  361,  367,  88  P.  287  (obligation  of  contract  is  not 
condition  precedent  unless  made  so  how) ;  80  F.  54,  62  (mode 
of  offering  performance  applies  to  what  offers). 

Receipt  may  be  demanded. — See  Kerr's  Cyc.  C.  C.  §  1499  and 
note   par.    5. 

§  1499.  ^VRITTEN  RECEIPTS.  A  debtor  has  a  right  to 
require  from  his  creditor  a  written  receipt  for  any  property 
delivered  in  performance  of  his  obligation. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

49  C.  18,  25  (referred  to  in  construing  antenuptial  contract); 
125  C.  687,  690,  58  P.  308  (construed  and  applied);  80  F.  54,  62 
(mode  of  offering  performance  applies  to  what  offers). 

As  to  general  rule,  to  which  this  section  is  exception,  that 
offer  must  be  unconditional,  see  Kerr's  Cyc.  C.  C.  §  1494  and 
note. 

Evidence — Receipt  as. — See   Kerr's  Cyc.   C.   C.   §  1473   and   note. 

Surrender  of  negotiable  instrument  on  payment. — See  Kerr's 
Cyc.  C.  C.  §  3137  and  note. 

§  1500.    EXTINCTION  OF  PECUNIARY  OBLIGATION.    An 

obligation  for  the  payment  of  money  is  extinguished  by  a  due 
offer  of  payment,  if  the  amount  is  immediately  deposited  in 

822 


Tit.IV.ch.II.]  OBJECTIONS  TO  MODE.  §§  1501,  1502 

the  name  of  the  creditor,  with  some  bank  of  deposit  within 
this  state,  of  good  repute,  and  notice  thereof  is  given  to  the 
creditor. 

HLstory:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

82  C.  46,  51,  22  P.  1131  (cited);  98  C.  390,  395,  399,  33  P.  433, 
436  (construed  with  §2839);  11  P.  781,  782  (cited);  107  C.  107, 
115,  40  P.  Ill  (applied);  112  C.  31,  37,  53  A.  S.  155,  44  P.  305 
(construed);  119  C.  538,  544,  51  P.  863  (cited);  119  C.  545,  550, 
51  P.  853,  52  P.  44  (construed);  123  C.  535,  543,  56  P.  453,  454 
(construed);  137  C.  376,  382,  70  P.  225,  226  (cited);  141  C.  710. 
712,  713,  75  P.  342  (construed);  151  C.  553,  555,  557,  91  P.  385 
(applied — what  acts  constitute  payment);  2  C.  A.  622,  623,  84 
P.  274  (deposit  of  amount  of  rent  in  bank  is  not  extinguish- 
ment of  rent  when);  3  C.  A.  399,  402,  86  P.  736  (what  tender  will 
stop  interest  though  money  is  not  deposited  in  bank);  4  C.  A. 
361,  367,  88  P.  287  (obligation  for  payment  of  money  is  not 
extinguished  by  tender,  unless  money  is  deposited  in  bank);  5 
C.  A.  249,  251,  90  P.  50  (deposit  must  be  unconditional — owner- 
ship of  deposit);  80  F.  54,  62  (mode  of  offering  performance 
applies    to    what    offers). 

Interest  stopped  by  tender. — See  Kerr's  Cyc.  C.  C.  §  1504  and 
note  pars.   3-7. 

§  1501.  OBJECTIONS  TO  MODE  OF  OFFER.  All  objections 
to  the  mode  of  an  offer  of  performance,  which  the  creditor 
has  an  opportunity  to  state  at  the  time  to  the  person  making 
the  offer,  and  which  could  be  then  obviated  by  him,  are 
waived  by  the  creditor,  if  not  then  stated. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation.' 

73  C.  526,  530,  15  P.  89,  91  (applied);  79  C.  34,  43,  21  P.  357. 
359  (applied);  87  C.  49,  59,  25  P.  249,  252  (cited);  36  P.  1026, 
1027,  1028  (applied);  109  C.  558,  564,  42  P.  39  (applied):  122  C. 
314,  320,  321,  322,  54  P.  1115  (construed  and  applied);  (C.  June 
15,  1900),  61  P.  472,  474  (applied);  137  C.  286,  288,  70  P.  82 
(applied);  137  C.  376,  382,  70  P.  225,  226  (referred  to);  80  F.  54, 
62    (mode  of  offering  performance  applies  to  what  offers). 

Specification  of  objections  to  tender. — See  Kerr's  Cyc.  C.  C. 
P.   §  2076  and  note. 

§  1502.  TITLE  TO  THING  OFFERED.  The  title  to  a  thing 
duly   offered   in   performance   of   an   obligation   passes   to  the 

823 


§§  1503,  1504  CIVIL  CODE.  [Div.III.Pt.I. 

creditor,  if  the  debtor  at  the  time  signifies  his  intention  to 
that  effect. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

98  C.  390,  399,  33  P.  433  (referred  to);  106  C.  441,  446,  39  P. 
853  (applied);  80  F.  54,  62  (mode  of  offering  performance  applies 
to  what  offers). 

§  1503.  CUSTODY  OF  THING  OFFERED.  The  person 
offering  a  thing,  other  than  money,  by  way  of  performance, 
must,  if  he  means  to  treat  it  as  belonging  to  the  creditor, 
retain  it  as  a  depositary  for  hire,  until  the  creditor  accepts 
it,  or  until  he  has  given  reasonable  notice  to  the  creditor 
that  he  will  retain  it  no  longer,  and,  if  with  reasonable  dili- 
gence he  can  find  a  suitable  depositary  therefor,  until  he  has 
deposited  it  with  such  person. 

History:     Enacted  laarch   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

3  C.  A.  190,  192,  85  P.  665  (applied  to  horses  sold);  80  F.  54, 
62  (mode  of  offering  performance  applies  to  what  offers). 

Depositary  for  hire. — See  Kerr's  Cyc.  C.  C.  §§  1851,  1852  and 
notes. 

§  1504.  EFFECT  OF  OFFER  ON  ACCESSORIES  OF  OBLI- 
GtATION.  An  offer  of  payment  or  other  performance,  duly 
made,  though  the  title  to  the  thing  offered  be  not  transferred 
to  the  creditor,  stops  the  running  of  interest  on  the  obliga- 
tion, and  has  the  same  effect  upon  all  its  incidents  as  a 
performance  thereof. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

50  C.  650,  651  (referred  to);  74  C.  250,  256,  5  A.  S.  435,  14  P. 
369,  372,  15  P.  773  (construed  and  applied);  98  C.  390,  399.  33 
P.  433,  436  (referred  to);  113  C.  656,  662,  45  P.  872  (applied); 
123  C.  535,  543,  56  P.  453  (cited);  143  C.  663,  667.  670,  77  P.  653 
(construed  and  applied);  149  C.  627,  642,  87  P.  93  (tender  stops 
interest);  151  C.  553,  557,  91  P.  385  (offer  of  payment,  without 
deposit  in  bank,  effect  of);  152  C.  426,  432.  93  P.  110  (not  ap- 
plicable to  mere  option  to  redeem);  3  C.  A.  399.  402,  86  P.  736 
tender  stops  interest) ;  80  F.  54,  62  (referred  to  in  discussing  acts 

824 


Tit.IV.ch.IL] 


RETENTION,  EFFECT.  §  1505 


L 


excusing  tender— mode  of  offering  performance  applies  to  what 

offers) 

As  to  undetermined  sum  due,  see  Kerr's  Cyc.  C.  C.  §  1504,  note 

'^^Costs— Effect  of  tender  upon.— See  Kerr's  Cyc.  C.  C.  P.  §  1030 

and   note.  ,     ,-,         r^    r>    &  len^ 

Deposit  in  court  not  necessary.— See  Kerr  s  Cyc.   C.   C.    §  1504 

note  par.  5. 

§  1505.  CREDITOR'S  RETEiVTIOX  OF  THI>0  WHICH  HE 
REFUSES  TO  ACCEPT.  If  anything  is  given  to  a  creditor 
by  way  of  performance,  which  he  refuses  to  accept  as  such, 
he  is  not  bound  to  return  it  without  demand;  but  if  he  retains 
it,  he  is  a  gratuitous  depositary  thereof. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cvc.  C.  C.  for  2  pars,  annotation. 

3  C  A  583  588,  86  P.  825  (not  applicable  if  there  is  no  refusal 
to  accept-duty  of  creditor  to  return  draft  unless  it  is  refused): 
80    F.    54,    62    (mode    of    offering    performance    applies    to    'n  hat 

off  prs") 

Common-law  rule  declared  by  above  section.— See  Kerr's  Cyc. 

C.  C.  §1505  note  par.   1.  ,„._         j 

Gratuitous    deposit—See    Kerr's    Cyc.    C.    C.    §§1844,    184<    and 

notes. 


825 


§  1511  CIVIL  CODE.  [Div.III.Pt.I. 

CHAPTER  III. 

PREVENTION  OF  PERFORMANCE  OR  OFFER. 

§  1511.  What   excuses   performance,    etc. 

§  1512.  Effect   of   prevention    of   performance. 

§  1513.  Same  [repealed]. 

§  1514.  Same.     [Ratable  portion  of  consideration,   when.] 

§  1515.  Effect  of  refusal  to  accept  performance  before  offer. 

§1511.     WHAT     EXCUSES    PERFOBMANCE,    ETC.      The 

want  of  performance  of  an  obligation,  or  of  an  offer  of  per- 
formance in  whole  or  in  part,  or  any  delay  therein,  is  excused 
by  the  following  causes,  to  the  extent  to  which  they  operate: 

1.  When  such  performance  or  offer  is  prevented  or  delayed 
by  the  act  of  the  creditor,  or  by  the  operation  of  law,  even 
though  there  may  have  been  a  stipulation  that  this  shall  not 
be  an  excuse; 

2.  When  it  is  prevented  or  delayed  by  an  irresistible,  super- 
human cause,  or  by  the  act  of  public  enemies  of  this  state 
or  of  the  United  States,  unless  the  parties  have  expressly 
agreed  to  the  contrary;   or, 

3.  When  the  debtor  is  induced  not  to  make  it,  by  any  act 
of  the  creditor  intended  or  naturally  tending  to  have  that 
effect,  done  at  or  before  the  time  at  which  such  performance 
or  offer  may  be  made,  and  not  rescinded  before  that  time. 

History:     Enacted  March   21,   1872. 

See   Kerr's   Cyc.   C.   C.   for   28   pars,   annotation. 

95  C.  353,  357,  30  P.  555  (construed);  96  C.  349,  352,  31  P.  244 
(construed);  98  C.  390,  399,  33  P.  433,  436  (referred  to);  34  P. 
216,  218  (construed);  119  C.  99,  102,  51  P.  27  (construed);  129 
C.  222,  227,  61  P.  1085  (construed);  144  C.  397,  401,  77  P.  996 
(applied  to  agreement  to  repurchase  bonds);  149  C.  108,  113, 
84  P.  993  (applied  to  sale  under  deed  of  trust);  153  C.  234,  241, 
94  P.  889  (what  is  not  an  act  described  in  this  section);  2  C.  A. 
534,  535,  84  P.  305  (issuance  of  injunction  does  not  excuse  per- 
formance of  contract — it  is  not  delay  caused  by  "operation  of 
law");  4  C.  A.  379,  381,  88  P.  292  (valid  ordinance  excuses  per- 
formance of  contract, — it  is  performance   prevented   "by   opera- 

826 


Tit.IV.ch.III.]  PREVENTION.  §§  1512-1514 

tion  of  law");  80  F.  54,  62,  63  (construed  in  discussing  acts  ex- 
cusing'  tender). 

As  to  deposit  in  bank  when  tender  is  evaded,  see  Kerr's  Cj'C. 
C.  C.   §  1500  and  note  par.   7. 

Same — Deed  delivered  as  escrow. — See  Kerr's  Cyc.  C.  C.  $  1057 
and   note. 

Evasion  of  tender. — See  Kerr's  Cyc.  C.  C.  §  1512  and  note 
par.    15. 

§  1512.     EFFECT  OF   PKEVENTIOX   OF   PEKFOHM.VX  E. 

If  the  performance  of  au  obligation  be  prevented  by  the 
creditor,  the  debtor  is  entitled  to  all  the  benefits  which  he 
would  have  obtained  if  it  had  been  performed  by  both  parties. 

Hlntory:  Enacted  March  21,  1872;  amended  March  30.  T^T). 
Code  Amdts.  1873-4,  p.  240. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

86  C.  605,  614.  25  P.  137,  139,  487  (applied);  92  C.  176,  182,  28  P. 
222,  223  (applied);  105  C.  514,  520,  45  A.  S.  87,  39  P.  200  (con- 
strued); 1  C.  A.  587,  592,  82  P.  542  (applied  to  contract  respecting 
lumber):  3  C.  A.  399,  402,  86  P.  736  (refusal  to  accept  money 
renders  formal  tender  unnecessary);  80  F.  54,  62,  63  (referred 
to  as   inapplicable — acts   excusing   tender). 

§1513.     SAME   (repealed). 

Hlntory:  Enacted  March  21,  1872,  repealed  March  30,  1S74. 
Code  Amdts.  1873-4,  p.  240. 


§  1514.     SAME.      [HATAHLE    rOlMlO.V    OF    { O.NSIDEKA- 

TION,  >VHE>'.]  If  performance  of  an  obligation  is  prevented 
by  any  cause  excusing  performance,  other  than  the  act  of 
the  creditor,  the  debtor  is  entitled  to  a  ratable  proportion  of 
the  consideration  to  which  he  would  have  been  entitled  upon 
full  performance,  according  to  the  benefit  which  the  creditor 
receives  from  the  actual  performance. 

HiMtory:      Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

Apportionment    of    covenants, — As    to,    see    Kerr's    Cyc.    C.    C. 
§  1467  and  note. 

Assumpsit  lies  after  part  performance. — See  Kerr's  Cyc.  C.  C. 
§  1511  and  note  par.   2. 

827 


§  1515  CIVIL  CODE.  [Div.III.Pt.I. 

Entire  contract — Effect  of  preventing  performance. — See 
Kerr's  Cyc.  C.  C.  §  1512  and  note  pars.  14,  15. 

§1515.  EFFECT  OF  EEFUSAL  TO  ACCEPT  PERFORM- 
ANCE BEFORE  OFFER.  A  refusal  by  a  creditor  to  accept 
performance,  made  before  an  offer  thereof,  is  equivalent  to 
an  offer  and  refusal,  unless,  before  performance  is  actually 
due,  he  gives  notice  to  the  debtor  of  his  willingness  to 
accept  it. 

History      Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

98  C.  390,  399,  33  P.  433,  436  (referred  to);  153  C.  234,  241,  94 
P.  889  (what  is  not  act  described  in  this  section);  3  C.  A.  387, 
395,  86  P.  729  (refusal  to  recognize  plaintiff's  riglit  to  redeem 
obviates  necessity  of  formal  tender);  3  C.  A.  399,  402,  86  P.  736 
(refusal  to  accept  money  renders  formal  tender  unnecessary); 
80  F.  54,  62,  63  (referred  to  as  inapplicable — acts  excusing  ten- 
der). 

As  to  what  will  excuse  offer,  see  Kerr's  Cyc.  C.  C.  §  1511  and 
note. 

Notifying  other  party  of  intention  not  to  perform. — See  Kerr's 
Cyc.  C.  C.  §  1440  and  note. 


828 


Tit.IV.ch.IV.]  ACCORD.  WHAT.  §  1321 

CHAPTER  IV. 

ACCORD  AND   SATISFACTION. 

§  1521.  Accord,    what. 

§  1522.  Effect  of  accord. 

§  1523.  Satisfaction,    what. 

§  1524.  Part   performance. 

§  1521.  ACCORD,  ^VHAT.  An  accord  is  an  agreement  to 
accept,  in  extinction  of  an  obligation,  something  different 
from  or  less  tlian  that  to  which  the  person  agreeing  to  accept 
is  entitled. 

History:  Enacted  March  21,  1872:  amended  March  30.  1874. 
Code  Amdts.  1873-4,  p.  240. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

92  C.  33.  37.  27  P.  1098,  1099  (cited):  119  C.  463,  466.  51  P.  704 
(applied);  142  C.  34,  41,  75  P.  569   (cited). 

ACCORD    AND    SATISFACTION — GENERALLY. 

As  to  law  of. — See  100  A.  S.  390. 

Definition  of. — See  11  L.  712;  1  W.  &  P.  81. 

Distinction  between  novation  and  accord  executory. — See]2L. 
1134. 

Executed  accord  must  l)e  pleaded. — See  Kerr's  Cyc.  C.  C. 
§  1522  and  note  par.  3. 

Necessity  of  new  consideration — See  11   L.  711. 

Novation  as  an. — See  Kerr's  Cyc.  C.  C.  §§  1530-1533  and  notes. 

Part  payment — As  satisfaction  of  disputed  claim. — See  1  A.  C. 
801;  11  L.   1018;  20  L.  785-811. 

Same — Of  whole  debt  due. — See  note   20  L.   785-812. 

Same — With  receipt  in  full  as  satisfaction  of  li<i\i'ilat(>d  and 
undisputed  debt. — See  5   A.  C.  525. 

Payment — Of  a  less  sum  than  due.  when  inforcible  as. — See  1 
A.  C.  796;  5  A.  C.  521;  64  A.  D.  138;   28  A.  R.  293. 

Same — Of  debt  by  a  volunteer  or  stranger  to  the  original 
undertaking,  effect  of. — See  23  L.  120. 

Promise  accepted  in  satisfaction  of  debt,  as  an  executed 
accord. — See  6  A.  C.  564. 

Receipt  of  a  sum  less  than  full  amount,  amounts  to  when. — 
See  28  A.  R.  293:  also  64  A.  D.  138. 

Release  and  discharge. — See  Kerr's  Cyc.  C.  C.  §§  1541-1.t43  and 
notes. 

Satisfaction  necessary. — See  Kerr's  Cyc.  C.  C.  §  1523  and  note 
par.  5. 

829 


§§  1522-1524  CIVIL  CODE.  [Div.III.Pt.I. 

With  one  joint  tort-feasor,  effect  on  liability  of  others.- — See 
58  L.  300. 

§  1522.  EFFECT  OF  ACCORD.  Though  the  parties  to  an 
accord  are  bound  to  execute  it,  yet  it  does  not  extinguish  the 
obligation  until  it  is  fully  executed. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

92  C.  33,  37,  27  P.  1098.  1099  (cited);  142  C.  34,  41,  75  P.  569 
(cited). 

As  to  accord  and  satisfaction   generally,  see  note  §  1521,  ante. 

§  1523.  SATISFACTION,  WHAT.  Acceptance,  by  the  cred- 
itor, of  the  consideration  of  an  accord  extinguishes  the  obli- 
gation, and  is  called  satisfaction. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

56  C.  493,  495  (applied);  92  C.  33,  37,  27  P.  1098,  1099  (cited); 
142  C.  34,  41,  75  P.  569   (cited). 

As  to  accord  and  satisfaction  generally,  see  note  §  1521,  ante. 

Executed  accord  must  be  pleaded. — See  Kerr's  Cyc.  C.  C.  §  1522 
and  note  par.   3. 

§  1524.  PART  PERFORMANCE.  Part  performance  of  an 
obligation,  either  before  or  after  a  breach  thereof,  when 
expressly  accepted  by  the  creditor  in  writing,  in  satisfac- 
tion, or  rendered  in  pursuance  of  an  agreement  in  writing 
for  that  purpose,  though  without  any  new  consideration, 
extinguishes  the  obligation. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   241. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

56  C.  493,  495  (cited);  88  C.  543,  552,  26  P.  515,  518  (referred 
to);  92  C.  33,  37,  27  P.  1098,  1099  (cited);  1  C.  A.  659,  665,  82  P. 
1075  (applied  to  promissory  notes — death  of  original  payee 
without  having  received  payment);  4  C.  A.  527,  532,  88  P.  493 
(applied  to  contract  to  furnish  pumping  plant  of  specified 
capacity);  178  U.  S.  353,  366,  44  L.  ed.  1099,  1106  (referred  to  as 
establishing  contrary  rule  respecting  payment  of  less  sum  of 
money  in  full   satisfaction). 

As  to  accord  and  satisfaction  generally,  see  note  §  1521,  ante. 

Part  payment. — See  Kerr's  Cyc.  C.  C.  §  1521  and  note  pars. 
9-11. 

830 


Tit.IV,ch.V.]  NOVATION,  GENERALLY.  §  1530 


CHAPTER  V. 

NOVATION. 

§  1530.  Novation,    what. 

§  1531.  Modes  of  novation. 

§  1532.  Novation   a  contract. 

§  1533.  Rescission   of  novation. 

§  1530.  >'OVATIO>%  "^VHAT.  Novation  is  the  substitution 
of  a  new  obligation  for  an  existing  one. 

IliNtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

49  C.  49,  50  (applied);  60  C.  387,  395  (applied);  22  P.  673,  675 
(applied  to  execution,  by  indorser,  of  his  own  note  given  and 
accepted  in  full  payment  of  note  on  which  he  was  indorser):  6S 
P.  484,  485  (applied);  3  C.  A.  561,  567,  86  P.  820  (instance  of 
valid  contract,  though  not  negotiable,  having  all  earmarks  of  a 
novation). 

NOVATION. 

Action  by  a  third  person  on  a  promise  made  for  his  benefit. — 
See  39  A.  S.  531. 

As  a  contract. — See  5  W.  &  P.  4849. 

By  substitution  of  debtor.— See  10  L.  369;  5  W.  &  P.  4850. 

Continuance  of  one  debtor's  liability  on  release  of  co-obli- 
gators.—See  5  W.  &  P.  4850. 

Contract,  is  a.— See  Kerr's  Cyc.  C.  C.  §  1532  and  note. 

Same — An  irrevocable  one. — See  Kerr's  Cyc.  C.  C.  §  1533.  note. 

Definition  of.— See  10  L.  369;  5  W.  &  P.  4848. 

Distinction  between  novation  and  accord  executory. — See  12 
L.  N.   S.   1134. 

Effect  of  judgment  against  garnishee  to  merge  or  satisfy 
liability  of  principal  debtor. — See  47  L.  131. 

Extinguishment   of  old  debt. — See   5   W.   &  P.   4850. 

Fraud,  statute  of,  inapplicable. — See  Kerr's  Cyc.  C.  C.  §  1532, 
note  par.  7. 

Intervention  of  new  creditor. — See  32  A.  S.  704;  18  L.  120;  5 
W.  &  P.  4849. 

Intervention  of  new  debtor.— See   10  L.   369;   5  W.  &   P.   4S50. 

Liability  of  consolidated  railroad  company  for  debts  of  prede- 
cessors.— See  23  L.   231. 

Modes  of,  and  illu.strations. — See  Kerr's  Cyc.  C.  C.  §  1531  and 
note. 

Presumption  of  not  indulged. — See  5  W.  &  P.  4851. 

831 


§§  1531-1533  CIVIL  CODE.  [Div.III.Pt.I. 

Recession  of  novation.— See  Kerr's  Cyc.  C.  C.   §  1533  and  note. 
Substituted  obligation.— See  10  L.   369. 
What  constitutes  a. — See  5  L.  414;  6  L.  688. 

§1531.    MODES  OF  NOVATION.    Novation  is  made: 

1.  By  the  substitution  of  a  new  obligation  between  the  same 
parties,  with  intent  to  extinguish  the  old  obligation; 

2.  By  the  siibstitutiou  of  a  new  debtor  in  place  of  the  old 
one,  with  intent  to  release  the  latter;  or, 

3.  By  the  substitution  of  a  new  creditor  in  place  of  the  old 
one,  with  intent  to  transfer  the  rights  of  the  latter  to  the 
former. 

History;     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

60  C.  387,  395  (referred  to);  63  C.  501,  502  (referred  to);  72  C. 
549,  551,  14  P.  513,  514  (construed);  22  P.  673,  675  (applied  to 
execution,  by  indorser,  of  his  own  note  given  and  accepted  in 
full  payment  of  note  on  which  he  was  indorser);  86  C.  574, 
576,  21  A.  S.  63,  25  P.  52,  53,  10  L.  369  (referred  to);  110  C.  259, 
263,  42  P.  820  (cited);  131  C.  495,  497,  63  P.  778  (construed);  143 
C.  4,  7,  76  P.  647  (construed  and  applied);  1  C.  A.  189,  195,  81  P. 
1029  (subd.  2  applied  to  transfer  of  shaues  of  capital  stock  and 
acceptance  of  certificates);  3  C.  A.  561,  567,  86  P.  820  (instance 
of  valid  contract,  though  not  negotiable,  having  all  earmarks 
of  a  novation). 

As  to  novation  generally,  see  note  §  1530,  ante. 

Frauds,  statute  of,  inapplicable. — See  Kerr's  Cyc.  C.  C.  §  1532 
and  note  par.  7. 

§  1532.  NOVATION  A  CONTRACT.  Novation  is  made  by 
contract,  and  is  subject  to  all  the  rules  concerning  contracts 
in  general. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

54  C.  333,  338  (applied);  60  C.  387,  395  (referred  to);  109  C. 
571,  596,  42  P.  225  (applied);  3  C.  A.  561,  567,  86  P.  820  (instance 
of  valid  contract,  though  not  negotiable,  having  all  earmarks 
of  a  novation). 

As  to  novation  generally,  see  note  1530,  ante. 

§  1533.  RESCISSION  OF  NOVATION.  When  the  obliga- 
tion  of   a   third   person,   or   an   order   upon   such   person,    is 

832 


Tit.IV.Ch.VI.]  RELEASE.  §  1541 

accepted  in  satisfaction,  the  creditor  may  rescind  such  accept- 
ance if  the  debtor  prevents  such  person  from  complying  with 
the  order,  or  from  fulfilling  the  obligation;  or  if,  at  the  time 
the  obligation  or  order  is  received,  such  person  is  insolvent, 
and  this  fact  is  unknown  to  the  creditor,  or  if,  before  the 
creditor  can  with  reasonable  diligence  present  the  order  to 
the  person  upon  whom  it  is  given,  he  becomes  insolvent. 

HiNtory:      Enacted  March    21,    1872;   amendod   March    30.    1871, 
Code  Amdts.   1873-4,  p.   241. 

As  to  novation  generally,  see  note  1530,  ante. 


CHAPTER  VI. 

RELEASE. 

§  1541.     Obligation  extinguished  by  release. 

§  1542.     Certain  claims  not  affected  by  general  release. 

§  1543.     Release  of   [one  of]    several   joint  debtors. 

§  l.')*!.     (M{I>IGATI()>      EXTI>GriSIlED     BY     RELEASE. 

An  obligation  is  extinguished  by  a  release  therefrom  given 
to  the  debtor  by  the  creditor,  upon  a  new  consideration,  or 
in  writing,  with  or  without  new  consideration. 

IliMtory:     Knactrd  March   21,   1872. 

Sec  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

57  C.  49,  51  (referred  to  as  inapplicable);  78  C.  552.  555,  21  P. 
304,  305  (construed);  49  P.  719  (construed  and  applied);  121  C. 
247.  253.  53  P.  648  (construed);  1  C.  A.  659.  664,  82  P.  1075 
(applied  to  promissory  notes — death  of  original  payee  without 
having   received   payment). 

ui!:m!:ase:. 

Action  between  joint  tort-feasors  on  claim  satisllod  by  and 
assigned   to  one  of  them. — See  9   A.  C   519. 

As  a  conveyance. — See  7  W.  &  P.  6059. 

As  affecting   right   of  action    for  death. — See   3  J    L.    790. 

As  constituting  a   legacy. — See   7   W.  &   P.   6060. 

As  termination   of   interest. — See   7   W.  &   P.   6061. 

As  to  an  off(>r  of  partial  performance. — See  Kerr's  Cyc.  < ".  > '. 
§  1486  and  note. 

As  waiver  of  relin(|uishnient. — See  37  L.  305;  7  W.  &  P.  6061. 
Kerrs    C.    C. — 27  833 


§  1541  "  CIVIL  CODE.  [Div.III,Pt.L 

By  infant  of  cause  of  action  ex  delicto,  avoidance. — See  11  L. 
N.  S.   690. 

By  servant  after  injury  lias  been  received  and  without  refer- 
ence to  a  prior  contract  with  a  relief  association. — See  11  L.  N. 
S.  194. 

Covenant  not  to  sue  is  not  such  a  release  as  will  discharge 
.co-trespasser. — See   66   C.   163;    4   P.   1165. 

Definition   of. — See  8  A.  C.   344;   7  W.   &  P.   6058. 

Effect  of,  of  claim  for  personal  injuries  upon  right  to  recover 
unknown  or  subsequently  developed  injury. — See  4  A.  C.  548. 

Effect  of  release  of  a  join   tort-feasor. — See   1   A.   C.   63. 

Effect  of  release  of  joint  tort-feasor  not  actually  liable.— See 
8  A.   C.  1042. 

Effect  of  release  of  one  joint  tort-feasor  on  liability  of  the 
other. — See  58  L.   293. 

Effect  of  releasor's  mental  incapacity  upon  release  of  claim 
for  personal  injuries. — See  3  A.  C.   574. 

Effect  of  servant's  discharge  froin  personal  liability  upon 
master's  liability  for  servant's  act. — See  9   A.  C.   660. 

Effect  of  specification  of  particular  claim  to  limit  import  of 
general  release. — See   8  L.  N.  S.   1034. 

Extinguishment  distinguished. — See  75  A.  D.  243;  7  W.  &  P. 
6060. 

Law  governing  release  of  claim  for  damages  for  death  or 
bodily  injury.— See  56  L.  223. 

Misrepresentations  or  undue  influence  by  physician — Effect  of 
to  avoid  release. — See  5  L.  N.  S.  663. 

Necessity  of  returning  to  or  tendering  consideration  upon 
repudiation  upon  release  of  damages  for  personal  injuries  pro- 
cured by  fraud. — See  4  A.  C.  655;   10  A.  C.  739. 

Of  damages  for  construction  of  railroad  in  highway — Does 
it  include  damages  for  elevation  of  grade. — See  10  L.  N.  S.   1202. 

Of  drawer  and  indorser  by  certification  of  check. — See  9  L.  N. 
S.  698. 

Of  interest  in  estate  by  one  receiving  advancement — Effect 
on  right  to  share  in  after-acquired  property. — See  65  L.  578. 

Of  joint  debtors,  effect  of. — See  5  L.   596. 

Of  one  joint  tort-feasor  as  affecting  the  liability  of  the  others. 
— See   92  A.  S.   872. 

Of  one  of  several  tort-feasors,  effect  of  as  to  the  others. — See 
11  A.  S.  906;  111  A.  S.   281;  also  note  §  1521,  ante. 

Offer  of  part  performance — As  to  effect  of,  see  Kerr's  Cyc.  C. 
C.   §  1486   and  note. 

Presumption   of. — See  1  L.   191. 

Receipt   distinguished   from. — See   7   W.   &   P.    6060. 

Release  by  decedent  as  affecting  riglit  to  recover  for  death  by 
wrongful  act. — See  1  A.  C.  232. 

834 


I 


Tit.IV.ch.VI.]  RELEASE    OF    ONE.  §§1542.1543 

RiKlit  to  reinstatement  of  mortgage  wlierc  released  by  mis- 
take.—See   58  L.   788. 

Stipulation  making  execution  of  tlie  lease  frt»m  liability  for 
damages  a  condition  precedent  to  payment  of  benefits  out  of 
relief  fund.— See   11    I..  N.   S.   194. 

§  ir)42.  (Einvix  (LA13IS  xn  affected  hy  gen- 
eral RELEASE.  A  general  release  does  not  extend  to 
claims  which  the  creditor  does  not  know  or  suspect  to  exist 
in  his  favor  at  the  time  of  executing  the  release,  which  if 
known  by  him  must  have  materially  affected  his  settlement 
with  the  debtor. 

History:  Enacted  March  21,  1872;  amended  March  30,  lS7-f, 
Code  Amdts.    1873-4,   p.    241. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

86  C.  248,  253,  254  (erroneously  cited  for  §  2617),  21  A.  S.  33 
(same  error),  24  P.  1018,  1019  (same  error):  119  C.  463.  469.  51 
P.  704  (construed);  134  C.  547,  548,  86  A.  S.  294,  6G  P.  730 
(referred  to). 

As  to  release  generally,  see  note  §  1541,  ante. 

§  1543.     RELEASE  OF  [ONE  OF]  SEVERAL  JOINT  DERT- 

ORS.  A  release  of  one  of  two  or  more  joint  debtors  does 
not  extinguish  the  obligations  of  any  of  the  others,  unless 
they  are  mere  guarantors;  nor  does  it  affect  their  right  to 
contribution  from  him. 

IliNtory:      Enacted   Marcli    21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  11   pars,  annotation. 

63  C.  157,  158  (construed  obiter):  68  C.  82,  SO,  90.  8  P.  679 
(referred  to);  70  C.  108.  114,  9  P.  180.  11  P.  599  (applied);  76  C. 
6,  7,  18  P.  81.  82  (applied);  86  C.  248,  253  (erroneously  cited  for 
§2618),  21  A.  S.  33  (same  error),  24  P.  1018,  1019  (same  error); 
122  C.  651.  654,  55  P.  592  (referred  to);  125  C.  508,  512,  58  P. 
154  (cited);  130  C.  245.  254.  62  P.  466,  600  (applied);  133  C.  110. 
113,  65  P.  125  (cited);  145  C.  529.  533.  78  P.  1038  (principle  that 
release  of  principal  will  discharge  obligation  as  to  surety  can- 
not be  applied  in  what  cases);  146  C.  168.  171.  79  P.  866  (this 
section  includes  all  releases);  1  C.  A.  659,  665.  666.  82  P.  1075 
(cited  and  applied). 

As  to  release  generally,  see  note  §  1541.  ante. 

Guarantor  exonerated,  how. — See  Kerr's  Cyc.  C.  C.  §  2819  and 
note. 

835 


§1549 


CIVIL  CODE. 


[Div.III.Pt.II. 


PART  II. 

CONTRACTS. 

Title  I.  Nature  of  a  Contract,  §§  1549-1615. 

II.  Manner  of  Creating  Contracts,  §§  1619-1629. 

III.  Interpretation  of  Contracts,  §§  1635-1661, 

IV.  Unlawful  Contracts,  §§  1667-1676. 

V.     Extinction  of  Contracts,  §§  1682-1701. 


TITLE  I. 

NATURE    OF    A    CONTRACT. 

Chapter  I.  Definition,  §§  1549,  1550. 

II.  Parties,  §§  1556-1559. 

III.  Consent,  §§  1565-1589. 

IV.  Object,  §§  1595-1599. 

V.     Consideration,  §§  1605-1615. 

CHAPTER  I. 

DEFINITION. 

§  1549.     Contract,    what. 

§  1550.     Essential   elements   of   contract. 


i 


§  1549.  CONTRACT,  WHAT.  A  contract  is  an  agreement 
to  do  or  not  to  do  a  certain  thing. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

78  C.  529,  536,  21  P.  179,  181  (construed  and  applied);  2  C.  A. 
55,  58,  83  P.  77  (transfer  is  executed  contract,  and  no  longer  a 
contract  as  defined  In  this  section). 

CONTRACTS — GENERALLY. 

As  to  location  of  public  building-. — See  4  L.  N.  S.  589. 
As  to  location  of  railroad  or  depot. — See  6  L.  N.  S.  524. 

836 


ff 


Tit.I.ch.I.]       CONTRACTS,  GENERALLY.  §  1549 

Abandonment  and  rescission  of  contract— As  to,  generally, 
see  1  L.  827;  9  L.  608;  17  L.  779;  24  L.  231. 

Abandonment   or  countermanding  of   one  partj-. — See   94   A.   S. 

119. 

Acceptance  of  chattel  before  agreement  as  to  purchase  price 
as  an  assent  to  seller's  price. — See  11  L.  N.  S.  254. 

Acceptance  of  proposal  must  be  unequivocal. — See   3  L.   94. 

Admissibility  of  opinion  evidence  as  to  mental  capacity  of 
person  to  execute  contract  or  deed. — See  4  A.  C.  888. 

Agreement  to   comply  with   lease,  as  a  consideration. — See   34 

Agreement  to  comply  with  marriage  contract,  as  a  considera- 
tion.—See  34  L.  37. 

Agreement  to  g^ve  property  by  will— Effect  of  upon  right  to 
change  will. — See  14  L.  861. 

Same— Effect   on    right   to   transfer   property   during   life. — Sec 

14  L.  861. 

Same — Validity   of. — See   14   L.    860. 

Agreement  to  induce  public  officer  to  do  illegal  act,  or  neglect 
duty,  invalid. — See  4  L.  682. 

Agreement  to  pay  money  after  death  of  promisor,  validity  of. 
—See  14  L.   860. 

Agreement  to  transfer  future-acquired  property  in  considera- 
tion of  maintenance. — See   70  L.   435. 

Alimony  after  husband's  death  as  affected  by. — See  2  L.  N.  S. 

241. 

Alleged  fraudulent  grantee— Right  to  show  judgment  against 
grantor  was  based  on  an  immoral  consideration. — See  67  L. 
602. 

Antenuptial  agreements,   required  to  be  in   writing. — See   -  L. 

373;   3  L.  339. 

Architects'  certificates  and  engineers'  estimates,  effect  of 
when  provided  for  in. — See  56  A.  S.  312. 

Assent  to  seller's  price  by  acceptance  of  chattel  before  agree- 
ment as  to  purchase  price. — See  11  L.  N.  S.  254. 

Assignment  of  lease  of  land,  to  be  in  writing. — See  15  L.  754. 

Attorneys— Contracts  between  and  their  clients,  when  valid 
and  enforceable. — See  83  A.  S.  159. 

Same — What  contracts  of  are  void  as  against  public  policy. 
See  13  A.  S.   297. 

Award   upon   claim  arising  out   of   illegal    transaction.— See   sjS 

L.  181. 

Bank  book,  entries  in  as. — See  24  L.  737. 

Benefit  to  promisor  and  detriment  to  promisee,  as  a  sufficient 
consideration. — See   12  L.   65. 

Bill  of  lading  as. — See  4  L.  244. 

Bona  fide  purchaser,  within  statute  of  frauds,  who  is. — See 
31  L.  612. 

837 


§  1549  CIVIL  CODE.  [Div.TII,Pt.II. 

Books  of  account — Admissibility  to  prove  performance  or 
breach   of  contract. — See   52  L.   714. 

Breacli  of — Abandonment  or  rescission  cause  of  otlier  party's 
fault. — See  11  L.   196;  30  L.   33-69. 

Breach  of — Action  against  third  persons  for  inducing. — See  97 
A.   S.   923. 

Same-^Anticipatory,  or  prevention  of  performance,  remedies 
of  parties  to  contract. — See  12  A.  C.  1108. 

Same — Conflict  of  laws  as  to  measure  of  damages. — See  6  L. 
856;  10  L.  826;  21  L.  233;  56  L.  301,  303;  59  L.  359;   62  L.  678. 

Same— Damages  for — As  to,  generally,  see  3  L.  587;  6  L.  230; 
26  L.   384;   47  L.   33;   56  L.   301;   61  L.  555. 

Same — Same — Compensatory. — See  1  L.  656;  ^2  L.  766;  2  L.  786; 
3  L.  587;  4  L.  670;  5  L.  275;  9  L.  451;  10  L.  185;  15  L.  134;  18  L. 
385;  32  L.  545;  37  L.  233;  43  L.  768;  52  L.  108. 

Same — Same — Enhanced,    minimizing. — See    1    L.    76;    6    L.    454; 

16  L.   268. 

Same — Same — Exemplary. — See    9   L.    445;    11   L.    43;    13    L.    600; 

17  L.  71;  26  L.  779. 

Same — Same — Liquidated,  penalty. — See  6  L.  551;  10  L.  826: 
13  L.   671;   55  L.   137;   55  L.   381. 

Same — Excuse  for  non-performance. — See  12  L.  571;  14  L.  215; 
16  L.   858;   23  L.   707. 

Bribery  and  corruption,  contracts  tainted  by,  invalid. — See  3 
L.   632;   4  L.  682;' 5  L.  217;   12  L.   120. 

Broker's  contract — Performance — Broker's  presence  at  sale 
by  principal. — See  44  L.   617. 

Same — Same — By  real  estate  broker  to  find  purchaser  or  effect 
an  exchange. — See  44  L.   593. 

Same — Same — Necessity  of  a  vrritten   contract. — See   44  L.   601. 

Same — Same — Time   of   performance. — See    44   L.    608. 

Building  contract — Construction   of. — See   10   L.    826. 

Same — Performance   of. — See   5   L.   270. 

Same — Substantial    performance    of. — See    30    A.    S.    616. 

Burden  of  proof  of  consideration,  for  transfer  by  husband  to 
wife. — See  56  L.   828. 

By  telegraph,  and  the  admissibility  of  telegrams,  as  evidence. 
—See  93  A.  D.  514;   110  A.  S.  742. 

"By  the  elements,"  damages — What  constitutes. — See  53  L. 
763. 

Capacity  to  make,  as  affected  by  mental  conditions. — See  3 
L.  N.   S.    174. 

Change  or  extinguishment  of  contract — Fraud  as  ground  of 
equitable  relief. — See  3  L.   806;   5  L.   153;   6  L.   836. 

Same — Mistake  as  ground  for  equitable  relief. — See  4  L.  483; 
5  L.  153;  6  L.  835;  11  L.  857;  12  L.  273. 

Same — Same — Mistake  as  to  incidental  or  collateral  matter. — 
See  4  L.  483. 

838 


Tit.I.ch.I.]       CONTRACTS,  GENERALLY.  §  I549 

Same — Same — Mistake  as  to  legal  right,  effect  of  instrument. 
—See  6  L.  837. 

Same — Same — Mistake  of  fact. — See  i  L.  836. 

Same — Same — Mistake    of    law    or    of    legal    right. — See    5    L. 
154;  6  L.  386. 

Same — Modification    by    agreement. — See    6    L.    551;    12    L.    274; 
13  L.  633. 

Same — Same — Necessity    that    mistake    be    material    and    void 
from  culpable  negligence. — See  4  L.  483:   6  L.   835. 

Same — Reformation  of — Burden  of  proof  on. — See  5  L.  159. 

Same — Same — Enforcement  of  corrected  agreement. — See  5  L. 
159. 

Same — Same — Equity  jurisdiction. — See   3  L.   189;   5   L.    156;    12 
L.  273. 

Same — Same — Evidence   on   and   character   of   required. — See   2 
L.  190;  5  L.  159. 

Same — Same — Of  deed. — See  5  L.   158;  12  L.  274. 

Same — Same — Same — In  the  description. — See  12  L.  274. 

Same — Same — Of   insurance   contracts. — See   2   L.   64;   3   L.   189: 
5  L.   712;   6  L.   200;   6  L.   838. 

Same — Release   and   abandonment — As   to,   generally,   see    1    L. 
827;  6  I.,.  503;  9  L.  608;  11  L.  196;  17  L.  779;  24  L.  231;  33  L.  721. 

Same — Right    to    rescind    or    abandon    cause    of    other    party's 
fault — As  to,  generally,  see  11  L.  196;  30  L.  33-69. 

Check,  gift  of,  necessity  of  consideration. — See   18  L.   855. 

Civil    liability    for    interference    with    contract    relations. — See 
2  A.  C.   441. 

Collateral   oral   agreement   supplementing   written   contract    by 
proof  of. — See  2  A.  C.   148. 

Commission    to    purchase    personal    property,    to    be    Ijindins. 
must  be  in  writing. — See  11  L.  N.  S.  650. 

Completion  of  contract  in  disregard  of  notice  to  desist  riglits 
on. — See   16   L.   655. 

Completion  of  invalid  contract  as  consideration  for  a  promiso. 
—See  5  L.  N.  S.   725. 

Compliance   with   obligation    to   deliver  papers  or   propfrt>'.   a.*; 
a  consideration. — See  34  L.  35. 

Computing  time  on  contracts,  first  and  last  days  in. — See  49  L. 
205. 

Concurrent    promises,    as    sufficient    consideration. — Si-e    12    L. 
463. 

Conditional  execution  of — As  to  generally,  see  45  L.  321-348. 

Conflict  of  laws  as  to  statute  of  frauds. — See  64  L.   119. 

Consideration — As   to  generally,  see   2  L.   530:    12   L.   S46:   67    L. 
602. 

Same — Additional     for    completing    executory    contract    other 
than  a  contract  for  the  payment  of  money. — See  11  L.  N.  S.  789. 

Same — Completion  of  invalid  contract  as. — See  5  L.  N.  S.  725. 

839 


§  1549  CIVIL  CODE.  [Div.III.Pt.II. 

Same — Failure  of — As  to  generally,  see  1  L.  594;  31  L.  747; 
32  L.  492;  47  L.  760;  67  L.  603. 

Same — Same — As  a  defense. — See  13  A.  D.  378. 

Same — ^Husband's  express  promise  to  pay  debts  contracted  by 
■wife.— See  7  L.  N.  S.  1048. 

Same — Inadequacy  of  as  a  defense. — See  56  A.  R.   332. 

Same — Moral,  when  will  sustain  an  express  promise. — See  39 
A.  S.  735. 

Same — Moral  obligation  arising  from  relationship  as  sufficient 
to  support  a  promise  to  become  responsible  for  another's  debt. 
—See   3  L.  N.   S.   436. 

Same — Necessity  of. — See  12  L.  463;  13  L.  640;  18  L.  855;  21  L. 
129;   26  L.  305;  29  L.  305. 

Same — New  promise  by  wife  after  discoverture  to  pay  debt 
incurred  during  coverture. — See  7  L.  N.  S.  1053. 

Same- — Payment  of  part  of  liquidated  and  undisputed  debt  as, 
for  the  discharge  of  the  whole. — See  11  L.  N.  S.  1018. 

Same — Proof  of,  recitals  as  to. — See  3  L.  804;  5  L.  596;  18  L. 
845;  20  L.  101;  56  L.  828;  68  L.  925. 

Same — Sufficiency  of — As  to  generally,  see  2  L.  372;  2  L.  530; 
3  L.  466;  3  L.  468;  3  L.  761;  3  L.  836;  5  L.  856;  12  L,.  46;  12  L.  463, 
464;  12  L.  465;  13  L.  581;  13  L.  640;  33  L.  305;  35  L.  515;  36  L.  161; 
36  L.  346;  70  L.  485. 

Same — Same — Moral    obligation   as   a. — See   53   L.    353-375. 

Same — Same — Performance  of  existing  obligations  as  a  con- 
sideration.— See   34  L.   33-43. 

Same — ^When  and  how  must  be  expressed. — See  60  A.  S.  432. 

Consideration  for  which  is  partly  illegal  or  has  partly  failed. 
— See  117  A.  S.  493. 

Consideration  for  which  is  the  stifling  of  a  criminal  prosecu- 
tion.— See  31  A.  D.  600;   22  A.  R.  121;   49  A.  R.  48. 

Consideration  of  new  contract  based  on  compromise  of  illegal 
contract,  validity  of. — See  9  L.  N.  S.  568. 

Consideration  tending  to  obstruct  the  administration  of  jus- 
tice.— See  37  A.  R.  203. 

Constitutionality  of  statute  legalizing  contract. — See  22  L.  379; 
27  L.   696. 

Construction  and  effect  of — As  to,  generally,  see  1  L.  826;  3  L. 
579;  3  L.  761;  3  L.  859;  4  L.  202;  4  L.  204;  4  L.  392;  10  L.  785;  10 
L.  826;  12  L.  375;  13  L.  671;  14  L.  861;  46  L.  54;  49  L.  205:  70  L. 
106. 

Same — Agreement  to  give  property  by  will — Effect  of  on  right 
to  transfer  property  during  life. — See  14  L.   861. 

Same — Same- — Effect  of  upon  right  to  change  will. — See  14  L. 
861. 

Construction  of — Aiding,  of  building  contract,  by  extrinsic 
documents  or  examples. — See  9  L.  N.  S.   1007. 

Same— Building  contracts,  of. — See  10  L.   826. 

840 


L. 


Tit  I  Ch.l.]  CONTRACTS,   GENERM.T.V.  §  1549 

Same— Contract  exempting  from  liability  to  servants  of 
another  party,  effect  of.— See   46   L.   54. 

Same— Damages— "By   the   elements."   as   to   what  constitutes. 

— See   53  L.   673. 

Same— Distinction   between  executory  and  executed  contracts. 

—See  3  L.  761. 

Same— "Effects"  in  a  written  instrument,  as  to  whether  real 
estate  passes  under. — See  12  L.  N.  S.  661. 

Same— First  and  last  days  in  computation  of  time  on.— See  49 

Same— "Forfeiture,"  effect  of  use  of  term.— See  10  L.  827. 

Same— Ignorance  of  contents  of  extraneous  paper,  effect  of 
parties,  upon  attempt  to  incorporate  it  into  contract  by  refer- 
ence.— See  70  L.  106. 

Same— Intent  of  parties  to  adopt  standard  instead  of  solar 
time.— See  1  L.  N.  S.  364.  ,  t     c-o 

Same — Interpretation  of  words  in  contract. — See  3  !>..  !>;>». 

Same— Law,  usage  and  custom  as  part  of.— See  3  L.  860;   4  L. 

392;   10  L.  785.  ,   v.    ,       o 

Same— Liquidated    damages    and    penalty    distinguished.— See 

13  L.  761. 

Same— Parol    evidence,    when    admissilile    to    aid.— See    n    A.    K. 

241.  , 

Same — Province  of  court  and  jury. — See  2  L.  376;  4  L.  -04. 
Same— Repugnant    clauses    in,    which    shall    prevail.— See    60 

A.  S.  93. 

Same— Retention  of  title  to  personal  property  until  p:iynu'nt 
of  purchase  price,  effect  to  characterize  sale  as  executory.— See 
5  L.  N.  S.  475. 

Same— Rule  that  when  terms  of  agreement  have  been  intended 
in  a  different  sense  by  the  party,  that  sense  is  to  prevail, 
against  the  other  party  in  which  he  had  reason  to  suppose  the 
otiier  party  understood  it. — See  8  L.  N.  S.  1140. 

Same— Separate     instruments    construed     together.— See     3     L. 

579 

Same— Stipulation  for  payment  in  case  of  default,  whether  to 
be  considered  a  penalty  or  liquidated  damages.— See   10  L.  820. 

Same— Subscription   contract— As   to,   generally.— See   —   L.   IsO. 

Same Terms   of   art    or   business,   meaning   of    for   jury. — See 

12  L.  376. 

Same— When  primary  meaning  of  word.s  to  prevail  over  tecb- 

nical.— See   12  L.   375. 

Same— Whether  contract  entire  or  severable.— See   1  L.   s-b. 

Contract  as  to  realty— Agreement  of  vendee  to  divide  profits 
of  resale  with  vendor,  as  affected  by  statute  of  frauds.— See  S 
L.  N.  S.  1137.  ,,  .^      ^.^. 

Same— Authority  of  agent  to  purchase  or  sell.  necessit>    that 

841 


§  1549  CIVIL  CODE.  [Div.III,Pt.II. 

it  be  in  writing  to  enable  him  to  recover  compensation  for 
services. — See  9  L.  N.  S.  933;  12  L.  N.  S.  707. 

Same — Legal  remedy  for  breach  of  contract  to  purchase  for 
and  in  the  name  of  another — Statute  of  frauds  as  affecting. — 
See  5  L.  N.  S.   123. 

Same — Memorandum  for  sale  of  real  property  disclosing  that 
one  party  acted  for  undisclosed  principal,  as  to  satisfying  stat- 
ute of  frauds. — See   8  L.  N.  S.   733. 

Same — 'Oral  agreement  to  assume  or  assign  land  contract, 
validity  of. — See  3  L.  N.  S.   147. 

Same — Part  performance,  effect  of. — See  3  L.  N.  S.  790;  3  L. 
N.  S.  852;  11  L.  N.  S.  1116. 

Same — Power  of  legislature  to  prohibit  offering  of  another's 
real  estate  for  sale  without  written  authority. — See  12  L.  N.  S. 
707. 

Same — Right  to  equitable  relief  against  one  who  has  pur- 
chased land  in  his  own  name,  in  violation  of  his  agreement  to 
purchase  for  another,  statute  of  frauds,  as  affecting  right  to 
equitable   relief  against. — See   5  L.   N.   S.   112. 

Contract  against  a  public  policy — As  to,  generally,  see  3  L. 
631. 

Same — Attempt  to  ratify. — See  12  L.  121. 

Contract  exempting  from  liability  to  servants  of  other  party, 
effect  of. — See  46  L.  54. 

Contract  extending  over  a  series  of  years  must  be  in  writing. 
—See  3  L.  338. 

Contract  for  a  year — Future  commencement  of. — See  2  L.  N. 
S.  738. 

Same — To  commence  on  a  future  day  to  be  in  writing. — See 
3   L.   338. 

Contract  for  permanent  employment — Sufficiency  of  considera- 
tion.— See  35  L.  515. 

Same — To  be  in  writing. — See  35  L.   514. 

Contract  for  services  to  procure  litigation,  invalid. — See  30 
L.    737-742. 

Contract  for  work  and  labor,  as  affected  by  statute  of  frauds. 
—See  1  L.  507. 

Contract  in  restraint  of  trade — Invalid  when. — See  8  L.  469; 
11  L.  437;  11  L.  503;  22  L.  673;   64  L.   689. 

Same — Restrictions  as  to  territory. — See  11  L.   503. 

Same — Restrictions  as  to  time. — See  1  L.   457;  8  L.   469. 

Same — Restrictions  as  to  use  of  trade  secrets. — See   13  L.   652. 

Contract  made  by  public  officer — Liability  of  officer  on. — See 
15  L.  509. 

Same — Power  to   bind  successor. — See  16  L.   257. 

Same — "With  body  or  municipality  he  represents.- — See  15  L. 
520. 

Contract  made   on  a  holiday  or  Sunday,  validity  of. — See   1   L, 

842 


Tit  I.ch.I.]  CONTRACTS.  GENERALLY.  §1549 

63;  3  L.   244;   4   L.  680;  7  L.  498;   19  L.  317;  4  L.  N.  S.  1151;  f,  L.  N. 

^'contract  not  to  be  performed  within  one  year-Effect  of 
future  performance  on  one  side.— See  3  L.   3.?8. 

Contract  not  to  engage  in  certain  business,  effe^^  "^  incor- 
poration  of   business  by   covenantees.— See  9  L    N.  S.   9.9. 

Contract  to  procure  testimony,  invalid.— See  19  L.  3/1. 

Contract  void  in  part. — See  3  L.  468. 

Sst^m  to  grant  an  exception  to  written  contract,  admissi- 
bility of  evidence  of.— See  3  L.  N.  S.  248.  ^       -o   t     c-t 

Damages  -by  the  elements,"   what  constitutes.-bee   :,3   I.   6.3. 

Death  of  contractor,  enforcement  of  after.— bee  2-  A.  b._  Ml. 

Death  of  master,  termination  of  employment  by.— bee  d  i..  .>• 

^"Dea'th  of  party  after  mailing,  but  bef..re  the  re-ipt.  of  his 
letter  accepting  an  offer,  effect  of. -See  IL  L.  N^  S    439 

Debt  or  default  of  another,  contract  to  answer  f oi ,  to  b.  in 
writing.-See  5  L.  617;  25  L.  264;   33  L.   359;   39  L.  3.8. 

Decedents,  continuing  force  against,  and  how  may  in- 
asserted.— See   68  A.  D.   758.  ., 

Definition  of  contract.— See  9  Cyc  240-242;  .  Lnc>c.  L.  JO.  . 
W.  &  P.   1513-1534.  ,      ,       ^ 

Denial   of  allegation    of   persons    of   condition    precedent.— b.  . 

'  Denial  of  remedy  on  contract  illegal,  immoral  ^J  ''^'^:']^'''\''' 
public  policy-As  to  generally,  see  3  L.  631;  b  L.  218.  6  L.  d88. 
8  L.  476;  8  L.  497;  8  L.  501. 

Same— Injunction    against    enforcing    illegal    contract.— bee    4N 

^' Same— Parties    in    pari    delicto.— vSee    2    L.    817;    6    L.    458;    8    L. 

''^Sa.lie-ReHef  to  less  guilty  parly   to   illegal   contract.-See   17 

^■Destruction  of  subject-matter  of  contract  as  excuse  for  non- 
performance.— See   1    A.  C.   466. 

Di.satnrmance  of  by  Infants.— See  18  A.  S.  65J. 

Discontinuance  of   bastardy   proceedings  as   consideration    foi. 

~DTst?nfti^n  between  a  definite  proposal  or  acceptance  and  a 
M.ere  preliminary  step   in   the   negotiation   of  a   contract.-feee   4 

L.  N.  S.   1077.  ,       ,     ,   i«  not  —See 

Duress  sufficient   to  invalidat.-,  what    is.  and   XNhat   is  not.— cc 

"^'^ecUoror  appointment  to  office,  contracts  tending  to  influ- 
ence. Invalid.— See  12  L.  120. 

Enforcement   of  outside  of  the  jurisdiction   where  made.— See 

55   A.  S.  774.  ..  .     <,(>- 

Enforcement  of  unilateral  contract.-See  1  L.  »o4.  b  U  8U.. 

S43 


§  1549  CIVIL  CODE.  [Div.III,Pt.II. 

Entirety  of — As  to  generally,  see  54  A.  R.  624. 

Same — Complete  performance,  when  essential  to  a  cause  of 
action   ex   contractu. — See  59   A.  S.   277. 

Same — When  for  services  of  other  work. — See  38  A.  R.   208. 

Entry  in  bank  book  as. — See  24  L.  737. 

Estoppel  of  party  to  deny  terms  of  written  contract. — See  3 
L.   308. 

Evidence,  stipulations  as  to  rules  of,  whether  binding  on  the 
courts. — See  8  A.  S.  921. 

Exchange  of  lands — Verbal  contract  for,  enforcibility  of. — See 
5  L.   245. 

Excuses  for  non-performance — Effect  of  destruction  of  build- 
ing upon  building  contract. — See  2  A.  C.  812;  12  L.  571. 

Same — 'Effect  of  intervening  impossibility  to  perform. — See 
14  L.   215. 

Same — Effect  on  contract  of  the  death  of  party. — See  16  L. 
858;   23  L.   707. 

Same — Recovery  for  services  interrupted  by  sickness  or  death. 
—See  16  L.  858;  23  L.  707. 

Same — Waiver  of  provisions. — See  6  L.  551. 

Same — When  party  entitled  to  relief  from  forfeiture. — See  10 
Lr.   828. 

Executory  and  executed  contracts,  distinction  between. — See 
3  L.  761. 

Exeinplary  damages  in  action  on  contract  or  time  contract  to 
marry. — See  3  A.  C.   413. 

Exonerating  master  in  advance  from  liability  for  negligent 
injuries  to  servant. — See  7  L.  N.  S.  537. 

Expectancy,  transaction  between  heir  and  ancestor  relating 
to,  to  be  in  writing. — See  32  L.  597. 

Failure  of  consideration — As  defense  to  action  and  assessment 
by  mutual  fire  insurance  company.- — See  32  L.  492. 

Same — As  defense  to  bill  or  note. — See  1  L.  594. 

Same — Same — When  paper  transferred  after  maturity. — See 
46  L.  760. 

Same — As  ground  for  injunction  against  judgment. — See  31  L. 
747. 

Same — Right  of  alleged  fraudulent  grantee  to  show,  of  con- 
sideration of  contract  on  which  judgment  against  grantor  was 
based. — See    67   L.    603. 

False  representations  as  to  consideration,  effect  of. — See  10 
L.   676. 

Federal    question,    questions    relating   to   as    a. — See    62    L.    537. 

First  and  last  days  in  computing  time  on  contracts. — See 
49  L.   205. 

Forebearance  to  sue — As  consideration  for  a  promise. — See 
60  A.  D.  524. 

Same — Effect  of  agreement  for. — See  36  A.  S.  145. 

844 


TitT.ch.I.]  CONTRACTS,  GENERAIJA'.  §1549 

Foreign  corporation  which  has  not  compiled  with  statutory 
conditions  conferring  right  to  do  business,  validity  of  contract 
by.— See   24  L.   315. 

'•Forfeiture,"    effect    of    use    of    term    in    contract.— See    10    L. 

^"Forfeiture  under  contract— When  party  entitled  to  relief  from. 
—See  10  I..  828. 

Formalities  of— Effect  of  omission  of  internal  revenue  stamps. 

—See  40  L.  305. 

Same— Signing  by  mark.— See  22  L.  372. 

Same— Signing  by  proxy— See  22  L.  970. 

For  the  benefit  of  a  third  person,  when  may  he  sue  thereon.— 
See  39  A.  S.  531;  71  A.  S.  176.  „ ,     ,     t^ 

For   the   production    or    discovery    of    evidence.— See    94    A.    u, 

375;  97  A.  S.  145.  »,   ,  ,^ 

"For    value    received"— Effect    of    absence    of    in     negotiable 

instrument. — See  12  L.  846.  ^_ 

Fraud— Use  of  statute  of  frauds  as  a  protection  to.— See  -;>  i.. 

569.  ,.   ,      o         1 

Fraud    in    contract— As    ground    for    equitable    relief.— See    S 

L.  806;  5  L.  153;  6  L.  836. 

Same— Circumvention  and  deceit,  neglect  of  precaution,  suf- 
ficiency of  proof  of  fraud. — See  10  L.  606. 

Same— Effect  of.— See  2  L.   817. 

Future-acquired  property,  validity  of  agreement  for  transfer 
of  in  consideration  of  maintenance. — See  70  L.  485. 

Future  commencement  of  a  contract  for  a  year.— Sec   2  L.  N. 

Future  delivery  of  property,  contract  for,  valid  when.— See  4 
L.  398;  5  L.  201;  12  L.  776. 

"Futures"— Purchase  or  sale  of,  validity  of.— See  1  2  L.  121. 

Same— Right  of  broker  to  recover  for  services  or  losses  in 
dealing  in. — See  1  L..  141. 

Grammatical  construction  of. — See  6  A.  C.  55. 

Heir  and  ancestor,  transactions  between  relating  to  expect- 
ancy, to  be  in  writing.— See  32  L.  597. 

Holidav,  validity  of  contract  executed  on.— See  1  L.  63:  3  T.. 
244;  4  L.680;  7  L.  493;  19  L.  317;  4  L.  N.  S.  1151;  5  L.  N.  S.  -9;.. 

How    far    contract    is    invalidated    by    Intoxication.— See    2    I.. 

"W        CJ        ft  A  R 

'■Husband  and  wife— Contract  between  to  compromise  ponding 
or  contemplated  divorce  suit. — See  60  L.  406. 

Same— Validity  of  agreement  between,  renouncing  mnrltal 
rights.— See   12   L.  N.   S.    848. 

Husband's   express   promise   to    pay    debt   contracted    b>    ^  ire. 

validity  of.— See  7  L.  N.  S.  1048.  „.,,tl^9 

Ignorance   of  contents  of  extraneous   paper,  effect   of   parties 

845 


§  1549  CIVIL  CODE.  [Div.III.Pt.II. 

upon  attempt   to  incorporate  it  into  contract  by   reference. — See 
70  L.  106. 

Ignorance  or  carelessness  as  affecting  right  to  equitable 
relief  from  a  contract  in  which  one  has  been  overreached. — See 

5  L.  N.  S.   799. 

Illegal  business,  notes  given  on  settlement  of  is  valid. — See 
30  A.  R.  106. 

Illegal — Actions  upon. — See  S  A.  D.  691. 

Same — Recovery  of  money  paid  under. — See  12  A.   D.   385. 

Same — Rights  of  parties  to. — See  67  A.  D.  153. 

Illegal,  immoral  or  opposed  to  public  policy — ^Validity  of. — 
See  3  L.  631;  4  L.  682;  9  L.  506;  9  L.  657;  12  L.  121;  27  L.  56;  35 
L.  513;  48  L.  842;  58  L.  181;  60  L.  406;  70  L.  485. 

Same — Injunction  against  enforcing. — See  48  L.   842. 

Immoral  consideration — Right  of  alleged  fraudulent  grantee 
to  show  that  judgment  against  grantor  was  based  on. — See  67 
L.   602. 

Implied  agreement  to  pay  for  services  rendered  by  relative  or 
member   of  household. — See    11    L.   N.   S.    873-913. 

Implied  contracts — -As  to  generally. — See  4  L.  202;  6  L.  702; 
50  L.  397;  4  W.  &  P.  3428. 

Same — As  implied  in  fact. — See  50  A.  R.  321;  12  A.  S.  145;  5  L. 
233;   13  L.   210;   4  W.   &  P.   3429. 

Same — As  implied  in  law. — See  36  A.  D.  985;  47  A.  R.  64;  75 
A.  S.  935;   4  W.  &  P.   3430. 

Same — As  quasi  contract.— See  10  A.  D.  179;  4  W.  &  P.  3431. 

Same — Compared  with  express  contracts. — See  54  A.  S.  505; 
4  W.  &  P.  3429. 

Same — Consent    required. — See    33    A.    R.    396;    21    L.    714;    4   W. 

6  P.  3428. 

Implied  contracts  or  obligations  imposed  by  law. — See  29  L. 
522. 

Implied  contracts  to  pay  for  services  to  relative  not  living  as 
part  of  same  family. — See  1  L.  N.  S.  819. 

Implied  power  to  incorporate  in  contract  for  public  work  or 
in  contractor's  bond,  a  requirement  that  the  contractor  shall 
pay  laborers  and  materialmen. — See  11  L.  N.  S.   1028. 

Indefiniteness  and  uncertainty  of  contract  for  permanent 
employment,  effect  on  validity. — See  35  L.   515. 

Injunction   against   enforcing  illegal    contract. — See   48   L.    842. 

Injunction  to  restrain  breach  of  contract  not  capable  of  being 
specifically  enforced. — See  3  A.  C.  976. 

In  restraint  of  trade — As  to  generally,  see  5  L.  N.  S.  136;  6  L. 
N.  S.  847;  6  L.  N.  S.  892;  9  L.  N.  S.  446;  9  L.  N.  S.  501;  11  L.  N. 
S.  368. 

Same— Validity  of.— See  92  A.  D.  751;  35  A.  R.  269;  74  A.  S. 
235. 

846 


Tit.I.ch.I.]       CONTRACTS.  GENERALT.Y.  §  1549 

Interference    witli    contract    relations,    civil    liability    for. — See 

11  A.  C.   337. 

Interpretation  of  words  in — As  to  generally,  see  3  L.  859. 
Same — Primary     meaning     prevails     over     technical,     when. — 
See   12   L.   375. 

Same — Province  of  court  and  jury   in.   generally,  see   4   L.   204; 

12  L.  376. 

Same — Terms  of  art  or  business,  meaning  of  for  jury. — See 
12  L.  376. 

Intoxicated  person,  validity  of  contract  made  with. — See  107 
A.   S.   536:    54    L.    440;    2   L.   N.   S.   666. 

Into.xication,  how  far  contract  is  invalidated  by. — See  2  L. 
N.  S.  666. 

Joint,  agency  existing  in  one  contractor  to  act  fur  and  biiwl 
another. — See  65  A.  S.  683. 

•loint,  survivorship  of  liability  after  the  death  of  one  of  the 
obligors. — See  30  A.  R.  56. 

1-a.borers  and  materialmen,  implied  power  to  incorporate  in 
contract  for  public  work,  or  in  contractor's  bond,  a  requirement 
for  the  payment  of. — See  11    L.  N.  S.   1028. 

Law,  usage  and  custom  as  a  part  of  the  interpretation  of  con- 
tracts.— See  3  L.  860;  4  L.  390;   10  L.  785. 

Lease  for  more  than  one  year — To  be  in  writing. — S«i  7  1.. 
671. 

Same — What   is   lease   for  one   year. — See    10   L.    7  2i">. 

Lease  to  commence  at  future  tinu — What  is  lease  for  one  year. 
— See  10  L.  726. 

Letters  and  telegrams,  unconditional  offer  and  complete 
acceptance   by — When   contract   takes   effect. — See   6   A.   C.   378. 

Liability  of  obligors  on  original  contract  as  affected  by 
renewal    or   substituted   contract    which    Is    void. — See    33    L.    628. 

Liability  of  trade-union  for  wrongful  conduct  of  its  agents. — 
See  5  A.  C.  601. 

Limiting  liability,  as  to.— See  7  L.  N.  S.  1041;  11  L.  N.  S.  4.12: 
11   L.  N.  S.  560. 

Liquidated  damages  and  penalty — Distinguished. — Sec  13  L. 
671. 

Sann — Effect  of  u.se  of  tirni    'forfeiture". — See  10  L.  S27. 

Same — Whether  stipulation  for  payment  in  case  of  default  is. 
— See   10  L.  826. 

Lowest  bidder,   rights  of,  on  public  contract. — See  26  L.   707. 

"Margin,"   deposit   by    way   of,   validity   of. — See   3   L.    680. 

Marriage  agreement  to  comply  with  contract  as  consideratioa 
— See  34  L.   37. 

Marriage  as  a  sufficient  consideration. — See  2  L.  372;   12  L.  464 

Marriage-brokerage   contracts. — See    104   A.  S.   919. 

Master's    contract    with    third    person    exempting    latter    from 

847 


§  1549  CIVIL  CODE.  [Div.III,Pt.II. 

liability  to  servants,  effect  of  upon  servant's  rights.— See  46  L. 
54. 

Matter  following-  signature  as  part  of  contract. — See  5  L.  N. 
S.  436. 

Memorandum — Sufficiency  of  under  statute  of  frauds.— See 
2  L.  212;  11  L.  97. 

Same^-Telegrams  as. — See   50   L.   240. 

Same — Undelivered   deed  as. — See   22  L.   273. 

Memorandum  of  sale  of  goods,  requisites  of. — See  11  L.  143. 

Merger  of. — As  to  generally,  see  15  A.  D.  81. 

Same — Estoppel  of  party  to  deny  terms  of  written  contract. — • 
See  3  L.  308. 

Same — Preliminary  negotiations  merged  in  written  contract. 
— See  3  L.  308. 

Mistake  as  a  ground  of  equitable  relief — As  to  generally,  see 
5  L.   153;   11  L.   857;   12  L.   273. 

Same — Burden  of  proof  as  to. — See   5  L.   159. 

Same — Evidence  and  character  of  necessary  to  establish. — See 
5  L.  159. 

Same — -Mistake  as  to  incidental  or  collateral  matters. — See 
4  L.   483. 

Same — Mistake  as  to  legal  effect  of  instrument.— See  6  L.  837. 

Same — Mistake  of  fact. — See   6  L.   836. 

Same- — Mistake  of  law  or  of  legal  right. — See  5  L.  154;  6 
L.    836. 

Same — Must  be  material  and  void  from  culpable  negligence. 
— See  4  L.  483;  6  L.  835. 

Same — Parol  evidence  to  establish. — See  5  L.  158;  6  L.  838. 

Same— Showing  of  by  parol  evidence. — See   5  L.   158;   6  L.   838. 

Same — What  is  mistake  in  sense  of  court  of  equity. — See  5 
L.   153;   6  L.   835;   5  W.  &  P.   4539. 

Mistake  in  computation  by  contractor  as  ground  for  relief. — 
See  10  L.  N.  S.  114. 

Mistake  of  fact,  avoiding  for. — See  45  A.  D.   631. 

Modification  of  contract  by  agreement. — See  6  L.  551;  12  L. 
274;  13  L.  633. 

Moral  obligation  arising  from  relationship,  as  to  whether  a 
sufficient  consideration  to  support  a  promise  to  become  respon- 
sible for  another's  debt. — See  3  L.  N.  S.  436. 

Moral  obligation  as  a  consideration — As  to  generally,  see 
53  L.  353-359. 

Same — Exceptions  to  the  rule. — See  53  L.  361-375. 

Mortgage  or  sale  of  crops,  to  be  in  writing. — See  23  L.  450. 

Municipal  board  or  committee,  power  to  employ  one  of  its 
own  members  as  counsel  or  to  render  any  other  special  services. 
—See  3  L.  N.  S.  849. 

Municipal  contract— Statute  legalizing  invalid. — See  27  L.  696. 

Mutuality    of — Effect    upon    servant's    right    of    master's    con- 

848 


Tit.I.ch.I.]       CONTRACTS.  GENERALLY.  §  1549 

tract    with     third    person    exempting    hittor    from    lial>ility    t<> 
servants. — See  46  L.  54. 

Same — Enforcemi-nt  of  unt-quivocal  contract. — Sc-e,  1  L.  r>.'>4; 
6  L.  807. 

Same — For  permanent  employment,  consideration  in. — See  35 
L.  515. 

Same — Lack  of  as  affecting  right  to  specific  performance. — See 
6  L.  N.  S.  391;  6  L.  N.  S.  403. 

Same — Necessity  of  that  acceptance  of  pr<iposal  lie  unequivo- 
cal.— See  3  L.  94. 

Same — Of  accepting  proposition  to  furnish  such  material  as 
one  needs  in  liis  business. — See  11  L.  N.  S.  713. 

Same — Of  obligation  where  one  party  undertaking  is  not 
definite  and  certain. — See  1  L.  N.  S.  445. 

Same — Partial  performance  of  contract  obviates  lack  of. — - 
See  8  L.  N.  S.   433. 

Same — Rights  conferred  by  '"refusal"  or  "option". — See  21  L. 
127. 

Nature  and  requisites  of — Generally,  see  4  L.  242;  24  L.  7;!7: 
63   L.   537. 

Necessity  of  consideration. — See  "Consideration",   this  note. 

Same — As  to  generally,  see  12  L.  468. 

Same — For  option. — See  21  L.   129. 

Same— Gift  of  check.— See  18  L.  855. 

Same — Gift  of  promissory  note. — See  26  L.  305. 

Same — New,  to  support  waiver  of  failure  to  give  nnn.e  oi 
dislionor  or  subsequent  promise  by  indorser. — See  29  L.  305. 

Same — Validity  of  voluntary  deed. — See  13  L.  640. 

Necessity  that  acceptance  of  proposal  be  unequivocal. — See  3 
L.  94. 

Negative  or  engraved  plates  not  to  be  used  without  <onsent  of 
party  who  has  paid  for  them,  implied. — See  50  L.  3'.t7. 

New  consideration — To  support  waiver  of  failure  to  give 
notice  of  dishonor  or  subse(|Uent  promise  by  indorser. — See  29 
L.    305. 

New  contract,  sufllciency  of   consideration   for. — See   13   I>.   581. 

New  promise  by  woman  after  discoverture  to  pay  debt 
incurred  during  coverture,  validity  of. — See  7  I^.  N.  S.   1053. 

Newspapers,  public  policy,  contract  with,  when  against. — Stse 
93   A.   S.   905. 

Non-performance,  what  excuses. — See   IS  A.   H.   452. 

Not  to  protest  against  application  for  patent  to  public 
lands,  invalid.- See  9  L.  N.  S.  529. 

Offer  and  acceptance — Acceptance  must  be  une<iuivocal. — See 
3  L.  94. 

Same — Without  execution  of  contemplated  formal  instrument 
effect  of. — See   29   L.    431-437. 

849 


§  1549  CIVIL  CODE.  [Div.III.Pt.II. 

Offer  by  letter  accepted  by  telegram,  or  vice  versa — Time  and 
place  of  consummation  of  contract. — See  6  L.  N.  S.  1016. 

Of  intoJticated  persons. — See  107  A.  S.  536;  54  L.  440;  2  L.  N.  S. 
666. 

Option  as  to  performance,  election. — See  12  L.   690. 

Option,  necessity  of  consideration  for. — See  21  L.   129. 

"Option",  rights  conferred  by — As  to  generally,  see  21  L. 
127;  6  W.  &  P.  5000   :  7  W.  &  P.  6032. 

Same— In  futures.— See  1  L.  655:  6  L.  164;  31  L.  529;  6  W. 
&  P.   5001. 

Same — Same — As  a  gambling  contract. — See  40  A.  R.  154;  55 
A.  R.  4141;  34  A.  S.  556;  4  W.  &  P.  3029. 

Oral  contract  for  land,  improvements  made  in  good  faitli 
under,  right  to  compensation. — See   53   L.   337. 

Oral  contract  of  gift,  improvements  on  land  made  under,  in 
good  faith,  right  to  compensation  for. — See  53  L.  337. 

Oral  gift  of  land,  improvements  made  on  land  in  good  faith, 
right  to  compensation. — See  53  L.   337. 

Oral   insurance  contract,  validity  of. — See   22   L.   768. 

Oral  promise  to  pay  by  request,  validity  of. — See  3   L.   339. 

Oral  sale  of  standing  timber,  validity  of. — See  19  L.  721. 

Parol  agreement  for  release,  entry  under  as  part  performance. 
— See  20  L.  36. 

Parol  evidence — -As  to  consideration  in  sealed  instrument. — See 
5  L.   596. 

Same — As  to  consideration  of  deed. — ^See   20  L.   101. 

Parol  modification  of  original  contract,  to  be  in  writing. — See 
4  L.  N.  S.  980. 

Parol  partnership  for  dealing  in  lands,  validity  of. — See  16 
L.    745. 

Same — Effect  of  statute  of  frauds  upon  partnership  lands. — 
See    24   L.    477. 

Parol  promise  to  accept  an  order  or  bill  of  exchange,  validity 
of. — See  26  L.  620. 

Part  performance — Effect  to  take  contract  out  of  statute  of 
frauds. — See  12  L.  123. 

Part  performance  of  contract  for  services,  effect  of. — See  24 
L.   231. 

Part  performance  of  contract  obviates  lack  of  mutuality. — See 
8  L.  N.  S.  433. 

Part  performance  of  contract  relating  to  real  property,  effect 
to  take  contract  out  of  the  statute. — See  3  L.  N.  S.  790;  3  L.  N.  S. 
852;  10  L.  N.  S.  638;  11  L.  N.  S.  1186. 

Payment  of  a  part  of  a  liquidated  and  undisputed  debt  as  a 
consideration  for  a  discharge  of  the  whole. — See  11  L.  N.  S. 
1018. 

Payment  of  existing  debt  as  a  consideration. — See  34  L.  33. 

Performance — By    broker. — See    "Broker's   contract"    this   note. 

850 


Tit.I.ch.I.]       CONTRACTS,  GENERALLY.  5  I549 

Same — Admissibility  of  books  oJ  account  to  prove. — See  52  L. 
714. 

Same — Effect  of  part  performance  of  contract  for  services. — 
See  24  L.  231:   69  L.  124. 

Same — Effect  of  stipulation  to  give  satisfaction. — Sec  17  L. 
207. 

Same — Excuse  for  non-performance — As  to  effect  of  distribu- 
tion of  building  upon  building  contract,  -see  2  A.  C.  812;  12  L. 
571. 

Same — Same — As  to  effect  of  intervening  impossibility  to  per- 
form.— See  14  L.  215. 

Same — Same — As  to  effect  of  part  performance,  see  24  L.   231. 

Same — Same — Effect  on  contract  of  death  of  party. — See  23 
L.  707-713. 

Same — Same — Recovery  and  service  interrupted  by  sicknesS 
or  death. — See  16  L.  858. 

Same — Same — Waiver  of  provision. — See  6  L.  557. 

Same — Same — When  party  entitled  to  relief  from  forfeiture. 
— See   10  L.   828. 

Same — Of  building  contract — As   to.  generally,   see   5   L.    270. 

Same — Of  contract  for  perman<»nt  employment. — See  35  I>.  516. 

Same — Option   as   to   performance,    election. — See    12   L.    690. 

Same — Rights  of  one  who  completed  in  disregard  of  notice  to 
desist. — See  16  L.  655. 

Same — Time  of  performance — As  essence  of  contract. — See 
10  L.  828:  12  L.   239-241. 

Same — Same — Extension  of  when  last  day  of  p<rformance 
falls  on  Sunday. — See  14  L.  120. 

Same — Same — First  and  last  d.iys  in  computation  of  time. — See 
49  L.   205. 

Same — Same — Implied  agreement,  as  to. — See  11  L.  526. 

Same — Same — Making  time  of  the  essence  by  demand  or 
notice. — See  15  L.  737. 

Performance  of — Certificate  of  by  engineer,  etc. — See  1  L.  N. 
S.  1050:  6  L.  N.  S.  774. 

Same — Contracts  and  effect  of  "strike  clause"  in  contract  of 
sale  and  delivery. — See  9   L.   N.   S.   11R7. 

Same — Destruction  of  building  Ijefore  completion,  who  to  bear 
the  loss. — See  2  A.  C.  812:  5  L.  N.  S.   1105. 

Same — Effect  of  passage  of  statute  rendering  performance 
impossible. — See   11   L.  N.  S.   415. 

Same — For  permanent   employment. — See   35   L.   51fi. 

Same — Injunction  against  inducing  breach  of. — See  11  L.  N.  S. 
202. 

Same — Necessity  of  perfecting  title  before  time  of. — See  3 
L.  N.  S.  103. 

Same — Prevention  of,  when  gives  a  riglit  to  recover  on. — 
See  59  A.  S.  283. 

851 


§  1549  CIVIL  CODE.  [Div.III.Pt.II. 

Same — Remedy  of  wrongfully  discharged  servant  by  action 
for  damages. — See  6  L.  N.  S.  49. 

Same — Responsibility  of  contract  for  p-erformance  of  entire 
work. — See  8  L.  N.  S.  1171. 

Same — Riglit  to  recover  for  services  rendered  beyond  period 
of  limitation  upon  breach  of  parol  contract  to  make  provision 
in  will.— See  6  L.  N.  S.  703. 

Permanent  employment,  invalidity  of  contracts  for. — See  35 
L.  513. 

Persons  of  existing  obligation  as  a  sufficient  consideration — 
As  to  generally,  see  34  L.  33-43. 

Place  of  performance,  when  governed  by. — See  30  A.  S.  828. 

Place  of  within  tlie  meaning  of  the  law  respecting  usury. — See 
55  A.   R.   609. 

Place  where  contract  is  deemed  to  have  been  made. — See  99 
A.  D.  663;  55  A.  S.  44. 

Post-nuptial  written  contract  to  confirm  antenuptial  oral  con- 
tract relinquishing  rights  in  property. — See  11  L.  N.  S.  593. 

Pre-existing  debt — As  consideration  for  bona  fide  purchasers 
of  property  not  negotiable. — See  36  L.   161. 

Same — As  consideration  for  chattel  mortgage,  as  against 
other  credits  or  equities. — See  35  L.  305. 

Pre-existing  statutes  making  illegal. — See  120  A.  S.   468. 

Preliminary  negotiations  are  merged  in  written  contract. — See 
3  L.   308. 

Presumption  as  to  consideration,  in  absence  of  express 
acknowledgment  on  face  of  contract. — See  12  L.  845. 

Price  left  indefinite,  effect  on  validity  of  contract. — See  53  L. 
288. 

Privity  of,  as  an  element  of  actionable  negligence. — See  1  A.  C. 
755. 

Privity  sustaining  recovery  under  by  one  not  a  party  to. 
— See  18  A.  S.  380. 

Promise  arising  from  acceptance  or  devise  chargeable  with 
payment  of  legacy,  statute  of  limitations  applicable  in  action 
to  enforce. — See  8  L.  N.  S.  393. 

Promise  of  additional  compensation  for  completing  an  execu- 
tory contract  other  than  a  contract  for  the  payment  of  money. 
—See  11  L.  N.  S.  789. 

Promise  of  additional  compensation  for  completing  contract, 
as  a  consideration. — See  34  L.  38. 

Promise  of  performance  by  stranger  to  contract. — See  34  L.  43. 

Promise  to  do  duty  as  consideration. — See  34  L.  37. 

Promise  to  perform  additional  duty  for  same  consideration. — 
See  34  L.  42. 

Promise  to  support  another  person — As  to  generally,  see  3  L, 
836;   13  L.   640. 

852 


Tit.T.ch.I.]  CONTRACTS,   GENERALLY.  §  1549 

Same — Agreement  to  transfer  future-acquired  property  in 
consideration  of,  validity  of. — See  70  L.  485. 

Promissory  note,  gift  of,  necessity  of  consideration. — See 
26  L.   305. 

Promissory  note  given  as  a  forfeit  or  as  collateral  to  an 
invalid  oral  agreement  within  the  statute  of  frauds,  validity 
of.— See  18  L.   142. 

Proof  of  consideration — Burden  of  proof,  for  transfer  by 
husband  to  wife. — See  56  L.  828. 

Same — Oral  evidence — As  to  consideration  of  deed. — See  20 
L.   101. 

Same — Same — In  case  of  sealed  instruments. — See  5  L.  593. 

Same — Presumptions,  in  absence  of  express  acknowledgment 
on  face  of  contract. — See  12  L.  845. 

Same — Recital  in  receipt. — See  3  L.  804. 

Same — Recital  of  money  consideration  in  deed. — See  68  L.  925. 

Proposal,  acceptance  of  must  be  unequivocal. — See  3  L.  94. 

Public  contracts — Liability  of  public  officers  on,  made  by  tlieni 
for  the  public. — See  15  L.  509. 

Same — Power  to  contract  with  public  body  or  municipality 
which  he  represents. — See  15  L.  520. 

Same — Public  officer — Power  to  make,  binding  on  successors 
for  a  term  of  years. — See  16  L.  257. 

Same — Rights  of  lowest  bidder  on. — See  26  L.  707-711. 

Same — Statute  legalizing  invalid  or  illegal  contract. — See  27 
L.   696. 

Public  policy,  when  void  because  for  services  forbidden  by. — 
See  66  A.  D.  505. 

Purchase  by  agent  for  principal  of  jiroperty  which  the  agent 
personally  had  an  option  of  contract  to  purciiase. — See  11  L.  N.  S. 
122. 

Purchase  of  indefinite  quantity,  validity  of  contract  for. — See 
15  L.   218. 

Purchase  of  office  or  official  influence,  agreement  for.  invalid. 
— See  4  L.  683. 

Quantum  meruit  under  special. — See   19  A.   D.  272. 

Question  relating  to,  as  federal  question. — See  62  L.  537. 

Ratification  of — As  to  generally,  see  59  A.  S.  638. 

Same — By  school  district  of  unauthorized  contracts. — See  20 
L.  136. 

Real  property — Contracts  respecting  to  be  in  writing. — See 
2  L.  662;  3  L.  337;  5  L.  245;  7  L.  671:  10  L.  726;  12  L.  67:  15  L. 
754;  16  L.  745;  19  L.  721;  20  L.  36;  23  L.  450;  26  L.  799;  27  I>. 
477;   32  L.  597;  53  L.   337. 

Receipt  by  carrier,  as  to  sufficiency  of  to  satisfy  statute  of 
frauds. — See  22  L.  426. 

Recital  in  receipt  of  consideration. — See  3  L.  804. 

853 


§  1549  CIVIL  CODE.  [Div.III.Pt.II. 

Recital  of  money  consideration  in  deed  as  contractual. — See 
68    L.    925. 

Recovery  of  profits  as  damage  for  breach  of  contract  to  sell 
on  commission. — See  10  A.  C.   654. 

Recovery  on  contract  by  party  guilty  of  wilful  default. — See 
5  A.  C.   &18. 

Reformation  of — As  to  general  jurisdiction  of  court  of  equity. 
— See  2  L.  64;  3  L.  189;  5  L.   156;  6  L.  200;  6  L.  838;   12  L.  273. 

Same — By  suits  in  equity. — See  65  A.  S.  481. 

"Refusal",  rights  conferred  by. — See  21  L.  127;  7  W.  &  P. 
6032. 

Relinquishment  of  security  as  sufficient  consideration  for 
deed.— See  2  L.  530. 

Remedies  of  party  to  contract  upon  anticipatory  breach 
thereof  or  prevention  of  performance. — See   1   A.  C.   427. 

Representative,  contract  made  by,  ratification. — See  15  L. 
520;   16  L.   254;   20  L.   136;   33  L.   788. 

Rescinding  in  equity  where  there  is  no  actual  fraud,  accident, 
or  mistake. — See  15  A.  D.  572. 

Rescission   and  abandonment — As   to   generally,   see    1   L.    827; 

9  L.  608;  17  L.  779;  24  L.  231. 

Same — Duty  to  restore  or  tender  back  what  has  been  received. 
—See  1   L.  N.  S.   379. 

Same — Right   to   rescind   by   taking   of   worthless  papers. — See 

10  L.   N.   S.    552. 

Same — Right  to  rescind  on  abandonment  cause  of  other  party's 
fault. — See  11  L.  196;   30  L.   33-69. 

Rescission,  how  and  within  what  time  right  of  must  be  exer- 
cised.— See  74  A.  D.  657. 

Rescission  of,  when,  how,  and  by  whom  may  be  made. — See  50 
A.  D.   672. 

Right  conferred  by  "refusal"  or  "option". — See  21  L.  127. 

Right  of  party  to  proceed  to  execute  after  his  adversary 
declines  to  do  so. — See  33  A.  S.   791. 

Right  to  duplicate  portrait  or  photograph  without  consent  of 
the  person  under  contract  with  whom  the  original  was  produced. 
—See   7   L.  N.   S.   362. 

Right  to  rescind  by  taking  of  worthless  papers. — See  10  L.  N. 
S.   562. 

Right  to  sue  for  damages  for  anticipatory  breach  of  life 
insurance  contract. — See  9  A.  C.  655. 

Sale  of  office,  contract  of,   invalid. — See   5  L.   217. 

Sale  of  property  for  unlawful  use,  invalid  and  price  cannot 
be  recovered. — See  15  L.  834;  61  L.  417. 

Sale  or  mortgage  of  crops  to  be  in  writing. — See  23  L.  450. 

Secret  promise  for  individual  advantage  of  promoter  of 
enterprise,   validity    of. — See    12    L.    123. 

854 


Tit.I.ch.I.]       CONTRACTS,  GENERALLY.  §  1549 

Separate  instruments  constitute  contract  construed  tog'ether. 
—See   3  L.   579. 

Scliool  district,  ratification  by  of  unautliorized  contracts. — 
See  20  L.  136. 

Shares  of  corporate  stock,  necessity  of  writing  to  make  trans- 
fer of. — See  2  L.  N.  S.  804. 

Signing   contract   by   mark,    sufficiency    of. — See    22    L.    372. 

Signing  contract  by  proxy,  sufficiency  of. — See  22  L.  329. 

Stamps,  internal  revenue,  omission  of  from. — See  94   A.  S.   185. 

Standing  timber,  effect  of  contract  respecting,  to  pass  title  to 
same. — See   6  L.  N.  S.  469. 

State's  evidence,  validity  of  agreements  concerning. — See  40 
A.    S.    767. 

Statute  leagalizing  contract,  constitutionality  of. — See  22  L. 
379;  27  L.  696. 

Statute  of  frauds — As  affecting,  conflict  of  laws  as  to. — See 
64  L.  119. 

Same — As  affecting  right  to  assume  debts  on  dissolution  of 
partnership. — See  9  L.  N.  S.  54. 

Same — Agreement  concerning  realty,  as  to  generally,  see  2 
L.  662;  3  L.  337;  5  L.  245;  7  L.  671;  10  L.  726;  12  L.  67;  15  L. 
754;  16  L.  745;  19  L.  721;  20  L.  36;  23  L.  450;  26  L.  799;  27  L. 
477;  32  L.  597;  53  L.  337. 

Same — Agreement  to  give  property  by  will. — See  8  I.,.  414;  14 
L.  862. 

Same — Contract  for  sale  of  goods,  as  to  generally,  so.>  1  1,. 
507;   11  L.   143;   14  L.   230;   22  L.  426;  70  L.  320. 

Same — Contract  for  work  and  labor. — See  1   L.  507. 

Same — <:;ontract  not  to  be  performed  within  a  year,  as  to 
generally,  see  2  L.  373;  3  L.  337;  7  L.  784;  11  L.  621;  35  L.  514. 

Same — Contract  to  answer  for  debt  or  default  of  anotlier. — See 
5  L.  617;   25  L.  26-f;  33  L.  359;   39  L.   378. 

Same — Contract  void   in   part. — See  3  L.   468. 

Same — Effect  of  part  performance  to  take  contract  o\it  of. — 
See   12  L.   123. 

Same — Non-negotiability  of  contracts  in  violation  of. — Sel*  12 
L.    123. 

Same — Sufficiency  of  writing — As  to  generally,  see  2  L.  212: 
11  L.  97;  11  L.  143:  22  L.  273;  50  L.  202;  50  L.  240. 

Same — Same — In   several   writings. — See  2   L.   212. 
Same — Same — Memorandum,    essentials    of. — See    2    T>.    212;    11 
L.  97,  143. 

Same — Same — Telegrams  as  writings,  sufficiency  of. — See  50 
L.    240. 

Same — Same — Undelivered  deed  as  memorandum,  sufficiency  of. 
— See  22  L.  273. 

Same — Symbolical  delivery  by  sample,  sufficiency  of,  to 
satisfy. — See  70  L.  321. 

855 


§  1549  CIVIL  CODE.  [Div.III,Pt.II. 

Same — Use  as  a  protection  to  fraud. — See  25  L.  569. 

Same — Validity  of  oral  insurance  contract. — See  22  L.  768. 

Same — Validity  of  parol  promise  to  accept  order  or  bill  of 
exchange. — See  26  L.  620. 

Same — Validity  of  promissory  note  given  as  a  forfeit  or  as 
collateral  to  an  invalid  oral  agreement,  within. — See  18  L.   142. 

Same — Who  is  bona  fide  purchaser  within. — See  31  L.   612. 

Statute  of  limitations— Applicability  of,  to  action  to  enforce 
an  implied  promise  arising  from  acceptance  or  devise  charged 
with    payment   of   legacy. — See    8   L.    N.    S.    393. 

Statutory  liability. — See  4  W.  &  P.  3431. 

Stipulation  to  give  satisfaction,  effect  of. — See  17  L.  207. 

Strike,  existence  of  as  excuse  for  nonperformance  of  con- 
tract in  absence  of  special  stipulation  relating  thereto. — See 
12  A.  C.  313. 

Subscription  contract — Is  it  joint  or  several. — See  22  L.  880. 

Subscription  to  common  object,  sufficiency  of  consideration. — 
See  3  L.  468. 

Successive  actions  for  breach  of  contract  performable  in 
installments. — See  6  A.  C.   63. 

Sufficiency   of    consideration. — See    "Consideration",   this    note. 

Same — ^As  to  generally,  see  3  L.  760;  5  L.  856;  12  L.  46. 

Same — Benefit  to  promiser  and  detriment  to  promisee. — See 
12  L.  465. 

Same — Concurrent  promises. — See  12  L.  463. 

Same — For  contract  for  permanent  employment. — See  35  L.  515. 

Same — For  new  contract. — See  13  L.  581. 

Same — For  subscription  to  common  object. — See   3  L.   868. 

Same — For  transfer  by  creditor  in  satisfaction  of  debt. — See 
36  L.  346. 

Same — Marriage  as. — See  2  L.  372;  12  L.  464. 

Same — Pre-existing  debt — As  a,  for  bona  fide  purchaser  of 
property  not  negotiable. — See  36  L.  161. 

Same — Same — ^As  a,  for  chattle  mortgage  as  against  other 
creditors  or  equities. — See  33  L.  305. 

Same — Promise  to  support  person.- — See  3  L.  836;  13  L.  640. 

Same — Relinquishment  of  security  as  consideration  for  deed. 
— See   2   L.   530. 

Same — Validity  of  agreement  to  transfer  future-acquired 
property  in  consideration  of  maintenance. — See  7  L.   485. 

Same — Valuable  when. — See  2  L.  530. 

Same — Waiver  of  legal  right. — See  3  L.  466;  12  L.  466. 

Sunday,  extension  of  time  when  last  day  of  performance 
falls  on. — See  14  L.   120. 

Sunday,  validity  of  contract  made  on. — See  3  L.  244;  4  L.  680; 
7   L.    498;    11   L.    63;   also    "Holiday",    this    note. 

Sunday  or  holiday,  validity  of  contract  made  on. — See  4  L.  N. 
S.  1151;  5  L.  N.  S.  295;  also  "Holiday",  this  note. 

856 


Tit.I,ch.I.]  CONTRACTS,  GENERAT.T.Y.  §  1549 

Symbolical  delivery  by  sample,  as  to  sufficiency  of  to  satisfy 
statute  of  frauds. — See  70  L.  321. 

Third  persons,  promises  for  the  benefit  of. — See  3  A.  D.  305; 
9  A.  D.  155;  35  A.  S.  331;  71  A.  S.  178. 

Time  and  place  of  consummation  of  contract  where  offer  by 
letter  is  accepted  by  telegram  or  vice  versa. — See  6  L.  N.  S.  1016. 

Time  of  performance  of  contract — As  essence  of  contract. — 
See    10   L.    828;    12   L.    239,   241. 

Same — Extension  of  when  last  day  of  performance  falls  on 
Sunday.— See  14  L.  120. 

Same — First  and  last  days  in  computing. — See  49  L.   205. 

Same — Implied  agreement  as  to. — See  11  L.  526. 

Same — Making  time  of  the  essence  by  demand  or  notice. — See 
15  L.  737. 

Time,  when  contract  consisting  of  letters  or  telegrams  show- 
ing offer  and  unconditional  acceptance  is  completed. — See  6  A. 
C.  378. 

Time,  when  of  the  essence  of,  in  contracts  for  the  sale  of 
land. — See  104  A.  S.  265. 

Time,  when  stipulations  show  it  is  made  the  essence  of. — See 
50  A.  D.   597. 

To  assign  future  invention  upon  sale  of  patent  Invalid  as 
against  public  policy. — See  2  L.  N.  S.  1094. 

To  deal  in  futures  or  margins,  when  invalid. — See  10  A.  S.  33. 

To  do  acts  for  the  doing  of  which  a  penalty  is  imposed  by 
law. — See   25  A.   R.   674. 

To  employ  union  labor  only. — See  2  L.  N.  S.  292. 

To  forbear  to  sue,  effect  of. — See  36  A.  S.  145. 

To  pay  an  officer  of  a  railroad  company  for  his  own  benefit, 
conditioned  on  a  specified  location  of  the  road  or  tlie  depot. 
— See  6  L.  N.  S.  524. 

To  pay  thief  for  return  of  stolon  property. — See  7  Jj.  N.  S.  17.">. 

To  perform  work  to  the  satisfaction  of  another. — See  33  A. 
R.    353;    54    A.    S.    711. 

To  prevent  competition   in  trade. — See  7  A.  D.  743. 

Trade  secrets,  contract  restraining  use  of,  validity. — See  13 
L.   652. 

Transfer  of  property  priferring  creditor,  void  wlion. — See  3ti 
L.  346. 

Trusts,   what  are   unlawful. — See   74   A.   S.   235. 

Ultra   vires,  of  corporation.s. — See  70  A.  S.   156. 

Unconscionable,  what  are  and  whether  may  be  bold  voji). — 
See  33  A.  R.   182;  81   A.  S.  663. 

Unconscionable  with  expectant  heirs  and  others. — Soo  41  A.  R. 
713. 

Unilateral  contract,  enforcement  of. — See  1  I.,.  554;  6  I^.  807. 

Unlawful  or  illegal,  when  constitute  defense  against  In  action 
to  recover  moneys  collected. — See  99  A.  D.  61. 

857 


§  1549  CIVIL  CODE.  [Div.III,Pt.II. 

Unlicensed  person,  right  to  recover  for  services  rendered  by 
licensed  person. — See  2  L.  N.  S.  392. 

Use  of  statute  of  frauds  as  a  protection  to  fraud. — See  25  L. 
569. 

Validity  of  agreement  between  husband  and  wife  renouncing 
marital  rights. — See  12  L.  N.  S.  848. 

Validity  of  contract — As  to,  generally,  see  14  L.  860;  16  L. 
423;   22  L.   379;   24  L.   315;   27  L.   696;   33  L.   628. 

Saine— Definiteness  and  certainty  required. — See  15  L.  218;  35 
L.   515;   53  L.   288-299. 

Same — Contract  made  on  holiday,  as  to  validity  of. — See  3  L. 
224;  4  L.  680;  7  L.  498;  11  L.  63;  19  L.  317;  also  "Holiday,"  this 
note. 

Same — Fraud  or  unfair  advantage. — See  2  L.  817;  6  L.  498,  501; 
10  L.  606;  12  L.   123;  54  L.  440-453. 

Same — Illegal,  immoral  or  opposed  to  public  policy — As  to, 
generally,  see  3  L.  631;  4  L.  682;  9  L.  506;  9  L.  657;  12  L.  121; 
35  L.  513;  48  L.  822;  58  L.  181;  60  L.  406;  70  L.  485. 

Same — Same — Bribery  or  corruption. — See  3  L.  632;  4  L.  682; 
5  L.  217;   12  L.   120.         .  » 

Same — Same — Denial  of  remedy. — See  2  L.  817;  3  L.  631;  6  L. 
218;  6  L.  458;  6  L.  588;  8  L.  476;  8  L.  497;  8  L.  501;  8  L.  511; 
12  L.   121;   17  L.   113;   48  L.   882. 

Same — Same — For  services  to  procure  legislation. — See  30  L. 
737-742. 

Same — Same — Restraint  of  trade. — See  1  L.  457;  8  L.  469;  11 
L.   437;  11  L.  503;   13  L.  652;  22  L.  673;   35  L.  516;   64  L.  689. 

Same — Same — To  procure  testimony. — See  19  L.  371. 

Same — Same^Wagering  contracts. — See  1  L.  140;  1  L.  656;  3 
L.  679;  3  L.  784;  4  L.  398;  5  L.  200;  6  L.  137;  7  L.  705;  12  L. 
121;   12  L.   776;    64  L.   160. 

Same — Same — Where  property  sold  for  unlawful  use,  recov- 
ery  of  price. — See   15  L.   834;    16  L.   417. 

Same — Made  by  representative,  ratification. — See  15  L.  520; 
16  L.   257;   20  L.   136;   33   L.   788. 

Same — Special,  and  obligation  to  pay  in  gold  or  silver. — See 
29   L.    512-523. 

Validity  of  contract  for  material  patented  or  held  in  monopoly 
where  a  public  letting  to  the  lowest  bidder  is  required. — See 
5   L.   N.    S.    680. 

Validity  of  contract  in  a  business,  which  it  is  a  misdemeanor 
to  contract. — See    12   L.   N.   S.   575-623. 

Validity  of  contract  relinquishing  rights  in  intended  hus- 
band's estate,  signed  by  intended  wife  in  ignorance  of  her  legal 
rights. — See  9  L.  N.  S.   953. 

Validity  of  contract  when  made  in  business  carried  on  with- 
out a  license,  where  a  license  is  required. — See  1  L.  N.  S.  1159. 

Validity  of  to  procure  legislative  action. — See  4  L.  N.  S.   213. 

858 


Tit.I.ch.I.]  ESSENTIALS  OF  CONTRACT.  §  I5r,0 

"Valuable  consideration" — As  affected  by  inadequacy. — See  8 
W.   &  P.   7273. 

Same — Acts  to  be  separately  performed. — See  40  L.  ed.  960; 
8  W.   &  P.    7273. 

Same — Agreement  to  forbear. — See  8  W.  &  P.  7273. 

Same — Agreement  to  pay  debt  of  another. — See  8  W.  &  V. 
7273. 

Same — Cancelation  of  pre-existing-  debt. — See  74  C.  444,  16  P. 
242;   7   W.   &   P.    2773. 

Same — Dismissal  of  condemnation  proceedings. — See  8  W.  & 
P.   7273. 

Same — Term  in  deed  construed. — See  2  L.  530;  8  W.  &  P.  7271. 

Verbal  chattel  mortgage,  validity  of. — See  7  L.  N.  S.  418. 

Verbal  contracts  for  exchangi-  of  land,  enforcibility  of. — See. 
5  L.   245. 

Voluntary  deed,  validity  of. — See   13   L.   640. 

Wagering  contract,  as  to  validity  of,  see  1  L.  140;  1  I^.  ii.')C; 
3  L.  679;  3  L.  784;  4  L.  398;  5  I..  200;  6  L.  137;  7  L.  705;  12  L. 
121;    12   L.    776. 

Wagering  policy  of  insurance,  validity  of. — See  6  L.   137. 

Waiver  of  legal  right,  as  sufficient  consideration. — See  3  L. 
466;   12  L.  463. 

Warranty,  parol  evidence  to  siiow,  notwithstanding  written 
contract. — See   5  A.  S.    197. 

Whether  stipulated  forfeiture  for  breach  of  contract  is  a 
penalty  for  liquidated  damages. — See  1   A.  C.  244;   10  A.  C.  225. 

Will,  agreement  to  give  property  Ijy.  to  be  in  writing. — Si  e 
8   L.   414;   14   L.   862. 

Witlidrawal  of  order  given  agent  before  acceptance  by  jirin- 
cipal,  right  of.— See  10   L.  N.   S.    1138. 

Written  contract — Piiliminary  negotiations  are  merged  in. — 
See   3   L.    308. 

Wi-itings  within  statute  nf  frauiLs — Telegrams  as. — See  50  L. 
240. 

§  1  :>:.().     ESSEM'I.VL    ELKMKXTS    OF    ('(»>TK.V(T.      It    is 

essential  to  the  existence  of  a  contract  that  there  should  l)e: 

1.  Parties  capable  of  contracting; 

2.  Their  consent; 

3.  A  lawful  object;    and, 

4.  A  stiflicient  cause  or  consideration. 

IliMlory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  36  pars,  annotation. 

64  C.  108,  110,  28  P.  63  (construed  and  applied);  85  C.  1 1 ,  30. 
20    A.    S.    197,    24    P.    707,    711.   9    L.    376    (construed    and   applied); 

859 


§  1550  CIVIL  CODE.  [Div.III,Pt.II. 

115  C.  512,  515,  47  P.  250  (construed  with  other  sections);  135 
C.  561,  563,  67  P.  1054  (construed  and  applied);  68  P.  484  (con- 
strued); 139  C.  507,  512,  73  P.  247  (construed  and  applied);  145 
C.  497,  498,  499,  78  P.  1056   (referred  to). 

As  to  consent,  see  Kerr's  Cyc.  C.  C.  §§  1565,  1585  and  notes. 

As  to  consideration,  necessity  of,  and  what  constitutes,  see 
Kerr's  Cyc.  C.  C.  §§  1605,  1615  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

As  to  parties,  see  Kerr's  Cyc.  C.  C.  §§  1556  et  seq.  and  notes. 

As  to  subject-matter,  see  Kerr's  Cyc.  C.  C.  §§  1665,  1569  and 
notes. 

As  to  telegrams  as  writings  to  constitute  contract  within 
statute  of  frauds,  see  50  L.  -240,  254. 

As  to  unlawful  contracts,  see  Kerr's  Cyc.  C.  C.  §|  1667,  1676 
and   notes. 


860 


Tit.I.ch.II.]  WHO  MAY  MAKE.  §§  1556,  1557 


CHAPTER  II. 

PARTIES. 

§  1556.  Who  may  contract. 

§  1557.  Minors,   etc. 

§  1558.  Identification  of  parties  necessary. 

§  1559.  When  contract  for  benefit  of  third  person  may  be  enforced. 

§  1556.  ^VHO  MAY  CONTRACT.  All  persons  are  capable 
of  contracting,  except  minors,  persons  of  unsound  mind,  and 
persons  deprived  of  civil  rights. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

54  C.   178   (construed  and  applied  with   other  sections). 

As  to  contracts  by  persons  of  unsound  mind,  see  Kerr's  Cyc. 
C.  C.   §§  38,  39,  40  and  notes. 

As  construed  of  infants,  see  Kerr's  Cyc.  C.  C.  §§  33-37  and 
notes. 

As  to  contract  by  married  women,  see  Kerr's  Cyc.  C.  C.  §§  15S, 
159,  167  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

§  1557.  MINORS,  ETC.  Minors  and  persons  of  unsound 
mind,  have  only  such  capacity  as  is  defined  by  part  one  of 
division  one  of  this  code. 

History:     Enacted  March   21,  1872. 

As  to  acts  which  infant.s  would  have  been  compelled  by  law 
to  do,  see  18  A.  S.  641. 

As  to  contracts  entered  into  by  infants  pursuant  to  statutfS. 
see  18  A.  S.   638. 

As  to  contracts  for  necessaries,  sco  Kerr's  Cyc.  C.  C.  §  36  and 
note;  18  A.  S.  643-661. 

As  to  contracts  of  infants,  see  Kerr's  Cyc.  C.  C.  §§  33-3"  and 
notes;   18  A.  S.  573-724. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

As  to  trading  contracts  of  infants,  see  Kerr's  Cyc.  C.  C.  §  36 
note  pars.  32,  34,  36,  37.  50.  62,  63,  70,  73.  75,  76,  and  note  18 
A.   S.    598-605. 

861 


§§  1558, 1559  CIVIL  CODE.  [Div.III.Pt.II. 

§  1558.     IDENTIFICATION  OF  PARTIES  NECESSARY.     It 

is  essential  to  the  validity  of  a  contract  not  only  that  the 
parties  should  exist,  but  that  it  should  be  possible  to  identify 
them. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
'     As  to  many   miscellaneous  matters   as   to   contracts,   see   note 
§  1549,    ante. 

§1559.  WHEN  CONTRACT  FOR  BENEFIT  OF  THIRD 
PERSON  MAY  BE  ENFORCED.  A  contract,  made  expressly 
for  the  benefit  of  a  third  person,  may  be  enforced  by  him  at 
any  time  before  the  parties  thereto  rescind  it. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  32  pars,  annotation. 

68  C.  383,  389,  9  P.  723  (construed  and  applied);  73  C.  522, 
525,  15  P.  100,  101  (construed  and  applied);  94  C.  82,  84,  29  P. 
336  (construed  and  applied);  95  C.  160,  168,  27  P.  160,  162,  30 
P.  196  (construed  and  applied);  35  P.  304  (construed  and  ap- 
plied); 106  C.  547,  553,  40  P.  27  (construed  and  applied);  109  C. 
133,  136,  41  P.  868  (construed  and  applied);  110  C.  339,  346,  52 
A.  S.  88,  42  P.  900,  31  L.  862  (construed  and  applied);  112  C. 
255,  258,  44  P.  466  (construed  and  applied);  120  C.  571,  574,  65  A. 
S.  203,  52  P.  813  (construed  and  applied);  142  C.  702,  708,  76  P. 
654,  655  (construed  and  applied);  1  C.  A.  239,  240,  81  P.  1117 
(applied);  2  C.  A.  703,  708,  84  P.  244  (applied  to  release);  6  C.  A. 
101,  102,  91  P.  422   (applied  to  maker's  transfer  of  his  business). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

As  to  promise  for  benefit  of  third  person,  and  right  to  sue 
thereon,  see  3  A.  D.  305;  9  A.  D.  155-157;  39  A.  S.  531-535;  71 
A.   S.   176-207. 

As  to  right  of  third  party  to  sue  upon  contract  made  for  his 
benefit,   see   25  L.   257-280. 


862 


Tit.I.ch.III.]  CONSENT,    ESSENTIALS.  §  1565 


CHAPTER  III. 

CONSENT. 

§  1565.  Essentials    of   consent. 

§  1566.  Consent,    when   voidable. 

§  1567.  Apparent  consent,    when   not  free. 

§  1568.  "When  deemed  to   have  been  obtained  by  fraud,   etc. 

§  1569.  Duress,   what. 

§  1570.  Menace,   what. 

§  1571.  Fraud,   actual   or  constructive. 

§  1572.  Actual   fraud,    what. 

§  1573.  Constructive    fraud. 

§  1574..  Actual    fraud   a   question    of   fact. 

§  1575.  Undue    influence,    what. 

§  1576.  Mistake,    what. 

§  1577.  Mistake  of  fact. 

§  1578.  Mistake  of  law. 

§  1579.  Mistake  of  foreign   laws. 

§  1580.  Mutuality   of   consent. 

§  1581.  Communication    of    consent. 

§  1582.  Mode  of  communicating  acceptance  of  proposal. 

§  1583.  When   communication  deemed   complete. 

§  1584.  Acceptance   by   performance   of   conditions. 

§  1585.  Acceptance   must  be   absolute. 

§  1586.  Revocation  of  proposal. 

§  1587.  Revocation,   how  made. 

§  1588.  Ratification  of  contract,   void  for  want  of  consent. 

§  1589.  Assumption   of   obligation    by   acceptance   of   benefits. 


§  1565.  ESSEMIALS  OF  CONSENT.  The  consent  of  the 
parties  to  a  contract  must  be: 

1.  Free; 

2.  Mutual;    and, 

3.  Communicated  by  each  to  the  other. 

History:     Enacted  March   21,  1872. 

See    Kerr's    Cyc.    C.    C.    for    18    pars,    annotation. 

82  C.  351,  398.  16  A.  S.  137,  23  P.  16  (construed  and  applied 
with  other  sections);  85  C.  11,  30,  20  A.  S.  197,  24  P.  707.  9  L. 
376  (construed  and  applied  with  other  sections);  53  P.  703 
(construed  and  applied):  123  C.  428,  431,  56  P.  103  (referred 
to);     125    C.    472,    481,    73    A.    S.    64,    58    P.    164     (construed    and 

863 


§  1566  CIVIL  CODE.  [Div.III,Pt.II. 

applied);  135  C.  561,  563,  67  P.  1054  (construed  and  applied 
with  §1550);  139  C.  507,  512,  73  P.  247  (construed  and  applied 
with  §1550);  140  C.  157,  162,  73  P.  840  (construed  and  applied); 
151  C.  630,  635,  91  P.  536  (consent — ^contract  cannot  be  rescinded 
when);  4  C.  A.  371,  376,  88  P.  294  (instance  of  consent  as  result 
of    mistake). 

As  to  acceptance  of  proposal  consummating  the  contract,  see 
21   A.    D.    305. 

As  to  communication  of  consent,  see  Kerr's  Cyc.  C.  C.  §§  1581, 
1582  and  notes. 

As  to  effect  of  uncertainty  in  any  particular,  see   32  A.  R.   51. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

As  to  meeting-  of  minds  and  acceptance,  see  3  L.  94. 

As  to  mode  of  communicating  consent.  See  Kerr's  Cyc.  C.  C. 
§  1582  and  note. 

As  to  mutuality  of  acceptance,  see  Kerr's  Cyc.  G.  C.  §  1580 
and   note;    also    7   A.    D.    492. 

As  to  necessity  of  acceptance  in  accordance  with  terms  of 
offer,  see  32  A.  R.   51. 

As  to  necessity  of  acceptance  within  a  reasonable  time,  see 
32  A.   R.   52. 

As  to  rescission  of  contract,  see  Kerr's  Cyc.  C.  C.  §  1689  and 
note. 

As  to  sufficiency  of  contract  by  offer  and  acceptance  with- 
out execution  of  contemplated  formal  agreement,  see  29  L. 
431-437. 

As  to  where  consent  obtained  by  fraud,  etc.,  see  Kerr's  Cyc. 
C.   C.    §§  1568-1575   and   notes. 


§1566.  COIVSEIVT,  WHEJf  VOIDABLE.  A  consent  which 
is  not  free  is  nevertheless  not  absolutely  void,  but  may  be 
rescinded  by  the  parties,  in  the  manner  prescribed  by  the 
chapter  on  rescission. 

History:     Enacted  March   21,  1872. 

See   Kerr's   Cyc.   C.   C.   for   13   pars,   annotation. 

71  C.  428,  440,  12  P.  454,  460  (construed  and  applied  with  other 
sections);  82  C.  351,  399,  16  A.  S.  137,  23  P.  16  (construed  and 
applied  with  other  sections);  85  C.  11,  30,  20  A.  S.  197,  24  P. 
707,  9  Tj.  376  (construed  and  applied  with  other  sections); 
95  C.  636,  639,  30  P.  787  (cited);  40  P.  488  (cited);  110  C.  374, 
379,  42  P.  896  (construed  and  applied  with  §1691);  126  C.  498, 
504,  58  P.  1053  (applied  to  application  for  life  insurance  policy); 
129  C.  68,  82,  84,  85,  58  P.  92,  61  P.  667  (construed  and  applied 
with    other    sections);    68    P.    484    (construed    with    §1578);    150 

864 


1 


Tit.T.ch.TIT.]  APPARENT  CONSENT.  §  1557 

C.  370,  373,  89  P.  109  (consent  given  through  mistake  is  subject 
to  rescission);  151  C.  630,  635,  91  P.  526  (consent — contract  can- 
not be  rescinded  when);  7  C.  A.  49,  55,  93  P.  400,  402    (applied). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

As  to  rescission  of  contract,  see  Kerr's  Cyc.  C.  C.  §§  16S8- 
1691   and    notes. 


§  1567.    APPARENT   CONSENT,   WHEN   NOT   FREE.     Au 

apparent  conseut  is  not  real  or  free  when  obtained  through: 

1.  Duress; 

2.  Menace; 

3.  Fraud; 

4.  Undue  Influence;   or, 

5.  Mistake. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

71  C.  428,  440,  12  P.  454,  460  (construed  and  applied  witli  other 
sections);  82  C.  351,  399,  16  A.  S.  137,  23  P.  16,  28  (construed 
and  applied  with  other  sections);  85  C.  11,  30,  20  A.  S.  197,  24 
P.  707,  711,  9  L.  376  (construed  and  applied  with  other  sec- 
tions); 40  P.  488,  489  (construed  and  applied  with  §1570);  129 
C.  68,  85,  58  P.  92,  61  P.  667  (construed  and  applied  with  other 
sections);  134  C.  547,  548,  86  A.  S.  294,  66  P.  730  (construed 
with  other  sections);  141  C.  56,  62,  74  P.  433  (construed  and 
applied);  150  C.  370,  373,  89  P.  109  (consent  given  through  mis- 
take is  subject  to  rescission);  151  C.  630,  635,  91  P.  526  (consent 
— contract  cannot  be  rescinded  when);  4  C.  A.  371,  376,  SS  P. 
294  (subds.  3-5  applied — illustration  of  deed  having  been  ob- 
tained by  undue  Influence);  7  C.  A.  49,  53,  93  P.  400,  402 
(applied);   94   P.   419,  421    (referred   to). 

As  to  carelessness  as  a  bar  to  relief,  see  32  A.  S.   384-388. 

As  to  duress,  see  Kerr's  Cyc.  C.  C.   §  1569  ajid  note. 

As  to  fraud,  see  Kerr's  Cyc.  C.  C.   §§  1571,  1574  and  notes. 

As  to  many  niiscellanenus  matters  as  to  contracts,  src^  note 
§  1549.  ante. 

As  to   menace,  see   Kerr's   C.vc.   C.   C.   S  1570  and   noti^ 

As  to  misreprc.seiitatiiins,  see  Kerr's  Cyc.  C.  C.  §  1568  and 
note. 

As  to  mistake,  see  Kerr's  Cyc.  C.  C.  §  1576-1579  and  notes. 

As  to  rescission  of  contract,  see  Kerr's  Cyc.  C.  C.  8  1689  and 
note. 

As  to  undue  iiitUunce,  see  Kerr's  Cyc.  C.  C.   §  1575  and  note. 

Kerr's    C.    C. — 28  865 


§§  1568, 1569  CIVIL,  CODE.  [Div.III,Pt.II. 

§  1568.  WHEN  DEEMED  TO  HAVE  BEEN  OBTAINED  BY 
FRAUD,  ETC.  Consent  is  "deemed  to  have  been  obtained 
tbrougb  one  of  the  causes  mentioned  in  the  last  section  only 
when  it  would  not  have  been  given  had  such  cause  not 
existed. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.  for  92   pars,  annotation. 

82  C.  351,  399,  16  A.  S.  137,  23  P.  16,  28  (construed  and  applied 
with  other  sections);  85  C.  11,  30,  20  A.  S.  197,  24  P.  707,  711, 
9  Li.  376  (construed  and  applied  with  other  sections);  130  C. 
194,  198,  62  P.  398  (construed  and  applied  with  other  sections); 
138  C.  668,  671,  72  P.  149,  150  (construed  and  applied  with  other 
sections);  145  C.  441,  448,  79  P.  420  (referred  to);  147  C.  439, 
444,  82  P.  45  (referred  to  in  considering  contract  to  exchange 
land  for  oil  stock);  151  C.  630,  635,  91  P.  526  (consent — contract 
cannot  be  rescinded   when). 

As  to  action  to  recover  for  false  representations,  see  18  A.  S. 
555,    563. 

As  to  instruction  of  jury  on  questions  of  misrepresentation, 
see  Kerr's  Cyc.  C.  C.   §  1574  and  note. 

As  to  expression  of  opinion  as  fraud,  see  35  L.   417,  441. 

As  to  knowledge  of  insolvency  and  non-disclosure  of  same 
affecting  contract,  see  33  A.  D.   707. 

As  to  liability  for  misrepresentations  made  directly  to  com- 
plaining party,  see  85  A.  S.  368. 

As  to  liability  for  recommendations  for  credit,  see  25  A.  S. 
447,   451. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  right  of  action  for  false  representations,  see  1  L.  774; 
2  L.  743;   4  L.  158;   6  L.   219;   11  L.   196. 

As  to  right  to  rely  upon  representations  made  to  affect  con- 
tract as  a  basis  for  a  charge  of  fraud,  see  37  L.  593,  615. 

As  to  suppression  of  facts,  see  Kerr's  Cyc.  C.  C.  §  1710  and 
note. 

As  to  what  statements  made  at  time  of  contract  do  not 
amount  to  misrepresentation,  see  15  A.  R.   382. 

§1569.    DURESS,  WHAT.     Duress  consists  in: 

1.  Unlawful  confiueiiieut  of  the  person  of  the  party,  or  of 
the  husband  or  wife  of  such  party,  or  of  an  ancestor,  descend- 
ant, or  adopted  child  of  such  party,  husband,  or  wife; 

2.  Unlawful  detention  of  the  property  of  any  such  person; 
or, 

866 


I 


Tit.r.ch.rri.]  menace,  what  is.  51570 

3.  ('oiitiiH-iiiciit  of  Mich  person,  Isn^fiil  in  form,  but  frandu- 
leutly  obtained,  or  fraudulently  iiuidt'  unjustly  hiiiassinii  or 
oppressive. 

Ili-Htory:     Enacted  :Maroh   21,   1S7L'. 

Set'  Kerr's  Cyc.  C.  C.  for  51  pars,  annotation. 

93  C.  452.  455.  27  A.  S.  207.  28  P.  1068.  1069  (construed  and 
applied  with  §1670);  98  C.  557.  575,  33  P.  633  (construed  and 
applied):  107  C.  303,  308  (erroneously  cited  for  S1369),  40  P. 
558.  560  (correct  citation);  130  C.  194.  198.  62  P.  398  (construed 
and  applied  with  other  sections);  7  C.  A.  49,  53,  93  P.  400,  402 
(applied);  13  F.  789,  791  (payment  under  valid  assessment  is 
not  payment  under  duress). 

As  to  contracts  secured  by  throats  of  prosecution  of  relative, 
see   26  L.   48,  66. 

As  to  duress  by  threat  or  menace,  see  Kerr's  Cyc.  C.  C.  S  1570 
and  note. 

As  to  duress  sufficient  to  avoid  marriage  contract,  see  note 
43   L.   814-819;    40  A.   S.    174. 

As  to  equitable  relief  against  contract  obtained  by  duress,  see 
C   L.   491. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
S  1549,  ante. 

As  to  menace,  see  Kerr's  Cyc.  C.  C.  S  1570  and  note. 

As  to  recovery  of  money  paid  under  contract  obtained  by 
duress,   see   6   L.    491. 

As  to  rescission  of  contract  on  groimd  of  duress,  see  Kerr's 
Cyc.  C.  C.  i  1689  and  note;  6  L.  491. 

As  to  what  constitutes  duriss.  see  7  L.  551;  9  !>.  631;  26  A. 
D.   374,   378. 

As  to  when  duress  is  sufficient  to  avoid  contract  of  wife,  see 
32  A.  S.   185. 

§  1570.     MENACE,  >ViIAT.    Menace  consists  in  a  threat; 

1.  Of  such  duress  as  is  specified  in  subdivisions  one  and 
three  of  the  last  section ; 

2.  Of  unlawful  and  violent  injury  to  the  person  or  property 
of  any  such  person  as  is  si)ecified  in  the  last  section;  or. 

3.  Of  injury  to  the  character  of  any  such  person. 

illHtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  40  pars,  annotation. 

93  C.  452.  455.  27  A.  S.  207,  28  P.  1068.  1069  (construed  and 
applied  with  other  sections);  (C.  May  8.  189.5),  40  P.  488.  489 
(constrtied  and  applied);  130  C.  194,  198,  62  P.  398  (construed 
and  apiiliid  with  other  sections). 

867 


§§  1571,  1572  CIVIL  CODE.  [Div.III,Pt.II. 

As  to  contract  procured  by  threat  of  prosecution  of  a  rela- 
tive, see  26  L.   48-66. 

As  to  contracts  obtained  by  duress  other  than  duress  by  threat 
or  menace,  see  Kerr's  Cyc.  C.  C.   §  1569  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1571.  FRAUD,  ACTUAL  OR  CONSTRUCTIVE.  Fraud  is 
either  actual  or  constructive. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

78  C.  221,  225,  20  P.  404  (referred  to);  82  C.  351,  383,  16  A.  S. 
137,  23  P.  16,  23  (construed  and  applied);  85  C.  11,  30,  20  A.  S. 
197,  24  P.  707,  711,  9  L.  376   (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1572.  ACTUAL.  FRAUD,  WHAT.  Actual  fraud,  within 
the  meaning  of  this  chapter,  consists  in  any  of  the  following 
acts,  committed  by  a  party  to  the  contract,  or  with  his  con- 
nivance, with  intent  to  deceive  another  party  thereto,  or  to 
induce  him  to  enter  into  the  contract:' 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  does  not  believe  it  to  be  true; 

2.  The  positive  assertion,  in  a  manner  not  warranted  by  the 
information  of  the  person  making  it,  of  that  which  is  not 
true,  though  he  believes  it  to  be  true; 

3.  The  suppression  of  that  which  is  true,  by  one  having 
knowledge  or  belief  of  the  fact; 

4.  A  promise  made  without  any  intention  of  performing 
it;   or, 

5.  Any  other  act  fitted  to  deceive. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  105  pars,  annotation. 

56  C.  350,  365  (construed  with  §  1573);  65  C.  397,  402,  4  P.  385, 
388  (construed  and  applied  with  §1573);  75  C.  525,  527,  7  A.  S. 
189,  17  P.  689,  690  (construed  and  applied);  77  C.  22,  26,  18  P. 
791,  793  (construed  and  applied  with  §1710);  78  C.  126,  131,  12 
A.  S.  29,  20  P.  382,  384  (construed  and  applied);  78  C.  221,  225, 
20  P.  404  (construed  and  applied  with  §  1571);  79  C.  313,  316,  21 
P.   758    (construed  and   applied);    82   C.   351,   383,    16  A,   S.   137,    23 

868 


Tit.I.ch.III.]  ACTUAL   FitArn.  5 157L' 

p.  16,  113  (construed  and  applied);  84  C.  646,  649.  24  P.  597.  598 
(construed  and  ai)plled);  S8  C.  473.  477.  U6  P.  35'J.  353  (constru<'d 
and  applied);  88  C,  660,  565.  26  P.  367.  368  (construed  and  ap-  * 
plied):  93  C.  329.  359.  28  P.  1053.  1059  (construed  ami  api)ll.'d): 
96  C.  433.  440.  31  P.  35.S.  360  (construed  and  applied  witli  i  1710); 
103  C.  37.  42.  36  P.  1036  (construed  and  applied  i;  122  C  5so.  581. 
68  A.  S.  70.  55  P.  406  (con.strued  and  applied »:  127  C.  632.  535. 
78  A.  S.  81.  59  P.  991  ( innstru.d  and  aijplled):  131  C.  472.  477. 
178,  63  P.  775  (construed  and  applie<l);  133  C.  441,  443,  65  P.  S9« 
(construed  and  api)lled);  134  C.  662.  663.  66  P.  847  (construed 
and  applied  with  }  1573);  69  P.  696.  698  (construed  and  apjilled); 
13S  C.  668.  671.  72  P.  149.  150  (construed  and  applied  with  other 
sections);  141  C.  56.  62.  74  P.  433  (construed  and  applied  with 
other  sections);  141  C.  386.  390.  74  P.  1029  (construed  and 
applied):  144  C.  305.  312.  77  P.  954  (construed  and  applied*;  147 
C.  739.  743.  82  P.  436  (i)roniise  made  without  any  Intention  of 
performlnK  It  constitutes  fraud);  152  C.  14S.  157  (subd.  4  applied 
hut  erroneously  cited  as  S1752.  .suhd.  4).  92  P.  78.  82  (correct 
citation);  152  C.  383.  387.  92  P.  KUl  (applied);  152  C.  772.  775. 
93  P.  1018  (applied— tindlniar  as  false  representation  not  necessary 
under  proper  state  of  pleadings):  1  C.  A.  492.  493,  82  P.  445 
i<  ase  of  aKKravated  fraud  i:  7  C.  A.  504.  509.  94  P.  850.  862 
■  lijectlonable  evidence ». 

As   to   actions   for    false    r<presentatl<ins,    see    20    A.    D.    626.    I^ 
A.   S.   556. 

As    to   carelessness   tin   har    to    relief    from    fraud,    see    32    A.    S. 
384. 

As  to  concealment  of  material  fact  as  fraud,  see  4  K.   158;  5   I.. 
128;    brief   45   I^   818. 

As  to  deceit,  see   Kerr's  Cy«'.  ('.   C.   il  1709-1711   and   notes. 

As  to  duress  or  fr.'uid  as  d<-fense  to  action  for  bri-ach  of  prom- 
ise  of   nuirrhiK^.  "ce   40   A.   S.    174. 

As    to   efTect    of    representiiiK    thlnK!<   sold    to    bo   crnod.  hoc    IS 
L.  795. 

As   to  expression   of  opinion   as   frjiviil,  see   3."i    I..    117-441,   37   I* 
604. 

As  to  false  promises  as  fraud.  s.<-  4   I.,   l.'is. 

As  to  fraud  In  case  of  relation  of  conlldenc<r  and  trust  between 
parties,  see   11    L.  65. 

As  to  fraud  In  obtainltiK  cr.-dit.  see   14   I*   264. 

As    to    fraud    pending    niarrlaKe    contract,    se.'  "-f 

63    I>.    92. 

As  to  fraud   to  defeat  d..w.  r.  see  S   U   SI  4. 

As    to    Imprisonment    for    debt     in    case    of    fraud,    se.'    3  4     \^ 
634-642.    671. 

As  to  Intent  In  concealment  of  Insolvency  as  ground  of  fraud. 
see   14   L.   264. 

As    to    liability    of    corporation    ottii  .rs    f.ir    •ompany's    fraud, 
see    28    L.    421-427. 

869 


§  1573  CIVIL  CODE.  [Div.III,Pt.II. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  misrepresentations,  see  Kerr's  Cyc.  C.  C.  §  1568  and 
note. 

As  to  necessity  of  moral  turpitude  in  legal  fraud,  see  brief 
61  L.   178. 

As  to  recovery  of  judgment  on  note  and  mortgage  as  bar 
to  action  for  fraud  in  obtaining  loan,  see  "effect  of  election 
of  remedies  in  case  of  fraudulent  purchase,"  15  L.  89,  90. 

As  to  recriminatory  fraud  as  defense,   see  31  A.  S.   727. 

As  to  relief  from  judgment  rendered  on  publication  of  proc- 
ess, see   16   L.   361. 

As  to  replevin  for  property  obtained  by  fraudulent  purchase, 
see  21  L..  206-209. 

As  to   representations  to  commercial  agencies,  see   14   L.    264. 

As  to  rescinding  contract  on  ground  of  fraud,  see  2  L.  153. 

As  to  right  to  rely  upon  representations  made  to  effect  con- 
tract as  basis  for  charge  of  fraud,  see  37   L.   593-615. 

As  to  right  to  recover  injuries  suffered  from  acting  upon 
false  representations,   see   88   A.   D.   442. 

As  to  rights  of  parties  to  fraudulent  or  illegal  transaction, 
see  34  A.  D.  735. 

As  to  silence  when  deemed  fraudulent,  see   1  L.  742. 

As  to  what  constitutes  actionable  deceit,  see  brief  61  L.  305. 

As  to  what  constitutes  fraud,  see  4  L.  158;  6  L.  149. 

As  to  what  is  sufficient  proof  of  fraud,  see  65  A.  D.  157. 

As  to  when  deed  is  void  for  fraud  at  law,  see  93  A.  D.  596. 

Insolvency,   see  Kerr's  Cyc.   C.  C.   §  1568  and   note. 

§  1573.  CONSTRUCTIVE  FRAUD.  Constructive  fraud  con- 
sists: 

1.  In  any  breach  of  duty  which,  without  an  actually  fraudu- 
lent intent,  gains  an  advantage  to  the  person  in  fault,  or  any 
one  claiming  under  him,  by  misleading  another  to  his  preju- 
dice, or  to  the  prejudice  of  any  one  claiming  under  him;   or, 

2.  In  any  such  act  or  omission  as  the  law  specially  declares 
to  be  fraudulent,  without  respect  to  actual  fraud. 

History:     Enacted  March  21,  1S72. 

See   Kerr's   Cyc.   C.   C.    for   10   pars,   annotation. 

56  C.  350,  365  (construed  with  §1572);  65  C.  397,  402,  4  P. 
385,  388  (construed  and  applied  with  §1572);  91  C.  15,  18,  27 
P.  599,  600  (construed  and  applied);  134  C.  662,  663,  66  P.  847 
(construed  and  applied). 

As  to  constructive  fraud,  see  4   L.   158. 

870 


Tit.I,ch.III.]  UNDUE    INFLUENCE.  §§  1574,  I575 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  misrepresentations,  see  Kerr's  Cyc.  C.  C.  ^1568  and 
note. 

As  to  parol  evidence  to  prove  constructive  fraud,  see  Kerr's 
Cyc.  C.   C.   §  1572  and  note. 

§  1574.  ACTUAL  FRAUD  A  QUESTION  OF  FACT.  Actual 
fraud  is  always  a  question  of  fact. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.   for   35  pars,   annotation. 
119  C.  429,  434,  51  P.  630,  632   (construed  and  applied). 
As   to   many   miscellaneous  matters   as   to   contracts,   see   note 
§  1549,  ante. 

§1575.    UNDUE    INFLUENCE,    WHAT.      Undue    Influence 

consists: 

1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed  by 
another,  or  who  holds  a  real  or  apparent  authority  over  him, 
of  such  confidence  or  authority  for  the  purpose  of  obtaining 
an  unfair  advantage  over  him; 

2.  In  taking  an  unfair  advantage  of  another's  weakness  of 
mind;   or, 

3.  In  taking  a  grossly  oppressive  and  unfair  advantage  of 
another's  necessities  or  distress. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.  for   66  pars,   annotation. 

56  C.  89,  93  (construed  and  applied);  79  C.  313,  316,  21  P. 
758  (construed  and  applied);  90  C.  323,  336,  27  P.  186,  190  (con- 
strued and  applied);  94  C.  642,  646,  30  P.  4  (construed  and 
applied  with  other  sections);  97  C.  259,  262,  32  P.  171  (con- 
strued and  applied  with  other  sections);  103  C.  97,  102,  37  P. 
189  (construed  and  applied  with  other  sections);  134  C.  170, 
174,  66  P.  231  (construed  and  applied);  135  C.  316,  318,  67  P. 
778  (construed  and  applied);  141  C.  56,  62,  74  P.  433  (construed 
and  applied  with  other  sections);  4  C.  A.  371,  376,  88  P.  294 
(instance   of   deed   obtained   by   undue   influence. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  undue  influence  in  wills,  see  Kerr's  Cyc.  C.  C.  §  1272 
and  note. 

As  to  what  is  undue  influence  and  its  effect,  see  2  L.  668; 
8  L.  261. 

871 


§§1576,1577  CIVIL  CODE.  [Div.III,Pt.II. 

§  1576.  MISTAKE,  WHAT.  Mistake  may  be  either  of  fact 
or  law. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  87  pars,  annotation. 

96  C.  (i55,  659.  31  A.  S.  247,  31  P.  623,  624  (construed  and 
applied  with  §  473  C.  C.  P.). 

As  to  avoidance  of  contracts  on  ground  of  mutual  mistake 
of  facts,   see   45   A.   D.   631-634. 

As  to  carelessness  as  bar  to  relief,  see  32  A.  S.  384-388. 

As  to  change  of  decision  of  state  court  as  an  unconstitutional 
impairment  of  contract,  see  16  L.   646. 

As   to   correction   of   clerical   errors,    see   9    Paige   Ch.    (N.    Y.) 

4  L.    ed.    661. 

As  to  ignorance  of  right  as  ground  for  relief,  see  55  A.  S. 
494-520. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  mistake  generally,  see  6  L.   835-838. 

As  to  mistake  as  ground  for  injunction  against  judgment, 
see    30   L.   786-802. 

As   to   mistake  as   ground   for    relief   in    equity,   see    4   L.    483; 

5  L.    152;    12   L.    273. 

As  to  possession  taken  and  held  through  ignorance  or  mis- 
take,  see   24   A.   S.    388-390. 

As  to  power  of  court  of  equity  to  reform  contracts  upon 
ground  of  mistake,  see  13  F.  256-259. 

As  to  reformation  of  contracts  upon  ground  of  mistake,  etc., 
see    65   A.    S.    481-522. 

As  to  relief  against  judgment  obtained  by  default  through 
mistake  of  attorney,  see  36  A.  S.   635. 

As  to  relief  on  ground, of  mistake  or  fraud,  see  7  A.  D.  567. 

As  to  reformation  of  instruments  for  mistake,  see  55  A.  S. 
590. 

As  to  rescission  of  contracts  in  equity  for  mistake  of  fact, 
see  55  A.  S.  590. 

As  to  want  of  evidence  to  prove  mistake  and  reform  instru- 
ments,  see    55   A.   S.    590. 


§  1577.  MISTAKE  OF  FACT.  Mistake  of  fact  is  a  mistake, 
not  caused  by  the  neglect  of  a  legal  duty  on  the  part  of  the 
person  making  the  mistake,  and  consisting  in: 

1.  An  unconscious  ignorance  or  forgetfulness  of  a  fact  past 
or  present,  material  to  the  contract;   or, 

2.  Belief  in  the  present  existence  of  a  thing  material  to  the 

872 


Tit.I.ch.III.]  MISTAKE    OF    LAW.  §  1578 

contract,   which   does  not  exist,   or  in   the  past  existence   of 
such  a  thing,  which  has  not  existed. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.   for   19   pars,  annotation. 

68  C.  611,  616,  10  P.  179,  182  (referred  to);  119  C.  429,  435, 
436,  51  P.  630,  632  (construed  and  applied);  119  C.  463,  468,  51 
P.  704  (construed  and  applied  with  other  sections) ;  54  P.  80, 
83  (construed  and  applied);  122  C.  98,  100,  54  P.  528  (construed 
and  applied);  131  C.  635,  639,  63  P.  1005  (construed  and  applied); 
134  C.  381,  384,  66  P.  474  (construed  and  applied);  138  C.  668, 
671,  72  P.  149,  150  (construed  and  applied  with  other  sections); 
144  C.  104,  110,  77  P.  828  (construed  and  applied);  150  C.  21, 
27,  87  P.  1029  (applied — carelessness  in  failing  to  read  deed); 
150  C.  370,  373,  89  P.  109  (distinction  between  "unconscious 
ignorance"  of  fact  of  loss  and  "belief"  in  present  existence 
of  property  insured,  when  not  material);  4  C.  A.  371,  376,  88 
P.  294   (instance  of  deed  obtained  by  undue  influence). 

As  to  avoidence  of  contract  for  mutual  mistake  of  facts, 
see   45   A.   D.    631-634. 

As  to  carelessness  as  bar  to  relief,  see  32  A.  S.   384-388. 

As  to  ignorance  of  fact  as  defense,  see  note  30  A.  R.  617- 
620;    55   A.    S.    512-514. 

As  to  ignorance  or  mistake  of  facts  and  equitable  relief, 
see   55   A.   S.    504. 

As  to  innocence  of  .mistake  of  facts,  see  55  A.  S.  504-507. 

As  to  many  miscellaneous  inatters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1578.  MISTAKE  OF  LAW.  Mistake  of  law  constitutes  a 
mistake,  within  the  meaning  of  this  article,  only  when  it 
arises  from: 

1.  A  inisapprehonsioii  of  the  law  hj  all  parties,  all  suppos- 
ing that  they  knew  and  understood  it,  and  all  making  substan- 
tially the  same  mistake  as  to  the  law;   or, 

2.  A  misappreliensiou  of  the  law  by  one  party,  of  which  the 
others  are  aware  at  the  time  of  contracting,  but  which  they 
do  not  rectify. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  60  pars,  annotation. 

95  C.  63,  74,  30  P.  301  (construed  and  applied);  119  C.  463, 
468,  469,  51  P.  704  (construed  and  applied);  127  C.  532,  537,  78 
A.   S.   81,   59   P.    991    (construed   and  applied);    129    C.   475,   478,    62 

873 


§§  1579,  1580  CIVIL  CODE.  [Div.III.Pt.II. 

P.  72  (construed  and  applied);  130  C.  478,  479,  62  P.  734  (con- 
strued and  applied);  134  C.  547,  548,  86  A.  S.  294,  66  P.  730 
(construed  and  applied);  68  P.  484,  486  (construed  and  applied); 
138  C.  668,  671,  72  P.  149  (construed  and  applied  with  other 
sections);  3  C.  A.  422,  426,  89  P.  358  (subd.  2  applied — defend- 
ant's mif^take  of  law). 

As  to  carelessness  as  bar  to  relief,  see  32  A.  S.   384. 

As  to  distinction  existing  between  ignorance  and  mistake 
of  law,   see   23   A.   D.   164. 

As  to  ignorance  of  law,  see  10  A.  D.  323-328;  15  A.  R.  171- 
384;  12  A.  S.  130;  55  A.  S.  497;  5  L.  152;  6  L.  35;  9  Paige  Cli. 
(N.  Y.)    4  L.  ed.   661-663. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

As  to  mistake  in  contracts  and  equitable  relief  for  same,  see 
14    A.    S.    440. 

As  to  mistake  in  law,  and  when  relieved  against  in  equity, 
see   76   A.   D.    550. 

As  to  negligence  as  bar  to  relief  against  judgments,  see 
53    A.    S.    444-453.    900. 

As  to  relief  against  deeds  in  judicial   sales,   see   65   A.   S.   514. 

As  to  relief  against  guaranty  or  suretyship,  see  65  A.  S.   521. 

As  to  relief  against  leases  and  releases  on  ground  of  mis- 
take,  see   65   A.   S.   520. 

As  to  reformation  of  contracts  on  ground  of  mistake,  see 
65   A.    S.    481,    507,    514. 

As  to  relief  against  note  on  ground  of  mistake,  see  65  A. 
S.   519. 

As  to  relief  against  voluntary  conveyance  on  ground  of  mis- 
take, see   65  A.  S.   521. 

As  to  relief  froni  mortgage  on  ground  of  mistake,  see  65 
A.    S.    517-519. 

As  to  relief  in  insurance  policies,  see   65  A.  S.   514-517. 

§1579.  MISTAKE  OF  FOREIGN  LAWS.  Mistake  of  for- 
eign laws  is  a  mistake  of  fact. 

History:     Enacted  March   21,  1872. 

See    Kerr's   Cyc.    C.    C.    for   3    pars,    annotation. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

As  to  proof  of  foreign  laws,  see  Kerr's  Cyc.  C.  C.  P.  §§  1900, 
1901   and   notes;    25   L.    449-468. 

§1580.  mJTUALITY  OF  CONSENT.  Consent  is  not 
mutual,  unless  the  parties  all  agree  upon  the  same  thing  in 

874 


Tit.I.ch.III.]  CONSENT,  ACCEPTANCE.  §§  1581,  1582 

the  same  sense.  But  in  certain  cases  defined  by  the'  chapter 
on  interpretation,  they  are  to  be  deemed  so  to  agree  without 
regard  to  the   fact. 

History:     Enacted  March   21,  1872. 

See   Kerr's  Cyc.  C.   C.   for   54  pars,   annotation. 

60  C.  387,  392  (construed  with  §2832);  137  C.  685,  692,  70  P. 
771  (construed  with  §2832);  1  C.  A.  749,  751,  752,  82  P.  1055 
(no  contract  by  letters  when,  for  lack  of  mutual   consent). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

As  to  option  contract,  see  24  A.  S.   24. 

As  to  rights  conferred  by  a  refusal  of  option,  see  21  L.  12.7- 
133. 

§  1581.  COMirUMCATION  OF  CONSENT.  Consent  can  be 
communicated  with  effect,  only  by  some  act  or  omission  of 
the  party  contracting,  by  which  he  intends  to  communicate 
it,  or  which  necessarily  tends  to  such  communication. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

140  C.  157,  162,  73  P.  840  (necessity  of  parties  to  contract 
communicating  consent,  to  whom,  and  how). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

§1582.  MODE  OF  COMMUNICATING  ACCEPTANCE  OF 
PROPOSAL.  If  a  proposal  prescribes  any  conditions  concern- 
ing the  communication  of  its  acceptance,  the  proposer  is  not 
bound  unless  they  are  conformed  to;  but  in  other  cases  any 
reasonable  and  usual  mode  may  be  adopted. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.   for   10   pars,   annotation. 

115  C.  512,  515,  47  P.  250  (construed  and  applied  with  other 
sections);  123  C.  428,  431,  56  P.  103  (construed  and  applied  with 
other   sections). 

As  to  conditional  execution  of  contract  under  parol  agree- 
ment that  it  shall  not  take  effect  until  others  have  signed  it, 
see   note    45   L.    321-348. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

As  to  necessity  of  acceptance  being  unconditional,  see  note 
32   A.   R.    51. 

875 


§§  1583,  1584  CIVIL  CODE.  [Div.III,Pt.II. 

As  to  when  immaterial  addition  to  acceptance  does  not 
avoid  it,  see  note  32  A.  R.  51,  52. 

§1583.    WHEN   COMMUMCATIOIV  DEEMED   COMPLETE. 

Consent  is  deemed  to  be  fully  communicated  between  the 
parties  as  soon  as  the  party  accepting  a  proposal  has  put  his 
acceptance  in  the  course  of  transmission  to  the  proposer,  in 
confer'^ ity  to  the  last  section. 

History:     Enacted  March   21,  1872. 

See  'Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

123  C.  428,  4"1,  56  P.  103  (construed  and  applied  with  other  sec- 
tions). 

As  to  acceptance  by  letter,  see  72  A.  D.  38;  93  A.  D.  515;  32  A. 
R.   52. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

As  to  when  letter  and  telegram  do  not  constitute  an  accept- 
ance,  see   48  A.   R.   519. 

§1584.  ACCEPTANCE  BY  PERFORMANCE  OF  CONDI- 
TIONS.  Performance  of  the  conditions  of  a  proposal,  or  the 
acceptance  of  the  consideration  offered  with  a  proposal,  is  an 
acceptance  of  the  proposal. 

History:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.   C.   for   29   pars,   annotation. 

141  C.  699,  706,  75  P.  329   (construed  and  applied  with  §  1589). 

As  to  claims  against  state  for  rewards,  see  42  L.  33,  54, 
63,    72. 

As  to  contract  and  offer  of  reward,   see   14  A.  S.   69. 

As  to  gift  of  promissory  note  given  for  subscription,  see 
26  L.   305-307,   308. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

As  to  necessity  of  notice  of  acceptance,  see  73  A.   D.   638. 

As  to  offer  of  reward  for  finding  property,  see  37  L.   111-126. 

As  to  reward  for  arrest,   see  11   L.   398. 

As  to  right  to  recover  subscription,  see  13  A.  D.  458;  58  A. 
D.   714;    82   A.   D.    121. 

As  to  subscription  for  erection  of  church,  see  79  A.  D.  511. 

As  to  subscription  to  common  object,   see   3  L.   468. 

As  to  time  for  which  reward  is  operative,  see  26  A.  R.  10. 

As  to  validity  of  subscription  to  church  made  on  Sunday,  see 
59  A.  D.  713;  32  A.  R.  560;  38  A.  R.  165. 

As  to  what  is  general  offer  of  reward,  see  26  A.  R,  8. 

876 


I 


Tit.T.ch.IIT.]         ACCEPTANCE— REVOCATION.  §§  1585-1587 

As  to  what   is  performance   of  offer   of   reward,   see   73    A.   D. 

639;    26   A.   R.   7-9. 

As  to  when  advertisement  offering  reward  may  become  con- 
tract, see  73  A.  D.  638,  639. 

As  to   when   finder  of  lost  property  is  entitled  to,  see   26  A.  R.  9. 

As  to  when  information  leading  to  arrest  entitles  party  to 
reward,   see   26   A.   R.   7-9. 

As   to    whether    subscription    contract    is    joint    or    several,    see 

22    L.    80-83. 

Subscriptions.— As  to  forfeiture  of  subscription  contract  on 
breach   of   condition,    see   13   L.   698. 

§1585.  ACCEPANCE  MUST  BE  ABSOLUTE.  An  accept- 
ance must  be  absolute  and  unqualified,  or  must  include  in 
itself  an  acceptance  of  that  character  which  the  proposer  can 
separate  from  the  rest,  and  which  will  conclude  the  person 
accepting.    A  qualified  acceptance  is  a  new  proposal. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

82  C.  84,  87,  22  P.  1136,  1137  (construed  and  applied);  140 
C.  157,  161,  73  P.  840  (construed  and  applied);  145  C.  623,  625, 
79  P.  366    (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,    ante. 

§  1586.  REVOCATION  OF  PROPOSAL.  A  proposal  may  be 
revoked  at  any  time  before  its  acceptance  is  communicated 
to  the  proposer,  but  not  afterwards. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
82  C.   84,   87,   22   P.   1136,   1137    (construed  and  applied). 
As  to  many  miscellaneous  matters  as   to   contracts,   see   note 
§  1549,   ante. 

§1587.  REVOCATION,  HOW  MADE.  A  proposal  is 
revoked : 

1.  By  the  communication  of  notice  of  revocation  by  the  pro- 
poser to  the  other  party,  in  the  manner  prescribed  by  sections 
fifteen  hundred  and  eighty-one  and  fifteen  hundred  and  eighty- 
three,  before  his  acceptance  has  been  communicated  to  the 
former ; 

2.  By  the  lapse  of  the  time  prescribed  in  such  proposal  for 

877 


§§  1588,  1589  CIVIL  CODE.  [Div.III,Pt.II. 

its  acceptance,  or  if  no  time  is  so  prescribed,  the  lapse  of  a 
reasonable  time  without  communication  of  the  acceptance; 

3.  By  the  failure  of  the  acceptor  to  fulfil  a  condition  prece- 
dent to  acceptance;   or, 

4.  By  the  death  or  insanity  of  the  proposer. 

History:     Enacted  March  21,  1872. 

See  Kcii'o  Gyc.  C.  C.  for  17  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,   ante. 

As  to  responsibility  of  personal  representatives  for  proposal 
of  a  decedent,  see  22  A.  S.   815. 

§  1588.    RATIFICATION  OF  CONTRACT,  VOID  FOR  WANT 

OF  CONSENT.    A  contract  which  is  voidable  solely  for  want 
of  due  consent,  may  be  ratified  by  a  subsequent  consent. 

History:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.    C.   for   5   pars,   annotation. 
130  C.  431,  433,  62  P.  749    (construed  and  applied  with  §  1589). 
As  to  many  miscellaneous  matters  as   to  contracts,    see  note 
§  1549,  ante. 

§1589.  ASSUMPTION  OF  OBLIGATION  BY  ACCEPT- 
ANCE  OF  BENEFITS.  A  voluntary  acceptance  of  the  benefit 
of  a  transaction  is  equivalent  to  a  consent  to  all  the  obliga- 
tions arising  from  it,  so  far  as  the  facts  are  known,  or  ought 
to  be  known,  to  the  person  accepting. 

History:     Enacted  March   21,  1872. 

See   Kerr's   Cyc.   C.    C.   for   20   pars,   annotation. 

86  C.  574,  577,  21  A.  S.  63,  25  P.  52,  53,  10  L.  369  (construed 
and  applied);  100  C.  67,  72,  34  P.  527  (construed  and  applied): 
105  C.  292,  296,  297,  298,  38  P.  726  (construed  and  applied); 
113  C.  221,  231,  236,  41  P.  1017,  45  P.  252  (construed  and  ap- 
plied with  other  sections);  113  C.  558,  561,  45  P.  838  (con- 
strued and  applied);  120  C.  571,  574,  65  A.  S.  203,  52  P.  813 
(construed);  130  C.  431,  433,  62  P.  749  (construed  and  applied 
with  §1588);  137  C.  22,  25,  69  P.  698  (construed  and  applied); 
141  C.  699,  706,  75  P.  329  (construed  and  applied);  144  C.  104, 
112,  77  P.  828  (construed  and  applied  with  other  sections); 
2  C.  A.  393,  397,  84  P.  324  (applied  to  contract,  by  mining-  cor- 
poration,   employing-   superintendent). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

878 


Tit.I.ch.IV.]  OBJECT  OF,  WHAT.  §§  15^5-1597 

CHAPTER  IV. 

OBJECT   OF  A   CONTRACT. 

§  1595.  Object,   what. 

§  1596.  Requisites  of  object. 

§  1597.  Impossibility,    v/hat. 

§  159S.  When   contract   wholly   void. 

§  1599.  When   contract  partially  void. 

§  1595.  OBJECT,  'WHAT.  The  object  of  a  contract  is  the 
thing  which  it  is  agreed,  on  the  part  of  the  party  receiving 
the  consideration,  to  do  or  not  to  do. 

History:     Enacted  March   21,  1872. 

See   Kerr's   Cyc.   C.   C.   for   6   pars,  annotation. 

126  C.  591,  598,  77  A.  S.  209,  59  P.  36  (construed  with  other 
sections). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1596.  REQUISITES  OF  OBJECT.  The  object  of  a  con- 
tract must  be  lawful  when  the  contract  is  made,  and  possible 
and  ascertainable  by  the  time  the  contract  is  to  be  performed. 

History:     Enacted  March   21,  1872. 

See   Kerr's   Cyc.   C.   C.    for    11    pars,   annotation. 
As   to   many  miscellaneous   matters   as   to  contracts,    see   note 
§  1549,  ante. 

§  1597.  IMPOSSIBILITY,  WHAT.  Everything  is  deemed 
possible  except  that  which  is  impossible  in  the  nature  of 
things. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  28  pars,  annotation. 

(C.  Dec.   23,   1885),  9  P.   106    (construed  and  applied). 

As  to  act  of  God,  see  Kerr's  Cyc.  C.  C.  §  1511  pars.  2-11,  note: 
and  §  1714   note  par.   5. 

As  to  impossibility  arising  from  act  of  God,  see  Kerr's  Cyc. 
C.  C.  §  1511  note  pars.  2-11;  §  1714  note  par.  5. 

879 


1598,1599 


CIVIL  CODE.  [Div.III.Pt.II. 


As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  what  excuses  performance,  see  Kerr's  Cyc.  C.  C.  §  1511 
and   note. 

§1598.  WHEN  CONTEACT  WHOLLY  VOID.  Where  a 
contract  has  but  a  single  object,  and  such  object  is  unlawful, 
whether  in  whole  or  in  part,  or  wholly  impossible  of  per- 
formauce,  oi  sc  vaguely  expressed  as  to  be  wholly  unascer- 
tainable,  the  entire  contract  is  void. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.   C.  for  9  pars,  annotation. 
132  C.  63,  65,  64  P.  131,  469   (construed  and  applied). 
As  to  many  miscellaneous   matters  as   to  contracts,    see   note 
§  1549,  ante. 

§  1599.  WHEN  CONTRACT  PARTIALLY  YOID.  Where  a 
contract  has  several  distinct  objects,  of  which  one  at  least  is 
lawful,  and  one  at  least  is  unlawful,  in  whole  or  in  part,  the 
contract  is  void  as  to  the  latter  and  valid  as  to  the  rest. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

59  C.  678,  682  (construed  and  applied);  34  P.  700  (construed 
and  applied);   136  C.-656,  660,  69  P.  495   (construed  and  applied). 

As  to  building  and  analogous  contracts  and  their  entirety, 
see   59   A.   S.    285-289. 

As  to  divisibility  of  contracts  in  restraint  of  trade,  see  92 
A.   D.    764,   765. 

As  to  entirety  of  contract  for  personal  services,  see  59  A.  S. 
289-291. 

As  to  entirety  of  contracts  and  when  complete  performance 
is  essential  to  cause  of  action,  see  59  A.  S.  277-295. 

As  to  full  performance  of  entire  contracts,  generally,  see  59 
A.    S.    281-283. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  right  to  recover  on  a  quantum  meruit,  see  1  L.   827. 

As  to  right  to   rescind  contract,   see  1  L.   826. 

As  to  what  contracts  are  divisible,  see  59  A.  S.   279-281. 

As  to  what  is  an  entire  contract,  see  59  A.  S.   277-279. 

As  to  whether  contract  is  entire  or  severable,  see  1  L.  826,  827. 


880 


Tit.I,ch.V.]  GOOD  CONSIDERATION.  §  1605 

CHAPTER  V. 

CONSIDERATION. 

§  1605.  Good   consideration,    what. 

§  160G.  How  far  legal  or  moral  obligation  is  a  good  consideration. 

§  1607.  Consideration  lawful. 

§  160S.  Effect  of  its  illegality. 

§  1609.  Consideration    executed    or    executory. 

§  1610.  Executory  consideration. 

§  1611.  How    ascertained. 

§  1612.  Effect  of  impossibility  of   ascertaining   consideration. 

§  1613.  Same.      [Possible   of   execution   on   face.] 

§  1614.  Written  instrument  presumptive  evidence  of  consideration. 

§  1615.  Burden  of  proof  to  invalidate  sufficient  consideration. 

§  1605.  GOOD  CONSIDERATION,  WHAT.  Any  benefit  con- 
ferred, or  agreed  to  be  conferred,  upon  the  promisor,  by  any 
other  person,  to  which  the  promisor  is  not  lawfully  entitled, 
or  any  prejudice  suffered,  or  agreed  to  be  suffered,  by  such 
person,  other  than  such  as  he  is  at  the  time  of  consent  law- 
fully bound  to  suffer,  as  an  inducement  to  the  promisor,  is  a 
good  consideration  for  a  promise. 

Hi.story:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.    C.   for   168   pars,    annotation. 

89  C.  643,  654,  27  P.  65,  66  (construed  and  applied);  104  C. 
239,  242,  37  P.  904  (construed  and  applied);  40  P.  39,  40  (con- 
strued and  applied);  126  C.  591,  598,  77  A.  S.  209,  59  P.  36  (con- 
strued and  applied  with  other  sections);  68  P.  484,  485  (con- 
strued and  applied);  139  C.  165,  168,  72  P.  905  (construed  and 
applied);    145    C.    497,    500,    78    P.    1056    (construed   and   applied); 

2  C.  A.  715,  719,  84  P.  249  (delivery  of  insurance  policy  to  one 
entitled  to  it  is  not  sufficient  consideration  for  what  promise) ; 

3  C.  A.  246,  248,  84  P.  1000  (applied — what  agreement  is  suffi- 
cient consideration);  3  C.  A.  414,  416,  86  P.  824  (applied);  3 
C.  A.  561,  567,  86  P.  820  (distinct  benefit  conferred  is  sufficient 
consideration). 

As  to  additional  promises  on  both  sides,  see  34  L.  33-37. 

As  to  agreement  to  comply  with  lease  as  consideration  for 
new   promise,    see   34   L.    33-36. 

As  to  compliance  with  obligation  to  deliver  property,  see 
34    L.    33-35. 

881 


§  1606  CIVIL  CODE.  [Div.III.Pt.II. 

As  to  consideration  in  contract  for  permanent  employment, 
and    similar   agreements,   see    35    L.    512-515,    517. 

As  to  consideration  in  subscription  contract  to  common 
object,  see   3  L.  468. 

As  to  contract  consideration  of  which  contravenes  statutes, 
see  35   A.   S.   806. 

As  to  forbearance  to  sue  as  consideration  to  support  prom- 
ise, see.fiO  A.  D.  524-527;   36  A.  S.   145-147. 

As  to  many  iiiiscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  marriage  as  valuable  consideration,  see   12   L.   463. 

As  to  meritorious   consideration,   see   34  A.   S.    191-193. 

As  to  mutual  or  concurrent  promises,  see  12  L.   463. 

As  to  necessity  and  sufficiency  of  consideration,  see  3  L. 
468,   761;  5  L.  856;  12  L.   463;   13  L.   581. 

As  to  payment  of  existing  debt  as  consideration,  see  34  L. 
33-44. 

As  to  performance  of  an  act  which  party  has  agreed  to  do 
as  the  consideration  to  support,  contract  with  third  party,  see 
34    L.    33-43. 

As  to  performance  of  existing  contract  obligation  as  consid- 
eration for  new  promise,  see  34  L.   33-44. 

As  to  position  of  party  taking  negotiable  paper  as  collateral 
security  without  new  consideration,  see  71  A.  D.  499;  73  A.  D. 
88;    84    A.    D.    405. 

As  to  promise  not  to  sue,  see  34  L.  33-35. 

As  to  promise  to  do  duty  as  consideration,   see  34  L.   33-37. 

As  to  promise  to  release  joint  debtor,  see  34  L.   35. 

As  to  promises  of  additional  compensation  for  completing 
contract,   see   34   L.    33-38. 

As  to  pre-existing  debt  as  valuable  consideration,  see  9  A.  D. 
272,  273;  12  A.  D.  136;  68  A.  D.  321;  89  A.  D.  411;  33  A.  R.  46; 
8  A.   S.   841;    14  A.   S.   583;    32   A.   S.   711,   712. 

As  to  validity  of  chattel  mortgages  to  secure  pre-existing 
debts,   see   29   A.   S.   483. 

As  to  voluntary  payment  of  another's  debt,  as  consideration, 
see    8    A.    S.    841. 

As  to  when  consideration  is  valuable,  see  2  L.  530. 

Marriage  contract,  as  to  agreement  to  comply  with,  see  34 
L.   33-37. 


§  1606.  HOW  FAK  LEGAL  OR  MORAL  OBLIGATION  IS  A 
GOOD  CONSIDERATION.  An  existing  legal  obligation  rest- 
ing upon  the  promisor,  or  a  moral  obligation  originating  in 
some  benefit  conferred  upon  the  promisor,  or  prejudice  suf- 
fered by  the  promisee,  is  also   a  good   consideration   for   a 

882 


Tit.I,ch.V.]  LAWFUL    CONSIDERATION.  §  igOT 

promise,  to  an  extent  corresponding  with  the  extent  of  the 
obligation,  but  no  further  or  otherwise. 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.   for  48  pars,   annotation. 

112  C.  197,  205,  44  P.  557  (construed  and  applied);  3  C.  A. 
561,  567,  86  P.  820,  822  (applied  to  order  to  pay  money  to 
become    due). 

As  to  cause  of  action  on  new  promise  to  pay  debt  barred 
by  statute  of  limitations,   see  95  A.  D.   175. 

As  to  consideration  of  promise  by  widow  to  pay  debt  con- 
tracted during  coverture,  see   39  A.  S.   742,   743. 

As  to  consideration  of  promise  to  pay  after  debt  released, 
see   39   A.   S.    736-739. 

As  to  consideration  of  promise  to  pay  debt  barred  by  statute 
of  limitations,  see  39  A.  S.   739,  740. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  mere  moral  obligation  as  consideration  to  uphold  an 
express  promise,  see  39  A.  S.  735-746. 

As  to  moral  obligation  imposed  upon  wife  to  pay  husband's 
debts,   see  Kerr's  Cyc.  C.  C.   §  1605  and  note. 

As  to  past  act  or  transaction  not  being  sufficient  considera- 
tion,  see   39   A.   S.    740-742. 

As  to  promise  to  pay  debt  discliarged  in  bankruptcy,  see  27 
A.    D.    287,    289. 

As  to  what  is  sufficient  to  take  case  out  of  statute  of  limita- 
tions, see  57  A.  R.   334-336. 

As  to  wife's  promise  to  pay  husband's  pre-existing  debt 
barred  by  statute  of  limitations,  see  Kerr's  Cyc.  C.  C.  §  1605 
and  note. 

§1607.  CONSIDERATION  LA^YFUL.  The  consideration 
of  a  contract  must  be  lawful  within  the  meaning  of  section 
sixteen  hundred  and  sixty-seven. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

68  C.  29,  30,  8  P.  614,  615  (construed  and  applied  with  other 
sections);  82  C.  642,  643,  23  P.  273,  274  (construed  and  applied 
with  §1608);  83  C.  173,  177,  23  P.  286,  288  (construed  and 
applied  with  other  sections);  125  C.  119,  122,  73  A.  S.  31,  57 
P.  777,  45  L.  420  (construed  and  applied  with  other  sections); 
150  C.  159,  161,  88  P.  708  (consideration  of  notes  given  for 
gambling  debt  is  contra  bonos  mores);  46  F.  564,  567  (applied 
with  §§  1608,  1615,  and  1667 — mere  want  of  consideration  distin- 
guished from  illegal  consideration — prima  facie  case  of  notice). 

883 


§  lg08  CIVIL,  CODE.  [Div.III,Pt.II. 

As  to  action  upon  contract  forbidden  by  law  or  subject  to 
penalty,  see   73   A.   S.    39. 

As  to  application  of  the  maxims  ex  turpi  contractu  non  oritur 
actio  and  in  pari  delicto  potior  est  conditio  defendentis,  see 
30    A.    R.    106-112. 

As  to  cohabitation  as  consideration,  see   12   A.   D.    676,   677. 

As  to  compounding  of  felony  and  dismissal  of  prosecution 
for  as  valuable  consideration,   see   49   A.   R.    49-51. 

As  tc- ^o'-.tract<^  consideration  of  which  is  agreement  to  com- 
pound or  stifle  criminal  prosecutions,  see  31  A.  D.  600-604. 

As  to  illegal  contracts,  see  Kerr's  Cyc.  C.  C.   §  1667  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1608.  EFFECT  OF  ITS  ILLEGALITY.  If  any  ^part  of  a 
single  consideration  for  one  or  more  objects,  or  of  several 
considerations  for  a  single  object,  is  unlawful,  the  entire 
contract  is  void. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

68  C.  29,  30,  8  P.  614,  615  (construed  and  applied  with  other 
sections);  82  C.  642,  643,  23  P.  273,  274  (construed  and  applied 
with  §1607);  83  C.  173,  177,  23  P.  286,  288  (construed  and 
applied  with  other  sections);  96  C.  106,  112,  31  A.  S.  192,  30 
P.  1022,  1024  (construed  and  applied);  125  C.  119,  122,  73  A. 
S.  31,  57  P.  777,  45  L.  420  (construed  and  applied  with  other 
sections);  131  C.  379,  384,  63  P.  692  (construed  and  applied); 
136  C.  63,  67,  68  P.  324  (construed  and  applied);  149  C.  667, 
676,  87  P.  276  (whatever  may  be  effect  of  this  section  as  to 
contracts  which  are  executory  in  whole  or  in  part,  it  cannot 
be  construed  so  as  to  permit  grantor  of  property  who  has 
received  and  retained  consideration  for  his  conveyance  to 
recover  the  property  upon  the  sole  ground  that  the  considera- 
tion was  unlawful  in  part);  46  F.  564,  567  (applied  with  §§1607, 
1615,  and  1667 — mere  want  of  consideration  distinguished  from 
illegal  consideration — prima  facie  case  of  notice). 

As  to  actions  upon  illegal  contracts,  see  8  A.  D.  691. 

As  to  effect  of   illegality,   see   9   Cyc.   546-576. 

As  to  consideration  tending  to  obstruct  the  administration 
of  justice,   see    37   A.   D.    203. 

As  to  consideration  which  is  the  stifling  of  a  criminal  prose- 
cution, see  31  A.  D.  600;   22  A.  R.  121;   49  A.  R.   48. 

As  to  illegal  consideration,  see  6  Encyc.  L.  757;  9  Cyc.  564- 
566. 

As  to  legality  of  wagers  and  betting  and  right  to  recover, 
see   18  L.   859. 

884 


Tit.I,ch.V.]  EXECUTED  AND  EXECUTORY.         §§1609-1611 

As   to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,   ante. 

As  to  note  founded  on  two  distinct  considerations,  one  valid 
and  the  other  invalid,  see  25  A.  D.   390. 

As  to  rig-ht  to  recover  money  paid  under  an  illegal  contract, 
see   12   A.   D.   385;   67   A.   D.   153. 

§1609.     CONSIDERATION   EXECUTED   OR  EXECUTORY. 

A  consideration  may  be  executed  or  executory,  in  whole  or  in 
part.  In  so  far  as  it  is  executory  it  is  subject  to  the  provis- 
ions of  chapter  four  of  this  title. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

90  C.  373,  375.  27  P.  294  (referred  to  with  other  sections);  3 
C.  A.   246,  248,  84  P.   1000    (applied). 

As  to-  many   miscellaneous   matters   as   to   contracts,   see  note 

§  1549,  ante. 

As  to  offer  of  reward,  see  Kerr's  Cyc.  C.  C.  §  1584,  note  par.  4. 
As  to  option  contract,  see  Kerr's  Cyc.  C.  C.   §  1580,  note  pars. 

23  et  seq.  .       c , 

As  to  subscription  contract,  see  Kerr's  Cyc.  C.  C.  ^  lu84,  note 

pars.  21  et  seq. 

§  1610.  EXECUTORY  CONSIDERATION.  When  a  consid- 
eration is  executory,  it  is  not  indispensable  that  the  contract 
should  specify  its  amount  or  the  means  of  ascertaining  it. 
It  may  be  left  to  the  decision  of  a  third  person,  or  regulated 
by  any  specified  standard. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

74  C.  287,  296,  15  P.  839,  843  (construed  and  applied);  90  C. 
373,  375,  27  P.  294   (referred  to  with  other  sections). 

See  post  §§  1611.  1613  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1611.  HOAV  ASCERTAINED.  When  a  contract  does  not 
determine  the  amount  of  the  consideration,  nor  the  method 
by  which  it  is  to  be  ascertained,  or  when  it  leaves  the  amount 
thereof  to  the  discretion  of  an  interested  party,  the  considera- 

885 


§§  1612-1614  CIVIL  CODE.  [Div.III,Pt.II. 

tion  must  be  so  much  money  as  the  object  of  the  contract  is 
reasonably  worth. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
90  C.  373,  375,  27  P.  294  (referred  to  with  other  sections). 
See  post  §§1612,  1613  and  note. 

As  tti' ■  -^-'iv  P^i'jcellaneous  matters  as  to  contracts,  see  note 
§  1549,  anlL. 

§  1612.  EFFECT  OF  IMPOSSIBILITY  OF  ASCERTAINmG 
CONSIDERATiOlV.  Where  a  contract  provides  an  exclusive 
method  by  which  its  consideration  is  to  be  ascertained,  which 
method  is  on  its  face  impossible  of  execution,  the  entire  con- 
tract is  void. 

History:     Enacted  March   21,  1872. 

§  1613.    SAME.     [POSSIBLE  OF  EXECUTION  ON  FACE.] 

"Where  a  contract  provides  an  exclusive  method  by  which  its 
consideration  is  to  be  ascertained,  which  method  appears  pos- 
sible on  its  face,  but  in  fact  is,  or  becomes,  impossible  of 
execution,  such  provision  only  is  void. 

Hi.story:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1614.  WRITTEN  INSTRUMENT  PRESUMPTIVE  EVI- 
DENCE OF  CONSIDERATION.  A  written  instrument  is  pre- 
sumptive evidence  of  a  consideration. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  70  pars,  annotation. 

62  C.  623,  638  (construed  and  applied);  67  C.  536,  539,  8  P.  63, 
65  (construed  and  applied);  68  C.  611,  617,  10  P.  179,  182  (con- 
sti:ued  and  applied);  69  C.  611,  614,  11  P.  484  (construed  and 
applied  with  §1615);  75  C.  513,  518,  17  P.  675,  677  (construed 
and  applied  with  §  1615);  79  C.  606,  607,  21  P.  965  (construed  and 
applied);  85  C.  322,  327,  24  P.  636,  637  (construed  and  applied); 
86  C.  639,  642,  25  P.  130,  131  (construed  and  applied);  88  C.  79, 
82,  25  P.  962,  963  (construed  and  applied  with  §1615);  96  C. 
106,  110,  31  A.  S.   192,   30  P.   1022,   1023    (referred  to);    100   C.   429, 

886 


Tit.T.ch.V.]  BURDEN  OF  PROOF.  §  1615 

432,  433,  34  P.  1089  (construed  and  applied);  103  C.  97,  101,  37 
P.  189  (construed  and  applied  with  other  sections);  106  C.  651, 
655,  40  P.  8  (construed  and  applied  with  other  sections) ;  43  P. 
755  (construed  and  applied);  111  C.  281,  284,  43  P.  899  (construed 
and  applied);  49  P.  719,  721  (construed  and  applied);  120  C. 
680,  682,  53  P.  266  (construed  and  applied);  124  C.  577,  579,  57 
P.  463  (cited  with  other  sections);  129  C.  301,  306,  61  P. 
937  (construed  and  applied);  131  C.  379,  383,  63  P.  692  (construed 
and  applied  with  other  sections);  143  C.  528,  533,  77  P.  471 
(construed    and    applied    with    other    sections);    147    C.    596,    603, 

82  P.  257  (applied);  3  C.  A.  727,  730,  86  P.  994  (applied);  6 
C.  A.   163,  166,  91  P.   677    (applied  to  note). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1615.  BURDE>  OF  PROOF  TO  INVALIDATE  SUFFI- 
CIEN'T  CONSIDERATION.  The  burden  of  showing  a  want 
of  consideration  sufficient  to  support  an  instrument  lies  with 
the  party  seeking  to  invalidate  or  avoid  it. 

History:  Enacted  March  21,  1872.  Said  to  be  "not  quite 
clear"  whether  this  section  applies  to  an   illegal   consideration, 

83  C.   173,  177,   23  P.   286. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

68  C.  611,  617,  10  P.  179.  182  (construed  and  applied  with 
§1614);  69  C.  611,  614,  11  P.  484;  486  (construed  and  applied 
with  §  1614);  75  C.  513,  518,  17  P.  675,  677  (construed  and  applied 
with  §1614);  79  C.  606,  607,  21  P.  965  (construed  and  applied 
with  §1614);  83  C.  173,  177,  23  P.  286,  288  (referred  to);  85  C. 
322,  327,  24  P.  636,  637  (referred  to  in  dis.  op.);  88  C.  79,  82,  25 
P.  962,  963  (construed  and  applied  with  §1614);  96  C.  106,  110, 
31  A.  S.  192,  30  P.  1022,  1023  (referred  to  with  other  sections); 
103  C.  97,  101,  37  P.  189  (construed  and  applied  with  other  sec- 
tions); 111  C.  281,  284,  43  P.  899  (construed  and  applied);  120 
C.  680,  682,  53  P.  266  (construed  and  applied);  124  C.  577,  579, 
57  P.  463  (referred  to);  129  C.  301,  306,  61  P.  937  (construed 
and  applied);  131  C.  379,  383,  63  P.  693  (construed  and  applied 
with  §1614);  143  C.  528,  533,  77  P.  471  (applied);  2  C.  A.  703. 
708,  84  P.  244  (applied  to  release);  3  C.  A.  561,  567,  86  P.  820 
(applied);  6  C.  A.  163,  166,  91  P.  677  (applied);  46  F.  564,  567 
(construed  and  applied  with  other  sections  to  notes  given  for 
gambling  debts). 

As  to  burden  of  proof,  see  6  Encyc.  L.  763. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 


887 


SS  1619-1621  CIVIL  CODE.  [Div.III,PUI. 

TITLE   II. 

MANNER    OF    CREATING    CONTRACTS. 

§  1619.  Contracts,    express   or  implied. 

§  1620.  Express  contract,  what. 

§  1621.  'Ti..'pUf^d    rontract,    what. 

§  1622.  What  contracts   may  be  oral. 

§  1623.  Contract   not   in   writing   through   fraud,    may    be   enforced 

against  fraudulent  party. 

§  1624.  What  contracts  must  be  in  writing. 

§  1625.  Effect  of  written  contracts. 

§  1626.  Contract  in   writing,    takes   effect   when. 

§  1627.  Provisions  of  chapter  on  transfers  of  real  property. 

§  1628.  Corporate  seal,   how  affixed. 

§  1629.  Provisions  abolishing  seals'  made   applicable. 

§  1619.  CONTRACTS,  EXPRESS  OR  IMPLIED.  A  con- 
tract is  either  express  or  implied. 

History:     Enacted  March  21,   1872. 

3  C.  A.  .561,  567,  86  P.  820  (ambiguously  cited). 
As   to  many   miscellaneous   matters  as   to  contracts,   see   note 
§  1549,  ante. 

§1620.  EXPRESS  CONTRACT,  WHAT.  An  express  con- 
tract is  one,  the  terms  of  which  are  stated  in  words. 

History:     Enacted  March  21,   1872. 

See  'Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
135  C.  561,  563,  67  P.  1054   (construed). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1621.  IMPLIED  CONTRACT,  WHAT.  An  implied  con- 
tract is  one,  the  existence  and  terms  of  which  are  manifested 
by  conduct. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

79  C.  323,  326,  12  A.  S.  145,  21  P.  852,  5  L.  233  (construed  and 
applied). 


Tit.  II.]  ORAL    CONTRACTS.  §§  1622-1624 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  obligation  imposed  by  law,  see  Kerr's  Cyc.  C.  C.  §§  1708 
et  seq.  and  notes. 

§1622.  WHAT  CONTRACTS  MAY  BE  ORAL.  All  con- 
tracts may  be  oral,  except  such  as  are  specially  required  by 
statute  to  be  in  writing. 

.     History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

90  C.  346,  359,  27  P.  289,  292  (applied);  93  C.  493,  495,  27  A.  S. 
212,  29  P.  119  (applied);  115  C.  512,  515,  47  P.  250  (construed): 
137  C.  239,  243,  70  P.  13  (no  statute  requires  the  contract  known 
as  an  account  stated  to  be  in  writing — it  may  therefore  be  oral). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  when  contract  should  be  in  writing,  see  Kerr's  Cyc. 
C.  C.  §  1623  and  note:  see  Kerr's  Cyc.  C.  C.  P.  §§  1971-1974  and 
notes. 

§1623.  CONTRACT  NOT  IN  WRITING  THROUGH 
FRAUD,  MAY  BE  ENFORCED  AGAINST  FRAUDULENT 
PARTY.  Where  a  contract,  which  is  required  by  law  to  be 
in  writing,  is  prevented  from  being  put  into  writing  by  the 
fraud  of  a  party  thereto,  any  other  party  who  is  by  such 
fraud  led  to  believe  that  it  is  in  writing,  and  acts  upon  such 
belief  to  his  prejudice,  may  enforce  it  against  the  fraudulent 
party. 

History:     Enacted  March   21,   1872. 

88  C.  434,  436  (erroneously  cited  for  §  1624,  subd.  5),  26  P. 
360,    361    (correct   citation). 

See  Kerr's  Cyc.  C.  C.  P.   §§  1971-1974  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1624.     WHAT    CONTRACTS    MUST    BE    IN     WRITING. 

The  following  contracts  are  invalid,  unless  the  same,  or 
some  note  or  memorandum  thereof,  is  in  writing  and  sub- 
scribed by  the  party  to  be  charged,  or  by  his  agent: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed 
within  a  year  from  the  making  thereof; 

889 


§  1624  ■  CIVIL  CODE.  [Div.III,Pt.II. 

2.  A  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  except  in  the  cases  provided  for  in 
section  twenty-seven  hundred  and  ninety-four; 

3.  An  agreement  made  upon  consideration  of  marriage 
other  than  a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things 
in  actioii,  at  a  price  not  less  than  two  hundred  dollars,  unless 
the  buyer  accepts  or  receives  part  of  such  goods  and  chat- 
tels or  the  evidences,  or  some  of  them,  of  sucli  things  in 
action,  or  pays  at  the  time  some  part  of  the  purchase  money; 
but  when  a  sale  is  made  at  auction,  an  entry  by  the  auc- 
tioneer in  his  sale  book,  at  the  time  of  the  sale,  of  the  kind 
of  property  sold,  the  terms  of  the  sale,  the  price,  and  the 
names  of  the  purchaser  and  person  on  whose  account  the 
sale  is  made,  is  a  sufHcient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period  than 
one  year,  or  for  the  sale  of  real  property,  or  of  an  interest 
therein;  and  such  agreement,  if  made  by  an  agent  of  the 
party  sought  to  be  charged,  is  invalid,  unless  the  authority 
of  the  agent  is  in  writing,  subscribed  by  the  party  sought 
to  be  charged; 

6.  An  agreement  authorizing  or  employing  an  agent  or 
broker  to  purchase  or  sell  real  estate  for  compensation  or  a 
commission; 

7.  An  agreement  which  by  its  terms  is  not  to  be  performed 
during  the  lifetime  of  the  promisor,  or  an  agreement  to  devise 
or  bequeath  any  property,  or  to  make  any  provision  for  any 
person  by  will. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  241;  March  9,  1878,  Code  Amdts,  1877-8, 
p.  86;  by  Code  Commission,  Act  March  16,  1901,  Stats,  and  Amdts. 
1900-1,  p.  408,  held  unconstitutional,  see  history,  §  4  ante; 
am.endment  re-enacted  March  21,  1905,  Stats,  and  Amdts.  1905, 
p.  611. 

See  Kerr's  Cyc.  C.  C.  for  232  pars,  annotation.. 

62  C.  299,  302  (applied);  67  C.  93,  7  P.  195  (referred  to);  67 
C.  657,  659,  8  P.  523,  524  (applied):  71  C.  46,  47,  11  P.  813,  814 
(cited);  72  C.  133,  144,  13  P.  315,  320  (applied);  75  C.  166,  169, 
16  P.  766,  767    (applied);   75  C.   298,  300,   17  P.   213,  214    (referred 

890 


Tit.  II.]  MUST  BE  IN  WRITING,  WHEN.  §  1624 

to);  75  C.  509,  511,  17  P.  642,  643  (applied);  75  C.  525,  526,  7 
A.  S.  189,  17  P.  689,  690  (applied);  77  C.  279,  282,  19  P.  499,  500 
(applied);  77  C.  383,  388,  11  A.  S.  288,  19  P.  641,  642,  644  (referred 
to);  80  C.  90,  97  (applied  but  erroneously  cited  as  §1624  C.  C. 
P.);  13  A.  S.  101  (same  error),  22  P.  57,  59  (correct  citation); 
81  C.  205,  207,  22  P.  550,  551  (referred  to);  81  C.  280,  288,  22  P. 
856,  857,  858  (applied);  82  C.  533,  546,  23  P.  217,  220  (applied); 

24  P.  377  (applied);  85  C.  598,  24  P.  784  (applied);  86  C.  639,  641, 

25  P.  130,  131  (applied);  87  C.  115,  116,  25  P.  266  (applied);  88 
C.  434,  436  (subd.  5  erroneously  cited  as  §  1623),  26  P.  360,  361 
(correct  citation);  26  P.  831,  832  (referred  to — contract  not 
within  statute  of  frauds);  89  C.  564,  569,  570,  26  P.  1093,  1094 
(construed);  90  C.  346,  358,  27  P.  289,  292  (construed);  91  C. 
669,  671,  27  P.  1080,  1081,  14  L.  230  (referred  to);  93  C.  493,  495, 
27  A.  S.  212,  29  P.  119  (construed);  96  C.  106,  109,  31  A.  S.  192, 
30  P.  1022,  1023  (referred  to);  33  P.  884,  885  (applied);  100  -C. 
26,  28  (referred  to),  29  (applied),  34  P.  636;  34  P.  700,  701 
(applied);  103  C.  157,  160,  37  P.  199  (applied);  106  C.  594,  600, 
39  P.  946  (applied);  111  C.  281,  285,  43  P.  899  (referred  to);  112 
C.  634,  635,  44  P.  1060  (construed);  113  C.  432,  434,  54  A.  S.  361, 
45  P.  812  (construed);  117  C.  587,  591,  592,  593,  49  P.  710  (con- 
strued and  applied);  119  C.  239,  241  (what  memorandum  in  writ- 
ing, disclosing  terms  of  ordinary  contract  for  commissions,  is 
sufficient  to  satisfy  statute  of  frauds — erroneously  cited  as 
§1624  C.  C.  P.),  51  P.  333,  334  (same  error);  59  P.  987,  988 
(referred  to):   128  C.  156,  158,  79  A.  S.  36,  60  P.  764   (construed); 

61  P.  578,  579   (what  promise  is  within  subd.  2);  129  C.  389,  390, 

62  P.  58  (applied);  129  C.  488,  489,  62  P.  92  (applied);  130  C. 
352,  356,  62  P.  555  (cited);  130  C.  411,  413,  62  P.-  611  (applied); 
133  C.  475,  478,  65  P.  976  (applied);  134  C.  227,  229,  66  P.  218 
(referred  to);  140  C.  687,  689,  74  P.  291  (applied);  141  C.  109,  111, 
74  P.  695  (referred  to);  142  C.  399,  403,  76  P.  53  (applied);  143 
C.  363,  366,  77  P.  71  (applied);  1  C.  A.  159,  161,  81  P.  1015  (subd. 
6  applied — insufficiency  of  memorandum  as  pleading');  1  C.  A. 
560,  563,  564,  82  P.  568  (construed  with  §  2794 — exceptions  to 
general  rule);  3  C.  A.  414,  416,  86  P.  824  (construed  with  §2794, 
subd.  2 — what  promise  is  not  void  under  subd.  2,  §1624);  3 
C.  A.  554,  559,  86  P.  610  (authority  to  agent  to  sell  real  estate 
must  be  in  writing- — subd.  6  erroneously  cited  as  "subd.  69"); 
4  C.  A.  109,  112  (erroneously  cited  as  §1624  C.  C.  P.),  87  P.  255 
(correct  citation);  4  C.  A.  154,  155,  87  P.  285  (referred  to);  4 
C.  A.  358,  359,  360,  88  P.  285  (subd.  6  applied — oral  contract 
invalid);  4  C.  A.  403,  405,  88  P.  378  (what  contract  is  not  invalid 
under  subd.  4);  6  C.  A.  152,  158,  91  P.  667  (referred  to  in  con- 
struing contract  to  will  property). 

As  to  acceptance  and  delivery  of  goods  to  satisfy   statute   of 
frauds,  see  49  A.  D.  325;  37  A.  R.  16;  96  A.  S.  215. 

891 


§  1624  CIVIL  CODE.  [Div.III,Pt.II. 

As  to  alteration  of  contract  by  subsequent  verbal  agreement 
being  within  statute,  see  100  A.  D.  169. 

As  to  appointment  of  agent  to  be  in  writing,  see  Kerr's  Cyc. 
C.  C.  §  1741  and  note. 

As  to  conflict  of  laws  as  to  statute  of  frauds,  see  64  L.  119. 

As  to  contract  for  sale  of  real  property,  see  Kerr's  Cyc.  C.  C. 
§  1741  and  note. 

As  to  contract  to  manufacture,  see  Kerr's  Cyc.  C.  C.  §  1740 
and  note. 

As  to  couicact.v  being  in  several  writings,  see  2  L.  212. 

As  to  contracts  for  exchange  of  land,  or  to  transfer  interest 
in  realty,  as  affected  by  statute,  see  5  L.  245. 

As  to  contracts  for  sale  of  personalty,  see  Kerr's  Cyc.  C.  C. 
§  1739  and  note. 

As  to  contracts  for  special  orders;  manufacture  of  ordinary 
articles  not  according  to  special  directions;  and  finishing  articles 
in  existence;  as  affected  by  statute,  see  14  L.   231,  233. 

As  to  contracts  not  to  be  performed  within  one  year — Effect 
of  statute,  see  3  L.  337,  339;  7  L.  784;  35  L>.  514. 

As  to  contracts  relating  to  real  estate — Effect  of  statute,  see 
17  A.  D.   58. 

As  to  distinction  between  sales  of  personalty  and  agreements 
for  work  and  labor,  under  statute  of  frauds,  see  14  L.  230. 

As  to  effect  of  statute  of  frauds  upon  contract  between 
sureties  to  fix  their  shares  of  liability,  see  39  L.  378. 

As  to  effect  of  statute  on  agreement  to  hold  land  purchased 
on  execution  for  defendant,  see  40  A.  D.   207. 

As  to  enforcement  of  contracts  within  statute  because  of  part 
performance,  see  32  A.  D.   129. 

As  to  fraudulent  transfers,  see  Kerr's  Cyc.  C.  C.  §§  3439  et  seq. 
and  notes. 

As  to  guaranty,  see  Kerr's  Cyc.  C.  C.  §§  2793  et  seq.  and  notes. 

As  to  leases  for  more  than  one  year,  or  to  commence  at  a 
future  time,  see  7  L.  671;  10  L.   726. 

As  to  marriage  settlement  contracts,  see  Kerr's  Cyc.  C.  C. 
§  178  and  note. 

As  to  memorandum  by  auctioneer,  see  Kerr's  Cyc.  C.  C.  §  1798 
and  note. 

As  to  meiiTorandum  of  contract  to  satisfy  statute,  see  2  L. 
212;   11  L.  97,  143;  22  L.  273. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  part  performance  taking  case  out  of  statute,  see  Kerr's 
Cyc.   C.  C.   §  1741  and   note. 

As  to  promise  to  answer  for  debt  or  default  of  another,  see 
5  L.   617. 

As  to  promise  to  pay  debt  of  another,  when  need  and  when 
need  not  be  in  writing,  see  95  A.  D.  251,  46  A.  R.  296 

892 


I 


Tit.  II.]  WRITTEN  CONTRACT,  EFFECT.  §  1625 

As  to  promise  to  pay  third  person  being  within  statute,  see 
25  L.   264. 

As  to  sufficiency  of  auctioneer's  memorandum  to  satisfy 
statute,  see  13  A.  D.  398. 

As  to  statute  of  frauds,  see  Kerr's  Cyc.  C.  C.  P.  §§  1971-1974 
and  notes. 

As  to  statute  of  frauds  as  affecting  sale  or  mortgage  or  crojis, 
see  14  L.  233;   23  L.  449. 

As  to  what  acts  may  constitute  part  performance  within 
statute,  see  53  A.  D.   539. 

As  to  wliat  constitutes  memoranda  witliin  statute,  and  l)y 
whom  must  be  signed,  see  47  A.  R.  532. 

As  to  when  consideration  of  contract  is  sufficiently  expressed, 
see  60  A.  S.  432. 

As  to  when  contracts  are  within  statute  because  not  to  be 
performed  within  one  year,  see  93  A.  D.  86;  43  A.  R.  42. 

As  to  wlien  writing  constitutes  memorandum  within  statute, 
see  7  A.  D.  288,  42  A.  R.  347. 

As  to  whether  contracts  of  indemnity  are  within  statute,  see 
42  A.  S.  186. 

As  to  whetlier  contracts  for  the  purchase  of  property  not 
then  in  existence  are  within   statute,   see   54  A.  R.   164. 

As  to  writing  of  memorandum  in  any  kind  of  letters  and  in 
pencil,  see  7  A.  D.  288. 

§  1625.  EFFECT  OF  WRITTEN  CONTRACTS.  The  execu- 
tion of  a  contract  in  wi-iting,  whetlier  the  law  requires  it  to 
be  written  or  not,  supersedes  all  the  negotiations  or  stipula- 
tions concerning  its  matter  which  preceded  or  accompanied 
the  execution  of  the  instrument. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  408,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March   21,    1905,  Stats,  and  Amdts.    1905,  p.   611. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

81  C.  1,  7,  22  P.  515,  516,  6  L.  219  (applied) ; -82  C.  474,  478,  23 
P.  118,  119  (applied);  82  C.  533.  546,  23  P.  217,  220  (applied);  86 
C.  335,  340,  24  P.  993,  994  (applied);  89  C.  617,  621,  26  P.  1101, 
1102  (applied);  95  C.  568,  570,  30  P.  773  (cited);  30  P.  841,  842 
(applied);  96  C.  106,  109  (referred  to),  110  (construed),  31  A.  S. 
192,  30  P.  1022,  1023;  36  P.  121,  122  (applied);  112  C.  46,  51,  44 
P.  354  (referred  to);  113  C.  437,  440,  45  P.  702  (applied);  117  C. 
204,  211,  48  P.  1083  (cited);  141  C.  221,  228,  74  P.  754  (applied); 
141  C.  728,  731,  734,  99  A.  S.  98,  75  P.  310  (cited);  146  C.  91,  97, 
70  P.   850    (this   section   has  no  application   until   after  the   con- 

893 


§§  1626-1628  CIVIL  CODE.  [Div.III,Pt.II. 

tract  has  been  executed);  79  P.  850,  851  (referred  to);  150  C.  650, 
654,  89  P.  600  (applied  to  written  contract  for  sale  and  purchase 
of  real  estate);  5  C.  A.  525,  532,  90  P.  948  (construed  with  §  1860 
C.  C.  P.). 

As  to  manj^  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  writing-  superceding  oral  stipulations,  see  Kerr's  Cyc. 
C.  C.  §  1639  and  note. 

§1626.    iO^TRACT     IN      WRITING,      TAKES      EFFECT 
IVHEIV.     A  contract  in   writing  takes  effect  upon   its   deliv- 
ery to  the  party  in  whose  favor  it  is  made,  or  to  his  agent. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

115  C.  196,  202,  46  P.  926  (applied);  129  C.  251,  253,  61  P.  1112 
(applied). 

As  to  delivery  of  written  grant,  see  Kerr's  Cyc.  C.  C.  §  1054 
and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1627.  PROVISIONS  OF  CHAPTER  ON  TRANSFERS  OF 
REAL  PROPERTY.  The  provisions  of  the  chapter  on  trans- 
fers in  general,  concerning  the  delivery  of  grants,  absolute 
and  conditional,  apply  to  all  written  contracts. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

128  C.  531,  546,  51  P.  180,  61  P.  99,  548   (construed). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  oral  transfers,  see  Kerr's  Cyc.  C.  C.  §§  1052  et  seq.  and 
notes. 

§  1628.  CORPORATE  SEAL,  HOW  AFFIXED.  A  corporate 
or  official  seal  may  be  affixed  to  an  instrument  by  a  mere 
impression  upon  the  paper  or  other  material  on  which  such 
instrument  is  written. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
64  C.  9,  11,  27  P.  789,  790   (applied). 

894 


II 


Tit   11]  SEALS   ABOLISHED.  §§  1629 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  seals,  see  Kerr's  Cyc.  C.  C.  P.  §  14  and  note;  see  Kerr's 
Cyc.  Pol.  C.  §  14  and  note. 

§1629.  PROVISIOIVS  ABOLISHING  SEALS  MADE  AP- 
PLICABLE. All  distinctions  between  sealed  and  unsealed 
instruments  are  abolished. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what)-  67  C.  447,  448,  8  P.  49,  50  (referred  to);  32  P.  885,  887 
(applied  but  erroneously  cited  as  §1223);  100  C.  617,  622,  35  P. 
328  (cited);  101  C.  522,  528  (applied  but  erroneously  cited  as 
§1223)  40  A.  S.  73  (same  error),  36  P.  18,  20  (correct  citation); 
lis  C. '654,  656,  50  P.  757  (construed);  129  C.  384,  389,  62  P.  64 
(cited). 

As   to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 


895 


§  1635  CIVIL  CODE.  [Div.III,Pt.II. 

TITLE  III. 

INTERPRETATION  OF  CONTRACTS. 

§  1635.  Uniformity  of  interpretation. 

§  1636.  Contracts,   how  to  be  interpreted. 

§  1637.  Intention   of   parties,    how   ascertained. 

§  1638.  -Ti  t-ntion    to   be  ascertained   from   language. 

§  1639.  Interpretation  of  written  contracts. 

§  1640.  Writing,  when  disregarded. 

§  1641.  Effect  to  be  given  to  every  part  of  contract. 

§  1642.  Several    contracts,    when   taken    together. 

§  1643.  Interpretation  in  favor  of  contract. 

§  1644.  Words  to  be  understood  in  usual  sense. 

§  1645.  Technical  words. 

§  1646.  Law  of  place. 

§  1647.  Contracts  explained  by  circumstances. 

§  1648.  Contract  restricted  to  its  evident  object. 

§  1449.  Interpretation  in  sense  in  which  promisor  believed  promisee 

to  rely. 

§  1650.  Particular  clauses  subordinate  to  general  intent. 

§  1651.  Contract,   partly  written   and  partly  printed. 

§  1652.  Repugnancies,   how  reconciled. 

§  1653.  Inconsistent  words  rejected. 

§  1654.  Words  to  be  taken  most  strongly  against  whom. 

§  1655.  Reasonable  stipulations,   when   implied. 

§  1656.  Necessary  incidents  implied. 

§  1657.  Time  of  -performance  of  contract. 

S  1658.  Time,  when  of  essence  [repealed]. 

§  1659.  When  joint  and  several. 

§  1660.  Same.      [In  singular  number.] 

§  1661.  Executed   and    executory    contracts,    what. 

§1635.    UMFOEMITY    OF    INTERPRETATION.     All    con- 
tracts,  whether  public  or   private,   are   to   be   interpreted   by 
the  same  rules,  except  as  otherwise  provided  by  this  code. 
IILslory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

132  C.  18,  19,  84  A.  S.  17,  63  P.   1074   (applied). 

As   to   contracts   of   guaranty   and   interpretation    thereof,    see 
Kerr's  Cyc.  C.  C.  §§  2787  et  seq.  and  notes. 

As    to    insurance    and    insurance    contracts    and    policies,    see 
Kerr's  Cyc.  C.  C.  §§  2527  et  seq.  and  notes. 

896 


H 


Tit.  III.]  INTERPRETATION.  §  1636 

As  to  interpretation  of  contracts  generally,  see  Kerr's  Cyc. 
C.  C.  §  1636  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 


§1636.  CONTRACTS,  HOW  TO  BE  INTERPRETED.  A 

contract   must   be    so    interpreted    as   to    give    effect   to    the 
mutual  intention  of  the  parties  as  it  existed  at  the  time  of 
contracting,  so  far  as  the  same  is  ascertainable  and  lawful. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  54  pars,  annotation. 

57  C.  476,  479  (applied);  81  C.  528,  532,  22  P.  920,  922  (cited); 
27  P.  286,  287  (meaning  may  be  proved  on  trial  to  enable  court 
to  interpret  words);  95  C.  134,  138,  29  A.  S.  101,  30  P.  202 
(applied);  104  C.  298,  300,  37  P.  1049  (cited);  111  C.  503,  508,  44  P. 
189,  34  L.  857  (cited);  119  C.  249,  257,  47  P.  124,  51  P.  340  (cited); 
126  C.  467,  469,  77  A.  S.  192,  58  P.  907  (cited) ;  132  C.  18,  19,  84  A.  S. 
17,  63  P.  1074  (applied) ;  135  C.  28,  29,  87  A.  S.  96,  66  P.  961  (applied) ; 
141  C.  101,  102,  99  A.  S.  33,  74  P.  699  (applied) ;  141  C.  728,  731,  75  P. 
310  (applied);  149  0.178,189,86  P.  603  (primary  object  of  all  in- 
terpretation is  to  ascertain  and  carry  out  intention  of  parties) ; 
150  C.  39,  45,  87  P.  1097  (applied  to  reservation  or  exception  in 
grant);  3  C.  A.  14,  21,  84  P.  220  (applied  to  private  contract  for 
street  grading);  3  C.  A.  294,  298,  85  P.  134  (applied  to  contract 
involving  notes);  3  C.  A.  591,  594,  595,  86  P.  810  (applied  to 
contract  involving  two  documents);  3  C.  A.  696,  700,  86  P.- 981 
(applied  to  contract  of  suretyship  where  "collateral"  was  given). 

As  to  construction  of  building  contracts,  see  5  L.  270;  10  L. 
826. 

As  to  construction  of  contracts  in  general,  see  1  L.  655;  3  L. 
859;  12  L.  375. 

As  to  construction  of  contracts  of  guaranty,  see  Kerr's  Cyc. 
C.  C.  §§  2787  et  seq.  and  notes. 

As  to  construction  of  life  insurance  policies,  see  Kerr's  Cyc. 
C.  C.  §§  2527  et  seq.  and  notes. 

As  to  construction  of  mortgages,  see  Kerr's  Cyc.  C.  C.  §§  2920 
et  seq.  and  notes. 

As  to  entirety  of  contracts,  see  54  A.  R.   624. 

As  to  entirety  of  contracts  and  when  complete  performance 
necessary,  see  59  A.  S.   277. 

As  to  entirety  of  contracts  for  services  or  other  work,  see 
38  A.  R.   208. 

As  to  forfeitures,  see  Kerr's  Cyc.  C.  C.  §  1643  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

Kerr's    C.    C— 29  897 


§§  1637-1639 


CIVIL  CDDE.  [Div.III.Pt.II. 


As  to  parol  evidence  to  prove  intention,  see  Kerr's  Cyc.  C.  C. 
P.  §§  1855  et  seq.  and  notes. 

As  to  time  being  of  essence  of  contract,  see  Kerr's  Cyc.  C.  C. 
§  1657  and  note. 

§  1637.    INTENTION  OF  PARTIES,  HOW  ASCERTAINED. 

For  the  purpose  of  ascertaining  the  intention  of  the  parties 
to  a  contract,  if  otherwise  doubtful,  the  rules  given  in  this 
chapter  are  to  be  applied. 

rii.siory:     Enacted  March  21,   1872. 

141  C.   101,   102.  99  A.  S.   33,   74  P.   699    (applied). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  parol  evidence  vsrith  respect  to  writings,  see  Kerr's  Cyc. 
C.  C.  P.  §§  1855,  1856  and  notes. 

§1638.  INTENTION  TO  BE  ASCERTAINED  FROM  LAN- 
GUAGE.  The  language  of  a  contract  is  to  govern  its  inter- 
pretation, if  the  language  is  clear  and  explicit,  and  does  not 
involve  an  absurdity. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

44  P.  662  (applied);  123  C.  97,  100,  55  P.  788  (applied);  141  C. 
221;  228,  74  P.  754  (applied);  141  C.  728,  734,  99  A.  S.  98,  75  P. 
310  (cited,  dis.  op.);  3  C.  A.  14,  21,  84  P.  220  (applied  to  private 
contract  for  grading). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1639.    INTERPRETATION    OF    WRITTEN    CONTRACTS. 

When  a  contract  is  reduced  to  writing,  the  intention  of  the 
parties  is  to  be  ascertained  from  the  writing  alone,  if  pos- 
sible;  subject,  however,  to  the  other  provisions  of  this  title. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

62  C.  623,  631  (cited);  31  P.  367,  369  (applied);  141  C.  221,  228. 
74  P.  754  (applied);  141  C.  728,  734,  99  A.  S.  98,  75  P.  310  (cited); 
146  C.  690,  694,  81  P.  25  (applied);  3  C.  A.  14,  21,  84  P.  220 
(applied  to  private  contract  for  grading);  3  C.  A.  115,  120,  84 
P.  435   (applied). 

898 


rpj^.  jii  -j  INTERPRETATION.  §§  1640-1642 

As  to   many   miscellaneous   matters  as    to   contracts,   see   note 

§  1549,  ante.  , 

As  to  parol  evidence  in  construing  writings,  see  Kerr  s  Cyc. 
C.  C.  P.   §§  1855  et  seq.  and  notes  appended  thereto. 

As  to  when  parol  evidence  is  admissible  to  aid  in  construc- 
tion of  contracts,  see  5  A.  R.   241. 

§  1640.  WRITING,  WHEN  DISREGARDED.  When  through 
fraud,  mistake,  or  accident,  a  written  contract  fails  to  express 
the  real  intention  of  the  parties,  such  intention  is  to  be 
regarded,  and  the  erroneous  parts  of  the  writing  disre- 
garded. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

62  C  623,  631  (cited);  107  C.  348,  355,  356,  40  P.  534  (applied); 
137  C.  71,  75.  69  P.  844  (applied);  149  C.  122,  126,  127,  84  P. 
835    (applied  to  written  contract  for  exchange  of  lands). 

As  to  disregarding  writing,  see  Kerr's  Cyc.  C.  C.  P.  §  1856  and 

note. 

As  to   many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 

§1641.  EFFECT  TO  BE  GIVEN  TO  EVERY  PART  OF 
CONTRACT.  The  whole  of  a  contract  is  to  be  taken  together, 
so  as  to  give  effect  to  every  part,  if  reasonably  practicable, 
each  clause  helping  to  interpret  the  other. 

History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

62  C.  623,  631,  638  (applied);  81  C.  528,  532  (cited).  533  (ap- 
plied) 22  P.  920,  922;  104  C.  298,  300,  37  P.  1049  (applied);  131  C. 
481,  484,  63  P.  724  (applied);  149  C.  178,  189,  86  P.  603  (applied 
to  deed);  150  C.  39,  45,  87  P.  1097   (applied  to  deed). 

As  to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante.  _ 

As  to  repugnancies  and  inconsistencies,  see  Kerr's  Cyc.  C.  C. 

§§  1652,  1653  and  notes. 

§1642.  SEVERAL  CONTRACTS,  WHEN  TAKEN  TO- 
GETHER. Several  contracts  relating  to  the  same  matters, 
between  the  same  parties,  and  made  as  parts  of  substan- 
tially one  transaction,  are  to  be  taken  together. 

History:     Enacted  March   21,   1872. 

899 


§  1643  CIVIL  CODE.  [Div.III.Pt.II. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

62  C.  623,  633  (applied);  84  C.  185,  189,  23  P.  1114,  1115  (ap- 
plied); 25  P.  753,  756  (applied — note  and  mortgage  to  read 
together  as  one  contract  when);  58  P.  1048  (cited),  126  C.  549, 
550  (citation  of  section  omitted);  131  C.  481,  484,  63  P.  724 
(applied);  133  C.  681,  683,  65  P.  1110  (applied);  137  C.  95,  100, 
69  P.  836,  1013  (applied);  142  C.  142,  144,  75  P.  785  (applied); 
147  C.  115,  118,  81  P.  416,  109  A.  S.  114  (checks  and  written  agree- 
ments as  one  transaction);  149  C.  178,  189,  86  P.  603  (different 
instrum^rts  must  be  construed  together  when);  3  C.  A.  294, 
297,  298,  85  P.  134  (notes  and  auxiliary  agreements  to  be  viewed 
as  one  contract);  3  C.  A.  591,  594,  86  P.  810  (applied  to  several 
writings);  3  C.  A.  696,  700,  86  P.  981  (applied  to  contract  of 
suretyship  where  "collateral"  was  given). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  separate  instruments  construed  together,  see  note  3  L. 
579. 

§1643.    IlfTEEPEETATIOJf    IN    FAVOR    OF    CONTRACT. 

A  contract  must  receive  such  an  interpretation  as  will  make 
it  lawful,  operative,  definite,  reasonable,  and  capable  of  being 
carried  into  effect.  If  it  can  be  done  without  violating  the 
intention  of  the  parties. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

80  C.  611,  618,  22  P.  327,  329  (applied);  83  C.  56,  62,  23  P.  222, 
224  (applied);  119  C.  249,  257,  47  P.  124,  51  P.  340  (applied);  123 
C.  97,  100,  55  P.  788  (applied);  132  C.  63,  65,  64  P.  131,  469  (cited); 
132  C.  523,  566,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (applied);  141 
C.  101,  102,  99  A.  S.  33,  74  P.  699  (applied);  144  C.  19,  37,  77  P. 
712  (applied);  149  C.  122,  127,  84  P.  835  (applied  to  contract  for 
exchange  of  land);  2  C.  A.  220,  224,  83  P.  282  (applied  to  archi- 
tect's contract  of  employment);  3  C.  A.  294,  298,  85  P.  134 
(applied  with  other  sections  to  contract  respecting  notes);  3 
C.  A.  591,  594,  86  P.  810  (applied  to  contract  involving  several 
writings);  4  C.  A.  184,  190,  87  P.  405  (applied  to  contract  to  pay 
one-half  of  endowment  to  plaintiff  at  age  of  seventy) ;  4  C.  A. 
361,  367,  88  P.  287  (applied  to  written  contract  of  service  in 
carrying  newspapers). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  provision  in  building  contract  construed  as  penalty; 
"forfeiture"  imports  penalty;  relief  from  forfeiture;  when  for- 
feiture considered  liquidated  damages;  enforceable  if  unwise, 
but  not  if  unconscionable,  see  10  L.  826. 

900 


Tit.  III.]  ORDINARY  WORDS— TECHNICAL.         §§  1644-1646 

§  1644.  WORDS  TO  BE  UNDERSTOOD  IN  USUAL  SENSE. 
The  words  of  a  contract  ai-e  to  be  understood  in  their  ordi- 
nary and  popular  sense,  rather  than  according  to  their  strict 
legal  meaning;  unless  used  by  the  parties  in  a  technical 
sense,  or  unless  a  special  meaning  is  given  to  them  by  usage, 
in  which  case  the  latter  must  be  followed. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

57  C.  476,  479  (applied);  87  C.  49,  59,  25  P.  249,  252  (applied); 
27  P.  286,  287  (meaning  may  be  proved  on  trial  to  enable  court 
to  interpret  words);  95  C.  134,  138,  29  A.  S.  101,  30  P.  202  (cited); 
125  C.  345,  352,  58  P.  7  (applied);  132  C.  63,  65,  64  P.  131,  469 
(cited);   144  C.   19,  37,  77  P.   712    (applied). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1645.  TECHNICAL  AVORDS.  Technical  words  are  to  be 
interpreted  as  usually  understood  by  persons  in  the  profes- 
sion or  business  to  which  they  relate,  unless  clearly  used 
in  a  different  sense. 

History:     Enacted  March   21,   1872. 

See  Kerr's  CVc  C.  C.  for  4  pars,  annotation. 

57  C.  476,  479  (applied);  27  P.  286,  287  (meaning  may  be  proved 
on  trial  to  enable  court  to  interpret  words);  95  C.  134,  138,  29 
A.  S.  101,  30  P.  202  (cited);  31  P.  367,  369  (applied  to  terms 
"quarter  scale"  and  "waste"  used  in  logging  contract);  99  C. 
363,  372,  33  P.  916,  919  (cited);  123  C.  140,  143,  55  P.  681  (applied); 
144  C.   19,   37,   77  P.   712    (applied). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1646.  LAW  OF  PLACE.  A  contract  is  to  be  interpreted 
according  to  the  law  and  usage  of  the  place  where  it  is  to 
be  performed;  or,  if  it  does  not  indicate  a  place  of  perform- 
ance, according  to  the  law  and  usage  of  the  place  where  it 
is  made. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

57  C.  476,  479  (applied);  27  P.  286,  287  (meaning  may  be  proved 
on   trial  to  enable  court  to   interpret  words);   95   C.   134,  138,   29 

901 


§§  1647, 1648  CIVIL  CODE.  [Div.III.PtJI. 

A.  S.  101,  30  P.  202  (cited);  99  C.  363,  372,  33  P.  916,  919  (cited); 
141  C.  728,  735,  99  A.  S.  98,  75  P.  310   (applied). 

As  to  contract,  by  what  law  g-overned,  see  20  A.  D.  293,  27 
A.  D.  557;  30  A.  S.  828;  46  A.  S.  448;  55  A.  S.  774. 

As  to  law,  usage,  and  custom  as  part  of  contracts,  see  3  L. 
860;  4  L.  392;  10  L.  785. 

As  to  lex  loci  contractus,  see  8  A.  D.  490. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  usag-e,  see  Kerr's  Cyc.  C.  C.  P.  §  1870  subd.  12  and  note. 

§  1647.    CONTRACTS  EXPLAINED  BY  CIRCUMSTANCES. 

A  contract  may  be  explained  by  reference  to  the  circum- 
stances under  which  it  was  made,  and  the  matter  to  which 
it  relates. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

77  C.  449,  457,  19  P.  820,  823  (applied);  78  C.  258,  262,  20  P.  559, 
561  (applied);  83  C.  56,  63,  23  P.  222,  224  (applied);  99  C.  363, 
372,  33  P.  916,  919  (cited);  126  C.  467,  469,  58  P.  907  (referred  to); 
132  C.  63,  65,  64  P.  131,  469  (cited);  134  C.  324,  328,  66  P.  311 
(applied);  137  C.  95,  100,  69  P.  836,  1013  (cited);  141  C.  253,  261, 
74  P.  856  (applied);  141  C.  728,  731,  99  A.  S.  98,  75  P.  310  (cited); 
149  C.  269,  273,  86  P.  509,  691  (parol  evidence  is  admissible  when 
— contract  for  services);  1  C.  A.  752,.  759,  82  P.  1056  (applied  to 
contract  respecting  shipment  of  potatoes);  2  C.  A.  253,  257,  83 
P.  285  (applied  to  modifying  slip  of  insurance  policy) ;  3  C.  A. 
335,  337,  85  P.  162  (applied  to  sale  of  store  and  its  contents); 
3  C.  A.  591,  594,  86  P.  810  (consideration  of  circumstances  and 
conditions  surrounding  and  accompanying  execution  of  several 
writings);  4  C.  A.  610,  615,  88  P.  731  (how  court  may  support 
condition  of  stay  bond). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1648.  CONTRACT  RESTRICTED  TO  ITS  EVIDENT 
OBJECT.  However  broad  may  be  the  terms  of  a  contract, 
it  extends  only  to  those  things  concerning  which  it  appears 
that  the  parties  intended  to  contract. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

62  C.  623,  633  (applied);  141  C.  728,  731,  99  A.  S.  98,  75  P.  310 
(cited);  149  C.  269,  276,  86  P.  509,  691   (receipt  will  be  limited  to 

902 


Tit.  III.]  PARTICULAR   CLAUSES.  §§1649-1651 

matter  particularly  expressed);  2  C.  A.  253,  257,  83  P.  285 
(applied  to  modifying  slip  of  insurance  policy);  3  C.  A.  696,  700, 
86  P.  981  (applied  to  contract  of  suretyship  where  "collateral" 
was  given). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1649.  INTERPRETATION  IX  SENSE  IN  WHICH  PROM- 
ISOR BELIEVED  PROMISEE  TO  RELY.  If  the  terms  of  a 
promise  are  in  any  respect  ambiguous  or  uncertain,  it  must 
be  interpreted  in  the  sense  in  which  the  promisor  believed, 
at  the  time  of  making  it,  that  the  promisee  understood  it. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

74  C.  532,  534,  16  P.  325  (referred  to);  32  P.  245,  246  (con- 
strued); 107  C.  348,  354,  40  P.  534  (applied);  109  C.  221,  228,  41 
P.  876  (applied);  132  C.  63,  65,  64  P.  131,  469  (cited);  133  C.  170, 
179,  65  P.  391  (applied);  1  C.  A.  752,  759,  760,  82  P.  1056  (applied 
to  contract  for  shipment  of  potatoes). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  which  construction  preferred,  see  Kerr's  Cyc.  C.  C.  P. 
§  1864  and  note. 

§1650.  PARTICULAR  CLAUSES  SUBORDINATE  TO 
GENERAL  INTENT.  Particular  clauses  of  a  contract  are 
subordinate  to  its  general  intent. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

54  C.  353,  370  (applied);  116  C.  62,  67,  47  P.  866  (applied);  54 
P.  383,  384  (applied);  123  C.  97,  100,  55  P.  778  (cited);  133  C.  655, 
658,  66  P.  15  (cited);  3  C.  A.  696,  700,  86  P.  981  (applied  to  con- 
tract of  suretyship  where  "collateral"  was  given). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  repugnancies  and  inconsistent  words,  see  Kerr's  Cvc. 
C.  C.   §§  1652,  1653  and  notes. 

§1651.  CONTRACT,  PARTLY  WRITTEN  AND  PARTLY 
PRINTED.  Where  a  contract  is  partly  written  and  partly 
printed,  or  where  part  of  it  is  written  or  printed  under  the 
special   directions   of  the   parties,   and   with   a   special   view 

903 


§§  1652, 1653  CIVIL  CODE.  [Div.III,Pt.II. 

to  their  intention,  and  the  remainder  is  copied  from  a  form 
originally  prepared  without  special  reference  to  the  particu- 
lar parties  and  the  particular  contract  in  question,  the  writ- 
ten parts  control  the  printed  parts,  and  the  parts  which  are 
purely  original  control  those  which  are  copied  from  a  form. 
And  if  the  two  are  absolutely  repugnant,  the  latter  must  be 
so  far  disregarded. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

87  C.  236,'239,  25  P.  412  (applied);  111  C.  503,  509,  44  P.  189. 
34  L.  857  (applied);  2  C.  A.  253,  257,  83  P.  285  (applied  to  modify- 
ing slip  of  insurance  policy);  7  C.  A.  172,  174,  93  P.  1046  (applied 
to  words  "without  interest"  written  in  promissory  note). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1652.  REPUGNANCIES,  HOW  RECONCILED.  Repug- 
nancy in  a  contract  must  be  reconciled,  if  possible,  by  such 
an  interpretation  as  will  give  some  effect  to  the  repugnant 
clauses,  subordinate  to  the  general  intent  and  purpose  of 
the  whole  contract. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

123  C.  97,  100,  55  P.  788   (cited). 

As  to  construction  of  repugnant  clauses  in  contract,  which 
shall  prevail,  see  60  A.  S.   93. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1653.    INCONSISTENT    WORDS    REJECTED.     Words   in 
a  contract  which  are  wholly  inconsistent  with  its  nature,  or 
with  the  main  intention  of  the  parties,  are  to  be  rejected. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

123  C.  97,  100,  55  P.  788  (cited);  133  C.  655,  658.  66  P.  15 
(cited);  141  C.  728,  731.  99  A.  S.  98,  75  P.  310   (cited). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  rejection  of  inconsistent  clauses  or  words,  see  77  C. 
548,  554,  20  P.  77;  45  Iowa  166;  7  J.  J.  Marsh.  (Ky.)  192-  18  N.  Y. 
337. 

904 


Tit.  III.]  STRONGLY  AGAINST  WHOM.  §§  1654,  1655 

§1654.  WORDS  TO  BE  TAKEN  MOST  STRONGLY 
AGAINST  WHOM.  In  cases  of  uncertainty  not  removed  by 
the  preceding  rules,  the  language  of  a  contract  should  be 
interpreted  most  stx'ongly  against  the  party  who  caused  the 
uncertainty  to  exist.  The  promisor  is  presumed  to  be  such 
party;  except  in  a  contract  between  a  public  officer  or  body, 
as  such,  and  a  private  party,  in  which  it  is  presumed  that  all 
uncertainty  was  caused  by  the  private  party. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

83  C.  56,  62,  23  P.  222,  224  (construed);  107  C.  348,  355,  40  P. 
534  (applied);  110  C.  547,  550,  42  P.  1079  (applied);  111  C.  503,  508, 
44  P.  189,  34  L.  857  (applied);  56  P.  802,  803  (referred  to);  125 
C.  472,  482,  73  A.  S.  64,  58  P.  164  (applied);  131  C.  481,  484,  63 
P.  724  (applied);  133  C.  170,  179,  65  P.  391  (referred  to);  136  C. 
178,  181,  68  P.  598  (applied);  141  C.  101,  102,  99  A.  S.  33,  74  P. 
699  (cited);  141  C.  441,  454,  66  P.  858  (applied),  75  P.  48;  148  C. 
223,  227,  82  P.  964,  113  A.  S.  223,  7  A.  C.  396  (rule  of  strict  con- 
struction against  insurer  who  prepares  policy);  3  C.  A.  294,  298, 
85    P.    134    (applied    to    contract    respecting    promissory    notes) ; 

6  C.  A.  581,  585,  92  P.  652  (applied  to  lease — lessor  as  promisor); 

7  C.  A.  55,  69,  93  P.  391  (this  section  must  be  read  with  §  1069 
when,  in  construing  a  grant  in  favor  of  the  grantee);  7  C.  A. 
172,  175,  93  P.  1046,  1047  (construed  and  applied  with  §  1651  C.  C. 
to  interest  clauses  in  note). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1655.    REASONABLE  STIPULATIONS,  WHEN  IMPLIED. 

Stipulations  which  are  necessary  to  make  a  contract  reason- 
able, or  conformable  to  usage,  are  implied,  in  respect  to  mat- 
ters concerning  which  the  contract  manifests  no  contrary 
intention. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

4  P.  371  (applied);  99  C.  363,  372,  33  P.  916,  919  (referred  to); 
2  C.  A.  220,  224,  83  P.  282  (applied  to  architect's  contract  of 
employment);  4  C.  A.  361,  367,  88  P.  287  (applied  to  written  con- 
tract of  service   in   carrying  newspapers). 

As  to  many  iniscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

905 


§§  1656-1658  CIVIL  CODE.  [Div.III.Pt.II. 

§1656.  IVECESSART  INCIDENTS  IMPLIED.  All  things 
that  in  law  or  usage  ai-e  considered  as  incidental  to  a  con- 
tract, or  as  necessarj^  to  carry  it  into  effect,  are  implied 
therefrom,  unless  some  of  them  are  expressly  mentioned 
therein,  when  all  other  things  of  the  same  class  are  deemed 
to  be  excluded. 

History:     Enacted  March  21,   1872. 

See  Keii  ^  Cy.-    C.  C.  for  11  pars,  annotation. 

62  C.  623,  630,  637  (applied  to  sale  under  foreclosure  of  mort- 
gage); 99  C.  363,  372,  373,  33  P.  916,  919  (cited  as  recognizing 
general  doctrine  of  usage);  126  C.  467,  469,  58  P.  907,  77  A.  S. 
192  (referred  to);  2  C.  A.  220,  224,  83  P.  282  (applied  to  archi- 
tect's contract  of  employment);  4  C.  A.  361,  367,  88  P.  287 
(applied  to  written  contract  of  service  in  carrying  newspapers). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§  1657.    TIME  OF  PERFOEMANCE  OF  CONTRACT.    If  no 

time  is  specified  for  the  performance  of  an  act  required  to  be 
performed,  a  reasonable  time  is  allowed.  If  the  act  is  in  its 
nature  capable  of  being  done  instantly — as,  for  example,  if 
it  consists  in  the  payment  of  money  only — it  must  be  per- 
formed immediately  upon  the  thing  to  be  done  being  exactly 
ascertained. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

97  C.  518,  521,  32  P.  571,  572  (applied);  119  C.  172,  175,  51  P. 
35  (referred  to);  124  C.  509,  511,  57  P.  387  (applied);  143  C.  363, 
366,  77  P.  71  (applied);  147  C.  313,  327,  81  P.  964  (law  implies  that 
money  is  to  be  paid  on  demand  when) ;  1  C.  A.  239,  240,  81  P.  1117 
(money  is  payable  immediately  when);  3  C.  A.  489,  491,  86  P. 
726  (applied  to  contract  to  sell  real  estate — no  time  of  payment 
specified). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  time  as  essence  of  contracts,   see   12  L.  239. 

As  to  time  of  performance  of  implied  agreement,  see  11  L.  526. 

As  to  when  stipulations  show  time  is  made  the  essence  of 
contracts,  see  50  A.  D.  597. 

§  1658.    TIME,  WHEN  OF  ESSENCE   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  242. 

906 


rpj^  jjj  -j  JOINT  AND  SEVERAL.  §§  1659-1661 

§1659.  WHEN  JOINT  A>D  SEVERAL.  Where  all  the 
parties  who  unite  in  a  promise  receive  some  benefit  from 
the  consideration,  whether  past  or  present,  their  promise  is 
presumed  to  be  joint  and  several. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

129  C  239  241  (referred  to),  243  (referred  to),  61  P.  1088;  133 
C  456  458  65  P.  968  (applied);  70  P.  1071,  1072  (applied);  140 
C  535'  537'  74  P.  26  (applied);  150  C.  772,  774,  90  P.  118  (illus- 
tration of 'joint  and  several  contract  of  service);  2  C.  A.  684 
687,  84  P.  260   (presumption  applied  to  contract  by  husband  and 

As  to  joint  and  several  obligations,  see  Kerr's  Cyc.  C.  C.  §§  1430 
et  seq.  and  notes. 

As   to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 

As  to  subscriptions,  whether  joint  or  several,  see  22  L.  80. 

§1660.  SAME.  [IN  SINGULAR  NUMBER.]  A  promise, 
made  in  the  singular  number,  but  executed  by  several  per- 
sons, is  presumed  to  be  joint  and  several. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

121  C.  604,  606,  53  P.  1117    (applied);  129  C.  263,   269   (applied), 

61  P.   1077.  ^  . 

As   to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 

§1661.  EXECUTED  AND  EXECUTORY  CONTRACTS, 
WHAT.  An  executed  contract  is  one,  the  object  of  which  is 
fully  performed.     All  others  are  executory. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation.  „    .-    ^     a 

81  C.  528,  532,  22  P.  920,  922  (cited);  126  C.  591,  598,  a  A.  b. 
209,  59  P.  36   (cited). 

As  to  many  miscellaneous   matters   as   to   contracts,   see  note 

§  1549,  ante. 


907 


5  j^ggY  CIVIL  CODE.  [Div.III.Pt.II. 

TITLE    IV. 

UNLAWFUL.  CONTRACTS. 

§  1667.  What  is  unlawful. 

§  1668.  Certain  contracts  unlawful. 

§  1669.  Penalties  void   [repealed]. 

§  1670.  ConuacL  ^^xing  damages,  void. 

§  1671.  Exception. 

§  1672.  Restraints  upon  legal  proceedings   [repealed]. 

§  1673.  Contract  in  restraint  of  trade,  void. 

§  1674.  Exception  in  favor  of  sale  of  good-will. 

S  1675.  Exception   in  favor  of  partnership  arrangements. 

§  1676.  Contract  in  restraint  of  marriage,  void. 

§  1667.  WHAT  IS  UNLAWFUL.  That  is  not  lawful 
whicli  is: 

1.  Contrary  to  an  express  provision  of  law; 

2.  Contrary  to  the  policy  of  express  law,  though  not  ex- 
pressly prohibited;   or, 

3.  Otherwise   contrary  to   good  morals. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  312  pars,  annotation. 

68  C.  29,  30,  8  P.  614,  615  (construed  and  applied  with  other 
sections);  79  C.  633,  680,  22  P.  26,  40,  131  (construed  and 
applied);  81  C.  370,  373,  22  P.  880,  881  (construed  and  applied); 
81  C.  507,  509  (applied  but  erroneously  cited  as  §  1167),  515,  521 
(cited  taut  construed  in  dis.  op.  of  Thornton,  J.,  as  inapplicable), 
22  P.  883  (correct  citation),  885,  887;  83  C.  173,  177,  23  P.  286, 
288  (construed  and  applied  with  other  sections);  84  C.  409,  415, 
24  P.  164,  166  (construed  and  applied);  32  P.  938,  940  (construed 
and  applied);  91  C.  112,  117,  27  P.  735,  736  (construed  and 
applied);  96  C.  106,  109,  31  A.  S.  192,  30  P.  1022,  1023  (referred 
to);  112  C.  197,  204,  44  P.  557  (construed  and  applied  with  §  602 
of  the  Pen.  C.) ;  117  C.  242,  244,  49  P.  135  (construed  and  applied 
with  §§424,  426  of  the  Pen.  C);  119  C.  599,  601,  51  P.  962  (con- 
strued and  applied  with  §43);  123  C.  607,  609,  56  P.  467  (con- 
strued and  applied);  125  C.  119,  122,  123,  73  A.  S.  31,  57  P.  777, 
45  L.  420  (construed  and  applied  with  other  sections);  127  C. 
33,  35,  59  P.  207  (construed  and  applied);  131  C.  481,  488,  63  P. 
724  (construed  and  applied);  150  C.  159,  161,  88  P.  708  (subd.  3 
applied  to  notes  given  as  consideration  for  gambling  debt);  46 
F.  564,  565,  567    (applied  with  §§  1607,  1608,  and  1615 — mere  want 

908 


Tit.  IV.]  UNLAWFUL   CONTRACTS.  §  1667 

of  consideration  distinguished  from  illegal  consideration — prima 
facie  case  of  notice). 

As  to  actions  on  illegal  contracts,  see  8  A.  D.  691;  67  A.  D.  153, 
154;  16  A.  S.  699. 

As  to  agreement  to  influence  actions  of  officers,  see  66  A.  D. 
510. 

As   to  burden   of  proof  in   case   of  illegality   of  consideration, 
see  Kerr's  Cyc.  C.  C.  §  1615  and  note. 

As  to  confidential  relation,  see  fiduciary  relation;  see  Kerr's 
Cyc.  C.  C.   §  1667,   note  pars.   85-87. 

As  to  contract  in  violation  of  express  law,  see  3  L.  631;  6  L. 
218. 

As  to  contract  for  services  in  improperly  influencing  elections, 
see  66  A.  D.  510. 

As  to  contract  to  indemnify  for  illegal  act,  see  4  L.  682. 
As  to  contract  to  secure  appointment  to  office  or  place  of  trust, 
see  66  A.  D.  509. 

As  to  contracts  obtained  by  duress,  see  Kerr's  Cyc.  C.  C.  §  1569 
and  note. 

As  to  contracts  obtained  by  undue  influence,  see  Kerr's  Cyc. 
C.  C.  §  1575  and  note. 

As  to  contracts  obtained  through  menace  or  threat,  see  Kerr's 
Cyc.  C.  C.  §  1570  and  note. 

As  to  contracts  procuring  pardons  and  commutation  of  sen- 
tences, see  66  A.  D.  511-513. 

As  to  contracts  for  services  void  as  against  public  policy,  see 
66  A.  D.   506. 

As  to  contracts  relating  to  legal  services  with  respect  to 
lobbying,  see  66  A.  D.  508. 

As  to  contracts  void  as  against  public  policy  generally,  see 
3  L.  631;  6  L.  601-615;  8  L.  497;  12  L.  120. 

As  to  defense  against  recovery  of  money  collected,  on  ground 
that  it  was  on  an  unlawful  contract  or  for  illegal  purposes,  see 
99  A.  D.  61-68. 

As  to  effect  of  failure  to  procure  license  for  business  on 
validity  of  contracts  thereon,  see  16  L.  423-425. 

As  to  elements  of  illegal   contract,  see  41  A.  S.   900. 
As  to  enforceability  of  contracts  rendered  void  by  statute,  see 
25  A.  R.  674-678. 

As  to  equitable  interference  with  illegal  contract,  see  4  N.  Y, 
Ch.  L.  ed.  300. 

As  to  granting  of  injunction  in  favor  of  party  in  pari  delicto 
against  enforcement  or  otherwise  proceeding  upon  illegal  con- 
tract, see  8  L.  842-850. 

As  to  illegal  contracts,  see  16  A.  S.  699. 

As  to  injunction  against  enforcement  of  contract  of  wager, 
see  48  L.  842-850. 

909 


§  1667  CIVIL  CODE.  [Div.III.Pt.II. 

As  to   invalidity   of  gambling-  and  wagering   contracts,    see    1 
L.  141,  655;  3  L.  679;  5  L.  200;  7  L.  705;  12  L.  120. 

As  to  legality  of  wagers  and  liability  of  stakeholder,  see  18  L. 
859-864. 

As  to  liability  of  obligors  on  original  contract  as  affected  by 
renewal  or  substituted  contract  which  is  void,  see  33  L.  628-635. 

As  to  lobbying  contracts,  see  66  A.  D.  505-514. 

As  to  many  miscellaneous  matters  as   to   contracts,   see   note 
§  1549,  ante. 

As  to  iuiscf-lla:"^  ous   contracts  for   services,   such   as  marriage 
brokerage  contract,  etc.,  see  66  A.  D.   513,   514. 

As  to  perpetuities,  see  Kerr's  Cyc.  C.  C.  §  715  and  note. 

As  to  recover:'  of  money  paid  on  illegal  contract,  see  12  A.  D. 
385-387. 

As  to  recovery  of  price  of  property  sold  for  unlawful  use,  see 
15  L.   834-837. 

As  to  rewards  for  information,  see  Kerr's  Cyc.  C.  C.  §  184,  note 
pars.   4  et  seq. 

As  to  right   of  action   to   recover  profits  arising  from   illegal 
business,  see  30  A.  R.  106-112. 

As  to  right  of  expectant  heir  to  transfer  his  expectancy,  see 
Kerr's  Cyc.  C.  C.  §§  699,  700  and  notes. 

As  to  right  to  recovery  of  goods  sold  to  smuggler,  see  15  L. 
534. 

As  to  sales  in  aid  of  rebellion,  see  15  L.  834. 

As  to  sales  in  aid  of  lottery  or  gambling,  see  15  L.  834-836. 

As  to  sales  of  liquor  for  illegal  use,  see  15  L.  836. 

As   to    services   in   procuring    contracts    for    heads    of    depart- 
ments, see  66  A.  D.  507. 

As  to  stock  gambling  contracts,  see  59  A.  S.  308. 

As    to    stock-jobbing   acts   and    other    statutes    and    contracts 
relating  to  dealing  in  futures,  see  1  A.  S.  752-756. 

As  to  validity  of  contract  for  sale  of  office,  see  5  L.  217. 

As  to  validity  of  contract  for  transfer  of  parental  authority 
or  responsibility,  see  27  L.  56-61. 

As   to   validity   of    contract    to    purchase    office    or    official    in- 
fluence, see  4  L.  682. 

As   to   validity   of   contracts   to   procure    testimony,    see    19    L. 
371-373. 

As    to    validity    of    sale    by    expectant    heir    of    his    expectant 
estate,  see  33  L.  266-287. 

As  to  validity  of  transactions  between  an  heir  and  his  ancestor 
relating  to  former's  expectant  estate,  see  32  L.   595-602. 

As  to  wagering  contract  for  sale,  see  1  A.  S.  758-760. 

As  to  wagers  on  elections,  see  18  L.  859. 

As  to  when  party  may  enforce  contract  promotive  of  illegal 
transactions,  see  9  L.  506. 

910 


Tit.  IV.]  UNLAWFUL    AND   VOID.  §§1668-1670 

§1668.  CERTAm  CONTRACTS  UNLAWFUL.  All  con- 
tracts which  have  for  their  object,  directly  or  indirectly,  to 
exempt  any  one  from  responsibility  for  his  own  fraud,  or 
wilful  injury  to  the  person  or  property  of  another,  or  viola- 
tion of  law,  whether  wilful  or  negligent,  are  against  the 
policy  of  the  law. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

93    C.    452,    457,    27    A.    S.    207,    28    P.    1068,    1070    (construed    and 

applied). 

As  to  contracts  by  common  carrier  limiting  liability  to  pas- 
sengers or  servants,  see  Kerr's  Cyc.  C.  C.  §§  2174,  2175  and  notes. 

As  to  illegality  of  contracts  obtained  under  threats  of  prose- 
cution, see  Kerr's  Cyc.  C.  C.  §  1584  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  validity  of  contracts  by  which  employees  waive  right 
to  recover  from  employers  for  injuries  which  may  be  received 
in  the  course  of  employment,  see  58  A.  R.  836-838;  3  A.  S.  255- 
257. 

§1669.    PENALTIES  VOID    (repealed). 

History:  Enacted  March  21,  1872,  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  242. 

§1670.  CONTRACT  FIXING  DAMAGES,  VOID.  Every 
contract  by  which  the  amount  of  damage  to  be  paid,  or  other 
compensation  to  be  made,  for  a  breach  of  an  obligation,  is 
determined  in  anticipation  thereof,  is  to  that  extent  void, 
except  as  expressly  provided  in  the  next  section. 

History:     Ti;nacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
§1671) ;  77  C.  467,  472,  19  P.  872,  874  (construed  and  applied  together 
with  1671) ;  78  C.  606,  609,  21  P.  369,  370  (construed  and  applied  with 
§  1671)-  78  C.  606,  609,  21  P.  369,  370  (construed  and  applied  with 
§  1671)'  87  C.  443,  450,  22  A.  S.  257,  25  P.  749,  751  (construed  and 
applied  with  other  sections);  90  C.  78,  82,  27  P.  24,  25  (not 
applicable  to  what  contract);  90  C.  110,  119,  120,  25  A.  S.  102.  27 
P.  36  38  (construed  and  applied  with  §1671);  98  C.  1,  4.  8.  9. 
32  P.  705  (construed  and  applied);  100  C.  75.  78,  34  P.  622  (con- 
strued   and    applied    with    §1671);     114    C.    64,     66,    45    P.     1004 

911 


§  1671  CIVIL  CODE.  [Div.III,Pt.II. 

(referred  to);  123  C.  1,  5,  21,  69- A.  S.  17,  55  P.  713,  43  L.  199  (con- 
strued and  applied  with  other  sections);  125  C.  563,  565,  567,  58 
P.  130  (construed  and  applied  with  §1671);  135  C.  401,  404,  67 
P.  499  (construed  and  applied  with  §  1671);  144  C.  494,  499,  77  P. 
1040  (construed  and  applied  with  §1671);  4  C.  A.  288,  290,  87 
P.  1101   (applied  to  contract  for  sale  of  personal  property). 

As  to  many   miscellaneous  matters  as   to   contracts,   see   note 
§  1549,  ante. 


§  1671.  EXCEPTIOH.  The  parties  to  a  contract  may  agree 
therein  upon  an  amount  which  shall  be  presumed  to  be  the 
amount  of  damage  sustained  by  a  breach  thereof,  when,  from 
the  nature  of  the  case,  it  would  be  impracticable  or  extremely 
difficult  to  fix  the  actual  damage. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  81  pars,  annotation. 

66  C.  536,  538,  6  P.  417  (construed  and  applied);  75  C.  205, 
209,  16  P.  890  (construed  and  applied  with  §1670);  77  C.  467, 
472,  19  P.  872,  874  (construed  and  applied  with  other  sections); 
78  C.  606,  609,  21  P.  369,  370  (construed  and  applied  with  §  1670); 
87  C.  443,  450,  22  A.  S.  257,  25  P.  749,  751  (construed  and  applied 
with  other  sections);  90  C.  78,  82,  27  P.  24,  25  (construed  and 
applied  with  §1670);  90  C.  110,  119,  120,  27  P.  36,  38,  5  A.  S.  102 
(construed  and  applied  with  §1670);  98  C.  1,  4,  8,  9,  32  P.  705 
(construed  and  applied);  100  C.  75,  78,  34  P.  622  (construed  and 
applied);  110  C.  674,  680,  43  P.  388  (construed  and  applied); 
123  C.  1,  5,  9,  69  A.  S.  17,  55  P.  713,  43  L.  199  (construed  and 
applied  with  other  sections);  125  C.  563,  566,  567,  58  P.  130  (con- 
strued and  applied);  135  C.  401,  405,  67  P.  499  (construed  and 
applied  with  §1670);  144  C.  494,  499,  500,  77  P.  1040  (construed 
and  applied  with  §  1670). 

As  to  distinction  between  liquidated  damages  and  penalty, 
see  13  L.  671;  also  briefs  53  L.  124;  55  L.  276;  56  L.   170. 

As  to  general  rules  as  to  measure  of  damages  on  breach  of 
contract,  see   2  L.   766;   3  L.   587. 

As  to  liquidated  damages,  see  30  A.  R.  28-36;   27  A.  S.   717. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  measure  of  damages  on  breach  of  contract  to  convey 
and  purchase,  see  4  L.  670;  27  A.  S.  129. 

As  to  when  damages  are  liquidated,  see  6  L.  555;  10  L.  826; 
13  L.   671. 

As  to  when  sum  named  will  be  deemed  liquidated  damages, 
and  when  penalty,  see  66  A.  D.  116. 

912 


Tit.  IV.]  RESTRAINT  OF  TRADE.  §§  1672-1674 

§1672.     RESTRAINTS     UPON      LEGAL      PROCEEDINGS 

(repealed). 

History:  Enacted  March  21,  1872,  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  242. 

§1673.    CONTRACT   IN   RESTRAINT    OF   TRADE,   VOID. 

Every  contract  by  which  any  one  is  restrained  from  exer- 
cising a  lawful  profession,  trade,  or  business  of  any  kind, 
otherwise  than  is  provided  by  the  next  two  sections,  is  to 
that   extent   void. 

History:     Enacted  March   21,   1872. 

31  P.  155  (construed  and  applied  with  other  sections) ;  96  C. 
510,  513,  516,  31  A.  S.  242,  31  P.  581  (construed  and  applied  with' 
other  sections);  101  C.  295,  298,  35  P.  995  (construed  and  applied 
with  §1674);  102  C.  506,  510,  36  P.  841  (construed  and  applied 
with  §§1674,  1675);  110  C.  150,  153,  52  A.  S.  70,  42  P.  576  (con- 
strued and  applied  with  §1674);  110  C.  674,  679,  43  P.  388 
(referred  to);  115  C.  584,  604,  56  A.  S.  119,  47  P.  482,  35  L.  309 
(construed  and  applied);  118  C.  352,  357,  50  P.  662  (construed 
and  applied  with  §§  1674,  1675);  124  C.  429,  431,  433,  434,  71  A.  S. 
94,  57  P.  468,  46  L.  142  (construed  and  applied  with  §§  1674, 
1675);  126  C.  176,  180,  56  P.  249,  58  P.  466  (construed  and  applied 
with  §1674);  145  C.  380,  387,  78  P.  879  (construed  and  applied 
with  §1674);  147  C.  115,  118;  81  P.  416,  109  A.  S.  114  (applied  to 
contract  respecting  purchase   of  salt). 

See  Kerr's  Cyc.  C.  C.  §  1674  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1674.  EXCEPTION  IN  FAVOR  OF  SALE  OF  GOOD- 
WILL.  One  who  sells  the  good-will  of  a  business  may  agree 
with  the  buyer  to  refrain  from  carrying  on  a  similar  busi- 
ness within  a  specified  county,  city,  or  a  part  thereof,  so 
long  as  the  buyer,  or  any  person  deriving  title  to  the  good- 
will from  him,  carried  on  a  like  business  therein. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  114  pars,  annotation. 

31  P.  155,  156;  96  C.  510,  513,  31  A.  S.  242,  31  P.  581  (construed 
and  applied  with  other  sections);  101  C.  295,  298,  35  P.  995  (con- 
strued and  applied  with  §1673);  102  C.  506,  510,  36  P.  841  (con- 
strued and  applied  with   §§  1673,   1675);   106  C.   332,  336,  39  P.  628, 

913 


§  1675  CIVIL  CODE.  [Div.III,Pt.n. 

629  (construed  and  applied);  110  C.  150,  153,  52  A.  S.  70,  42  P. 
576  (construed  and  applied  with  §1673);  110  C.  674,  679,  43 
P.  388  (referred  to);  118  C.  352,  357,  50  P.  662  (construed  and 
applied  with  §§1673,  1675);  124  C.  429,  431,  433,  71  A.  S.  94, 
57  P.  468,  46  L.  142  (construed  and  applied  with  §§1673,  1675); 
126  C.  176,  180,  181,  56  P.  249,  58  P.  466  (construed  and  applied 
with  §1674);  145  C.  380,  387,  78  P.  879  (construed  and  applied 
with  §1673);  147  C.  115,  118,  81  P.  416,  109  A.  S.  114  (referred 
to  in  construing-  illegal  contract  respecting  purchase  of  salt) ; 
3  C.  £.:  33Pi  337  85  P.  162  (construing  valid  contract  omitting 
words  "similar  basiness,"  of  code). 

As  to  combination  in  restraint  of  trade,  see  41  A.  S.   899. 

As  to  contract  in  partial  restraint  as  to  time,  see  1  L.  456;  4  L. 
154;  8  L.  469;  11  L.  437. 

As  to  contract  in  restraint  of  trade  without  limitation  as  to 
territory,  see  92  A.  D.  755;  39  A.  S.  465. 

As  to  contracts  in  restraint  of  trade,  see  7  A.  D.  743-746;  92 
A.  D.  751-763;  35  A.  R.  269-272;  1  A.  S.  822;  41  A.  S.  899;  3  L. 
632;  11  L.  503. 

As  to  contracts  restraining  use  of  secrets  of  trade,  see  13  L. 
652. 

As  to  illegality  of  contracts  creating  monopolies,  or  trusts 
generally,  see  1  L.  456;  2  L.  33;  3  L.  632;  6  L.  457;  8  L.  500;  13 
L.  770. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  nature  of  nonopolies  and  illegal  combinations  to  fix 
prices,  see  13  L.  770. 

As  to  partnerships  or  corporations  entered  into  in  violation 
of  law  and  creating  monopoly,  see  48  A.  S.  340. 

As  to  stipulating  liquidated  damages,  see  Kerr's  Cyc.  C.  C. 
§  1671  and  note. 

As  to  time,  see  92  A.  D.  754. 

As  to  unlawful  combinations  between  railroads,  see  1  L. 
849;  9  L.  690. 

As  to  validity  of  contract  in  partial  restraint  of  trade  and 
restraint  as  to  locality,  see  1  L.  456;  4  L.  454;  8  L.  469;  11  L. 
437-503. 

As  to  validity  of  contract  of  sale  in  restraint  of  trade  without 
limitation  of  place,  see  22  L.  673. 

As  to  what  combinations  constitute  unlawful  trusts,  see  74 
A.  S.   235-273. 

As  to  when  contracts  in  restraint  of  trade  are  reasonable 
and  valid,  see  32  A.  S.  748. 

§  1675.  EXCEPTION  IX  FAVOR  OF  PAKTXERSHIP  AR- 
RAKCrEMENTS.     Partners  may,  upon  or  in  anticipation  of  a 

914 


^j^  jy  -J  RESTRAINT  OF  MARRIAGE.  §  1676 

dissolution  of  the  partnership,  agree  that  none  of  them  will 
carry  on  a  similar  business  within  the  same  city  or  town 
where  the  partnership  business  has  been  transacted,  or 
within    a    specified    part    thereof. 

History:     Enacted  March   21,   1872. 

10"  C    506    510,   36  P.   841    (construed  and  applied  with   §§  1673 
1674)-    118    C.    352,    357,    50    P.    662    (construed    and    applied    with 
5  1673     1674)-    124   C.    429,    432.    71   A.   S.    94,    57    P.    468,    46   L.    ed 
42   (Construed  with  other  sections  as  to  good  will  and  restraint 
of  trade);  147  C.  115.  118,  81  P.  416,  109  A.  S.  114     referred  to  in 
construing  illegal  contract  respecting  purchase  of  salt). 
See  Kerr's  Cyc.  C.  C.   §  1674  and  note. 
As   to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 

§1676.  CONTRACT  IN  RESTRAINT  OF  MARRIAGE, 
VOID.  Every  contract  in  restraint  of  the  marriage  of  any 
person,  other  than  a  minor,  is  void. 

History:     Enacted  March   21,  1872. 
As    to    contract    in    restraint    of    marriage,     see    Kerr's    Cyc. 
CCS  710  and  note.  ^  .^ 

'as   to  many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 


915 


I  1682  CIVIL  CODE.  [Div.III.Pt.II. 

TITLE  V. 

EXTINCTION  OP  CONTRACTS. 

Chapter  I.     Contracts,  How  Extinguished,  §  1682. 
II.     Rescission,  §§  1688-1691. 
III.     Alteration  and  Cancelation,   §§  1697-1701. 

CHAPTER  I. 

CONTRACTS,  HOW  EXTINGUISHED. 

§  1682.     Contract,  how  extinguished. 

§1682.    CONTRACT,   HOW  EXTINGUISHED.     A   contract 
may  be  extinguished  in  like  manner  with  any  other  obliga- 
tion, and  also  in  the  manner  prescribed  by  this  title. 
History:     Enacted  March   21,   1872. 

110  C.  259,  263,  42  P.  820  (construed  and  applied  with  other 
sections). 

As  to  conditions  in  restraint  of  marriage,  see  Kerr's  Cyc. 
C.  C.  §  710  and  note. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 


916 


Tit.V.ch.IL]  PARTY  RESCIND  WHEN.  §§  1688,  1689 


CHAPTER   II. 

RESCISSION. 

§  16S8.  Rescission    extinguishes    contract. 

§  1689.  When   party    may   rescind. 

§  1690.  When  stipulations  against  right  to  rescind  do  not  defeat  it. 

§  1691.  Rescission,    how   effected. 

§1688.    RESCISSION     EXTINGUISHES     CONTRACT.     A 

contract  is  extinguished  by  its  rescission. 

History:     Enacted  March   21,   1872. 

66  C.  636,  639,  6  P.  737,  739  (construed  and  applied  with  §  1689)-, 
93  C.  588,  595,  29  P.  226  (construed  and  applied);  1  C.  A.  690,  694, 
82  P.  1052   (basis  of  action  to  rescind  contract). 

As   to   many   miscellaneous   matters   as   to   contracts,   see   note 

§  1549,  ante. 

As  to  rescission  of  contracts,  see  full  annotation  Kerr's  Cyc. 
C.  C.  §§  3406-3408  and  notes. 

§  1689.  WHEN  PARTY  MAY  RESCIND.  A  party  to  a  con- 
tract may  rescind  the  same  in  tlie  following  cases  only: 

1.  If  the  consent  of  the  party  rescinding,  or  of  any  party 
jointly  contracting  with  him,  was  given  by  mistake,  or  ob- 
tained through  duress,  menace,  fraud,  or  undue  influence, 
exercised  by  or  with  the  connivance  of  the  party  as  to  whom 
he  rescinds,  or  of  any  other  party  to  the  contract  jointly 
interested  with  such  party; 

2.  If,  through  the  fault  of  the  party  as  to  whom  he  rescinds, 
the  consideration  for  his  obligation  fails,  in  whole  or  in  part; 

3.  If  such  consideration  becomes  entirely  void  from  any 
cause; 

4.  If  such  consideration,  before  it  is  rendered  to  him,  fails 
in  a  material  respect,  from  any  cause;  or, 

5.  By  consent  of  all  the  other  parties. 

History:     Enacted  March   21,   1872. 

63  C.  575,  577  (construed  and  applied);  66  C.  636,  639,  6  P. 
737,  739  (construed  and  applied  with  §1688);  70  C.  250,  254,  11 
P.   643,   645    (construed  and  applied  with   §1691);    71   G.   428,  440, 

917 


§  1690  CIVIL  CODE.  [Div.III,Pt.II. 

12  P.  454,  460  (construed  and  applied  with  otlier  sections);  78  C. 
126,  134,  12  A.  S.  29,  20  P.  382,  385  (construed  and  applied);  82 
C.  351,  398,  16  A.  S.  137,  23  P.  16,  28  (construed  and  applied  with 
other  sections);  25  P'.  427,  429  (rescission  can  be  had  only  in 
cases  prescribed  by  this  section  and  in  manner  mentioned  in 
§1691);  83  C.  588,  594,  29  P.  226  (construed  and  applied);  85  C. 
11,  31,  20  A.  S.  197,  9  L.  376,  24  P.  707  (construed  and  applied  with 
other  sections);  86  C.  248,  251,  21  A.  S.  33,  24  P.  1018  (con- 
strued and  applied  with  other  sections);  92  C.  33,  37,  27  P. 
1098,  JO*}*!  (construed  and  applied  with  other  sections);  93  C. 
588,  594,  29  P.  220  (subd.  4  applied);  94  C.  362,  366,  28  A.  S.  132, 
29  P.  717  (construed  and  applied);  94  C.  642,  646,  30  P.  4,  5 
(construed  and  applied  with  other  sections);  98  C.  490,  499,  33  P. 
550,  553  (construed  and  applied  with  §§499,  3406-3408);  114 
C.  161,  167,  45  P.  1054,  46  P.  386  (construed  and  applied);  129  C. 
68,  85,  58  P.  92,  61  P.  667  (construed  and  applied  with  other 
sections);  129  C.  367,  372,  62  P.  39  (construed  and  applied);  62 
P.  600,  601,  602  (construed  and  applied  with  §1691);  131  C. 
530,  546,  63  P.  850,  64  P.  253  (construed  and  applied);  133  C. 
441,  443,  444,  65  P.  894  (construed  and  applied  with  other  sec- 
tions); 134  C.  547,  548,  86  A.  S.  294,  66  P.  730  (construed  and 
applied);  136  C.  631,  635,  69  P.  428  (construed  and  applied); 
137  C.  286,  290,  70  P.  82,  83  (construed  and  applied);  138  C. 
668,  672,  72  P.  149  (subd.  2  applied— refusal  to  pay  mortgage); 
146  C.  379,  390,  80  P.  234  (cited — rescission,  how  "accomplished," 
and  how  enforced);  146  C.  667,  671,  80  P.  1090  (subd.  2  applied — 
defendant's  refusal  to  go  on  with  contract);  147  C.  739,  743,  82  P. 
436  (subd.  1  applied — contract  obtained  by  fraud — what  promise 
is  fraudulent);  148  C.  357,  363,  83  P.  151,  113  A.  S.  276,  3.  L.  N. 
S.  908,  7  A.  C.  541  (subd.  2  applied — sale  on  credit);  149  C.  117, 
121,  85  P.  305  (applied  to  entire  contract  for  partial  failure 
of  consideration);  149  C.  667,  676,  87  P.  276  (ground  for  rescis- 
sion must  be  alleged);  151  C.  630,  635,  91  P.  526  (applied  with 
other  sections — misrepresentation  as  basis  for  rescission  must 
be  material);  1  C.  A.  690,  694,  82  P.  1052  (basis  of  action  to 
rescind  contract). 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  rescission  of  contracts,  see  full  annotation  Kerr's  Cyc. 
C.  C.  §§  3406-3408  and  notes. 

§1690.  WHEIV  STIPULATIOIVS  AGAINST  RIGHT  TO 
RESCIND  DO  NOT  DEFEAT  IT.  A  stipulation  that  errors 
of  description  shall  not  avoid  a  contract,  or  shall  be  the  sub- 
ject of  compensation,  or  both,  does  not  take  away  the  right 
of  rescission  for  fraud,  nor  for  mistake,  where  such  mistake 

918 


Tit.V.Ch.II.]  RESCISSION,  HOW  MADE.  §  Iggi 

is  in  a  matter  essential  to  the  inducement  of  the  contract, 
and  is  not  capable  of  exact  and  entire  compensation. 

History:     Enacted  March   21,   1872. 

§  1691.  RESCISSION,  HOW  EFFECTED.  Rescission,  when 
not  effected  by  consent,  can  be  accomplished  only  by  the 
use,  on  the  part  of  the  party  rescinding,  of  reasonable  dili- 
gence to  comply  with  the  following  rules: 

1.  He  must  rescind  promptly,  upon  discovering  the  facts 
which  entitle  him  to  rescind,  if  he  is  free  from  duress, 
menace,  undue  influence,  or  disability,  and  is  aware  of  his 
right  to  rescind;   and, 

2.  He  must  restore  to  the  other  party  everything  of  value 
which  he  has  received  from  him  under  the  contract;  or  must 
offer  to  restore  the  same,  upon  condition  that  such  party 
shall  do  likewise,  unless  the  latter  is  unable  or  positively 
refuses  to  do  so. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  408,  held 
unconstitutional,  see  history,  §   4  ante. 

54  C.  189,  190  (construed  and  applied);  70  C.  250,  254,  11  P.  643, 
645  (construed  and  applied  with  §  1689);  71  C.  226,  229,  16  P.  772, 
773  (construed  and  applied);  78  C.  389,  396,  398,  20  P.  868,  870,  871 
(construed  and  applied);  85  C.  11,  31,  20  A.  S.  197,  9  L.  376,  24 
P.  707  (construed  and  applied  with  §1689);  85  C.  177,  190,  29 
A.  S.  128,  24  P.  729,  733  (construed  and  applied);  85  C.  522, 
531,  20  A.  S.  239,  24  P.  837,  838  (construed  and  applied);  86 
C.  353,  361,  24  P.  1065,  1068  (construed  and  applied);  87  C.  49, 
60,  25  P.  249,  252  (construed  and  applied);  25  P.  427,  429  (rescis- 
sion can  be  had  only  in  manner  prescribed  by  this  section); 
92  C.  33,  37,  27  P.  1098,  1099  (construed  and  applied  with  other 
sections);  96  C.  275,  282,  31  A.  S.  201,  31  P.  290  (construed  and 
applied);  98  C.  490.  499,  33  P.  550,  553  (construed  and  applied 
with  other  sections);  99  C.  223,  227,  33  P.  851  (construed  and 
applied);  99  C.  355,  357,  33  P.  1107  (construed  and  applied); 
103  C.  287,  292,  35  P.  768,  37  P.  392  (construed  and  applied);  109  C. 
417,  426,  42  P.  139  (construed  and  applied  with  §3407);  110  C. 
374,  379,  42  P.  896  (construed  and  applied);  119  C.  260,  264,  51 
P.  341  (construed  and  applied);  119  C.  646,  648,  51  P.  1083  (con- 
strued and  applied);  123  C.  1,  16,  69  A.  S.  17,  55  P.  713,  43  L. 
199  (construed  and  applied);  123  C.  634,  642,  69  A.  S.  90,  56  P. 
436    (construed   and   applied);    124    C.    264,    268,    56   P.    1042    (con- 

919 


§  1691  CIVIL  CODE.  [Div.III,Pt.II. 

strued  and  applied  with  §3407);  124  C.  542,  544,  57  P.  476  (con- 
strued and  applied);  129  C.  68,  85,  58  P.  92,  61  P.  667  (construed 
and  applied  with  other  sections);  61  P.  1109,  1111  (subd.  2 
applied — no  rescission  without  offer  to  place  defendant  in  statu 
quo);  62  P.  600,  601,  602  (construed  and  applied  with  §1689); 
130  C.  431,  433,  62  P.  749  (construed  and  applied  with  other 
sections);  132  C.  278,  280,  64  P.  292  (construed  and  applied); 
132  C.  516,  521,  64  P.  896  (construed  and  applied);  133  C.  441, 
444,  6fi  ,P.  894  (construed  and  applied  with  §1689 — executory 
contract  for  sale  of  land);  142  C.  313,  320,  75  P.  899  (subd.  1 
applied);  146  C.  379,  389,  390,  80  P.  234  (subd.  2  applied — ability 
to  restore  identical  property — substantial  equity  done  between 
parties  is  enough — rescission,  how  "accomplished,"  and  how 
enforced);  146  C.  667,  672,  80  P.  1090  (refusal  to  return  money 
received  relieves  party  from  necessity  of  offering  to  return  or 
to  cancel  contract);  147  C.  739,  743,  82  P.  436  (subd.  1  applied); 
148  C.  539,  547,  83  P.  1000  (party  must  "rescind  promptly" 
though  he  is  not  required  to  restore  that  which  is  worthless) ; 
151  C.  630,  633,  91  P.  526  (referred  to);  151  C.  732,  739,  91  P.  593 
(applied — exceptional  case — impossibility  of  restitution — offer 
to  do  equity,  when  sufficient);  152  C.  383,  392,  92  P.  1011  (placing 
in  statu  quo,  considerations  governing) ;  1  C.  A.  690,  694,  82  P. 
1052  (basis  of  action  to  rescind  contract);  2  C.  A.  737,  744,  84 
P.  232  (subd.  1  applied);  7  C.  A.  387,  393  (placing  in  statu  quo), 
398  (no  harm  from  delay  when,  in  rescinding),  94  P.  393,  398. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

As  to  rescission  of  contracts,  see  full  annotation  Kerr's  Cyc. 
C.    C.    §§  3406-3408   and   notes. 


920 


Tit.V,Ch.III.]      VERBAL  AND  WRITTEN,   HOW.        §§1697,1698 

CHAPTER  III. 

ALTERATION  AND  CANCELATION. 

§  1697.  Alteration    of   verbal   contracts. 

§  1698.  Written   contracts,    how    modified. 

§  1699.  Extinction  by   cancelation,    etc. 

§  1700.  Extinction  by   unautliorized   alteration. 

§  1701.  Alteration  of  duplicate,  not  to  prejudice. 

§  1697.  ALTERATION  OF  TERBAL  CONTRACTS.  A  con- 
tract not  in  writing  may  be  altered  in  any  respect  by  con- 
sent of  the  parties,  in  writing,  without  a  new  consideration, 
and  is  extinguished  thereby  to  the  extent  of  the  new  altera- 
tion. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  342. 

110  C  259  263,  42  P.  820  (applied — new  contract);  129  C.  301, 
305  61  P  937  (erroneously  cited  as  §1697  C.  C.  P.— has  no 
application  to  written  contracts),  61  P.  937,  939  (correct 
citation);  134  C.  26,  29,  66  P.  24  (cited);  69  P.  625,  628  (what 
change  made  is  material  alteration). 

As  to  alteration  and  cancelation  of  contracts,  see  full  annota- 
tion Kerr's  Cyc.  C.  C.  §§  3412-3414  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 

§1698.     AVRITTEN     CONTRACTS,    HOW    MODIFIED.      A 

contract  in  writing  may  be  altered  by  a  contract  in  writing, 
or  by  an  executed  oral  agreement,  and  not  otherwise. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   243. 

66  C.  114,  115.  4  P.  1091  (construed  and  applied);  68  C.  27,  28, 
8  P.  518,  519  (construed  and  applied);  77  C.  383,  388,  11  A.  S.  288, 
19  P  641  644  (construed  and  applied);  82  C.  533,  546,  23  P.  217 
(construed  and  applied);  95  C.  630,  634,  30  P.  786  (construed 
and  applied);  103  C.  163,  167,  37  P.  147  (construed  and  apphed  ; 
104  C  168  170  43  A.  S.  81,  37  P.  900  (construed  and  applied); 
40  P.  39,  40  (construed  and  applied);  112  C.  46,  52,  44  P.  354  (con- 
strued and  applied);    112  C.   634,   635,   636,   44  P.   1060    (construed 

921 


§§1699,1700  CIVIL    CODE.  [Div.III,Pt.II. 

and  applied);  117  C.  204,  211,  48  P.  1083  (construed  and  applied); 
120  C.  657,  659,  53  P.  264  (construed  and  applied);  121  C.  167, 
175,  53  P.  565  (construed  and  applied);  123  C.  681,  686,  56  P. 
547,  548  (construed  and  applied);  126  C.  591,  598,  77  A.  S.  209, 
59  P.  36  (construed  and  applied);  127  C.  656,  657,  60  P.  426  (con- 
strued and  applied);  129  C.  301,  305  (construed  and  applied  with 
§  1697  C.  C,  erroneously  cited  as  §  1697  C.  C.  P.),  61  P.  937,  939 
(correct  citation);  132  C.  133,  136,  64  P.  88  (construed  and 
applied);  140  C.  57,  62,  73  P.  740  (waiver  of  forfeiture  of  policy 
of  lifo  insurance  by  extending  time  for  payment  of  premiums 
may  be  shovvn  by  parol);  146  C.  196,  199,  79  P.  875  (instance  of 
valid  executed  parol  agreement);  146  C.  555,  560,  80  P.  711 
(instance  of  original  agreement  not  altered  in  accordance  with 
this  section);  2  C.  A.  15,  17,  82  P.  1127  (executed  contract  modify- 
ing written  contract  in  lease  concerning  pasturage) ;  2  C.  A. 
306,  309,  310,  311,  83  P.  302  (applied — payment  of  interest  in 
advance  does  not  extend  time  for  payment  of  written  con- 
tract); 3  C.  A.  115,  120,  84  P.  435  (clear  and  precise  terms  of 
written  contract  cannot  be  varied  by  parol);  4  C.  A.  58,  60,  87  P. 
210  (oral  agreement  does  not  have  to  be  executed  at  time  of 
inception  of  written  agreement). 

As  to  alteration  and  cancelation  of  contracts,  see  full  annota- 
tion Kerr's  Cyc.  C.  C.  §§  3412-3414  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 


§  1699.  EXTINCTION  BY  CANCELATION,  ETC.  The  de- 
struction or  cancelation  of  a  written  contract,  or  of  the  sig- 
nature of  the  parties  liable  thereon,  with  intent  to  extin- 
guish the  obligation  thereof,  extinguishes  it  as  to  all  the 
parties  consenting  to  the  act. 

History:     Enacted  March   21,   1872. 

87  C.  581,  584,  25  P.  963,  964,  966  (construed  and  applied). 

As  to  alteration  and  cancelation  of  contracts,  see  full  annota- 
tion Kerr's  Cyc.  C.  C.  §§  3412-3414  and  notes. 

As  to  many  miscellaneous  matters  as  to  contracts,  see  note 
§  1549,  ante. 


§1700.  EXTINCTION  BY  UNAUTHORIZED  ALTERA- 
TION.  The  intentional  destruction,  cancelation,  or  material 
alteration  of  a  written  contract,  by  a  party  entitled  to  any 
benefit  under   it,   or   with   his   consent,    extinguishes   all    the 

922 


Tit.V,ch.TII.]  ALTERING  DUPLICATE.  §  1701 

executory   obligations   of   the   contract  in   his  favor,   against 
parties  who  do  not  consent  to  the  act. 

History:     Enacted  March   21,  1872. 

S1701  ALTERATION  OF  DUPLICATE,  NOT  TO  PREJU- 
DICE  Where  a  contract  is  executed  in  duplicate,  an  altera- 
tion or  destruction  of  one  copy,  while  the  other  exists,  is  not 
within  the  provisions  of  the  last  section. 

History:     Enacted  March   21,  1872. 


923 


§§  1708,  1709  CIVIL  CODE.  [Div.  III. 


PART   III. 

OBLIGATIONS  IMPOSED   BY   LAW. 

§  1708.  Abstinence   from   injury. 

§  1709.  Fraudulent  deceit. 

s'j.710.  D'^-cit,    what. 

§  1711.  Deceit  upon  the  public,   etc. 

§  1712.  Restoration   of    thing   wrongfully    acquired. 

§  1713.  When   demand  necessary. 

§  1714.  Responsibility   for   wilful   acts,    negligence,    etc. 

§  1715.  Other  obligations. 

§  1708.    ABSTINENCE    FROM   INJURY.     Every    person    is 
bound,  without  contract,  to  abstain  from  injuring  the  person 
or  property  of  another,  or  infringing  upon  any  of  his  rights. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

110  C.  374,  385,  42  P.  896  (applied  with  other  sections);  111  C. 
39,  45,  52  A.  S.  146,  43  P.  398,  31  L.  220  (applied);  118  C.  315,  321, 
62  A.  S.  238,  50  P.  373  (applied  with  other  sections);  123  C.  42, 
44,  55  P.  706   (applied  with  other  sections). 

As  to  fraud  generally,  see  Kerr's  Cyc.  C.  C.  §§  1571-1574  and 
notes. 

As  to  liability  for  bite  of  dog  previously  gentle,  see  55  L.   671. 

As  to  liability  of  owners  for  acts  of  vicious  dogs,  see  10  A. 
R.  270;  36  A.  R.  752;  27  L.  862;  briefs  30  L.  608;  54  L.  420. 

As  to  liability  where  dog  wrongfully  provoked,  see  61  L.  351. 

Animals,  vicious — as  to  liability  for  damages  by,  see  Kerr's 
Cyc.  C.   C.   §  1714   note  pars.    13-28,    39-49. 

Implied  warranty  in  sale  for  known  purpose  is  fully  discussed 
in  Kerr's  Cyc.  C.  C.  §  43  note. 

§1709.  FRAUDULENT  DECEIT.  One  who  wilfully  de- 
ceives another  with  intent  to  induce  him  to  alter  his  posi- 
tion to  his  injury  or  risk,  is  liable  for  any  damage  which 
he  thereby  suffers. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 
65  C.  326,   327,   4  P.  33    (fraudulent  promise  is  actionable);    76 
C.   192,   193,    18   P.   318,   319    (referred  to  with   other   sections);    77 

924 


pt   jjl  ]  FRAUD   AND   DECEIT.  §  1709 

C.  22,  25,  18  P.  791,  793  (applied  with  other  sections):  99  C. 
179  185  33  P.  859,  862  (construed  and  applied);  134  C.  441,  444, 
66  'p.  587  (applied  with  C.  C.  P.);  136  C.  26,  29,  68  P.  321 
(applied). 

FRAUD     AND      DECEIT. 

As  to  what  constitutes,  see  1  A.  C.  906;  2  A.  C.  997;  7  A.  C. 
505-   8  A.  C.   251;   8  A.  C.   1051;   12  A.  D.   64;    25   A.   D.   282;    67   A. 

D.  775;  74  A.  D.  736;  33  A.  R.  641;   38  A.  R.   736;  56  A.  R.   31;   14 
A    S    7'32-   17  A.  S.  482;  32  A.  S.  378;  45  A.  S.  514;  46  A.  S.  753;  51 
a'.  S.  435;   62  A.  S.  544;   69  A.  S.   171;   89  A.  S.  181;   3  L.   37;   4  L. 
158-  5  L    702;  5  L.  841;  6  L.  149;  7  L.  756;  18  L.  188;  21  L.  409;  30 
L    465-    33   L.    721;    34   L.    533;    34   L.    642;    43   L.    593;    45   L.    33;    51 
L.  262;  52  L.  59;  53  L.  387;  54  L.  445;  57  L.  675;  62  L.  240;   69  L. 
686-    69    L.    849;    1    L.   N.    S.    258;    1    L.   N.   S.    1075;    6   L.   N.    S.    556 
7   L.   N.   S.   646;    8   L.   N.   S.    452;    10   L.   N.    S.    245;    10   L.   N.   S.    640 
3  W    &  P.  2943-2954;   21  L.  ed.  835;   23  L.  ed.  363;   24  L.   ed.   586 
25  L.  ed.  309;  28  L.  ed.  76;  28  L.  ed.  565;   29  L.  ed.  248;  32  L.  ed. 
625;  32  L.  ed.  878;  34  L.  ed.  931;   34  L.  ed.  851;  44  L.  ed.  723.^ 

Same — As  to  sales  of  personal  property. — See  1  L.  618;  2  L. 
154;   4  L.  369;   14  L.   264;  17  L.   795;   21  L.   206;  64  L.  827. 

Same— Act  involving  breach  of  duty,  trust,  or  confidence.— See 
62  A.  S.  544;  32  L.  ed.  878;  3  W.  «&  P.  2944. 

Same— Actual  fraud  or  fraud  in  fact. — See  14  A.  R.  186;  24 
L.  ed.  586;  25  L.  ed.  309;  28  L.  ed.  565;  29  L.  ed.  248;  32  L.  ed.  621; 
34  L.  ed.  951;  44  L.  ed.  723;  3  W.  &  P.  2944. 

Same — All  modes  of  deceit  comprehended. — See  59  A.  D.  451;  74 
A.  D.  736;  44  L.  ed  723;  3  W.  &  P.  2951. 

Same — As  a  personal  thing. — See  3  W.  &  P.  2953. 

Same— As  affecting  judgment.— See  11  L.  160;  20  L.  679;  30 
K  238;   30  L.  562;   30  L.   787;   31  L.  753. 

Same — As  conclusion  of  law. — See  56  A.  R.  31;  45  A.  S.  514; 
3  W.  &  P.  2945. 

Same — As  criminal  offense. — See  3  W.  &  P.  2946. 

Same— As  fact  to  be  proved.— See  32  A.  S.  378;  3  W.  &  P.  2946. 

Same— As  relating  to  signature  of  instruments. — See  3  W. 
&   P.   2953. 

Same — As    rendering    conveyance    void. — See    46    A.    S.    753;    7 

W.  &  P.  2953. 

Same — As    rendering    debtor    liable    to    arrest. — See    45    A.    D. 

394;   3  W.   &  P.   2953. 

Same — As  rendering  instrument  void. — See  3  W.  &  P.  2953. 

Same — As  rendering  judgment  void. — See  3  W.  &  P.  2954. 

Same — As  rendering  marriage  void. — See  38  A.  R.  726;  3  W. 
&   P.    2954. 

Same — Bad  faith — Official,  or  official  misconduct.— See  3  W, 
&  P.   2952. 

Same — Same — Synonymous  with. — See  3  W.  &  P.  2945. 

Same — Concealment  or  suppression  of  facts. — See  3  W.  &  P 
2945. 

925 


§  1709  CIVIL  CODE.  [Div.III. 

Same— Constructive.— See  91  C.  15;  27  P.  599,  600;  31  A.  R.  428; 
58  A.  S.  102;   35  L.  776;  2  W.  &  P.   1470. 

Same — Same — Breach  of  duty  as  a. — See  2  W.  &  P.  1471. 

Same — Same — Distinguished  from  actual  fraud. — See  2  W.  & 
P.  1471. 

Same — Damage  must  result  from  to  give  redress. — See  3 
W.  &  P.  2946. 

Same — Effect  of  to  entitle  or  to  deprive  one  of  equitable 
relief,  as  to,   generally,   see   1  L.   45:    2   L.   662;    3   L.   806;   5   L.   45; 

5  L.    163,   6   L.    158;    6   L.    836;    8  L.    14;    11   L.    66;    17  L.    130;    19   L. 
53;  19  L.  767;  22  L.  707. 

Same — Error  or  mistake  as. — See  17  A.  S.  482;  51  A.  S.  435; 
28  L.  ed.  76;  S  W.  &  P.  2946. 

Same — Expression  of  opinion  as  fraud. — See  35  L.  417-441. 

Same — False  swearing  synonymous  with. — See  51  A.  S.  435; 
3  W.  &  P.  2947. 

Same — Fraudulent  concealment,  constructive  fraud,  and  deceit 
synonymous. — See  3  W.  &  P.  2947. 

Same — Gain  to  wrong-doer. — See  3  W.  &  P.  2947. 

Same — In  fact.— See  3  A.  R.   588;   3  W.   &  P.   2954. 

Same — In  law. — See  3  W.  &  P.  2955. 

Same — Inequitable    or    unconscientious    advantage. — See    3    W. 

6  P.   2947. 

Same — Injustice  distinguished. — See  3  W.  &  P.  2947. 

Same — Infecting  negotiable  paper. — See  36  L.  434;  46  L.  768. 

Same — Intention  and  act. — See  19  Eng.  C.  L.  183;  21  L.  ed. 
835;   3  W.   &  P.   2947. 

Same — Knowledge  of  falsity  of  representation. — See  3  W.  &  P. 
2950. 

Same — Misrepresentations  are  when. — See  69  A.  S.  171;  5  L. 
841;  28  L.  ed.  76;  3  W.  &  P.  2951. 

Same — Misrepresentations  by  vendor  of  price  paid  for  prop- 
erty.— See  8  A.  C.  1062. 

Same — Moral   turpitude. — See  3  W.   &   P.   2950. 

Same — Official  misconduct  or  bad  faith. — See  3  W.  &  P.  2952. 

Same — Responsibility  for  fraud  of  another. — See  19  L.  331;  21 
L.  741;  28  L.  104;  28  L.  421;  51  L.  479. 

Same — Right  to  rely  upon  representations  made. — See  37  L. 
593-615. 

Same — Set-off  as  defense  based  on  fraud. — See  21  L.  324;  23 
L.    338;   32   L.   491;    50  L.   508. 

Same — Silence  and  concealment  where  duty  to  speak  and  dis- 
close.— See  1  L.  742;  4  L.  159;  5  L.  428;  6  L.  799;  7  L.  826;  26  L. 
430. 

Same — Suppression  of  facts. — See  3  W  &  P.  2945. 

Same — Unconscientious  advantage. — See   3   W.   &  P.    2947. 

Same — Undue  influence  distinguished. — See  25  A.  D.  282;  89 
A.  S.  181;  53  L.  387;  3  W.  &  P.  2954. 

926 


pt.  III.]  FRAUD   AND   DECEIT.  §  1709 

Same — Warranty  distinguished. — See  3  W.  &  P.  2954. 

Acting  upon  representations,  as  to,  generally,  see  14  Encyc.  L. 
106-115. 

Action  for — As  to,  generally,  see  23  Cent.  Dig.  col.  1724,  §§  27- 
34;  9  Decen.  Dig.  p.   1281,  §§  31-58. 

Action  for  price  as  bar  to  action  for  damages  for. — See  8  L.  N. 
S.   582. 

As  affecting  judgment. — See  11  L.  160;  20  L.  679;  30  L.  238:  30 
L.  562;   30  L.   782;   31  L.  753. 

Burden  of  proof — As  a  bona  fides  of  transferee  of  warehouse 
receipts  for  property  secured  by  fraud. — See   10  L.  N.  S.   801. 

Same — As  to  payment  of  value  by,  or  notice  of  fraud  to,  sub- 
vendee  of  chattels,  when  original  seller  seeks  to  rescind  for 
fraud    of    first   purchaser. — See    8   L.    N.    S.    448. 

Carelessness  as  a  bar  to  relief  from. — See  32  A.  S.  384. 

Character  of  representation  as  one  of  fact. — See  14  Encyc.  L. 
33-59. 

Constructive  fraud — Nature  and  elements  of. — See  23  Cent.  Dig. 
col.  1655,  §  7;  9  Decen.  Dig.  p.  1244,  §§  5-7. 

Damage  or  prejudice  necessary  to  recovery. — See  23  Cent. 
Dig.  col.  1715,  §24;  9  Decen.  Dig.  p.  1271,  §25;  14  Encyc.  L. 
137-147. 

Damages  for — As  to,  generally,  see  9  Decen.  Dig.  p.  1312.  §§  59- 
62;  14  Encyc.  L.  177-189. 

Same — Measure  of. — See  "Measure  of  damages"  this  note. 

Deceit,  in  business  transaction — At  to  what  constitutes,  see 
74  A.  D.  736;  3  A.  R.  440;  49  A.  S.  651;  61  A.  S.  791;  23  Cent.  Dig. 
col.  1642,  §§1-26;  9  Decen.  Dig.  p.  1241,  §§1-30;  29  L.  360;  33  L. 
561;    2   W.   &   P.   1894,    1896. 

Same — Alteration   of  court  order.^ — See   2  W.   &  P.   1895. 

Same — Cheating  by  false  tokens. — See  2  W.  &  P.  1895. 

Same — Silence,  where  in  dutj^  bound  to  speak. — See  74  A.  D. 
736;   3  A.  R.   440;   2  W.   &  P.  1895. 

Deed,  when  void  for  at  law. — See  93  A.  D.  596. 

Effect  of — And  remedies  for. — See  14  Encyc.  L.  156-176. 

Same — By  agent  ex  necessitate  in  making  proofs  of  loss  under 
fire  insurance  policy. — See  9  L.  N.  S.  480. 

Same — Extrinsic  to  trade — name  or  trade-mark  on  the  right  to 
protection  against  infringement. — See  12  L.  N.  S.  1201. 

Same — In  proceedings  for  opening  or  extending  highway,  as 
defense  to  proceedings  to  acquiring  property  for  that  purpose. — 
See  7  L.  N.  S.  639. 

Same — In  securing  release  from  servant  accepting  benefits  of 
relief  fund. — See  11  L.  N.  S.  200. 

Same- — On  decision  of  architect,  engineer  or  umpire. — See  1  L. 
N.  S.  150. 

Same — On  right  to  assessment  debts  on  dissolution  of  partner- 
ship.— See  9  L.  N.  S.  56. 

927 


§  1709  CIVIL  CODE.  [Div.III. 

Same — On  right  to  injunction  against  collection  of  purchase 
money  where  title  to  land  is  defective. — See  7  L.  N.  S.  448. 

Same — To  entitle  or  deprive  one  of  equitable  relief. — See  1  L. 
45;  2  L.  662;  3  L.  806;  5  L.  45;  5  L.  163;  6  L.  458;  6  L.  836;  8  L. 
14;  11  L.  66;  17  L.  130;  19  L.  53;  19  L.  767;  22  L.  707. 

Same — To  estop  infant  misrepresenting  as  to  age. — See  9  L.  N. 
S.  1117. 

Same — To  right  of  person  on  train  procuring  ticket  by. — See 
6  L.  N.  S.  1146. 

Evi(i-c;iice  in  action  for — As  to,  generally,  see  1  A.  C.  816;  7  A. 
C.  276;  7  A.  C.  505:  14  Encyc.  L.  190-201. 

Same — Burden  of  proof  as  to  fraud. — See  45  L.  53. 

Same — Same — Respecting  will. — See  36  L.  737. 

Same — Degree  of  proof  required  to  establish. — See   10   L.   606. 

Same — Establishment  of  by  facts  and  circumstances. — See  4 
L.  158. 

Same — Fraudulent   intent  as   question   of   fact. — See    9   L.    417. 

Same — Inadequacy  of  consideration  as  evidence  of. — See  4  L. 
638. 

Same — Parol  evidence  to  prove  fraudulent  intent  as  to  deed. 
—See  4  L.  427. 

Same — Presumptions  and  burden  of  proof  as  to  fraud. — See  1 
A.  C.  809;   1  L.  520;  4  L.  832;  36  L.   737. 

Same — Question  of  law  and  fact. — See  "Question  of  law  and 
fact,"  this  note. 

Expression  of  opinion  as  fraud — As  to  generally,  see  35  L.  417- 
441. 

Failure  to  read  contract  as  affecting  right  to  relief  on  ground 
of.— See  6  L.  N.  S.  463. 

False  representation — As  to,  generally,  see  23  Cent.  Dig.  col. 
1648,  §  3;  14  Encyc.  L.  23-32;  14  Encyc.  L.  63-66. 

Same — Action  to  recover  for. — See  20  A.  D.  626;  18  A.  S.  555. 

Same — Recovery  for  injuries  suffered  from  acting  upon. — See 
88  A.  D.   442. 

False  statements  in  reports  required  by  statute  to  be  made  to 
public  officers  as  basis  of  action  by  individual  at  common  law 
for  deceit  against  officers  and  directors  of  corporation  person- 
ally.—See  6  L.  N.  S.  872. 

Fraud — As  a  question  of  law  or  fact. — See  1  A.  C.  446. 

Same — Definition  of. — See  14  Encyc.  L.  19;  3  W.  &  P.   2943. 

Same — Nature  of. — See  14  Encyc.  L.  19. 

Fraudulent  concealment,  effect  of  to  void  promise  of  marriage. 
—See  26  L.   430. 

Fraudulent  intent  necessary  to  justify  injunction  against 
unfair  competition. — See  4  L.  N.  S.   960. 

Fraudulent  representations — As  to,  generally,  see  23  Cent.  Dig. 
col.    1656,   §§8-14;    9   Decen.   Dig.   p.    1245,   §§8-13. 

Ignorance  or  carelessness  as  affecting  right  to  equitable  relief 

928 


pt.  III.]  FRAUD   AND   DECEIT.  §  1709 

from    contract    bj^    which    one    has    been    overreached. — See    5    L. 
N.  S.  799. 

In  sale  of  personal  property. — See  "Fraud  in,  as  to  sale  of 
personal  property,"  this  note. 

In  sale  of  real  estate. — See  2  A.  D.  77. 

Injunction  against  proceedings  in  court  of  law  in  case  of 
fraud,  accident  or  mistake. — See  5  A.  C.   727. 

Infecting   negotiable   paper. — See   36   L.    434;    46   L.    768. 

Jurisdiction  of  equity — In  case  of  fraud  where  adequate 
remedy  exists  at  law. — See  3  A.  C.  611. 

Same — To  cancel  instrument — Notwithstanding  remedy  at 
law.— See  5  L.  N.  S.  1048. 

Same — Same — On   ground  of. — See   5   L>.   N.   S.    1036. 

Same — To  cancel  insurance  policy  for  fraud  and  enjoining 
action  at  law  thereon. — See  12  L.  N.  S.  881. 

Knowledge  and  intent — As  to  generally,  see  14  Encyc.  L.  85- 
106. 

■Knowledge  of  defendant. — See  23  Cent.  Dig.  col.  1650,  §  4. 

Life  insurance,  when  amounts  to  against  creditors. — See  29  A. 
S.    360. 

Limitations— ^On  right  to  rescind  fraudulent  contract. — See 
1  A.  C.  910. 

Same — Statute  of,  when  prevented  from  operating  by. — See 
60  A.  D.  511. 

Materiality  of  facts  represented  or  concealed. — See  23  Cent. 
Dig.  col.  1687,  §  16;  9  Decen.  Dig.  p.  1261,  §  18;  14  Encyc.  L.  59-62. 

Measure  of  damages  for — As  to,  generally,  see  7  A.  C.  276;  S 
A.  C.  1057. 

Misrepresentation  by  vendor  as  to  price  paid  for  property,  as 
actionable  deceit. — See  8  A.  C.   1062. 

Part  performance,  payment  is  not. — See  27  A.  D.  745. 

Parties  to  actions  for. — See  8  Encyc.  P.  896. 

Performance  of  executory  contract  for  sale  of  personal  prop- 
erty after  discovery  of  fraud,  as  affecting  right  of  action  for 
damages. — See  7  A.  C.  280. 

Persons  entitled  to  relief  or  redress  for. — See  14  Encyc.  L. 
148-152. 

Persons  entitled  to  sue. — See  23  Cent.  Dig.  col.  1720,  §25;  9 
Decen.   Dig.  p.   1279,  §  29. 

Persons  responsible  for. — See  14  Encyc.  L.  152-155. 

Pleadings  and  proof  in  actions  for. — See  8  Encyc.  P.   897-913. 

Power  of  equity  to  take  jurisdiction  of  suit  to  cancel  insur- 
ance policy  for  fraud. — See  12  L.  N.  S.  881. 

Presumptions  and  burden  of  proof  as  to  fraud  in  action  for. 
—See  1  A.  C.  809. 

Proof  of— And  presumption  as  to. — See  "Evidence  in  action 
for,"  this  note. 

Same — What  sufficient. — See  65  A.  D.  157. 
Kerr's    C.    C. — 30  929 


§1709 


CIVIL.  CODE.  [Div.ITI 


Question  of  law  and  fact— As  to,  generally,  see  1  A.  C.  443;  7 
A.  C.  276;  14  Encyc.  L.  205. 

Same — Fraud  as  a. — See  1  A.  C.  446. 

Recriminatory,  as  a  defense. — See  3  A.  S.  727. 

Reliance  on  representations — As  to,  generally,  see  23  Cent. 
Dig.  col.   1690,   §§17-23;   9   Decen.  Dig.   p.   1262,   §§19-23. 

Relief  to  party  defrauded  by  fradulent  scheme,  although  he 
went  into  it  with  the  intention  of  defrauding  others. — See  5 
L.  N.  S.  906. 

Remfc.3-''-«  for — As  to,  generally,  see  1  A.  C.  906;  3  A.  C.  608; 
5  A.  C.  363;  7  A.  C.  276;  8  Encyc.  P.  884-893. 

Same — Election  of,  necessity  and  effect. — See  8  Encyc.  P.  894. 

Same — Injunction  against  proceedings  in  court  of  law  in  case 
of  fraud,  accident  or  mistake. — See  5  A.  C.  727. 

Same — Jurisdiction  of  equity,  where  adequate  remedy  at  law 
exists. — See  3  A.  C.  611. 

Same — Limitations  on  right  to  rescind  fraudulent  contract. — 
See  1  A.  C.  910. 

Same — Necessity  of  returning  or  tendering  contracts  vipon 
repudiation  or  release  of  damages  for  personal  injuries,  pro- 
cured by  fraud. — See  10  A.  C.  739. 

Same — Performance  of  executory  contract  for  sale  of  property 
after  discovery  of  fraud  as  affecting  right  of  action  for  damages. 
—See  7  A.  C.  280. 

Replevin  by  seller  of  property  from  fraudulent  purchaser. — See 
1  L.  N.  S.  474. 

Responsibility  for  another's  fraud — As  to,  generally,  see  19  L. 
331;  21  L.  471;  28  L.  104;  28  L.  421;  51  L.  479. 

Return  or  tendering  contracts,  necessary  upon  repudiation  of 
release  of  damages  for  personal  injuries  procured  by  fraud. — See 
10  A.  C.  739. 

Right — Of  one  partner  of  dissolved  firm  to  maintain  an  action 
at  law  against  another  for  fraud  practiced  on  dissolution  with 
respect  to  assets. — See  6  L.  N.  S.  263. 

Same — Of  party  to  a  fraudulent  or  illegal  transaction. — See 
34  A.  D.   735. 

Same — Resulting  from  sale  of  trade-mark  as  affected  by  fraud. 
—See  1  L.  N.  S.  723. 

Same — To  question  judgment  of  court  of  sister  state  upon 
ground  that  defendant  was  induced  by  fraud  to  go  within  its 
jurisdiction. — See  12  L.  N.  S.  941. 

Same — ^To  rely  upon  representations  made — As  to,  generally, 
see  37  L.  593-615;  14  Encyc.  L.  115-134. 

Set-off  or  defense  based  on. — See  21  L.  324;  23  L.  338;  23  L. 
491;  50  L.  508. 

Silence  and  concealment  when  duty  to  speak  and  disclose. — 
See  23  Cent.  Dig.  coL   1580,   §15;  9  Decen.  Dig.  p.   1259,  §§15-17; 

930 


pt.  III.]  WHAT  IS  DECEIT.  §  1710 

14  Encye.  L.  66-84;  1  L.  742;  2  L.  799;  4  L.  159;  5  L.  428;  7  L.  826; 
26  L.  430. 

Statements  recklessly  made. — See  23  Cent.  Dig.  col.  1653,  §  5. 

Statute  of  frauds — As  affecting  right  to  equitable  relief 
against  one  who  has  purchased  land  in  his  own  name,  in  viola- 
tion of  his  agreement  to  purchase  for  and  in  the  name  of 
another. — See  5  L.  N.  S.  112. 

Stockholder's  subscriptions  as  affected  by. — See  3  A.  S.  824. 

Unfair  competition — Necessity  of  fraudulent  intent  to  justify 
injunction  against. — See  4  L.  N.  S.  960. 

Waiver  of  fraud — As  to,  generally,  see  4  L.  158;  67  L.  705. 

Same — Right  of  action  for. — See  4  L.  158;  67  L.  705. 


§  1710.  DECEIT,  WHAT.  A  deceit,  within  the  meaning 
of  the  last  section,  is  either: 

1.  The  suggestion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  does  not  believe  it  to  be  true; 

2.  The  assertion,  as  a  fact,  of  that  which  is  not  true,  by 
one  who  has  no  reasonable  ground  for  believing  it  to  be 
true ; 

3.  The  suppression  of  a  fact,  by  one  who  is  bound  to  dis- 
close it,  or  who  gives  information  of  other  facts  which  are 
likely  to  mislead  for  want  of  communication  of  that  fact;  or, 

4.  A  promise,  made  without  any  intention  of  performing  it. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

65  C.  326,  327,  4  p!  33  (fraudulent  promise  is  actionable);  76 
C.  192,  193,  18  P.  318,  319  (referred  to  with  other  sections);  77  C. 
22,  26,  18  P.  791,  793  (applied  with  other  sections);  79  C.  234, 
236,  238,  21  P.  736,  737  (applied);  81  C.  1,  6,  22  P.  515,  516,  6  L.  219 
(applied);  82  C.  77,  82,  22  P.  979,  980  (applied);  96  C.  433,  439, 
440,  31  P.  358,  360  (applied  with  other  sections);  99  C.  179,  186, 
33  P.  859,  862  (applied);  136  C.  26,  27,  28,  68  P.  321  (applied  with 
other  sections). 

As  to  admissibility  of  parol  proof  of  belief,  intent,  and  reli- 
ance of  parties,  see  53  L.  769. 

As  to  representations  which  are  deceitful  and  fraudulent,  see 
Kerr's  Cyc.  C.  C.   §§  172,  173,  174  and  notes  thereto. 

Actionable  deceit — Mere  silence, — as  to,  see  discussion  and 
collection  of  authorities  in  note  1  L.  742,  and  brief  61  L.  305. 

But  mere  expression  of  opinion  and  promise  for  future  per- 
formance, and  statement  of  facts  relating  to  future,  as  to,  see 
brief  56  L.  940. 

931 


§§  1711-1714  CIVIL  CODE.  [Div.TII. 

§  1711.    DECEIT  UPON  THE  PUBLIC,  ETC.   One  who  prac- 
tises a  deceit  with  intent  to  defraud  the  public,  or  a  particular 
class  of  persons,  is  deemed  to  have  intended  to  defraud  every 
individual  in  that  class,  who  is  actually  misled  by  the  deceit. 
History:     Enacted  March   21,   1872. 

§1712.  KESK.'RATION  OF  THING  WRONGFULLY  AC- 
QUIRED.  One  who  obtains  a  thing  without  the  consent  of 
its  owner,  or  by  a  consent  afterwards  rescinded,  or  by  an 
unlawful  exaction  which  the  owner  could  not  at  the  time 
prudently  refuse,  must  restore  it  to  the  person  from  whom 
it  was  thus  obtained,  unless  he  has  acquired  a  title  thereto 
superior  to  that  of  such  other  person,  or  unless  the  transac- 
tion was  corrupt  and  unlawful  on  both  sides. 
History:     Enacted  March   21,   1872. 

§  1713.  WHEN  DEMAJfD  NECESSARY.  The  restoration 
required  by  the  last  section  must  be  made  without  demand, 
except  where  a  thing  is  obtained  by  mutual  mistake,  in 
which  case  the  party  obtaining  the  thing  is  not  bound  to 
return  it  until  he  has  notice  of  the  mistake. 

History:     Enacted  March  21,  1872. 

§1714.  RESPONSIBILITY  FOR  WILFUL  ACTS,  NEGLI- 
GENCE, ETC.  Every  one  is  responsible,  not  only  for  the 
result  of  his  wilful  acts,  but  also  for  an  injury  occasioned 
to  another  by  his  want  of  ordinary  care  or  skill  in  the  man- 
agement of  his  property  or  person,  except  so  far  as  the  latter 
has,  wilfully  or  by  want  of  ordinary  care,  brought  the  injury 
upon  himself.  The  extent  of  liability  in  such  cases  is  defined 
by  the  title  on  compensatory  relief. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  246  pars,  annotation. 

66  C.  579,  586,  56  A.  R.  119,  6  P.  637  (applied);  68  C.  455,  459, 
9  P.  843,  845  (applied);  95  C.  279,  291,  30  P.  529,  531  (construed 
and  applied);  118  C.  315,  321,  324,  62  A.  S.  238,  50  P.  373  (applied 
with  other  sections);  123  C.  42,  44,  55  P.  706  (cited  with  other 
sections);  123  C.  643,  649,  56  P.  468  (applied);  150  C.  689,  693,  89 
P.  976  (applied  to  operation  of  street  railways). 

932 


Pt.  III.]  LIABILITY    FOR    NEGLIGENCE.  §  1714 

NEGLIGENCE — LIABILITY     FOR 

A  relative  term. — See  49  A.  D.  239;  97  A.  D.  722;  20  A.  R.  .3.56; 
46  A.  R.  667;  8  A.  S.  876;  29  A.  S.  48;  34  A.  S.  653;  91  A.  S.  629; 
91  A.  S.  681;  15  L.  434;  17  L.  699;  18  L.  759;  39  L.  161;  55  L.  118; 
5  W.  &  P.  4755. 

Accident  as  evidence  of. — See  6  A.  S.  792;  30  A.  S.  736;  20  A. 
S.  490. 

Accident  policy,  contributory  negligence  as  defense  to  suit  on. 
—See  13  L.  266. 

Act  of  God  does  not  excuse  when. — See  95  A.  D.  125;  brief  52 
L.  15. 

Actionable  negligence — As  to  generally,  see  9  A.  C.  425. 

Same — Essential  elements  of. — :See  1  A.  C.  206. 

Agent  or  servant  of  third  person,  liability  of  for  his  own 
negligence   or  nonfeasance. — See   28   L.   433. 

Agreements  waiving  the  right  to  recover  for  future. — See  58 
A.  R.   836. 

Appeal,  loss  of  by  negligence  as  ground  for  injunction  against 
judgment. — See    30    L.    562. 

As  a  fact. — See  26  A.  R.  272;  5  W.  &  P.  4748. 

As  a  question  of  law  or  fact. — See  3  A.  R.  515;  52  A.  R.  468;  66 
A.  S.  39;  42  L.  ed.  491;  5  W.  &  P.  4753. 

As  act  of  commission  or  omission. — See  90  A.  S.  564;  61  L.  277; 
5  W.  &  P.  4743. 

Same — Cautious  and  prudent  man. — See  22  L.  635;  5  W.  & 
P.  4744. 

Same — Ordinarily  prudent  person. — See  5  W.  &  P.  4744. 

Same — Ordinary  careful  person. — See  5   W.  &  P.   4744. 

Same — Reasonable  and  prudent  man. — See  91  A.  D.  681;  58  A.  S. 
709;  26  L.  229^;  21  L.  ed.  206;  5  W.  &  P.  4744. 

Same — Reasonable  person.- — See  5  W.  &  P.  4745. 

Same — Reasonably  prudent  person. — See  5  W.  &  P.  4746. 

As  affecting  liability  other  than  person  or  property. — See  1  L. 
319;  1  L.  500;  2  L.  700;  7  L.  31;  13  L.  266;  30  L.  562;  31  L.  33;  43 
L.    593;    45   L.  39;  55  L.  755. 

As  an  inference  of  fact. — See  5  W.  &  P.  4748. 

As  an  unintentional  wrongful  act. — See  5  W.  &  P.  4762. 

As  failure  of  duty. — See  49  A.  D.  239;  45  A.  R.  628;  2  A.  S.  542; 
49  A.  S.   516;   19  L.   563;   5   W.   &  P.   4748. 

Same— Legal   duty.— See  20  A.  R.   356;   5  W.   &  P.   4750. 

Same — Noncontractual  duty. — See  5  W.  &  P.  4750. 

As  failure  to  exercise  care  justly  demanded  by  circumstances. 
—See  25  A.  S.  186;   82  A.  S.  425;   5  W.  &  P.  4750. 

As  failure  to  provide  against  ordinary  occurrences. — See  8  L. 
134;  5  W.  &  P.  4751. 

As  failure  to  use  greatest  care. — See  5  W.  &  P.  4751. 

As  ignorance. — See  5  W.  &  P.   4752. 

933 


§  1714  CIVIL  CODE.  [Div.III. 

As  the  breach  or  omission  of  a  legal  duty. — See  54  A.  R.  718;  5 
W.    &   P.    4746. 

As  to  failure  of  judge  to  distinguish  between. — See  11  L.  615. 
As  to  what  a  prudent  man  would  not  do. — See  5  W.  &  P.  4748. 
As  to  what  constitutes.— See  7  A.  C.   1126;   1  A.   S.   526;    39  A. 
S.  261;  2  L.  587;  2  L.  695;  5  W.  &  P.  4743. 

As  to  what  constitutes  act  of  God. — See  57  L.   707. 
As  to  what  is  inevitable  accident. — See  11  L.  616. 
As  to  who  are  liable  for.— See  15  L.  818;  26  L.  154;  26  L.  504;  28 
L.  427T^;'^  I'.  433;  37  L.  301;  39  L.  33;  51  L.  477;  63  L.  227. 

As  want  of  care.— See  52  A.  S.   293;   32  L.  535;   5  W.   &  P.   4756. 
Same — ^Man     of    ordinary    and    reasonable     prudence. — See     5 
W.  &  P.  4758. 

Same — Man  of  ordinary  care  and  prudence. — See  5  W.  &  P. 
4757. 

Same — Man  of  ordinary  prudence. — See  48  A.  R.  96;  66  A.  S. 
39;  5  W.  &  P.  4757. 

Same — Ordinarily  careful  and  prudent  person. — See  5  W.  «&  P. 
4758. 

Same — Ordinarily  prudent  man  in  his  own  affairs. — See  5  W.  & 
P.   4758. 

Same — Ordinarily  prudent  person. — See  5  W.   &  P.   4758. 
Same — Ordinary  man. — See  5  W.  &  P.  4758. 

Same — Person  of  common  sense  and  prudence. — See  37  A.  S. 
374;  5  W.   &  P.  4757. 

Same — Person  of  great  care  and  prudence. — See  5  W.  &  P.  4757. 
Same — Prudent  and  just  man. — See  17  A.  S.  791;  5  W.  &  P.  4759. 
Same — Prudent,  careful,   diligent,  or  skillful   man. — See    54  L. 
402;   5  W.  &  P.  4759. 

Same — Reasonable  and  provident  person. — See  5  W.  &  P. 
4759. 

Same — Reasonable  and  prudent  person.- — See  58  A.  S.  709;  33 
L.    598;    5  W.   &  P.   4759. 

Same — Reasonably  prudent  and  cautious  man. — See  5  W.  &  P. 
4759. 

Same — Required  by  circumstances. — See  35  A.  R.  748;  48  A.  R. 
213;  60  A.  R.  346;  4  A.  S.  608;  11  A.  S.  541;  38  A.  S.  830;  22  L. 
606;. 42  L.  ed.  491;  5  W.  &  P.  4759. 

Same — Required  by  duty. — ^See  49  A.  D.  239;  58  A.  S.  709;  33  L. 
598;  5  W.  &  P.  4760. 

As  want  of  care  and  caution. — See  7  A.  S.  751;  5  W.  &  P. 
4762. 

As  want  of  care  and  diligence. — See  5  W.  &  P.  4762. 
As  want  of  care  and  prudence. — See  5  W.  &  P.   4762. 
Same — Man  of  ordinary  intelligence. — See  5  W.   &  P.   4762. 
As  want  of  diligence. — See  5  W.  &  P.  4748. 

As  want  of  ordinary  and  reasonable  care. — See  5  W.  &  P. 
4761. 

934 


\-^ 


Pt  III.]  LIABILITY    FOR    NEGLIGENCE.  §  1714 

AS  want  of  ordinary  care.-See   28  A.  R.   29;   52  A.  R.   468;  90 
A.  S.  564;  34  L.  812;  61  L.  277;  5  W.  &  P.  4761 

As  want  of  ordinary  care  and  caution.— See  5  W    &  P.  476- 

As  want  of  ordinary  care  and  diligence.-See  5  W.  &  P.  4*6.. 
As  want  of  ordinary  care  and  prudence.— See  5  W.  &  P.  4/b-. 

As  want  of  prudence.— See  5  W.  &  P.  4762.  .  ^    „    ^    4761 

As  want  of  reasonable  care.-See  59  A.  D    72     5  W.  &  P.  4761. 

As    wrongful    conduct    spring    from    inadvertence.— See    8    A. 
S.  911;  5  W.  &  P.  4763. 

Assumption  of  risk  incident  to  employment-As  to,  see  Kerr  s 
Cvc    C    C.  ?  1970  and  note. 

same-Minor   child's  assumption    of   risk   incident   to   employ- 
ment,  whetlier  questions  of  fact— As  to.— See   Kerr  s  Cyc.  C.   C. 

^  'Tttractivrnegligence."  doctrine  of  as  applied  to  injury  from 
hot  water  or  ashes. — See  3  L.  N.  S.  149. 

Bank,  liability  of  for  negligence   in   making   collections.— See 

52   L.    700.  ,        ,       ^,1  a   ^  a  7 

Bathhouse— Liability  of  for  loss  of  guests'  valuables.-See  6  L. 

N    S    828 
■game— Care  required  from  proprietor  of.— See  3  L.  N.  S.  982 

Bills  of  particulars  in  actions  for  negligence.-See  3  A    C^,^- 

Breach  of  warranty,  personal  injuries  as  element  of  damages 
for.— See  3  L.  N.  S.  1047.  i    a    n    770 

Burden  of  proof— As  to  generally,  see  1  A.  C.  613_;  1  A.  C.  7^9. 

Same— Sufficiency  of  proof  of  when  passenger  is  injured.- bee 

62  A.  D.   679.  o    a     /-■    -7 

Care  and  prudence  required  in  general.- See  3  A.  C.  ot. 

Care   due   to   sick   or   otherwise   helpless   person,  to   whom    no 
contract  relation  is  sustained.— See  69  L.   513-554. 

Care  to  be  exercised  by  person  injured  ^^y-— See  23  A.  R.  -5. 

Carelessness  synonymous  with.— See  1  W.  &  P.  973;  5  W.  &  P. 

4746  o         1    T 

Carrier,    right   to    exempt    itself   from   liability    for.— See    1    L. 

^  Causing  death  or  injury— As  to  generally,  see  3  L.  N.  S.  53;   6 
L    N    S.   283;   6  L.  N.  S.   800. 

•same-Applicability     of     doctrine     of    J-e^/f^,,,^^^^"^'"''     ^" 
absence  of  contractual  relations.— See  6  L-  N.  S.  800. 

Same— Dangerous    agencies.— See    3    L.    N.    S.    330,    3    L.    N.    S. 

1038;  4  L.  N.  S.  119.  „   .     tvt    a     aa<x-   4  t     k    S 

Same— Dangerous  attractions.— See   3  L.  N.  S.   449,   4  L.   N.  S. 

880 

Same-Dangerous  premises.-See  1  L.  N.  S.  427;  1  L.  N.  S.  596; 

3  L.  N.  S.  1132;   5  L.  N.  S.  733;   12  L.  N.  8^721 

Same— Injury  to  or  loss  of  property.— See  3  L.  N.  S.  348,  b  i..  iN. 
S.  243;  6  L.  N.  S.  828. 

935 


§  1714  CIVIL  CODE.  [Div.III. 

Same — Negligence  of  manufacturer. — See  1  L.  N.  S.  178;  2 
L.  N.  S.  303;  3  L.  N.  S.  1047;  5  L.  N.  S.  1103. 

Same — Negligence  of  third  person  as  affecting. — See  2  L.  N.  S. 
556;  2  L.  N.  S.  799;  6  L.  N.  S.  306;  10  L.  N.  S.  942. 

Same — On  highways,  private  ways,  or  waterways. — See  5  L. 
N.  S.  252;  6  L.  N.  S.  310;  7  L.  N.  S.  920;  10  L.  N.  S.  845-856;  12  L. 
N.  S.  1152. 

Same — Violation  of  statute  or  ordinance. — See  5  L.  N.  S.  253;  7 
L.  N.  S.  335;  9  L.  N.  S.  339. 

Child,  dl templing  to  cross  street  car  tracks,  what  acts  of  are 
contributory  negligence  as  matter  of  law. — See  11  L.  N.  S.  166. 

Child,  question  of  contributory  negligence  of,  is  for  jury  when. 
— See  3  Lr.  385;  17  L.  79. 

Child,  tort  generally,  see  4  L.  127;  8  L.  42;  14  L.  781. 

Child's  tort,  negligence  of  parent  as  affecting  his  liability 
for. — See  10  L.  N.  S.   942. 

Collision  on  highway,  rule  of  the  road — As  to  generally,  see  11 
L.  33;  47  L.  293. 

Concurrent  of  two  or  mofe  persons  resulting  in  injury  to  a 
third. — See  16  A.  S.  250. 

Concurring  negligence  of  third  person,  effect  of. — See  17  L. 
33-38. 

Consequences  for  wliich  person  guilty  of  is  liable. — See  96  A. 
D.   649. 

Contagious  disease,  liability  for  communicating. — See  19  L. 
175. 

Contract,  negligent  breach  of. — See  12  L.  N.  S.  924. 

Contractor,  liability  to  third  person  for  defects  in  work  after 
completion  and  acceptance. — See  25  L.  504. 

Contributory — And  the  general  principles  of  law  applicable  to. 
— See  55  A.   D.   666. 

Same — As  a  defense  and  effect  of. — See  3  L.  385;  3  L.  594;  4  L. 
126;  4  L.  239;  4  L.  263;  5  L.  787;  6  L.  194;  7  L.  678;  8  L.  783;  9  L. 
640;  11  L.  130;  12  L.  279. 

Same — As  defense  to  one  employing  child  under  statutory  age. 
—See  12  L.  N.  S.  461. 

Same — As  question  for  jury. — See  6  L.  214. 

Same — Back-water  of  stream,  as  affecting  liability  for. — See 
59  L.   904. 

Same — Burden  of  disproving. — See  58  A.  R.   229. 

Same — Same — When  must  be  assumed  by  plaintiff. — See  39  A. 
R.  511. 

Same — Burden  of  proof  as  to. — See  28  A.  R.  563. 

Same — Distinguished. — See  5  W.  &  P.  4746. 

Same — Doctrine  of  "last  clear  chance". — See   55  L.   418. 

Same — Effect  of  on  right  of  action  for  violation  of  statute  not 
expressly  conferring  it. — See  9  L.  N.  S.  342. 

936    • 


J 


pt.  III.]  LIABILITY    FOR    NEGLIGENCE.  §  1714 

Same — Error  of  judgment,  in  case  of  danger. — See  6  L.  195;  7 
L.   843;   11   L.   131. 

Same — Failure  of  person  insured  to  remove  cause  of  injury, 
as  affecting-  right  to  recover. — See  3  L.  N.  S.  1092. 

Same — Imputed  negligence — As  to  generally,  see  1  L.  152;  3 
L.  385;  6  L.  143;  6  L.  545;  8  L.  494,  495;  9  L.  157;  14  L.  733;  17  L. 
79;  21  L.  76-82;  22  L.  460. 

Same — In  attempt  to  preserve  human  life. — See  25  A.  R.  164. 

Same — In  touching  electric  wire. — See  31  L.  589;  32  L.  403. 

Same — Intoxication  as. — See  25  A.  S.  39. 

Same — In  use  of  a  street  known  to  be  out  of  repair. — See  44 
A.  R.  276. 

Same — Must  be  proximate  cause  of  injury. — See  7  L.  132;  12  L. 
280. 

Same — Navigation,  in  case  of  injuries  by. — See  64  L.  987. 

Same — Question  of,  of  child  for  jury  when. — See  3  L.  385;  17 
L.   79. 

Same — Of  child. — See  3  L.  385;  4  L.  127;  6  L.  536;  8  L.  842; 
10  L.  654;  12  L.  216;  17  L.  79. 

Same — Same — How  questions  as  to  child's  sui  juris  determined. 
— See  10  L.  655. 

Same — Of  children,  when  does  not  preclude  a  recovery  for 
injuries  to.— See  55  A.  R.  864. 

Same— Of  parent,  effect  of  to  defeat  the  recovery  for  injury 
or  death  of  child. — See  10  L.  653;  17  L.  79. 

Same — Parent  guilty  of  in  permitting  child  to  play  on  side- 
walk, when. — See  10  L.  654. 

Same — Test  of. — See  11  L.   131;  13  L.  729. 

Same — Trespasser,  of,  effect  to  defeat  recovery  against  rail- 
road.—See  10  L.  140. 

Same — Violation  of  rule  which  conflicts  with  other  rules  or 
ordinances,  as. — See   9  L.  N.  S.   972. 

Same — Voluntarily  incurring  danger  to  save  another's  life. 
— See  49  L.  715. 

Same — "What  acts  of  child  are,  in  attempting  to  cross  street 
car  tracks,  as  matter  of  law. — See  11  L.  N.  S.  166. 

Same — What  is  and  when  prevents  a  recovery. — See  8  A.  S. 
849. 

Same — What  is  and  what  is  not. — See  32  A.  R.  98. 

Same — When  does  not  bar  a  recovery. — See  30  A.  R.  190;  38 
A.  R.  637. 

Corporations,  standard  or  degree  of  care  directors  are  bound 
to  exercise. — See  55  L.  755. 

Counties,  liability  of  for. — See  39  L.  33. 

Criminal  negligence — Definition  of. — See  3  L.  644;  2  W.  & 
P.  1750. 

Same — Negligent  homicide. — See  61  L.  277;  61  L.  298;  63  L.  292. 

Same — Not  computed  to  master. — See  3  L.   644. 

937 


§  1714  CIVIL  CODE.  [Div.III. 

Damage — Necessity  for  resultant. — See  2  A.  C.  802. 

Damming  back  water  of  stream,  contributory  negligence  as 
affecting  liability  for. — See  59  L.   904. 

Dangerous  agencies,  liability  for  negligence  in  connection 
■with.— See  3  L.  N.  S.  330;   3  L.  N.  S.  1038;   4  L.  N.  S.  119. 

Dangerous  premises — As  to. — See  5  L.  580;  5  L.  794;  7  L.  620; 
9  L.  640;  11  L.  361;  12  L.  189;  15  L.  35;  15  L.  160;  26  L.  200;  26 
L.  686-693;  29  L.'l54-161;  34  L.  577;  39  L.  70;  46  L.  59. 

Sair.e — Land  owner's  liability  to  persons  injured  by. — ^See  31 
A.   S.   524. 

Same — Liability  for  injuries  on. — See  1  L.  N.  S.  427;  1  L.  N.  S. 
596;  3  L.  N.  S.  1132;  5  L.  N.  S.  733;  12  L.  N.  S.   721. 

Defective  machinery,  liability  of  manufacturer  of  dangerous. — 
See  5  L.  N.  S.   1103. 

Defective  tool,  liability  for  manufacture  of. — See  2  L.  N.  S.  303. 

Definition  of.— See  7  A.  C.  1126;  1  A.  S.  526;  39  A.  S.  261; 
5  W.  &  P.   4743. 

Degrees  of.— See  11  L.  689;  23  L.  ed.  374;  5  W.  &  P.  4747. 

Diligence  required  when  a  human  life  is  involved. — See  77  A. 
S.   26. 

Disobedience  of  statute  of  ordinance,  liability  for  injury  re- 
sulting.—See  5  L.  N.  S.  253;  7  L.  N.  S.  335;  9  L.  N.  S.  339. 

Duty  as  an  essential  element  of. — See  12  L.  322. 

Duty  of  owner  of  premises  to  licensee. — See  1  A.  C.  209. 

Educational  institution,  liability  for  negligence  of  instructor 
causing  injury  to  pupil. — See  2  L.  N.  S.  556. 

Effect  of  judgment  in  favor  of  party  charged  with,  upon 
liability  of  co-defendant  for  same  act  of  negligence. — See  2  L. 
N.   S.    764. 

Effect  on  right  to  equitable  relief  from  contract  by  which 
one  has  been  overreached. — See  5  L.  N.  S.  799. 

Electric  wire — Contributory  negligence  in  touching. — See  31 
L.   529;   32  L.   503. 

Error  of  judgment  in  case  of  danger. — See  6  L.  195;   7  L.  843; 
11    L.    131. 
^Essential  elements  of  actionable  negligence. — See  1  A.  C.   206. 
'Evidence — As  to  generally,  see  8  A.  C.  1041;  10  A.  C.   1046. 

Same — Admissibility  in  action  for  negligence  of  evidence  of 
absence  of  prior  accident. — See  5  A.  C.   1014. 

Same — Burden  of  proof. — See  1  A.  C.  613;  1  A.  C.  779. 

Evidence  of  other  accidents,  when  admissible. — See  44  A.  R. 
694. 

Evidence  of  subsequent  repairs. — See  50  A.  R.  53. 

Evidence  of  usage  and  custom  on  questions  of,  admissibility. — 
See  10  L.  366. 

Excavations  on  uninclosed  land  near  highway,  duty  to  tres- 
passer with   respect  to. — See   5  L.   N.   S.   733. 

Exhibition    or   place    of   amusement    to    which    the    public   are 

938 


i 


Pt  III.]  LIABILITY    FOR    NEGLIGENCE.  §  1714 

invited,  liability  of  proprietor  for.  safety  of  persons  visiting.— 
See  1  L.  N.  S.  427;  3  L.  N.  S.  1132. 

Fault  implied.— See  26  A.  S.  308;  5  W.  &  P.  4751. 

Fire,  as  to  use  of. — See  21  L.   255. 

Fireworks,  negligence  in  displaying. — See  3  L.  N.  S.  330. 

Food  or  drugs,  liability  of  vendor  for  sale  of  unwholesome.— 
See   21  L.   139. 

Foreseeing  effect. — See  5  W.  &  P.   4751. 

Former  accidents,  whether  admissible  as  evidence  of. — See  57 

A.    R.    812. 

Function    of    court    and   jury,    respectively. — See    5    A.    C.    171; 

9   A.   C.    282. 

Gas,  respecting  the  escape  and  explosion  of. — See  29  L.  337. 
Gun's  and   similar  dangerous   agencies,    in    respect  to.— See    14 

L.    675. 

Habits  of  person   injured,  when   may   be   considered   m   deter- 
mining.—See   34   A.  R.   691.  . 
Illness   of   person   injured  as   proximate   cause   of   injury. — See 
2  A.  C.   734. 

Imminently    dangerous  acts. — See    13   L.    765. 
Imputed— As  to  generally,  see  110  A.  S.  278;  8  L.  494. 
Same — Of  driver  to  passengers. — See   1  L.   152;   6   L.   143;   9  L. 
157:  8  L.  N.  S.  597-671. 

Same— Of  husband  to  wife,  as  bar  to  recovery.— See  22  L.  460. 
Same — Same — When  riding  with  him. — See  14  L.  743. 
Same— Of  parent  or  custodian,   as  bar  to  action   by  child  for 
negligent  injuries. — See  21  L.  76. 

Same— Of  parent  to  child.— See  3  A.  C.  385;  6  L.  545;  8  L.  495; 
17  L.  79. 

Incompetency   distinguished. — See   5   W.   &   P.    4752. 
In  dealing  with  children. — See  49  A.  S.  406. 

In    respect   to   guns   and   similar   dangerous   agencies. — See    14 
L.   675. 

Insane  person,  liability  of. — See  26  L.  154. 

Instructions   on   action   for,   as   to    generally,   see   5   A.    C.    448; 
S   A.   C.    1087. 

In  the  use  of  electricity. — See   100  A.  S.   518,   527. 
Intent  distinguished.— See   54   A.   R.    437;    8  L.    135;    5   W.   &   P. 
4752. 

Intervening  cause — As  to  generally,  see  1  A.  C.  346;  9  A.  C.  318. 
Intoxicated  persons,  care  due  to. — See  25  A.  S.  44. 
Intoxication  as  affecting. — See  40  L.  133-146. 

Judgments,  equitable  relief  from,  when  barred  by. — See  53  A. 
S.  444. 

Judgment^  error  of,  in  case  of  danger. — See  6  L.  195;  7  L.  843; 

11  L.  131. 

•Knowledge  of  duty.— See  5  W.  &  P.   4750. 
Laches  synonymous  with. — See   5  W.   &  P.   4753. 

939 


§  1714  CIVIL  CODE.  [Div.III. 

"Last  clear  chance" — Doctrine  of. — See  55  L.  418. 

Same — Same — As  affected  by  question  whether  negligence  of 
plaintiff  or  deceased  and  of  defendant  was  concurrent. — See  7 
L.  N.  S.   132. 

Lateral  support,  liability  for  injuries  to  buildings  on  adjoin- 
ing ground  for  removal  of. — See  6  L.  N.  S.  243. 

Leaving  horse  unhitched  in  highway,  liability. — See  10  L.  N. 
S.   845-856. 

Liability  of  land  owner — For  injury  to  trespassing  child  on 
accouriL'  ui  ungiuirded  pool,  pond,  well,  etc. — See  7  A.  C.   200. 

Same — To  trespassing  child  injured  by  dangerous  substances 
on  premises. — See  5  A.  C   503. 

Liability  of  owner  of  premises  to  public  officer  who  goes  on 
premises   in  discharge  of  official  duties. — See   9  A.  C.   1123. 

Liability  of  remote  wrongdoer  for  damages  caused  by. — See 
57  A.  D.  461. 

Licensees,  liability  of  land  owner  for  injuries  to. — See  23  A.  R. 
183;  26  A.  R.  562;  42  A.  R.  315. 

Limit  of  liability  for,  to  direct  consequences. — See  13  L.  293. 

Livery  stable  keeper,  liability  for  loss  of  patron's  property. — 
See  3  L.  N.  S.  348. 

Malice  distinguished.— See  5  W.  &  P.   4753. 

Manufacturer,  liability  of  for  dangerous  articles. — See  15  Li. 
818. 

Manufacturer  or  seller,  liability  for  negligence.— See  1  L.  N. 
S.   1178;  2  L.  N.  S.  203;  3  L.  N.  S.  1047:   5  L.  N.  S.   1303. 

Medical  treatment,  aggravation  of  injuries  by. — See  50  A.  R. 
603. 

Misfeasance  distinguished. — See  5  W.  &  P.  4753. 

Navigation,  contributory  negligence  in  case  of  injuries  by. — 
See  64  L.  987. 

Necessity  for  resultant  damage. — See   2   A.   C.   802. 

Negligence  of  railroad  company  as  proximate  cause  of  dam- 
age by  fire  as  affected  by  consideration  of  time  and  distance 
traveled  by  fire. — See  3  A.  C.  386. 

Negligent  breach  of  contract. — See  12  L.  N.  S.  924. 

Negligent  discharge  of  fire  arms — Civil  liability  for. — See  4 
L.   N.   S.   119. 

Same — Liability  for  injuries  to  trespassers. — See  10  L.  N.  .S. 
1038. 

Non-compliance  with  statute  as  affecting. — See  21  L.  723;  28 
L.    749. 

Noxious  vegetation  and  weeds,  liability  of  owner  or  occupant 
of  land  for  spreading  unto  adjoining  premises. — See  52  L.  293. 

Objects  calculated  to  frighten  horses,  liability  for  placing  near 
highway. — See  12  L.  N.  S.   1152. 

Objects  suspended  over  street,  liability  for  injury  from  fall  of. 
— See   1  L.  N.  S.  721. 

940 


Pt.  III.]  LIABILITY    FOR    NEGLIGENCE.  §  1714 

Of  driver  of  veliicle,  whether  imputable  to  his  passenger. — 
See  23  A.  R.   4;  54  A.  R.   135;   57  A.  R.  488. 

Officers  of  corporation,  liability  of  for  corporation's  negli- 
gence.— See   28   L.    427. 

Of  passenger  on  railways  in  projecting  a  member  of  his  body 
out  of  a  car  window. — See  116  A.  S.  721. 

Operation  of  street  railway  cars  in  violation  of  n^unicipal 
ordinance  as  negligence  per  se. — See  9  A.  C.  840. 

Parent — Guilty  of  contributory  negligence  in  permitting  child 
to  play  on  sidewalk  when. — See  10  L.   654. 

Same — Negligence  of  as  affecting  liability  for  tort  of  cliild. — 
See    10   L.   N.   S.    942. 

Parent's  negligence,  effect  of  to  defeat  liis  right  to  recover  for 
injury  or  death  of  child. — See  10  L.  553:   17  L.  779. 

Partnersliip,   liability    of   for. — See   51    L.    477. 

Person  in  charge  of  train  has  right  to  presume  that  child 
will  get  out  of  danger. — See  6  L.  N.  S.  283. 

Persons  of  ordinary  prudence  and  care. — See  5  W.  &  P.  4744.' 

Persons  to  whom  duty  due — As  to  generally,  see  1  A.  C.  206; 
7  A.  C.   196. 

Same — Licensee. — See  1  A.  C.  209. 

Same — Public  officer,  who  goes  on  premises  in  discharge  of 
official  duty. — See  9  A.  C.  1123. 

Same — Trespassing  children — Injured  by  dangerous  substances 
upon   premises. — See   5   A.   C.    503. 

Same — Same — To  on  account  of  unguarded  pond,  pool,  well, 
etc. — See   7  A.  C.    200. 

Physical  injury  resulting  from  fright  caused  by  negligence, 
right  to  recover  for. — See  3  L.  N.  S.  53. 

Pleading  in  action  for  negligence — Bill  of  particulars  in  action 
for  negligence. — See  3   A.  C.   161. 

Same — Requisites  of. — See  1  A.  C.  206;  7  A.  C.  531. 

Presumption  of,  for  occurrence  of  accident  to  person  on  de- 
fendant's premises. — See   15  L.   35. 

Presumption  of,,  from  an  accident  or  .injury. — See  43  A.  R.  73; 
6  A.  S.   792;   113  A."  S.  986. 

Principal,  negligence  of  as  affecting  real  estate  broker's  right 
to   commission. — See   43  L.   593. 

Private  grounds  lying  open  beside  highway  or  frequented 
path,  liability  for  dangerous  condition  of. — See  26  L.   686. 

Private  sanitarium,  liability  of  proprietor  for  negligence  of 
nurse.— See  6  L.  N.  S.  306. 

Privity  necessary  to  sustain  a  recovery  for. — See  42  A.  R.  15; 
100   A.    S.    192. 

Privity  of  contract  as  an  element  of  actionable  negligence. — 
See   1   A.  C.   755. 

Privity,  right  to  recover  in  the  absence  of. — 100  A.  S.  192. 

Proximate   and   remote   causes   of   injury   from. — See   50   A.    R. 

941 


§  1714  CIVIL  CODE.  [Div.III. 

569;  36  A.  S.   807;   2  L.   695;   5  L.   786;   6  L.   194;   7  L.   130;   8  L.   32; 
12  L.   279;   13  L.   733. 

Proximate  cause  and  intervening  condition. — See  1  A.  C.  230. 

Proximate  cause  and  natural  consequences — As  to  generally, 
see  1  A.  C.  613;  3  A.  C.  57;  4  A.  C.  150;  5  A.  C.  578;  8  A.  C.  435. 

Proximate  cause,  of  what  subsequent  injuries  deemed  to  be. — 
See   47  A.   R.   381. 

Real  estate  broker — Negligence  of  as  affecting  right  to  com- 
mission.— See  45  L.   39. 

Samp— Negligence  of  principal  as  affecting  right  to  commis- 
sion.—See  42   i-.    S'iS. 

Recklessness,  effect  of  to  supply  want  of  specific  intent. — See 
6   L.    244. 

Relation  of  tiespass  and  imwarrantable  interference.- — See  13 
L.    765. 

Repairs  after  an  accident,  whether  admissible  as  evidence  of 
prior   negligence. — See   57  A.   R.    183;    18   A.   S.    307. 

Res  ipsa  loquitur,  application  of  doctrine  on  in  absence  of 
contractual  relations. — See  6  L.  N.  S.  800. 

Right  to  recover  for  when  there  is  no  privity. — See  100  A.  S. 
192. 

School  district  or  school  corporation,  liability  to  action  for 
damages  from. — See    27   L.   301. 

Seller  of  article,  liability  of  for. — See  1  L.  N.  S.  1178;  2  L.  N. 
S.  203;  3  L.  N.  S.  1047;  5  L.  N.  S.  1303. 

Sidewalk — Parent  guilty  of  contributory  negligence  in  per- 
mitting child  to  play  on. — See   10  L.   654. 

Statute  of  limitation — Begins  to  run  against  action  for,  of 
attorney  in  performing  professional  duties  when. — See  12  L.  N. 
S.    1005. 

Same — Effect  of  negligence  to  stop  running  of. — See   1  L.   319. 

Steamer,  duty  to  avoid  imperiling  small  boats  by  swells. — 
See  7  L.  N.  S.  920. 

Third  person,  negligence  of,  liability  for. — See  2  L.  N.  S.  199; 
2  L.  N.  S.   556;   6  L.  N.  S.«306;   10  L.  N.  S.   942.  . 

Trespasser — Contributory  negligence  of,  effect  to  defeat  recov- 
ery against  railroad. — See  10  L.   140. 

Same — Killed  by  means  of  spring  guns,  traps,  or  other  dan- 
gerous instrument,  liability  for. — See  29  L.  154. 

Same — Liability  of  for  negligence  of  servants. — See   63  L.   227. 

Trustee  to  sell  real  estate,  negligence  of  and  care  demanded. — 
See  3  L.  N.  S.  415. 

Turntables,  liability  of  railroad  companies  for  injuries  to 
children   playing  on. — See  4  L.  N.   S.    80. 

Vendor  for  sale  of  unwholesome  food  or  drugs,  liability. — See 
31  L.   129. 

Violation  of  a  statutory  duty  as  foundation  for  action  of  neg- 
ligence.— See  10  A.  C.   294. 

942 


p^  jjj  -J  OTHER    OBJECTIONS.  §  1715 

Violation   of  statute   or   ordinance  not  intended  for  plaintiffs 
benefit  as  actional^le  negligence.-See  9  A    a  42.. 

Voluntarily   incurring  damage   to   save   the   life   of   another. 

See    49    L.    715.  „        ,  j     -oi 

warehouse  men.  liability  of  for  negligence.— See  7  i..  o6i. 
waters  storTd   ^r  confined,  liability   for   damages  in   escapmg 

°"wr:ds^^ntitf  vegetation,  liability   of   owner  or   oct 

of  land  for  spreading  unto  ad^o^-" ^  ^  ""AT-  r  5^     5  W    & 
Wilfulness  distinguished.— See  46  A.  S.   299,   2.  L.   o5.,   t.    w. 

P.  4763. 

§1715.  OTHER  OBLIGATIONS.  Other  obligations  are 
prescribed  by  divisions  one  and  two  of  this  code. 

History:  Enacted  March  21.  1872.  amended  by  Code  Commis- 
sion Act  March  16,  1901.  Stats,  and  Amdts.  1900-1.  p.  409.  held 
unconstitutional,  see  history.   §   4  ante. 


L 


943 


§1721 


CIVIL  CODE. 


[Div.III.Pt.IV. 


PART  IV. 

OBLIGATIONS  ARISING  FROM  PARTICULAR  TRANS- 
ACTIONS. 

Title  I.  Sale,  §§  1721-1798. 

II.  Exchange,  §§  1804-1807. 

III.  Deposit,  §§  1813-1878. 

IV.  Loan,  §§  1884-1920. 
V.  Hiring,  §§1925-1959. 

VL  Service,   §§1965-2079. 

yn.  Carriage,  §§  2085-2209. 

VIII.  Trusts,  §§  2215-2289. 

'  IX.  Agency,   §§  2295-2389. 

X.  Partnership,  §§  2395-2520. 

XI.  Insurance,  §§  2527-2766. 

XII.  Indemnity,   §§2772-2781. 

XIII.  Guaranty,  §§  27^7-2866. 

XIV.  Lien,  §§2872-3080. 

XV.     Negotiable    Instruments,    §§3086-3262. 
XVI.     General  Provisions,  §  3268. 


TITLE  I. 

SALE. 

Chapter  I.  General  Provisions,  §§  1721-1741. 

n.  Rights  and  Obligations  of  the  Seller,  §§  1748-1778. 

III.  Rights  and  Obligations  of  the  Buyer,  §§  1784-1786. 

IV.  Sale  by  Auction,  §§  1792-1798. 


11 


944 


Tit.I,ch.I,art.I.]  SALES,    GENERALLY.  §1721 


CHAPTER  I. 
GENERAL    PROVISIONS. 


Article  I.     Sale,  §§  1721,  1722. 

II.     Agreement  for  Sale,  §§  1726-1734. 
III.     Form  of  the  Contract,  §§  1739-1741. 


ARTICLE  I. 

SALE. 

§  1721.     Sale,   what. 

§  1722.     Subject  of   sale. 

§  1721.  SALE,  WHAT.  Sale  is  a  contract  by  which,  for  a 
pecuniary  consideration,  called  a  price,  one  transfers  to 
another  an  interest  in  property. 

History:     Enacted  Ma^rch   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  56  pars,  annotation. 

97  C^  70    71    31  P.   733    (referred  to);   99  C.   89,   93,   37   A.   S.   3., 
33  P.  737,  738 '(construed);  149  C.  496,  499   (erroneously  cited  for 
§1421),  8*6  P.  1081,  1082    (correct  citation). 
SALES — GENERALLY. 

As   to   accord  and   satisfaction,    see   Kerr's   Cyc.    C.   C.    §§  1521- 

1524  and  notes.  <-.    n     S1707 

As  to   offer  and  acceptance,   etc.,   see   Kerr  s   Cyc.   C.   C.    §  17.7 

and  note. 

As  to  options,  see  Kerr's  Cyc.  C.  C.   §  1727  a"d  note. 

As  to  what  constitutes,   see   8  A.  C.   502;   8  L.  N.  S.   937,   11  L. 

N    S    872 

As  to   What   constitutes   pledge,   see   Kerr's   Cyc.   C.   C.    §§  2086, 

2987  and  notes.  ^5 

Acceptance— And    delivery    of    goods    which    will    satisfy.— bee 

49  A.  D.  325;  37  A.  R.  16;  96  A.  S.   215.  11   t     m    ^ 

Same— As  satisfying  statute  of  frauds,  when.— See  11  L.  N.  b. 

1  1  Rfi 

Same— Before   agreement   as    to   purchase   price,    as   assent   to 
seller's  price.— See  11  L.  N.  S.  254.  1114.   in 

Same-Effect  of.-See  12  L.  399;   54  L.  718;  7  L.  N.  S.   1114,   10 
L.  N.  S.  638;   11  L.  N.  Si  254;   11  L.  N.  S.  1186. 

945 


§  1721  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Effect  of  as  a  waiver  of  damages  for  delay  in  deliv- 
ery.—See  7  L.  N.  S.  1114. 

Same — Of  goods  manufactured  to  order. — See  5  L.  702. 

Same — Of  offer  to  buy  or  sell. — See  Kerr's  Cyc.  C.  C.  §  1727 
and  note. 

Same — Refusal  of,  remedy  of  conditional  vendor  for. — See  68 
L.   120. 

Same — Right  to  retain  goods  and  defeat  action  for  price  on 
discovering  that  they  do  not  comply  with  requirements  of  con- 
tract.---Ree  4  L.  N.  S.   1167. 

Same — SuDseiiLient,  effect  of  to  take  sale  out  of  statute  of 
frauds. — See  10  L.  N.  S.  638. 

Action  for  price  before  expiration  of  credit  given. — See  3  L. 
N.    S.    908. 

Application  of  warranty  in  contract  of  sale  to  goods  not  in 
existence  when  contract  is  made. — See  6  A.  C.  115. 

Article  bought  for  special  purpose,  implied  warranty  of  fit- 
ness.— See  22  L.  187-197. 

Bailment  and  sale  distinguished. — See  2  A.  S.   711-713. 

Between  parties  in  fiduciary  relation. — See  2  A.  C.  873. 

Bicycles  as  subjects  of. — See  47  L.  305. 

Breach  of  warranty — Change  of  condition  of  chattel,  effect  of 
upon  right  to  return  for. — See  3  L.  N.  S.  678. 

Same — Does  it  extend  to  obvious  defects. — See  12  L.  N.  S.  82. 

Same^ — Provision  for  return  of  defective  goods,  effect  upon 
buyer's  right  to  recover  for  breach  of  warranty,  express  or  im- 
plied.— See  12  L.  N.  S.   540. 

Same — Right  of  purchaser  who  has  resold  to  recover  for 
breach  of  warranty  as  to  quantity  or  quality  where  he  has  not 
actually  made  good  to  his  vendees. — See  3  L.  N.  S.  465. 

Same — Waiver  of  notice  of  defects. — See  1  L.  N.  S.  142. 

Buyer's  risk. — See  75  A.  S.   77. 

Caveat  emptor,  rule  of,  when  inapplicable. — See  90  A.  D.  426. 

Conditional — As  to  law  governing,  see  64  L.  833. 

Same — Constructive  notice  of  by  records. — See  10  L.  236. 

Same — Distinguishing  from  mortgages. — See  1  A.  S.  63. 

Same — Effect  of  as  against  third  parties. — See  57  A.  R.  572. 

Same — On  installment  plan,  contract  of  lease. — See  9  L.  373; 
10  L.   233;   12  L.   446. 

Same — Purchaser  of  property  held  under. — See  42  A.  R.  105. 

Same— Reservation  of  title— In  bailments  for  sale,  as  against 
creditors  of  bailor  and  bailee. — See  22  L.  850. 

Same— Same — To  property  as  affecting  negotiable  note  for 
purchase  price. — See  43  L.  277. 

Same— Rights  and  liabilities  of  vendor  and  purchaser,  on 
default  of  payment. — See  32  L.  455-471. 

Same— Rights  of  seller  to  recover  amount  unpaid  where  prop- 
erty lost  or  destroyed  without  fault  of  purchaser.— See  2  L.  N. 
S.  927. 

946 


4 


Tit.I,Cll.I,art.I.]  SALES.    GENERALLY.  §  1721 

Same-Upon  the  final  payment  of  the  purchase  price—See  37 

A.  R.   664;   40  A.   R.   21. 

Same— Validity  of,  as  against  creditors,  etc.— See  12  L.  <0.. 
lame-waiver  of  condition  by  transfer  of  title  and  change  of 

'irm^:-W;ft'constUules;  distinguishes  from  bailment.-See  46 
A    S    295-   94  A.  S.   234;   10  L.  233. 

Conditioned  that  title  shall  remain  in  the  vendor  until  pay- 
ment, when,  and  against  whom  fraudulent.-See  58  A.  R.  386. 

Conflict  of  laws  as  to— Generally,  see  64  L.  823. 

Same— As  to  sale  of  intoxicating  liquors,  see  61  L-  41'- 

Consignment  of  property  for.   when  vests  title.-See   4o   A.   S. 

""construction  and  effect  of  -strike"  clause  in  contract  of  sale 
nnrl    deliverv. — See   9   L.  N.   S.   1187. 

Contracts!l"Of  sale  or  lease"  providing  for  payment  by  in- 
stallments.—See  89  A.  D.   127. 

Same-Or  deed  may  be  agreed  to   be  made.-See   Kerr  s   C>c, 

C.  C.  §  1731  and  note.  a        q  t     17" 

Same— Or  lease  as  a  condition   sale.— See  9  L.   rf.u. 
Copyrighted    articles,    restriction    on    sale    or    use    of.-See    5d 

^  cllporate  stock,  implied  warranty  on  sale  of.-See  10  AC.  168 
counterclaim  for- defects,  effect  of  setting  up  in  an  action  on 
one  of  a  series  of  notes  given  for,  or  to  recover  an  installment 
o^ the  purchase  price,  upon  the  ri^ht  to  set  up  like  counter- 
claim in  subsequent  actions.— See  10  L.  N.  S.    <3  4. 

Countermanding    or    terminating    executory    contracts    of    b> 
the  vendor.— See  33  A.  S.  791;  94  A.  S.  119. 

Damages-As   to,    generally,    see    "Measure    of    damages,      this 

"°Same— For  breach   of  implied  warranty.— See  13  L.   385. 

Same— For  sale  of  article  that  has  no  market  value.— See   57 

^'same-Loss  of  proceeds  of  sale  or  P^rchase.-See  52  L.  209^ 
Same-Measure   of   for  breach    of   warranty   of   title   to    goods 

sold.— See  7  A.  C.  937.  ,   t      -sq 

Same— On   breach   by   purchaser.— See   3   L.    obJ. 

Same— On  breach   by  seller.— See  3  L.   589. 

Same— Recovery  of  for  personal  injuries  m  action  for  breach 
of    warranty.— See    5    A.    C.    588.  o       oq  t     vns 

Death  of  party,  effect  on  contract  of  sale.-See  23  K  708. 

Delivery    of    goods— As    to.    generally,    see    3    A.    C.    903.    b    a. 

^' sime— Reasonableness  of  time  for  delivery  of  goods  sold,  as 
question  of  law  or  fact.— See  6  A.  C.   245. 

Deposit   of   grain    in   warehouse   as   bailment   or   sale.— bee 

A.  C.   1074. 

947 


g  ^721  CIVIL,  CODE.  [Div.III.Pt.IV. 

-J 
Description,  implied  warranty  on  sale  by. — ^See  14  L.   492. 
Differences  between  and   bailments. — See   2   A.   S.   711. 
Distinguished  from  bailment. — See   10   L.   233. 
Distinguished   from   contract   to   manufacture. — See    6    L.    788; 

14  L.    723. 

Duties  rights  and  remedies  of  parties — As  to,  generally,  see 
2  L.  519;  3  L.  589;  11  L.  681:  15  L.  834;  17  L.  209;  20  L.  259; 
21  L.  127;  21  L.  139;  24  L.  212;  50  L.  714;  52  L.  209;  52  L.  690; 
59  L.  737;  61  L.  417. 

San:        Kffect  of  contract  to  ship  f.  o.  b. — See  62  L.  795-805. 

Same — Liability  of  purchaser  on  illegal  sale  of  intoxicating 
liquors.— See   24   L.   212;   61  L.   417. 

Same — Pre-existing  debt  as  consideration  for  bona  fide  pur- 
chase of  property  not  negotiable. — See  36  L.  161-167. 

Same — Rescission  for  fraud. — See  1  L.  618;  2  L.  153;  4  L.  368; 
6  L.  151;  9  L.  611;  14  L.'264;  15  L.  189;  15  L.  795;  21  L.  135; 
51   L.    484;    64   L.    827. 

Same — Restrictions  on  sale  or  use  of  property  as  affecting 
purchaser. — See   55  L.   631-639. 

Same — Stoppage  in  transitu — As  to  generally,  see  3  L.  647;  4 
L.   732;   11  L.  347. 

Same — Same — Waiver  of  by  attachment  or  execution. — See 
50   L.    714-721. 

Effect  of,   as  ademption  of  legacy. — See   1  L.   204. 

Election    of    remedies    in    case    of    fraudulent    purchase. — See 

15  L.   89. 

Express   warranty. — See  "Warranty — Express,"   this  note. 

Extent  of  liability  for  breach  of  implied  warranty. — See  4 
A.  C.  1123. 

F.  o.  b. — Effect  of  contract  to  ship  goods. — See   62  L.  795-805. 

Same— Meaning  of.— See  9  A.  S.  199;  33  L.  ed.  405;  3  W.  & 
P.    2966. 

Same — Which  party  is  to  furnish  cars  under  a  contract  for 
shipment.— See   6   L.   N.  S.   928. 

Food  produce,  implied  warranty  on  sale  of. — See  4  A.  C.  1123, 
1124. 

Fraud,  purchase  by  insolvent  with  intention  not  to  pay. — See 
53    A.    R.    449. 

Fraudulent  concealment  by  vendor,  effect  of. — See  15  A.  D.  106. 

Fraudulent  purchase,  when  entitles  vendor  to  reclaim  the 
goods. — See  33  A.  D.   702. 

"Good,"  effect  of  representing  thing  sold  to  be. — See  15  L.  795. 

Goods,  sale  and  delivery  of,  admissibility  of  books  of  account 
to  prove. — See   52   L.    690. 

Having  in  view  the  subsequent  violation  of  foreign  or  domes- 
tic law. — See  32  A.  S.  450. 

Implied  warranty. — See   "Warranty — Implied,"   this   note. 

Same — On  sale  of  corporate  stock. — See  11  A.  C.  168. 

948 


Tit.I,ch.I,art.I.]  sales,   generally.  §  1721 

Insolvents,  purchases  by,  when  deemed  fraudulent. — See  27 
A.    R.    504. 

Knowledge  by  vendor  that  the  property  is  to  be  used  for  an 
unlawful  purpose,  whether  prevents  his  recovery  of  the  pur- 
chase  price. — See   32   A.   R.   122. 

Larceny,  sale  of  another's  property  as. — See  10  L.  N.  S.  816. 

Latent  defects,  implied  warranty  that  article  is  free  from. — 
See  22  L.  193. 

Liability — ^For  loss  of  or  damage  to  personal  property  pend- 
ing exercise  of  option  to   buy. — See  6  L.  N.   S.   273. 

Same — Fraudulently  concealing  defects  in  article  causing 
injury  to  stranger  by  reason  of  defect. — See  5  A.  C.   128. 

Same — Of  seller  for  injury  caused  by  explosion. — See  5  A. 
C.    181. 

Same — Of  seller  of  article  known  to  be  dangerous  by  reason 
of  concealed  defects.— See  5  A.  C.  124,  128;  5  A.  C.  181. 

Lien  of  vendor  of  personalty. — See  83  A.  S.   451. 

Loan  of  intoxicating  liquors  as  a. — See  8  L.  N.  S.   937. 

Loss  during  transit,   who  must  bear. — See   26  A.   S.   451. 

Loss  of  proceeds  of  sale  or  purchase  as  damages. — See  52 
L.    209. 

Loss  of  property  after  but  before  payment,  who  must  bear. — 
See    22   A.    S.    866. 

Measure  of  damages — For  breach  of  contract  for  sale  of  goods 
deliverable   in   installments. — See   6   A.   C.    164,    166. 

Same — For  breach  of  implied  warranty. — See  18  L.  385. 

Same — For  breach  of  warranty  of  title  to  goods  sold. — See  7 
A.    C.    937. 

Same — On  breach  by  purchaser. — See  3  L.   589. 

Same — On   breach    by   seller. — See    3   L.    589. 

Same — Price  at  which  goods  are  resold  as  affecting  for  breach 
of  warranty  as  to  quality. — See  5  L.  N.  S.   1151. 

Same — Recoverable  by  vendor  for  breach  of  contract  to  pur- 
chase article  to  be  manufactured. — See  7  A.  C.   1175. 

Misrepresentation  by  vendor  of  price  paid  for  property,  as* 
actionable   deceit. — See   8   A.   C.    1062;   also   note    §  1709   ante. 

Necessity  of  writing  to  make  binding  commission  to  pur- 
chase personal  property. — See  11  L.  N.  S.  650. 

Negatives  or  engraved  plates,  use  without  consent  of  party 
who  has  paid  for  same. — See  50  L.   397. 

Of  articles  to  be  manufactured,  title,  when  does  not  pass 
though  payment  has  been  made. — See  40  A.  R.  173. 

Of  business,  effect  to  carry  with  it  good  will. — See  3  L.  769. 

Of    chattels — By    sample. — See    7    A.    D.    125. 

Same — Implied   warranties   arising   from. — See    6   A.    D.    113. 

Same — Not  in  being. — See  4  A.   D.   560. 

Same — Possession,  retention  of  by  the  vendor. — See  14  A.  D. 
383. 

949 


§  ;1^721  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Quality,    warranty    of,    what    amounts    to. — See    1    A. 

D.    84. 

Same — Warranty,  of  quality,  when  implied. — See  2  A.  D.    220. 

Same — With  agreement  that  vendor  may  retain  possession. — 
See    6   A.   D.   287. 

Of  future  crops. — See   23   L.   449. 

Of  goods  to  be  acquired. — See  4  L.   398. 

Of  personal  property  to  be  delivered  in  the  future,  and  stat- 
utes rut;-.;'r!ting  or  prohibiting. — See   1  A.   S.   752. 

Of  personalty,  delivery  of,  when  does  not  pass  title. — See  120 
A.    S.    868. 

Of  property — Manufactured  to  order,  and  remedies  of  the 
manufacturer  when  the  purchaser  refuses  to  accept. — See  56 
A.   D.   642. 

Same — Not  in  existence. — See  81  A.  S.  42. 

Of  trade-mark. — See   1   L.   N.  S.   704. 

Of  unsound  and  noxious  food,  liability  of  the  vendor  for. — 
See  73  A.  D.  165. 

Offer  to  buy  or  sell. — See  Kerr's  Cyc.  C.  C.  §  1727  and  note. 

Options— As  to,  generally,  see  Kerr's  Cyc.  C.  C.  §§  1229,  1727 
and  notes. 

Same — To  buy,  liability  for  loss  or  damage  of  personal  prop- 
erty pending  exercise   of. — See   6  L.  N.   S.   273. 

Oral  warranty,  as  to,  see  12  L.  694. 

Partnership,  liability  of  for  fraud — In  purchase  of  property. — 
See   51  L..   484. 

Same — In  sale  of  property. — See  51  L.   485. 

Patent  right,  prior  use  and  sale  of  invention  as  affecting. — 
See    1   L.    48. 

Patented  articles,  restriction  on  sale  or  use  of. — See  55  L.  633. 

Payment  or  tender  of  price,  as  to,  generally,  see  3.  A.  C.  903; 
6  A.   C.   243;    7   A.   C.   541. 

Performance  of  executory  contract  for  sale  of  personal  prop- 
erty after  discovery  of  fr-aud,  as  affecting  right  to  action  for 
damages. — See   7   A.   C.    280. 

Persons  liable  for  breach  of  implied  v^^arranty. — See  6  A.  C. 
237. 

Place  where  deemed  to  have  been  made. — See  99  A.  D.   670. 

Possession,  change  of  sufficient  as  against  creditors  and  sub- 
sequent  purchasers. — See   97   A.   D.    340. 

Power  of  state  to  make  invalid  a  purchase  in  a  sale  of  gopds 
for  resale,  forbidding  purchaser  to  handle  goods  of  other  deal- 
ers.— See   11   L.   N.   S.   968. 

Same — Of  another's  property  as  larceny. — See  10  L.  N.  S.   816. 

Pre-existing  debt  as  consideration  for  bona  fide  purchase  of 
property  not  negotiable. — See  36  L.  161-167. 

Recoupment  of  damages  for  breach  of  warranty. — See  1  L. 
339. 

950 


Tit.I,cli.I,art.I.]  sales,  generally.  §  1721 

Refusal  -to  execute  purchase  money  notes,  effect  of  to  give 
vendor  an   immediate   right  of  action. — See   12  L.   N.   S.    180. 

Remedies  of  purcliaser — Action  for  breach  of  contract  for 
goods  deliverable  in  installinents. — See  6  A.  C.  60-63. 

Same — Action  for  deceit — Misrepresentation  by  vendor  of 
price  paid  for  property,  as. — See  8  A.  C.  1062. 

Same — Measure   of   damages. — See    6   A.   C.    164,    166. 

Same — Performance  of  executory  contract  for  sale  of  per- 
sonalty after  discovery  of  fraud,  as  affecting  right  of  action 
for  damages. — See  7  A.  C.   280. 

Remedies  of  seller — Action  for  breacli  of  contract — Defenses. 
—See  9  A.  C.  188. 

Same — Same — Measure   of   damages. — See   2   A.   C.    997. 

Same — Same — Same — Contract  for  goods  to  be  manufactured. 
— See   7   A.   C.    1172,   1175. 

Same — Same — Same — Evidence. — See  2  A.  C.  997. 

Same — Same — Same — Executory  contract. — See  2  A.  C.  814; 
2  A.  C.  997. 

Same — Same — Same — Fixed  charges.- — See  2  A.  C.   997. 

Same — Same — Same — Question  for  jury. — See  9  A.  C.  1168. 

Same — Same — Same — Value  at  place  of  delivery. — See  9  A.  C. 
188. 

Same — Rescission  of  contract. — See  3  A.  C.  898,  901. 

Remedies  of  vendee  for  breach  of  warranty  of  quality. — See 
54   A.    D.    146. 

Rescission — Bankruptcy  proceedings,  effect  on  prior  actions 
to  rescind  sale  for  fraud. — See   8  L.   N.   S.   1204. 

Same — Burden  of  proof  as  to  payment  of  value  by,  or  notice 
of  fraud  to,  subvendee  of  chattels,  when  original  seller  seeks 
to  rescind  for  fraud  of  first  purchaser. — See  8  L.  N.  S.  448. 

Same — Effect  of  default  in  payment,  followed  by  rescission, 
as  forfeiture  of  payment  already  made. — See  3  L.  N.  S.   785. 

Same — For  breach  of  warranty. — See  4  L.  370;   9  L.   611. 

Same— For  fraud.— See  1  L.  618;  2  L.  153;  14  L.  264;  64  L.  827. 

Same — For  fraud  in  purchase  on  credit. — See  18  A.  S.  362. 

Same — For  gross  ignorance  or  mistake  respecting  the  value 
of  property. — See  54  A.  R.  614. 

Same — Notice  to  vendor  as  condition  of  right  to  refuse  sub- 
sequent deliveries  after  breach  as  to  earlier  deliveries. — See 
8  L.  N.  S.   1110. 

Same — Of  contract  for  delivery  of  goods  on  account  of  non- 
payment of  installment. — See  3  A.   C.   901. 

Same — Return  of  goods  requisite  to  replevin  of  property 
obtained  by  fraudulent  purchase. — See   1  L.  N.  S.   474. 

Same — Tender  as  condition  of  for  breach  of  warranty,  cov- 
ers all  property  sold. — See  8  L.  N.  S.   727. 

Same — Waiver  of  fraud  by  coinpleting  executory  contract  of 
sale  after  discovering  the  fraud. — See  8   L.  N.   S.   452. 

951 


§  1721  CIVIL  CODE.  [Div.III,Pt.IV. 

Resrictions  on  sale  or  use  of  property  as  affecting-purchaser. 
— See  55  L.   631-639. 

Return  of  article  that  does  not  comply  with  wari-anty  neces- 
sary to  a  recovery  for  breach. — See  1  L.   646. 

Right  of  buyer  to  maintain  separate  action  for  non-delivery 
of  each  installment  under  an  entire  contract. — See  3  L.  N.  S.  142. 

Right  to  sell  property  while  in  custody  of  law. — See  11  L.  N. 
S.    1055. 

Rights  and  liabilities  of  vendor  and  purchaser  by  conditional 
sale   on  default   u*'  payment. — See   32  L.   455-471. 

Rights  and  remedies  of  parties — As  to,  generally,  see  1  L. 
N.    S.    242;    10   L.   N.    S.    1200;    12    L.   N.    S.    679. 

Rule  for  measuring  damages  in  action  by  vendee  for  breach 
of  contract  for  sale  of  goods  deliverable  in  installments. — See 
6  A.  C.   166. 

Rule  of  caveat  emptor. — See  3  L.  441;   6  L.  73;  6  L.  375. 

Sale  in  bulk,  statutory  requirements  as  to. — See  2  L.  N.  S. 
331-341;   12  L.   N.  S.    174. 

Sample,  warranty  on  sale  of  goods  by. — See  5  L.  702;  70 
L.    653-665. 

"Satisfactory,"  effect  of  stipulation  that  goods  shall  be. — See 
1   L.   645;   17  L.   202. 

Set-off,  availability  of  breach  of  warranty  as  a. — See  10  L.  379. 

Stoppage  in  transitu — As  to,  generally,  see  29  A.  D.  384;  19 
A.   R.   384;    1   A.  S.   312. 

Same — Right  of,  when  terminates. — See  60  A.   R.   51. 

"Strike"  clause  in  contract  of  sale  and  delivery,  effect  of. — 
See   9  L.  N.   S.   1187. 

Successive  actions  for  breach  of  contract  performable  in 
installments. — See  6  A.  C.  63. 

Tender  of  property  to  buyer  who  is  in  default  in  fixing  date 
for  delivery  and  is  not  present  at  the  agreed  place. — See  2  L. 
N.   S.    529. 

Title  of  owner  not  consenting  to  or  participating  in,  when 
may  be  devested  by. — See   25  A.  D.   665;   3  A.  S.   196. 

Title  passes  to  buyer,  when. — See  Kerr's  Cyc.  C.  C.  §1140 
and    note.  ' 

Title  passes  when — As  to,  generally,  see  1  L.  767;  2  L.  519; 
3  L.  199;  10  L.  314;  17  L.  177;  70  L.  321;  2  L.  N.  S.  383;  2  L. 
N.  S.   1078;   5  L.  N.   S.   475;   8  L.  N.  S.   793;   11   L.  N.  S.   948. 

Same — By    delivery   to    carrier. — See    22   L.    415-429. 

Same — Effect  of  attaching  draft  to  bill  of  lading. — See  5  A. 
C.   261,   263. 

Same — Effect  of  payment  of  price  in  installments. — See  10 
A.   C.    137,    141. 

Same — On  goods  sold  from  mass. — See  9  A.  C.  25,  26. 
Same— Where  shipment  C.  O.  D.— See  2  L.  N.  S.   383. 

952 


Tit.I,ch.I,art.I.]  SALES,  generally.  §  1721 

Title  to  vessel  or  article  to  be  built  or  manufactured,  when 
passes  by. — See   62   A.   D.   65. 

Transactions  which  constitute  a  sale  and  not  a  mortgage. — 
See  1  L.   241;   6  L.   643. 

Validity — Of  a  contract  for  purchase  of  indefinite  quantity. — 
See    15    L.    218. 

Same — Of  sale  made  in   violation   of  law. — See   12   L.   N.  S.   595. 

Vendee  cannot  resist  payment  on  the  ground  that  the  sale 
was  made,   to  defraud  creditors. — See   30   A.   R.   517. 

Warranty — As  to,  generally,  see  64  L.  825. 

Same — As  to  latent  defects,  see  3  L.   184. 

Same — Before  or  after  sale. — See   13  L.   678. 

Same — Breach  of — Availability  of  as  a  set-off. — See  10  L.   379. 

Same — Same — In  principal  contract,  as  defense  to  a  surety. — 
See    21    L.    406. 

Same — Same — Measure  of  damages  for  of  implied. — See  18 
L.  385. 

Same — Same — Rescission  for. — See  4  L.  370;  9  L.  611. 

Same — Determination  of  question  as  to  breacli. — See  5  A. 
C.    960. 

Same— Effect  of  on  sale  of  expectancy  by  prospective  heir. — 
See   33  L.   274. 

Same — Effect  of  representing  things  to  be  good. — See  15 
L.    795. 

Same — Effect  of  stipulation  that  goods  shall  be  satisfactory. 
— See    17   L.    208;   also    1   L.    645. 

Same — Express — As   to,  generally,  see   6   L.    374. 

Same — Same — As  applicable  to  goods  not  in  existence. — See 
6    A.    C.    109,    115. 

Same — Same — As  defense  to  prosecution. — See  6  A.  C.   189. 

Same — Same — Measure  of  damages  for  breach  of. — See  5  A. 
C.  586,  588;  7  A.  C.  935,  937. 

Same — Implied — As  to,  generally,  see  6  A.  C.  237;  10  A.  C. 
168;   6   L.   374;    6  L.    392. 

Same — Same — By  manufacturer  or  vendor  of  machinery  or 
apparatus,  not  in  itself  defective,  of  fitness  for  use  under  the 
existing  conditions. — See  6  L.  N.  S.   180. 

Same — Same — Existence  of  on  judicial   sale. — See   3   L.   440. 

Same — Same — Extent  of  liability  for  breach. — See  4  A.  C.  1123. 

Warranty — Same — Of  fitness  of  property  bought  for  special 
purpose. — See   22   L.    187-197. 

Same — Same — Of  genuineness  on  sale  of  negotiable  paper. — 
See    36    L.    92. 

Same — Same — Of  quality  in  sales  by  description. — See  14  L. 
492. 

Same — Same — On  a  sale  of  chattels. — See  24  A.  R.   181. 

Same — Same — On   sale   of  stock. — See   53  L.    153. 

Same — Same — Persons   liable   for   breach. — See   6   A.   C.    237. 

953 


§  1722  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Same— Sale  of  food  produce. — See  4  A.  C.   1123,   1124. 

Same — Same — Upon  sale  of  an  article  by  the  manufacturer. — 
See  24  A.  R.   104. 

Same — Necessity  to  return  an  article  that  does  not  comply 
with. — See  1  L.   646. 

Same — Of  goods  by  sample. — See  5  L.  702. 

Warranty — Of  quality,  when  implied. — See  55  A.  D.  328;  102 
A.   S.   607. 

Same — Of  satisfaction. — See  1  L.   645;   17  L.  208. 

Same--  Of  sounciness  of  horse. — See  3  L.  184;  12  L.  695. 

Same — Of  sounaness,  what  defects  constitute  breaches  of. — 
See  53  A.  D.   173. 

Same — Of  soundness,  when   implied. — See   43   A.   D.    680. 

Same — Of  title  implied  on  the  sale  of  personal  property. — 
See   62   A.   D.    460. 

Same — On   sale  by  manufacturer. — See   6  L.   392. 

Same — On  sale  of  goods  by  sample. — See  70  L.   653-665. 

Same — Oral,  as  to,  generally,  see  12  L.   694. 

Same — Parol  evidence  to  show  outside  of  the  contract. — See 
5  A.   S.   197. 

Same — Personal  injury  as  element  of  damages  for  breach  of. 
—See  3  L.  N.  S.  1047. 

Same — Price  at  which  goods  are  resold  as  affecting  measure 
of  damages  as  to  breach  of,  as  to  quality. — See  5  L.  N.  S.   1151. 

Same — Recoupment  of  damages  for  breach  of. — See  1  L.  339. 

Same — Rescission  of  contract  for  breach  of. — See  4  L.  370; 
9  L.   611. 

Same — Right  on  breach  of. — See  1  L.  N.  S.  42;  3  L.  N.  S.  465; 
11  L.  N.  S.   245;   12  L.  N.  S.   82. 

What  articles  pass  as  appurtenances  upon  sale  of  chattels. — 
See  8  L.  N.  S.   793. 

What   constitutes. — See   94   A.    S.    209. 

When  purchaser  acquires  no  title. — See   13  L.   717. 

When  title  passes — To  article  contracted  for,  price  to  be  paid 
by  installments  during  construction. — See   10   A.  C.   141. 

Same — To  goods  sold  from  mass. — See  9  A.  C.  26. 


§  1722.  SUBJECT  OF  SALE.  The  subject  of  sale  must  be 
property,  the  title  to  which  can  be  immediately  transferred 
from  the  seller  to  the  buyer. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

97  C.  70,  71,  31  P.  733  (construed  and  applied);  6  C.  A.  152, 
158,  91  P.  667  (what  is  not  a  sale  but  a  contract  to  convey  at 
a  future  period — contract  to  will  property). 

954 


i 


Tit.I,ch.I,art.II.]  AGREEMENT  FOR.  §§1726,1727 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 

ante.  ,     r-i        n'    r^ 

As  to  permitting  vendor  to  perfect  title,  see  Kerr  s  Cyc  C.  C. 

§  1731   and  note  par.    189.  .   . 

Assignment    by    seller    of    contract    to    sell— Title    authonzmg 
sale  not  conferred.— See  Kerr's  Cyc.  C.  G.  §  1721  and  note  par.  7. 

Goods  to  be  acquired— Sale  of.— See  4  L.  398-400. 

Sale   of   stolen   property   or  property   obtained   by   fraud.— bee 

What  property  may  be  subject  of  sale.— See  Kerr's  Cyc.  C.  C. 
§  1730  and  note. 


ARTICLE  II. 

AGREEMENT   FOR   SALE. 

§  1726.  Agreement   for   sale. 

§  1727.  Agreement  to   sell. 

§  1728.  Agreement   to    buy. 

§  1729.  Agreement  to   sell   and  buy. 

§  1730.  What  may  be  the  subject  of  the  contract. 

§  1731.  Agreement  to   sell   real  property. 

§  1732.  Form  of  grant  required  by  such  contract  [repealed]. 

§  1733.  Usual   common-law   covenants   required   by   such   contracts, 

when. 

§  1734.  Form  of   such   covenants. 

§  1726.    AGREEME^^T  FOR  SALE.     An  agreement  for  sale 
is  either : 

1.  An  agreement  to  sell; 

2.  An  agreement  to  buy;  or, 

3.  A  mutual  agreement  to  sell  and  buy. 

History:     Enacted  March   21,   1872. 

87  C.  49,  54,  25  P.  249,  250  (referred  to);  95  C.  134,  137,  29 
A.    S.    101,    30    P.    202,    203    (commissioners'    decision),    27    P.    286, 

287    (referred   to).  01-01 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  ^  l<-i. 

ante. 

§  1727.  AGREEMENT  TO  SELL.  An  agreement  to  sell  is 
a  contract  by  which  one  engages,  for  a  price,  to  transfer  to 
another  the  title  to  a  certain  thing. 

History:     Enacted  March  21,  1872. 
955 


§  1728  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.   C.   for  37  pars,  annotation. 

74  C.  376,  379,  16  P.  194,  195  (cited);  95  C.  134,  137,  29  A.  S. 
101,  30  P.  202,  203  (commissioners'  decision),  27  P.  286,  287 
(cited);  98  C.  377,  380,  33  P.  266,  267  (construed);  147  C.  747. 
749,  82  P.  426  (cited — sale,  whetlier  absolute  or  conditional). 

As  to  many  miscellaneoiis  matters  as  to  sales,  see  note  §  1721, 
ante. 

As  to  mode  and  requisites  of  acceptance,  see  Kerr's  Cyc.  C.  C. 
§§  1580--i.^Sil  and  notes. 

As  to  nature  of  contract  upon  call  being-  made,  see  Kerr's 
Cyc.  C.  C.  §  1729  and  note  par.  2. 

As  to  necessity  for  delivery  as  against  creditors,  see  Kerr's 
Cyc.  C.  §  3440  and  note. 

As  to  options,  see  Kerr's  Cyc.  C.  C.  §  1727,  note  pars.  32,  36 
this   note. 

As  to  revocation  of  proposal,  see  Kerr's  Cyc.  C.  C.  §  1586 
and   note. 

Agreement  to  buy  at  option  of  seller. — See  Kerr's  Cyc.  C.  C. 
§  1729  and  note  par.   6. 

Assignment  by  seller  of  contract  to  sell — Effect  of. — See 
Kerr's  Cyc.  C.  C.  §  1721  and  note  par.   7. 

Damages  for  breach  of  agreement  to  sell. — See  Kerr's  Cyc. 
C.   C.    §§3308,    3309. and  notes. 

Distinction  between  various  contracts. — See  Kerr's  Cyc.  C.  C. 
§  1721  and  note  pars.   15-37. 

Rescission  of  contract.— See  Kerr's  Cyc.  C.  C.  §§  1688-1691 
and  notes. 

Rights  conferred  by  "refusal"  or  "option." — See  21  L.   127-133. 


§  1728.  AGREEMENT  TO  BUY.  An  agreement  to  buy  is  a 
contract  by  which  one  engages  to  accept  from  another,  and 
pay  a  price  for  the  title  to  a  certain  thing. 

Histt.ry:     Enacted  March   21,   1872. 

95  C.  134,  137,  29  A.  S.  101,  30  P.  202,  203  (commissioners' 
decision),  27  P.  286,  287   (referred  to). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Countermand  of  order  mailed  by  buyer. — See  Kerr's  Cyc.  C. 
C.    §  1727    and   note   par.    21. 

Damages  for  breach  of  agreement. — See  Kerr's  Cyc.  C.  C. 
§§  3310,   3311  and  notes. 

Options. — See  Kerr's  Cyc.  C.  C.   §  1727  and  note  pars.   32-36. 

Rescission  of  contract. — See  Kerr's  Cyc.  C.  C.  §§  1688-1691  and 
notes. 

956 


Tit.I,ch.I,art.II.]       WHAT  may  be  sold.  §§  1729-1731 

§  1729.    AGREEMENT  TO  SELL  AND  BUY.    An  agreement 
to  sell  and  buy  is  a  contract  by  which  one  engages  to  trans- 
fer the  title  to  a  certain   thing  to  another,   who   engages  to 
accept  the  same  from  him  and  to  pay  a  price  therefor. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

63  C.  575,  577  (referred  to);  87  C.  49,  54,  25  P.  249,  250  (cited); 
95  C  134,  137,  29  A.  S.  101,  30  P.  202,  203  (commissioners'  deci- 
sion), 27'p.  286.  287  (construed);  98  C.  377,  381,  33  P.  266,  267 
(cited);  7  C.  A.  241,  243,  94  P.  82,  83  (instance  of  complete 
agreement  to  buy  and  sell). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 

ante. 

As  to  offers  to  perform,  see  Kerr's  Cyc.  C.  C.  §  1485  and  note.- 
Damag-es    for    breach    of   contract.^'Kerr's    Cyc.    C.    C.    §§  3310, 

3311   and  notes. 

Options.— See  Kerr's  Cyc.  C.  C.   §  1727  and  note  pars.  32-36. 

§1730.  WHAT  MAY  BE  THE  SUBJECT  OF  THE  CON- 
TRACT.  Any  propei^ty  which,  if  in  existence,  might  be  the 
subject  of  sale,  may  be  the  subject  of  an  agreement  for  sale, 
whether  in  existence  or  not. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7   pars,  annotation. 

95  C.  134,  137,  29  A.  S.  101,  30  P.  202,  203  (commissioners- 
decision),    27   P.    286,   287    (referred   to). 

As  to  assignments  of  choses  in  action,  see  Kerr's  Cyc.  C.  C. 
§  954  and  note  pars.  19  et  seq. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Goods  to  be  acquired — Sale  of. — See  4  L.   398-400. 

Irr^plied  warranty  of  merchandise  not  in  existence. — See  Kerr's 
Cyc.  C.  C.   §  1768  and  note. 

Partnership  property  pending  receivership  and  suit  for  ac- 
counting.— See  Kerr's  C.  C.  §1722  and  note  par.   7. 

Property   not   in   existence. — See   81   A.   S.    42-46. 

Sale   or  mortgage   of  future   crops. — See   23   L.    449-476. 

Title  requisite  in  seller.— See  Kerr's  Cyc.  C.  C.  §  1722  and  note 
pars.   2   et  seq. 

§1731.  AGREEMENT  TO  SELL  REAL  PROPERTY.  An 

agreement  to  sell  real  property  binds  the  seller  to  execute  a 

957 


§  1731  CIVIL  CODE.  [Div.III,Pt.IV. 

conveyance  in  form  sufficient  to  pass  the  title  to  the  prop- 
erty. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   243. 

See  Kerr's  Cyc.  C.  C.  for  210  pars,   annotation. 

109   C.   558,  563,   42   P.   39    (construed). 

As  tc  alteration  of  written  contract  by  unexecuted  oral  agree- 
ment,  see   Kerr's   Cyc.    C.   C.    §  1698   and    note. 

As  to  conditions,  see  Kerr's  Cyc.  C.  C.  §§  707-711  and  notes. 

As  to  conditions  concurrent,  see  Kerr's  Cyc.  C.  C.  §§  1437, 
1439   and  notes. 

As  to  conveyance  of  homestead,  see  Kerr's  Cyc.  C.  C.  §  1242 
and  note. 

As  to  defense  to  action  on  note  given  for  purchase  money 
when  title  fails,  see  Kerr's  Cyc.  C.  C.   §  1731,   note  par.   188. 

As  to  effect  of  offer  of  performance,  see  Kerr's  Cyc.  C.  C. 
§  1504  and  note. 

As  to  fee-simple  title  being  presumed  in  case  of  grant  of 
real  property,  see  Kerr's  Cyc.  C.  C.   §  1105  and  note. 

As  to  jurisdiction  over  non-residents,  see  20  A.  S.  212. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721. 
ante. 

As  to  mistake  in  quantity  of  land — Relief  from. — See  4  L. 
525,   526;   11  L.   376,  377. 

As  to  necessity  to  demand  deed,  see  Kerr's  Cyc.  C.  C.  §  1731, 
note   pars.    24-30. 

As  to  novation,  see  Kerr's  Cyc.  C.  C.  §§  1530-1533  and  notes. 

As  to  objections  to  mode  of  offer  of  performance,  see  Kerr's 
Cyc.  C.  C.  §  1501  and  note. 

As  to  property  wliich  passes  to  heirs,  see  Kerr's  Cyc.  C.  C. 
§  1384  and  note. 

As  to  rescission  of  contracts,  see  Kerr's  Cyc.  C.  C.  §§  1G88- 
1691   and  notes. 

As  to  relief  of  vendee  on  ground  of  defective  title,  see  65  A. 
D.   608,   70   A.  D.   340. 

As  to  remedy  of  vendee  where  vendor's  title  defective,  see 
20  A.  S.  217;  25  A.  S.  212. 

As  to  right  to  rescind  if  consideration  fails,  see  Kerr's  Cyc. 
C.   C.   §  1689   subd.   4  and  note. 

As  to  sufficiency  of  partial  performance,  see  Kerr's  Cyc.  C.  C. 
§§  1477,  1524  and  notes. 

As  to  suits  for  specific  performance,  see  Kerr's  Cyc.  C.  C. 
§§  3384-3396  and   notes. 

As  to  waiver  of  such  objection,  see  Kerr's  Cyc.  C.  C.  §  1731, 
note  par.   205   this   note. 

95S 


Tit.I,ch.I,art.II.]  covenants.  §§  1732, 1733 

As  to  when  time  is  of  essence  of  contract,  see  50  A.  D.  597- 
600,   676-678;   68  A.   D.   87. 

As  to  yielding  possession  of  goods  sold  upon  failure  of  title, 
see  Kerr's  Cyc.  C.  C.   §  1786  and  note  par.   27. 

Conveyance  to  satisfy  contract. — See  11  A.  D.  34-39;  26  A. 
D.    625,    626. 

Covenants  required  to  be  inserted  in  deed. — See  Kerr's  Cyc. 
C.  C.  §§  1733,  1734  and  notes. 

Damages  for  breach  of  agreement  to  convey  land. — See  Kerr's 
Cyc.  C.  C.   §  3306  and  note. 

Deed,  duty  of  preparing,  on  whom  cast.- — See  26  A.  D.  625. 

Demand  for  conveyance,  purchaser's  duty  to  make. — See  16 
A.    D.    427,   428. 

Evasion  of  payment  or  tender  by  vendor. — See  Kerr's  Cyc. 
C.    C.    §  1512   and    note. 

Executor's  sale  under  power  is  not  judicial  sale. — See  Kerr's 
Cyc.  C.   C.   §  1777  and  note. 

Executory  contract  to  sell  or  sale. — See  Kerr's  Cyc.  C.  C. 
§  1721   and   note. 

Form  of  conveyance. — See  Kerr's  Cyc.  C.  C.  §  1092  and  note. 

Lien  of  purchaser  for  money  paid. — See  Kerr's  Cyc.  C.  C. 
§  3050  and  note. 

Married  women's  contracts  to  convey  land. — See  Kerr's  Cyc. 
C.  C.  §  158  and  note. 

Nature  of  interest  of  vendor  or  purchaser  in  land  contract 
as  real  or  personal  property. — See  57  L.   643-654. 

Omission  of  covenants. — See  Kerr's  Cyc.  C.  C.  §  1733  and  note. 

Purchaser's  remedies  for  failure  of  title. — See   5  L.   45-47. 

Purchaser's  rights  upon   rescission. — See  12  A.  D.   312,   314. 

Quantity  not  warranted  when  sale  is  for  sum  in  gross. — 
See   Kerr's   Cyc.   C.   C.    §  1733   and   note. 

Requisites  for  transfer  of  estate  in  land. — See  Kerr's  Cyc. 
C.   C.    §  1091   and   note. 

Title  deeds. — See  Kerr's  Cyc.  C.  C.   §  994  and  note. 

Vendor's  lien. — See  Kerr's  Cyc.  C.  C.  §§  3046-3048  and  notes. 

§  1732.  rOBM  OF  GRANT  REQUIRED  BY  SUCH  COX- 
TRACT    (repealed). 

Historr:  Enacted  March  21,  1872,  repealed  March  30.  1874, 
Code  Amdts.   1873-4,  p.   243. 

§1733.  USUAL  COMMON-LAW  COVENANTS  REQUIRED 
BY  SUCH  CONTRACTS,  WHEN.  An  agreement  on  the  part 
of  a  seller  of  real  property  to  give  the  usual  covenants,  binds 
him  to  insert  in  the  grant  covenants  of  "seizin,"  "quiet  enjoy- 

959 


§  1734  CIVIL  CODE.  [Div.III.Pt.IV. 

ment,"  "further  assurance,"  "general  warranty,"  and  "against 
encumbrances." 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

As  to  waiver  of  objections  to  deed,  see  Kerr's  Cyc.  C.  C. 
§  1731  ana   not.- 

Covenants  running  with  land. — See  Kerr's  Cyc.  C.  C.  §§  1460- 
1468  and  notes. 

Fraud  in  sale  of  real  estate. — See  2   A.   D.   77-81. 

Implied  covenants  when  word  "grant"  is  used  in  convey- 
ance.—See  Kerr's  Cyc.  C.  C.  §  1113  and  note. 

Parol  evidence  to  show  warranty  outside  of  deed  or  other 
contract.— See  5  A.  S.  199-201. 

Quitclaim  deed — What  title  passes  by. — See'  Kerr's  Cyc.  C.  C. 
§  1113  and  note  pars.   17,  18. 

§1734.    FORM    OF    SUCH    COVENANTS.     The    covenants 

mentioned  in  the  last  section  must  be  in  substance  as  follows: 
''The  party  of  the  first  part  covenants  with  the  party  of  the 
second  part,  that  the  former  is  now  seized  in  fee  simple  of 
the  property  granted;  that  the  latter  shall  enjoy  the  same 
without  any  lawful  disturbance;  that  the  same  is  free  from 
all  encumbrances;  that  the  party  of  the  first  part,  and  all 
persons  acquiring  any  interest  in  the  same  through  or  for 
him,  will,  on  demand,  execute  and  deliver  to  the  party  of  the 
second  part,  at  the  expense  of  the  latter,  any  further  assur- 
ance of  the  same  that  may  be  reasonably  required;  and  that 
the  party  of  the  first  part  will  warrant  to  the  party  of  the 
second  part  all  the  said  property  against  every  person  law- 
fully claiming  the  same." 

History:     Enacted  March  21,  1872. 

As  to  commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §§  1734,   note   par.    1. 

As  to  many  miscellaneous  matters  as  to  sale,  see  note  §  1721; 
ante. 

Title  of  vendor. — See  Kerr's  Cyc.  C.  C.  §  1731  and  note  pars. 
143-201. 


960 


Tit.I,ch.I,art.III.]      PERSONAL  PROPERTY.  §§  1739,  1740 

ARTICLE  III. 

FORM    OF    THE    CONTRACT. 

§  1739.     Contract    to   sell   personal   property. 

§  1740.     Contract  to  manufacture. 

§  1741.     Contract  for  sale  of  real   property. 

§1739.  CONTRACT  TO  SELL  PERSONAL  PROPERTY. 

No  sale  of  personal  property,  or  agreement  to  buy  or  sell  it 
for  a  price  of  two  hundred  dollars  or  more,  is  valid,  unless: 

1.  The  agreement  or  some  note  or  memorandum  thereof  be 
in  writing,  and  subscribed  by  the  party  to  be  charged,  or  by 
his  agent;  or, 

2.  The  buyer  accepts  and  receiyes  part  of  the  thing  sold, 
or  when  it  consists  of  a  thing  in  action,  part  of  the  evidences 
thereof,  or  some  of  them;  or, 

3.  The  buyer,  at  the  time  of  sale,  pays  a  part  of  the  price. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.    243. 

See   Kerr's  Cyc.   C.   C.  for   6   pars,   annotation. 

67  C.  93,  7  P.  195  (referred  to  as  inapplicable);  68  C.  17,  8 
P.  502,  503  (construed  and  applied);  70  C.  399,  400,  402,  11  P. 
743  (construed  and  applied);  91  C.  669,  670,  27  P.  1080,  14  L. 
230  (construed  in  connection  with  §1740);  105  C.  514,  519,  45 
A.  S.  87,  39  P.  200  (applied);  119  C.  545,  551,  51  P.  853,  52  P. 
44  (referred  to  in  dis.  op.);  123  C.  548,  549,  56  P.  451  (cited); 
2  C.  A.  451,  452,  83  P.  578  (construed  with  §  1973  C.  C.  P. — what 
oral  contract  to  purchase,  over  two  hundred  dollars,  is  not 
within  statute  of  frauds). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Exchange — Form  of  contract. — See  Kerr's  Cyc.  C.  C.  §  1805 
and   note. 

§1740.  CONTRACT  TO  MANUFACTURE.  An  agreement 
to  manufacture  a  thing,  from  material  furnished  by  the  man- 
ufacturer, or  by  another  person,  is  not  within  the  provisions 
of  the  last  section. 

History:     Enacted  March  21,   1872. 
Kerr's    C.    C— 31  961 


§  1741  CIVIL  CODE.  [Div.III.Pt.IV. 

See   Kerr's  Cyc.  C.  C.  for   5  pars,  annotation. 

91  C.  669,  670,  27  P.  1080,  14  L.  230  (construed  in  connection 
witli    §  1729). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Contract  to  manufacture  article. — See  9  A.  D.   188-190. 

§1741.  CONTEACT  FOR  SALE  OF  REAL  PROPERTY. 

No  agreement  for  the  sale  of  real  property,  or  of  an  interest 
thereiiiv  ii?  valid,  unless  the  same,  or  some  note  or  memoran- 
dum thereof,  be  in  writing,  and  subscribed  by  the  party  to  be 
charged,  or  his  agent,  thereunto  authorized,  in  writing;  but 
this  does  not  abridge  the  power  of  any  court  to  compel  the 
specific  performance  of  any  agreement  for  the  sale  of  real 
property  in  case  of  part  performance  thereof. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  243,  244. 

See  Kerr's  Cyc.   C.  C.  for  5   pars,   annotation. 

64  C.  24,  26,  28  P.  107  (cited);  78  C.  529,  534,  21  P.  179,  181 
(construed  and  applied);  87  C.  49,  54,  25  P.  249,  250  (construed 
and  applied);  91  C.  442,  446,  27  P.  744,  745  (applied);  93  C. 
493,  495,  27  A.  S.  212,  29  P.  119  (construed);  140  C.  157,  159, 
73  P.  840  (applied);  142  C.  152,  156,  75  P.  777  (applied);  5  C.  A. 
367,  369,  90  P.  469  (applied — no  decree  of  specific  performance 
without  part  performance,  and  payment  of  purchase  price  alone 
is  not  part  performance);  5  C.  A.  665,  668,  91  P.  164  (applied — 
no  decree  of  specific  performance  as  to  land  not  described  in 
contract,  if  contract  is  definite,  certain,  and  complete). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 


962 


Tit.I.ch.II.art.I.]        RIGHTS,    OBLIGATIONS.  §§  1748,  1749 

CHAPTER  II. 

RIGHTS   AND   OBLIGATIONS   OF   THE   SELLER. 

Article  I.     Rights  and  Duties  Before  Delivery,  §§  1748,  1749. 
II.     Delivery,   §§  1753-1758. 
III.     Warranty,   §§  1763-1778. 

ARTICLE  I. 

RIGHTS  AND  DUTIES  BEFORE   DELIVERY. 

§  1748.     When  seller  must  act  as  depositary. 
§  1749.     When  seller  may  resell. 

§1748.    WHEN    SELLER    MUST    ACT    AS    DEPOSITARY. 

After  personal  property  has  been  sold,  and  until  the  delivery 
is  completed,  the  seller  has  the  rights  and  obligations  of  a 
depositary  for  hire,  except  that  he  must  keep  the  property, 
without  charge,  until  the  buyer  has  had  a  reasonable  oppor- 
tunity to  remove  it. 

History:     Enacted  March  21,   1872. 

151  C.  479,  482,  91  P.  1.52  (applied  to  sale  of  salt  left  in  seller's 
possession — bailee  and  bailor). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  1748,  note. 

§  1749.  WHEN  SELLER  MAY  RESELL.  If  a  buyer  of  per- 
sonal property  does  not  pay  for  it  according  to  contract,  and 
it  remains  in  the  possession  of  the  seller  after  payment  is  due, 
the  seller  may  rescind  the  sale,  or  may  enforce  his  lien  for 
the  price,  in  the  manner  prescribed  by  the  title  on  liens. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

58  C.  431,  435,  41  A.  R.  266  (applied);  86  C.  531,  536,  25  P. 
63,  64  (referred  to  as  inapplicable);  120  C.  416,  419,  420,  52  P. 
666    (construed). 

963  ' 


§  1749  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  action  by  buyer  who  is  undisclosed  principal,  see  Kerr's 
Cyc.  C.  C.  §  1753  and  note. 

As   to   breach    of   contract   by   purchaser    of    land,    see    Kerr's 
Cyc.  C.  C.  §  1731  and  note. 

As   to   extinguishment  of   obligation   by    offer   of   performance, 
see  Kerr's  Cyc.  C.  C.  §  1485  and  note. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Counterclaim    upon    breach    of    warranty     in     an     action     for 
price.— f-e   Kerr's  Cyc.   C.   C.   §  1786   and   note. 

Damages  for  buyer's  breach   of  contract. — See  Kerr's   Cyc.   C. 
C.    §§  3310,   3311   and  notes. 

Duty  of  buyer  to  pay  price. — See  Kerr's  Cyc.  C.  C.   §  1784  and 
note. 

Excessive    quantity    delivered. — See    Kerr's    Cyc.    C.    C.    §  1753 
and  note   pars.   27,   29. 

Mechanics'    and    materialmen's    liens. — See    Kerr's    Cyc.    C.    C. 
P.   §§  1183-1203  and  notes. 

Mutual  and  dependent  stipulations  to  deliver  and  make  pay- 
ment.— See  Kerr's  Cyc.  C.  C.  §  1753  and  note. 

Lien  of  seller  for  price. — See  Kerr's  Cyc.  C.  C.  §  3049  and  note. 

Rescission    of    contract. — See    Kerr's    Cyc.    C.    C.    §§  1688-1691, 
1785,   1786   and  notes. 

Stoppage  in  transitu. — See  Kerr's  Cyc.  C.  C.   §§  3076-3080. 
and  notes. 

Wharfage    and    demurrage     are     chargeable     to     buyer. — See 
Kerr's  Cyc.  C.  C.   §  1755  and  note  par.  3. 


964 


Tit.I.ch.II.art.IL]      delivery  ON  demand.  §  175^ 


ARTICLE  II. 

DELIVERY. 

§  1753.  Delivery    on    demand. 

§  1754.  Delivery,    where   made. 

§  1755.  Expense  of   transportation. 

§  1756.  Notice  of  election  as  to  delivery. 

§  1757.  Buyer's  directions  as  to  manner  of  sending  thing  sold. 

§  1758.  Delivery  to   be   within   reasonable   hours. 

§  1753.  DELIVERY  ON  DEMAND.  One  who  sells  personal 
property,  whether  it  was  in  his  possession  at  the  time  of  sale 
or  not,  must  put  it  into  a  conditioh  fit  for  delivery,  and  deliver 
it  to  the  buyer  within  a  reasonable  time  after  demand,  unless 
he  has  a  lien  thereon. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.   for   74   pars,   annotation. 

82  C.  474,  479,  23  P.  118,  119  (referred  to  as  inapplicable); 
147  C.  313,  319,  81  P.  964   (applied  with  §  1754). 

As  to  action  by  undisclosed  seller  who  is  principal,  see  Kerr's 
Cyc.   C.   C.   §  1749   and   note  par.    46. 

As  to  duty  to  separate  things  which  are  mixed  with  others, 
see  Kerr's  Cyc.  C.  C.   §  1497  and  note. 

As  to  effect  of  refusal  to  accept  performance  before  offer,  see 
Kerr's  Cyc.  C.  C.  §  1515  and  note. 

As  to  offer  of  partial  performance,  see  Kerr's  Cyc.  C.  C.  §  14S6 
and  note. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 

ante. 

As   to   partial   performance,    see   Kerr's   Cyc.    C.    C.    §14m    and 

As  to  prevention  of  performance,  see  Kerr's  Cyc.  C.  C.  §§  1511, 
1512   and   notes. 

As  to  resale  of  land,  see  Kerr's  Cyc.  C.  C.  §  1731  and  note. 

As  to  warehouse  receipts,  etc.,  see  Kerr's  Cyc.  C.  C.  §  1753, 
note    pars.    69,    73. 

Acceptance  and  delivery  of  goods.— See  49  A.  D.  325-340;  37 
A.  R.  16-22;   60  A.  S.   237,  238;   96  A.  S.  215-229. 

Complaint  must  allege  offer  or  readiness  to  deliver,  when.— 
See  Kerr's  Cyc.  C.  C.   §  1749  and  note  par.  27. 

Damages  for  breach  of  contract  by  seller.— See  Kerr's  Cyc. 
C.  C.  §§  3308,  3309  and  notes. 

965 


§  1754  CIVIL  CODE.  [Div.III,Pt.IV. 

Delay  in  delivery — Waiver  of  damages  by  acceptance. — See 
54  L.  718-721. 

Delivery  and  payment  concurrent  conditions. — See  Kerr's 
Cyc.  C.  C.   §  1784  and  note  pars.   14-16. 

Delivery — Fixes  time  of  payment,  when. — See  Kerr's  Cyc.  C. 
C.   §  1784  and  note  pars.  14,   15. 

Duty  of  buyer  to  take  away  thing  sold. — See  Kerr's  Cyc.  C. 
C.  §  1784  and  note. 

EfEec#.-^f  contract  to  ship  goods  f.  o.  b. — See   62  L.   795-808. 

Election  to  return  or  pay  for  property. — See  Kerr's  Cyc.  C. 
C.  §  1784  and  note  par.  20. 

Excuses  for  non-performance. — See  Kerr's  Cyc.  C.  C.  §  1511 
and  note. 

Excuses  for  non-performance  and  prevention  of  performance. 
—See  Kerr's  Cyc.  C.  C.  §§  1511,  1512  and  notes. 

Frauds,  statute  of — Delivery  and  acceptance  required  by. — 
See  Kerr's  Cyc.  C.  C.  §  1624  and  note. 

Fraudulent  transfer  as  against  creditors  and  purchasers, 
when  no  delivery. — See  Kerr's  Cyc.  C.  C.  §  3440  and  note. 

Freedom  from  interruption  in  gathering  fruit  guaranteed. — 
See  Kerr's  Cyc.  C.  C.  §  1763  and  note  par.   14. 

Prevention  of  performance. — See  Kerr's  Cyc.  C.  C.  §§  1512, 
1514   and   notes. 

Refusal  to  accept  before  offer. — See  Kerr's  Cyc.  C.  C.  §  1515 
and  note. 

Requisites   of  delivery. — See   60  A.   S.    237,   238. 

Sales — When   complete. — See  39   A.   S.   44. 

Stoppage  in  transitu.— See  Kerr's  Cyc.  C.  C.  §§  3076-3080  and 
notes. 

Title  transferred,  when. — See  Kerr's  Cyc.  C.  C.  §§  1140,  1141 
and  notes. 

§  1754.  DELIVERY,  WHERE  MADE.  Personal  property 
sold  is  deliverable  at  the  place  where  it  is  at  the  time  of  the 
sale  or  agreement  to  sell,  or  if  it  is  not  then  in  existence,  it  is 
deliverable  at  the  place  where  it  is  produced. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

84  C.  207,  213,  23  P.  1117,  1119  (cited);  147  C.  313,  319,  81  P. 
964   (applied  with  §  1753). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Common  carrier — Delivery  to. — See  Kerr's  Cyc.  C.  C.  §  1753 
and   note. 

Offer  of  performance — Where  to  be  made. — See  Kerr's  Cyc. 
C.   C.    §  1488,   1489   and  n-otes. 

Place  of  delivery. — See   12  A.  D.   573,  574. 

966 


Tit.I,ch.II,art.II.]      NOTICE   OF    ELECTION.  §§  1755-1757 

§  1755.  EXPEASE  OF  TRANSPOETATIO.  One  who  sells 
personal  property  must  bring  it  to  his  own  door,  or  other 
convenient  place,  for  its  acceptance  by  the  buyer,  but  further 
transportation  is  at  the  risk  and  expense  of  the  buyer. 

History:     Enacted  March  21,   1872. 

See   Kerr's   Cyc.   C.   C.   for  3   pars,  annotation. 
As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Buyer's  risk. — See  75  A.  S.   77-79. 


§  1756.  NOTICE  OF  ELECTION  AS  TO  DELIVERY.  When 
either  party  to  a  contract  of  sale  has  an  option  as  to  the  time, 
place,  or  manner  of  delivery,  he  must  give  the  other  party 
reasonable  notice  of  his  choice;  and  if  he  does  not  give  such 
notice  within  a  reasonable  time,  his  right  of  option  is  waived. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

84  C.   207,   213,  23  P.   1117    (referred  to). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Option  as  to  time  for  delivery. — See  Kerr's  Cyc.  C.  C.  §1491 
and    note. 


§  1757.    BUYER'S    DIRECTIONS     AS     TO    MANNER    OF 

SENDING  THING  SOLD.  If  a  seller  agrees  to  send  the  thing 
sold  to  the  buyer,  he  must  follow  the  directions  of  the  latter 
as  to  the  manner  of  sending,  or  it  will  be  at  his  own  risk  dur- 
ing its  transportation.  If  he  follows  such  directions,  or  if,  in 
the  absence  of  special  directions,  he  uses  ordinary  care  in 
forwarding  the  thing,  it  is  at  the  risk  of  the  buyer. 

History:     Enacted  March   21,   1872. 

84  C.   207,   213,   23  P.   1117    (referred  to). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  1757,  note  par.  2. 

967 


§  1758  CIVIL  CODE.  [Div.III.Pt.IV. 

§1758.  DELIVERY  TO  BE  WITHIN  REASONABLE 
HOURS.  The  delivery  of  a  thing  sold  can  be  offered  or 
demanded  only  within  reasonable  hours  of  the  day. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

For  C«::;aiissioricrs'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.   §  1758,   note  par.   1. 

Offer  of  performance — When  to  be  made. — See  Kerr's  Cyc. 
C.   C.   §§  1490,   1491   and  notes. 

Reasonable   hour  for  delivery. — See   12   A.   D.   574,   575. 


968 


Tit.I,ch.II,art.IIT.]      what  a  warranty.  §  1763 

ARTICLE  III. 

WARRANTY. 

§  176.3.  Warranty,  what. 

§  1764.  No  implied  warranty  in  mere  contract  of  sale. 

§  1765.  Warranty   of   title   to   personal   property. 

§  1766.  Warranty  on   sale   by   sample. 

§  1767.  When    seller   knows    that    buyer    relies    on    his    statements, 

etc. 

§  1768.  Merchandise   not  in   existence. 

§  1769.  Manufacturer's  warranty  against  latent  defects. 

§  1770.  Thing  bought   for  particular  purpose. 

§  1771.  When   thing  cannot  be   examined   by   buyer. 

§  1772.  Trade-marks. 

§  1773.  Other    marks. 

§  1774.  Warranty  on  sale  of  written  instrument. 

§  1775.  Warranty   of   provisions    for   domestic    use. 

§  1776.  Warranty  on   sale   of  good-will. 

§  1777.  Warranty   upon   judicial    sale. 

§  1778.  Effect  of  general  warranty. 

§  1763.  WARRANTY,  WHAT.  A  warranty  is  an  engage- 
ment by  which  a  seller  assures  to  a  buyer  the  existence  of 
some  fact  affecting  the  transaction,  whether  past,  present,  or 
future. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  29  pars,  annotation. 

66  C.  238,  239,  5  P.  160  (cited);  4  C.  A.  249,  254,  87  P.  410, 
413    (cited). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

As  to  rebutting  implied  presumptions,  see  Kerr's  Cyc.  C.  C. 
§  1765   and   note   par.    14. 

Breach  of  warranty — Remedies,  pleading  and  practice. — See 
Kerr's  Cyc.  C.  C.  §  1786  and  note  pars.  21,  22. 

Damages  for  breach  of  warranty  of  quality. — See  Kerr's  Cyc. 
C.  C.  §§  3313,  3314  and  notes. 

Defects  amounting  to  breach  of  warranty  of  soundness. — See 
53   A.  D.   173-179. 

Effect  of  acceptance  of  goods. — See  12  L.  399. 

Express  warranty. — See   6  L.   374. 

Oral  and  written  warranties. — See  12  L.   694-696. 

969 


§§  1764, 1765  CIVIL  CODE.  [Div.III.Pt.IV. 

Parol  evidence  to  show  warranty  outside  of  contract. — See 
5  A.  S.   197-199;   41   A.   S.   606. 

Price  paid  as  affecting  implication  of  warranty. — See  43  A. 
D.    680. 

Representations  as  warranties. — See  15  A.  R.  382-386. 

Set-off  allowed  in  action  for  price. — See  Kerr's  Cyc.  C.  C. 
§  1776  and  note  par.   6. 

Soundness  of  horse   warranted. — See   3   L>.    184;    12   L.    695. 

§  1764.    NO  IMPLIED  WAERANTY  IN  MERE  CONTRACT 
OF  SALE.    Except  as  prescribed  by  this  article,  a  mere  con- 
tract of  sale  or  agreement  to  sell  does  not  imply  a  warranty. 
History:     Enacted  March  21,  1872. 

See  Kerr's   Cyc.  C.   C.  for   10  pars,  annotation. 

65  C.  273,  274,  3  P.  889  (cited);  66  C.  238,  239,  5  P.  160  (cited); 
92  C.  117,^123,  28  P.  98,  99  (applied);  47  P.  684,  686  (referred 
to),  commissioners'  decision  reversed  in  120  C.  228,  52  P.  496; 
139  C.  564,  584,  96  A.  S.  169,  73  P.  456,  457  (cited);  145  C.  272. 
280,  78  P.  722  (cited);  4  C.  A.  249,  255,  87  P.  410,  413  (referred 
to). 

As  to  application  of  doctrine  when  tliere  is  express  warranty, 
see  Kerr's  Cyc.  C.  C.  §  1763  and  note  par.  6. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Agreement  to  sell — No  implied  warranty. — See  Kerr's  Cyc.  C. 
C.    §  1763   and   note   par.    2. 

Caveat  emptor  applies. — See   90   A.   D.   424-431. 

Exchange  of  money — Warranty  of  genuineness. — See  Kerr's 
Cyc.   C.   C.   §  1807  and  note. 

Implied  warranties. — See  1  A.  D.  84-86,  6  A.  D.  113-115,  54  A.  D. 
145,  55  A.  D.  328,  24  A.  R.  181-183;  1  L.  645,  646;  6  L.  374,  375. 

Implied  warranty  of  fitness  of  property  bought  for  special 
purpose. — See  22  L.  187-198. 

§1765.  WARRANTY  OF  TITLE  TO  PERSONAL  PROP- 
ERTY. One  who  sells  or  agrees  to  sell  personal  property, 
as  his  own,  thereby  warrants  that  he  has  a  good  and  unen- 
cumbered title  thereto. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 
113  C.   345,  353,   45   P.  680    (construed  and  applied). 
As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante.  ■• 

970 


Tit.I,ch.II,art.III.]        ON  SALE  BY  SAMPLE.  §§1766,1767 

As  to  yielding-  possession  of  land,  see  Kerr's  Cyc.  C.  C.  §  1731 
and  note. 

As  to  yielding-  possession  upon  failure  of  title,  see  Kerr's  Cyc. 
Q.  C.   §  1765,  note  par.   9. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Damag-es  for  breach  of  warranty  of  title  to  personal  property. 
— See  Kerr's  Cyc.  C.  C.   §  3312  and  note. 

Warranty  of  title  implied  on  sale. — See  62  A.  D.  460-468;  16 
A.   S.   758,   759. 

§1766.    WARRANTY    ON   SALE   BY    SAMPLE.     One   who 

sells  or  agrees  to  sell  goods  by  sample,  thereby  warrants  the 
bulk  to  be  equal  to  the  sample. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

145  C.  272,  278,  78  P.  722  (referred  to  as  inapplicable);  147  C. 
313,  327,  81  P.  964   (cited  in  dis.  op.). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.   §  1786  and  note. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 

Sale  by  sample.— See  7  A.  D.   125-132;  55  A.  D.   328,   329. 

§1767.  WHEN  SELLER  KNOWS  THAT  BUYER  RELIES 
ON  HIS  STATEMENTS,  ETC.  One  who  sells  or  agrees  to  sell 
personal  property,  knowing  that  the  buyer  relies  upon  his 
advice  or  judgment,  thereby  warrants  to  the  buyer  that 
neither  the  seller,  nor  any  agent  employed  by  him  in  the 
transaction,  knows  the  existence  of  any  fact  concerning  the 
thing  sold  which  would,  to  his  knowledge,  destroy  the  buyer's 
inducement  to  buy. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cj^c. 
C.  C.   §  1786  and  note. 

Damages  for  breach  of  warranty  of  quality  for  special  pur- 
poses.— See  Kerr's  Cyc.  C.  C.  §  3314  and  note. 

971 


§§1768,1769  CIVIL  CODE.  [Div.III.Pt.IV. 

§1768.    MERCHANDISE   NOT  IN  EXISTENCE.     One  who 

agrees  to  sell  merchandise  not  then  in  existence,  thereby  war- 
rants that  it  shall  be  sound  and  merchantable  at  the  place  of 
production  contemplated  by  the  parties,  and  as  nearly  so,  at 
the  place  of  delivery,  as  can  be  secured  by  reasonable  care. 
History:     Enacted  March  21,   1872. 

See  Kerr  s  Cyc    C.  C.  for  7  pars,  annotation. 

75  C.  558,  561,  17  P.  687,  688  (referred  to);  76  C.  212,  214,  218, 
9  A.  S.  199,  18  P.  248,  249,  251  (construed  and  applied);  116  C. 
239,  245,  48  P.  62  (construed  and  applied);  119  C.  442,  51  P. 
689,  690   (referred  to  with  other  sections — sale  of  hams). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 

§1769.  MANUFACTURER'S  WARRANTY  AGAINST  LAT- 
ENT  DEFECTS.  One  who  sells  or  agrees  to  sell  an  article 
of  his  own  manufacture  thereby  warrants  it  to  be  free  from 
any  latent  defect,  not  disclosed  to  the  buyer,  arising  from  the 
process  of  manufacture,  and  also  that  neither  he  nor  his 
agent  in  such  manufacture  has  knowingly  used  improper 
materials  therein. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

67  C.  610,  613,  8  P.  440,  442  (construed  and  applied);  75  C. 
558,  561,  17  P.  687,  688  (referred  to);  119  C.  442,  51  P.  689,  690 
(referred  to);  134  C.  324,  328,  66  P.  311  (applied);  152  C.  31,  40, 
91  P.  983  (not  applicable);  4  C.  A.  249,  255,  256,  87  P.  410,  413 
(doubtful  whether  prune  trees  are  an  article  of  defendant's 
own  manufacture). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Commissioners'   note  cites:   78   A.   D.   163. 

Complaint — Latent  defect  must  be  alleged  as  cause  of  injury. 
— See  Kerr's  Cyc.  C.  C.  §  1786  and  note  par.  19. 

Damages — For  breach  of  warranty  of  quality  for  special  pur- 
poses.— See  Kerr's  Cyc.  C.  C.   §  3314  and  note. 

972 


Tit.I,ch.II,art.III.]     particular  purpose.  §  1770 

Same — 'For  personal  injuries  are  recoverable. — See  Kerr's  Cyc. 
C.  C.  §  1770  and  note  pars.  7,  8. 

Expert  testimony  is  admissible. — See  Kerr's  Cyc.  C.  C.  §  1770 
and  note  pars.   10,  11. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 

Rescission  by  buyer  upon  breach  of  warranty  is  permissible 
where  machine  sold  breaks  down. — See  67  C.   610,  613,  8  P.   440. 

Rights  of  buyer  upon  breach  of  warranty. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Starting  machine. — See  Kerr's  Cyc.  C.  C.  §  1763  and  note 
par.   27. 

Warranty  implied  upon  sale  of  article  by  manufacturer. — 
See  24  A.  R.   104-114. 


§1770.    THING   BOUGHT   FOE   PARTICULAR   PURPOSE. 

One  who  manufactures  an  article  under  an  order  for  a  par- 
ticular purpose,  warrants  by  the  sale  that  it  is  reasonably  fit 
for  that  purpose. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

63  C.  575,  576  (referred  to);  65  C.  273,  274,  3  P.  889,  890  (con- 
strued); 67  C.  610,  613,  8  P.  440,  442  (construed  and  applied); 
75  C.  558,  561,  17  P.  687,  688  (referred  to);  76  C.  212,  214,  9 
A.  S.  199,  18  P.  248,  250  (construed);  119  C.  442,  51  P.  689,  690 
(referred  to);  120  C.  228,  229,  231,  52  P.  496  (construed),  revers- 
ing commissioners'  decision,  47  P.  684;  134  C.  324,  328,  66  P.  311 
(applied);  152  C.  31,  40,  91  P.  983   (not  applicable). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1769,  note  par.  9,  §  1786  and  note. 

Contract  for  sale  of  article  to  be  manufactured  and  actual 
bargain  and  sale. — See  Kerr's  Cyc.  C.  G.  §  1721  and  note. 

Damages  for  breach  of  warranty  of  equality  for  special  pur- 
poses.-— See   Kerr's   Cyc.   C.  C.    §  3314  and   note. 

Evidence  that  similar  machines  do  good  work. — See  Kerr's 
Cyc.  C.  C.  §  1786  and  note  par.  8. 

Implied  warranty  of  article  manufactured  and  sold  for  par- 
ticular purpose.— See  6  A.  D.  115-117;  54  A.  D.  145;  22  L.  189-193. 

Rebuttal  of  implied  warranty  is  permitted. — ^See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 

Satisfactoriness  to  buyer  is  necessary,  when. — See  Kerr's  Cyc. 
C.  C.  §  1763  and  note  par.   24. 

973 


§§  1771-1773  CIVIL  CODE.  [Div.III.Pt.IV. 

§1771.  WHEN  THING  CANNOT  BE  EXAMINED  BY 
BUYER.  One  who  sells  or  agrees  to  sell  merchandise  inac- 
cessible to  the  examination  of  the  buyer,  thereby  warrants 
that  it  is  sound  and  merchantable. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

65  C.  "?"  275,  3  P.  889,  890  (construed);  76  C.  212,  214,  9  A.  S. 
199,  18  P.  248,  250  (referred  to);  119  C.  442,  51  P.  689,  690 
(referred  to);  145  C.  272,  280,  78  P.  722  (construed  and  held 
inapplicable);  147  C.  313,  327,  81  P.  964   (cited  in  dis.  op.). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Horse  feed  bought  without  inspection. — See  Kerr's  Cyc.  C.  C. 
§  1767   and  note  par.   4. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 

Rescission  upon  discovery  of  defects,  etc. — See  86  A.  D.  312- 
314. 

Sale  of  goods  by  description. — See  Kerr's  Cyc.  C.  C.  §  1767 
and  note  par.  5. 

§  1772.  TRADE-MARKS.  One  who  sells  or  agrees  to  sell 
any  article  to  which  there  is  affixed  or  attached  a  trade-mark, 
thereby  warrants  that  mark  to  be  genuine  and  lawfully  used. 

History:     Enacted  March   21,   1872,  taken   from   Stats.    25   and 

26  Vict.   ch.   88,   §  19. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — Sea  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 

§  1773.  OTHER  MARKS.  One  who  sells  or  agrees  to  sell 
any  article  to  which  there  is  affixed  or  attached  a  statement 
or  mark  to  express  the  quantity  or  quality  thereof,  or  the 
place  where  it  was,  in  whole  or  in  part,  produced,  manufac- 
tured, or  prepared,  thereby  warrants  the  truth  thereof. 

History:  Enacted  March  21,  1872.  See  Stats.  25  and  26,  Vict, 
ch.  88. 

974 


Tit.I,ch.II,art.III.]    WRITTEN  INSTRUMENT,  OF.     §§  1774,  1775 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 

ante.  , 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr  s  Cyc. 

C.  C.  §  1786  and  note. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.   §  1765  and  note  par.   14. 

§1774.  WARRANTY  0>  SALE  OF  WRITTEN  INSTRU- 
MENT.  One  who  sells  or  agrees  to  sell  an  instrument  pur- 
porting to  bind  any  one  to  the  performance  of  an  act,  thereby 
warrants  that  he  has  no  knowledge  of  any  facts  which  tend 
to  prove  it  worthless,  such  as  the  insolvency  of  any  of  the 
parties  thereto,  where  that  is  material,  the  extinction  of  its 
obligations,  or  its  invalidity  for  any  cause. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Am'dts.  1873-4,  p.  244.  Originally  this  section  contained  a 
further  provision,  which  was  stricken  out  in  1874,  that  seller 
warrants  instrument  to  be  what  it  purports  to  be  and  to  be 
binding  according  to  its  purport  upon  all  parties  thereto.  See 
103  C.  319,  324,  42  A.  S.   117,  37  P.  401. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

86  C.  184,  188,  24  P.  1005,  1006  (construed);  92  C.  117,  124,  127. 
128  28  P.  98,  99,  100  (construed);  96  C.  160,  161,  31  P.  14  (con- 
strued); 103  C.  319,  324.  42  A.  S.  117,  37  P.  401  (cited  with 
§3116);  139  C.  564,  585,  96  A.  S.  169,  73  P.  456,  457  (construed 
and  applied). 

As  to  liability  of  indorser  of  negotiable  instrument,  see  Kerr  s 
Cyc.  C.  C.  §  3116  and  note. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 

ante. 

Breach  of  warranty  as  ground  for  rescission.— See  Kerr  s  Cyc. 
C.  C.  §  1786  and  note. 

Implied  warranty  on  sale  of  corporate  stock.— See  53  L. 
153-156. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.   §  1765  and  note  par.   14. 

§1775.  WARRANTY  OF  PROVISIONS  FOR  DOMESTIC 
USE.  One  who  makes  a  business  of  selling  provisions  for 
domestic  use  warrants  by  a  sale  thereof,  to  one  who  buys 
for  actual  consumption,  that  they  are  sound  and  wholesome. 

History:     Enacted  March   21,   1872. 
975 


§§1776,1777  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

As  to  sale  of  unwholesome  food  for  stock,  see  Kerr's  Cyc. 
C.  C.   §  1708,  note  pars.   10-18. 

As  to  sale  of  unwholesome  provisions  for  food,  see  Kerr's 
Cyc.  C.  C.  §  43,  note  pars.  64-86. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  g  "'VSfi  and  note. 

Horse  feed  bought  without  inspection. — See  Kerr's  Cyc.  C.  C. 
§  1767  and  note  par.  4. 

Provisions  sold  for  domestic  use  impliedly  warranted. — See 
43   A.   D.   680,   681. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  14. 


§  1776.    WARRANTY  ON  SALE  OF  GOOD-WILL.    One  who 

sells  the  good-will   of  a  business   thereby   warrants   that  he 
will  not  endeavor  to  draw  off  any  of  the  customers. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

71  C.  142,  148,  11  P.  856,  859  (construed  and  applied);  114  C. 
635,  665,  667,  46  P.  742,  34  L.  265  (cited);  124  C.  429,  432,  71 
A.  S.  94,  57  P.  468,  46  L.  142    (cited). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Definition  of  good-will. — See  Kerr's  Cyc.  C.  C.  §  992  and  note. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.   §  1765  and  note  par.   14. 

Remedies  for  breach. — See  Kerr's  Cyc.  C.  C.  §,1786  and  note. 

Rescission  of  sale  unnecessary  to  entitle  buyer  to  damages 
for  breach  of  warranty. — See  71  C.  142,  148,  11  P.   856. 

Transfer  of  good-will. — See  Kerr's  Cyc.  C.  C.  §  993  and  note 
pars.  45-53. 

§1777.  WARRANTY  UPON  JUDICIAL  SALE.  Upon  a 
judicial  sale,  the  only  warranty  implied  is  that  the  seller 
does  not  know  that  the  sale  will  not  pass  a  good  title  to  the 
property. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

976 


Tit.I,ch.II,art.III.]    GENERAL   WARRANTY.  §  1778 

As  to  title  which  purchaser  is  entitled  to,  see  Kerr's  Cyc. 
C.  C.   §  1731  and  note. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

Rebuttal  of  implied  warranty  is  permitted. — See  Kerr's  Cyc. 
C.  C.   §  1765  and  note  par.   14. 

Void  and  voidable  sales. — See   47  A.   S.   707. 

§  1778.  EFFECT  OF  GENERAL  WARRANTY.  A  general 
warranty  does  not  extend  to  defects  inconsistent  therewith  of 
which  the  buyer  was  then  aware,  or  which  were  then  easily 
discernible  by  him  without  the  exercise  of  peculiar  skill;  but 
it  extends  to  all  other  defects. 

History:     Enacted  March   21,   1872. 

4  C.  A.  249,  255,  87  P.  410   (inapplicable). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  1778,  note. 


977 


§  1784  CIVIL,  CODE.  [Div.III,Pt.IV. 

CHAPTER  III. 

RIGHTS  AND  OBLIGATIONS  OF  THE  BUYER. 

§  1784.  Price,  when  to  be  paid. 
§  1785.  Right  to  inspect  goods. 
"  i""r>.     Rights  in  case  of  breach  of  warranty. 

§  1784.  PRICE,  WHEX  TO  BE  PAID.  A  buyer  must  pay 
the  price  of  the  thing  sold  on  its  delivery,  and  must  take  it 
away    within    a    reasonable    time    after    the    seller    offers    to 

deliver  it. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  39  pars,  annotation. 

76  C.  212,  215,  9  A.  S.  199,  18  P.  248,  250  (cited);  82  C.  474,  479, 
23  P.  118,  119   (construed  and  applied). 

As  to  check  not  being  tenderable,  see  Kerr's  Cyc.  C.  C.  §  1485 
and  note  pars.  13-16. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Acceptance  necessary — Contract  for  sale  of  article  to  be 
manufactured. — See  Kerr's  Cyc.  C.  C.  §  1770  and  note  par.   2. 

Agent  may  bring  action  for  price. — See  Kerr's  Cyc.  C.  C. 
§  1749  and  note. 

Breach  of  warranty — Rights  of  buyer  in  case  of. — See  Kerr's 
Cyc.  C.  C.  §  1786  and  note. 

Conditional  sale. — See  Kerr's  Cyc.  C.  C.  §  1753  and  note  par.  14. 

Counterclaim  upon  breach  of  warranty  in  action  for  price. — 
See  Kerr's  Cyc.  C.  C.  §  1780  and  note. 

Culling  by  buyer  not  permissible. — See  Kerr's  Cyc.  C.  C.  §  1753 
and  note  par.  16. 

Damage  for  breach  of  contract  by  buyer. — See  Kerr's  Cyc. 
C.  C.  §§3310,  3311  and  notes. 

Depositary — When  seller  must  act  as. — See  Kerr's  Cyc.  C.  C. 
§  1748  and  note. 

Excessive  quantity  delivered. — See  Kerr's  Cyc.  C.  C.  §  1753 
and  note  pars.   27-29. 

Forfeiture  of  instalments  paid. — See  Kerr's  Cyc.  C.  C.  §1749 
and  note. 

Frauds,  statute  of — Delivery  and  acceptance  required  to 
satisfy.— See  Kerr's  Cyc.  C.  C.  §  1624  and  note. 

Immediate  payment  at  time  of  making  contract  not  essential 
to  validity  of  sale. — See  Kerr's  Cyc.  C.  C.  §  1721  and  note. 

Inspection  of  goods  before  acceptance. — See  Kerr's  Cyc.  C.  C. 
§  1785  and  note. 

978 


Tit.I,ch.IIL]  RIGHT  TO  INSPECT.  §§  1785,  1786 

Lien  of  seller  for  price.— See  Kerr's  Cyc.  C.  C.  §  3049  and  note. 

Mutual  and  independent  stipulations  to  deliver  and  make 
payment. — See  Kerr's  Cyc.  C.  C.  §  1753  and  note  pars.  41-43. 

Receipt  and  acceptance  of  goods  distinguishable. — See  Kerr's 
Cyc.   C.   C.   §  1753   and   note  par.    56. 

Recovery  back  of  payment  made. — See  Kerr's  Cyc.  C.  C.  §  1749 
and  note. 

Remedies  of  seller  upon  non-payment  of  price. — See  Kerr's 
Cyc.  C.  C.  §  1749  and  note. 

Resumption  of  possession  by  seller  upon  non-payment  of 
instalment. — See  Kerr's  Cyc.  C.  C.  §  1749  and  note. 

Stoppage  in  transitu. — See  Kerr's  Cyc.  C.  C.  §§  3076-3080  and 
notes. 

Transportation — Expense  of. — See  Kerr's  Cyc.  C.  C.  §  1755  and 
note. 


§1785.  RIGHT  TO  INSPECT  GOODS.  On  an  agreement 
for  sale,  with  warranty,  the  buyer  has  a  right  to  inspect  the 
thing  sold,  at  a  reasonable  time,  before  accepting  it;  and 
may  rescind  the  contract  if  the  seller  refuses  to  permit  him 
to  do  so. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Breach  of  warranty  as  ground  for  rescission. — See  Kerr's  Cyc. 
C.  C.  §  1786  and  note. 

§  1786.    RIGHTS  IN  CASE  OF  BREACH  OF  WARRANTY. 

The  breach  of  a  warranty  entitles  the  buyer  to  rescind  an 
agreement  for  sale,  but  not  an  executed  sale,  unless  the 
warranty  was  intended  by  the  parties  to  operate  as  a  condi- 
tion. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

96  C.  84,  92,  31  A.  S.  181,  30  P.  1016,  1019,  21  L.  406  (applied- 
breach  of  warranty  entitles  buyer  to  rescind). 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Acceptance  of  goods — Effect  of. — See  Kerr's  Cyc.  C.  C.  §  1784 
and  note  pars.  18,  19. 

Damages  for  breach  of  warranty  of  quality. — See  Kerr's  Cyc. 
C.  C.  §  3313  and  note. 

979 


§  1786  CIVIL  CODE.  [Div.III.Pt.IV. 

Expert  testimony  as  to  sufficiency  of  machine  warranted. — 
See  Kerr's  Cyc.  C.  C.  §  1770  and  note  pars.  10,  11. 

Failure  of  title  as  defense  in  action  for  price. — See  Kerr's 
Cyc.  C.  C.  §  1765  and  note  par.   11. 

Necessity  to  allege  express  warranty. — See  Kerr's  Cyc.  C.  C. 
§  1764  and  note  par.  3. 

Remedies  of  buyer  for  breach  of  warranty. — See  54  A.  D. 
146;  16  A.  S.  759. 

Rescission  of  c-.n tract.— See  Kerr's  Cyc.  C.  C.  §§  1688-1691  and 
notes. 

Rescission  of  contract  for  breach  of  warranty. — See  4'L..   370. 

Yielding  possession  upon  failure  of  title. — See  Kerr's  Cyc. 
C.  C.  §  1765  and  note  par.  9. 


980 


Tit.I.ch.IV.]  AUCTION,  SALE   AT.  §§  1792-1794 

CHAPTER  IV. 

SALE    BY    AUCTION. 

§  1792.  Sale   by   auction,    what. 

§  1793.  Sale,    when    complete. 

§  1794.  Withdrawal    of    bid. 

§  1795.  Sale   under  written   conditions. 

§  1796.  Rights  of  buyer  upon  sale  without  reserve. 

§  1797.  By  bidding. 

§  1798.  Auctioneer's    memorandum   of   sale. 

§  1792.     SALE  BY  AUCTION,  WHAT.    A  sale  by  auction  is 
a  sale  by  public  outcry  to  the  highest  bidder  on  the  spot. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Auctioneers — As  to  ag-ency  of. — See  Kerr's  Cyc.  C.  C.  §§  2362, 
2363   and   notes. 

Same — Regulations  concerning. — See  Kerr's  Cyc.  Pol.  C. 
§§  3284-3324   and   notes. 

Same — Unlawfully  acting  as. — See  Kerr's  Cyc.  Pen.  C.  §  436  and 
note. 

Auctions — General  provisions  governing. — See  96  A.  D.  264-272. 

Mock  auctions — Penal  provisions  concerning. — See  Kerr's  Cyc. 
Pen.  C.  §  535  and  note. 

Withdrawal  of  property  from  auction  sale. — See  57  L.  784-789. 

§  1793.  SALE,  WHEN  COMPLETE.  A  sale  by  auction  is 
complete  when  the  auctioneer  publicly  announces,  by  the  fall 
of  his  hammer,  or  in  any  other  customary  manner,  that  the 
thing  is  sold. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

As  to  opening  biddings,  see  17  Encyc.  L.   1006-1010. 

§  1794.  WITHDRAWAL  OF  BID.  Until  the  announcement 
mentioned  in  the  last  section  has  been  made,  any  bidder  may 

981 


§§  1795-1797  CIVIL  CODE.  [Div.III.Pt.IV. 

withdraw  his  bid,  if  he  does  so  in  a  manner  reasonably  suffi- 
cient to  bring  it  to  the  notice  of  the  auctioneer. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

§  1795.  SALE  UNDER  WRITTEN  CONDITIONS.  When  a 
sale  by  auction  is  made  upon  written  or  printed  conditions, 
such  conditions  cannot  be  modified  by  any  oral  declaration 
of  the   auctioneer,   except  so  far   as   they   are   for   his   own 

benefit. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

§1796.  RIGHTS  OF  BUYER  UPON  SALE  WITHOUT 
RESERVE.  If,  at  a  sale  by  auction,  the  auctioneer,  having 
authority  to  do  so,  publicly  announces  that-  the  sale  will  be 
without  reserve,  or  makes  any  announcement  equivalent 
thereto,  the  highest  bidder  in  good  faith  has  an  absolute  right 
to  the  completion  of  the  sale  to  him;  and,  upon  such  a  sale, 
bids  by  the  seller,  or  any  agent  for  him,  are  void. 

Hi.story:     Enacted  March   21.  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Responsible  bidders,  who  are,  and  how  to  enforce  their  rights. 
— See   50  A.  S.   489-497. 

§  1797.  BY  BIDDING.  The  employment  by  a  seller  of  any 
person  to  bid  at  a  sale  by  auction,  without  the  knowledge  of 
the  buyer,  without  an  intention  on  the  part  of  such  bidder 
to  buy,  and  on  the  part  of  the  seller  to  enforce  his  bid,  is  a 
fraud  upon  the  buyer,  which  entitles  him  to  rescind  his  pur- 
chase. 

History:     Enacted  March  21,  1872. 
982 


Tit.I,ch.IV.]  MEMORANDUM    OF    SALE.  §  1798 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Effect  of  preventing  or  checking  bids  upon  validity  of  sale 
at  auction. — See  20  L.  545-553. 

Right  of  auctioneer  or  officer  conducting  sale  to  bid. — See 
20  L.   503-508. 

Stifling  competition — Associations  of  persons  employing  one 
to  bid  for  all. — See  96  A.  D.   268-270. 

§  1798.  AUCTIONEER'S  MEMORANDUM  OF  SALE.  When 
property  is  sold  by  auction,  an  entry  made  by  the  auctioneer, 
in  his  sale  book,  at  the  time  of  the  sale,  specifying  the  name 
of  the  person  for  whom  he  sells,  the  thing  sold,  the  price,  the 
terms  of  sale,  and  the  name  of  the  buyer,  binds  both  the  par-, 
ties  in  the  same  manner  as  if  made  by  themselves. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.  1873-4,  p.  244. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  sales,  see  note  §  1721, 
ante. 

Auctioneer's  authority  to  bind  parties  by  memorandum. — See 
Kerr's  Cyc.  C.  C.  §  2363  and  note. 

Cognate  section. — Substantially  same  provision  is  contained 
in  Kerr's  Cyc.  C.  C.  §  1624,  subd.  4,  in  note  to  which,  pars.  212- 
219,   will  be  found  full  treatment  of  subject. 

Statute  must  be  complied  with. — See  Kerr's  Cyc.  C.  C.  §  1793 
and  note  par.  2. 


983 


§  1804  CIVIL  CODE.  [Div.III.Pt.IV. 


TITLE  II. 
EXCHANGE. 


§  1804.  Exchange,    what. 

§  1805.  Form   of   contract. 

§  ISOfi  Parties  have  rights  and  obligations  of  sellers   and   buyers. 

§  1807.  Wairaniy  of  money. 

§  1804.  EXCHANGE,  WHAT.  Exchange  is  a  contract  by 
which  the  parties  mutually  give,  or  agree  to  give,  one  thing 
for  another,  neither  thing,  or  both  things,  being  money  only. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

71  C.  290,  292,  12  P.  172,  173  (construed  with  §  1806 — contract 
for  exchange  of  land  is  contract  of  sale). 

EXCHANGE  OF  PROPERTY. 

Definition  of. — See  21  Encyc.  L.   569;   3  W.  &  P.   2546. 

Distinguished  from  a  sale. — See  94  A.  S.  227;  21  Encyc.  L.  570; 
7  W.   &  P.  6300. 

Nature  of  contract  of,  in  general,  see  21  Cent.  Dig.  col.  203 
§§1,  2;   8  Decen.   Dig.  p.   1609,   §  1. 

Personal   property,    of — In   general. — See    21    Encyc.    L.    575. 

Same — Construction  of  contract. — See  21  Cent.  Dig.  col.  224, 
§19;   8  Decen.   Dig.  p.   1622,  §§9,   10. 

Same — Performance  of  contract. — See  21  Cent.  Dig.  col.  226, 
§  21. 

Same — Transfer  of  title  as  between  parties. — See  21  Cent. 
Dig.  col.   2226,  §  23. 

Same — Remedies  of  parties. — See  21  Encyc.  L.  576-578. 

Same — Rescission. — See  21  Cent.  Dig.  col.  224,  §§20,  20 14;  8 
Decen.  Dig.  p.   1622,   §  11. 

Same — Warranties. — See  21  Cent.  Dig.  col.  227,  §23;  8  Decen. 
Dig.  p.   1623,   §  12. 

Power  to  sell  personal  property  in  agent's  possession,  as 
implying  power   to   exchange. — See   10   L.   N.   S.    1118. 

Real  property  of — Construction  of  contract. — See  21  Cent. 
Dig.  col.  206,  §  4;  8  Decen.  Dig.  p.  1613,  §  4. 

Same — Performance  of  breach  of  contract. — See  21  Cent.  Dig. 
col.   215,   §11;   8  Decen.   Dig.   p.   1615,  §6. 

Same — Remedies  of  parties. — See  21  Cent.  Dig.  col.  218,  §§  IS- 
IS;  8  Decen.  Dig.  p.   1617,   §§8-8(5). 

Same — Requisites  and  validity  of. — See  21  Cent.  Dig.  col.  205, 
§3;  8  Decen.  Dig.  p.  1610,  §§3-3(2);  21  Encyc.  L.   571-574. 

984 


1 


Tit.  II.]  CONTRACT— RIGHTS.  §§  180.5-1807 

Same — Rescission  of  grounds  for. — See  21  Cent.  Dig.  col.  208, 
§§5-10. 

Same — Rights  and  liabilities  of  parties. — See  21  Cent.  Dig. 
col.  215,  §§12-14;  8  Decen.  Dig.  p.  1116,  §7. 

Same — Verbal  contract  for,  enforceability  of. — See  5  L.   245. 

Rights,  liabilities  and  remedies  of  parties. — See  21  Cent.  Dig. 
col.   228,  §§25-29;   8  Decen.  Dig.  p.  1623,  §13-13(5). 

Same — ^Conditional  exchange. — See   21  Cent.  Dig.  col.  234,  §  30. 

§  1805.  FORM  OF  CONTRACT.  The  provisions  of  section 
seventeen  hundred  and  thirty-nine  apply  to  all  exchanges  in 
which  the  value  of  the  thing  to  be  given  by  either  party  is 
two  hundred  dollars  or  more. 

HLstory:     Enacted  March   21,   1872. 

As  to  difference  between  exchange  and  sale  of  property,  see 
94  A.  S.  227. 

As  to  exchange  of  property  generally,  see  note  §  1804,  ante. 

As  to  part  performance  taking  contract  out  of  statute  of 
frauds,  see  Kerr's  Cyc.  C.  C.  §  1624,  note. 

As  to  requisites  of  contract  of  exchange  and  authority  to 
sign,   see  Kerr's  C5'c.  C.  C.   §  1624,  note. 

As  to  statute  of  frauds  and  necessity  of  contract  being  in 
writing,  see  Kerr's  Cyc.  C.  C.  §  1624,  note. 

§  1806.  PARTIES  HAVE  RIGHTS  AND  OBLIGATIONS  OF 
SELLERS  AND  BUYERS.  The  provisions  of  the  title  on  sale 
apply  to  exchanges.  Each  party  has  the  rights  and  obliga- 
tions of  a  seller  as  to  the  thing  which  he  gives,  and  of  a  buyer 
as  to  that  which  he  takes. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  il  pars,  annotation. 

71  C.  290,  292,  293,  12  P.  172,  173  (construed  with  §  1804 — con- 
tract for  exchange  of  land  is  contract  of  sale);  74  C.  376,  379. 
16  P.  194  (applied). 

As  to  exchange  of  property  generally,  see  note  §  1804,  ante. 

§1807.  WARRANTY  OF  MONEY.  On  an  exchange  of 
money,  each  party  thereby  warrants  the  genuineness  of  the 
money  given  by  him. 

History:     Enacted  March   21,   1872. 
985 


§  1813  CIVIL  CODE.  [Div.III.Pt.IV. 


TITLE   III. 

DEPOSIT. 

Chapter  I.     Deposit  in  General,  §§  1813-1828. 

II.     Deposit  for  Keeping,   §§  1833-1872. 
ill.     L'eposit  for  Exchange,   §  1878. 


CHAPTER  I. 

DEPOSIT  IN  GENERAL. 

Article  I.     Nature  and  Creation  of  Deposit,   §§  1813-1818. 
II.     Obligations  of  the  Depositary,   §§  1822-1828. 

ARTICLE  I. 

NATURE  AND  CREATION  OF  DEPOSIT. 

§  1813.  Deposit,   kinds   of. 

§  1814.  Voluntary  deposit,   how  made. 

§  1815.  Involuntary  deposit,   how  made. 

§  1816.  Same.      [Duty   of  involuntary   depositary.] 

§  1817.  Deposit  for  safe-keeping,   what. 

§  1818.  Deposit  for  exchange,    what. 

§  1813.    DEPOSIT,  KINDS  OF.    A  deposit  may  be  voluntary 
or  involuntary;  and  for  safe-keeping  or  for  exchange. 

History:     Enacted  March  21,   1872. 

As  to   common   carriers,   see   Kerr's   Cyc.  C.   C.    §§  2805   et   seq. 
and  notes. 

As  to  deposit  for  exchange,   see   Kerr's  Cyc.   C.   C.    §  1858  and 
note. 

As  to  deposit  for  hiring,  see  Kerr's  Cyc.  C.  C.   §§  1851   et  seq. 
and  notes. 

As  to  deposit  for  keeping,  see  Kerr's  Cyc.  C.  C.  §§  1833  et  seq. 
and  notes. 

As  to  gratuitous  deposits  and  incidents,  see  Kerr's  Cyc.  C.  C. 
§§  1844  et  seq.  and  notes. 

As  to  hiring,  see  Kerr's  Cyc.  C.  C.  §§  1925  et  seq.  and  notes. 

986 


il 


Tit.III,ch.I,art.I.]      INVOLUNTARY  DEPOSIT.  §§1814-1816 

As  to  innkeepers,  see  Kerr's  Cyc.  C.  C.  §§  1859  et  seq.  and 
notes. 

As  to  loan  for  exchange,  see  Kerr's  Cyc.  C.  C.  §  1902  and  note. 

As  to  loan  for  use,  see  Kerr's  Cyc.  C.  C.  §§  1884  et  seq.  and 
notes. 

As  to  loan  of  money,   see   post   §  1912. 

As  to  money  deposited  with  sheriff  as  indemnity,  see  Kerr's 
Cyc.  C.  C.  §  1318,  note  par.  1. 

As  to  pledge,  see  Kerr's  Cyc.  C.  C.  §§  2986  et  seq.  and  notes. 

As  to  trover  by  bailor,  see  1  A.  D.  587. 

§  1814.  VOLUNTARY  DEPOSIT,  HOW  MADE.  A  voluntary 
deposit  is  made  by  one  giving  to  another,  with  his  consent, 
the  possession  of  personal  property  to  keep  for  the  benefit 
of  the  former,  or  of  a  third  party.  The  person  giving  is  called 
the  depositor,  and  the  person  receiving  the  depositary. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  finder  of  lost  article,  see  Kerr's  Cyc.  C.  C.  §§  1864  et 
seq.  and  notes;  1  L.  N.  S.  477. 

As  to  obligations  of  depositary,  see  Kerr's  Cyc.  C.  C.  §§  1822 
et  seq.  and  notes. 

§  1815.  INVOLUNTARY  DEPOSIT,  HOW  MADE.  An  invol- 
untary deposit  is  made: 

1.  By  the  accidental  leaving  or  placing  of  personal  property 
in  the  possession  of  any  person,  without  negligence  on  the 
part  of  its  owner;   or, 

2.  In  cases  of  fire,  shipwreck,  inundation,  insurrection,  riot, 
or  like  extraordinary  emergencies,  by  the  owner  of  personal 
property  committing  it,  out  of  necessity,  to  the  care  of  any 
person. 

History:     Enacted  March   21,   1872. 

58  C.  115,  122   (applied). 

As  to  degree  of  care  requisite,  see  post  §  1846. 

As  to  involuntary  deposit  being  gratuitous,  see  post  §  1845. 

As  to  involuntary  deposit  must  be  accepted,  see  §  1816. 

As  to  when  duties  of  depositary  cease,  see  post  §  1847. 

§1816.  SAME.  [DUTY  OF  INVOLUNTARY  DEPOSIT- 
ARY.]    The  person   with  whom   a   thing  is   deposited   in   the 

987 


§§1817,1818  CIVIL  CODE.  [Div.III.Pt.IV. 

manner  described  in  tlie  last  section  is  bound  to  take  charge 
of  it,  if  able  to  do  so. 

History:     Enacted  March  21,  1872. 

§  1817.  DEPOSIT  FOR  SAFE  KEEPING,  WHAT.  A  deposit 
for  keeping  is  one  in  which  the  depositary  is  bound  to  return 
the  i'^pritical   thing  deposited. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  deposit  for  keeping,  see  Kerr's  Cyc.  C.  C.  §§  1833  et  seq. 
and   notes. 

§  1818.  DEPOSIT  FOR  EXCHANGE,  WHAT.  A  deposit 
for  exchange  is  one  in  which  the  depositary  is  only  bound  to 
return  a  thing  corresponding  in  kind  to  that  which  is  depos- 
ited. 

History:     Enacted  March   21, .1872. 

As  to  deposit  for  exchange  transferring  title,   see  post   §  1878. 

As  to  loan  for  exchange,  see  Kerr's  Cyc.  C.  C.  §§  1902  et  seq. 
and  notes. 

For  Cominissioners'  comment  on  tliis  section,  see  Kerr's  Cyc. 
C.  C.  §  1818,  note. 


988 


Tit.TIT,ch.I,art.II.]         DELIVERY-DEMAND.  §§  1822.  1823 

ARTICLE  II. 

OBLIGATIONS    OF    THE    DEPOSITARY. 

§  1822.  Depositary   must  deliver  on   demand. 

§  1823.  No  obligation  to  deliver  without  demand. 

§  1824.  Place  of  delivery. 

§  1825.  Notice  to  owner  of  adverse  claim. 

§  1826.  Notice  to  owner  of  thing  wrongfully  detained. 

§  1827.  Delivery  of  thing  owned  jointly,   etc. 

8  1828.  Joint  deposit  by   two  or  more  persons. 

§  1822.    DEPOSITARY  MUST  DELIVER  ON  DEMAND.     A 

depositary  must  deliver  the  thing  to  the  person  for  whose' 
benefit  it  was  deposited,  on  demand,  whether  the  deposit  was 
made  for  a  specified  time  or  not,  unless  he  has  a  lien  upon 
the  thing  deposited,  or  has  been  forbidden  or  prevented  from 
doing  so  by  the  real  owner  thereof,  or  by  the  act  of  the  law, 
and  has  given  the  notice  required  by  section  eighteen  hun- 
dred and  twenty-five. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

93  C  283  287,  28  P.  1045,  1046  (applied);  113  C.  97,  102,  45  P. 
177  (applied);  151  C.  479,  482,  91  P.  152  (applied— duty  of  bailee). 

As  to  degree  of  care  required  of  depositary  for  hiring,  see 
Kerr's  Cyc.  C.  C.  §  1852  and  note. 

As  to  lien  of  innkeepers,  see  Kerr's  Cyc.  C.  C.  §U861  et  seq. 
and  notes. 

§1823.  NO  OBLIGATION  TO  DELIVER  ^VITHOUT  DE- 
MAND.  A  depositary  is  not  bound  to  deliver  a  thing  depos- 
ited without  demand,  even  where  the  deposit  is  made  for  a 
specified  time. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

113  C.  97,  102,  45  P.  177  (applied);  114  C.  612,  46  P.  599   (applied 

without  citation).  t-^t-v-c 

As   to   obligation   to   deliver   on   demand   generally,   see   Kerr  s 

Cyc.  C.  C.  §  1822  and  note. 

989 


§§  1824-1827  CIVIL  CODE.  [Div.III.Pt.IV. 

§  1824.  PLACE  OF  DELIVERY.  A  depositary  must  deliver 
the  thing  deposited  at  his  residence  or  place  of  business,  as 
may  be  most  convenient  for  him. 

History:     Enacted  March   21,   1872. 

58  C.   115,  122   (applied). 

As  to  delivery  in  sales,  see  Kerr's  Cyc.  C.  C.  §§  1753  et  seq. 
and  notes. 

As  to  lendei'c  liability  for  defects  of  articles  borrowed,  see 
Kerr's  Cyc.  C.  C.  §  1894  and  note. 

As  to  whether  depositary  would  be  considered  to  have  lien, 
reimbursements  or  indemnity  under  this  section,  compare 
§§  1839,  3051. 

§1825.    NOTICE    TO    OWNER   OF   ADVERSE    CLAIM.     A 

depositary  must  give  prompt  notice  to  the  person  for  whose 
benefit  the  deposit  was  made,  of  any  proceedings  taken 
adversely  to  his  interest  in  the  thing  deposited,  which  may 
tend  to  excuse  the  depositary  from  delivering  the  thing  to 
him. 

History:     Enacted  March   21,   1872. 

93  C.  283,  287,  28  P.  1045,  1046    (applied). 

As  to  liability  of  one  receiving  property  from  one  having  no 
title  thereto,  see  Kerr's  Cyc.  C.  C.  §  1825,  note  par.  2. 

§1826.  NOTICE  TO  OWNER  OF  THING  WRONGFULLY 
DETAINED.  A  depositary,  who  believes  that  a  thing  depos- 
ited with  him  is  wrongfully  detained  from  its  true  owner, 
may  give  him  notice  of  the  deposit;  and  if  within  a  reason- 
able time  afterwards  he  does  not  claim  it,  and  sufficiently 
establish  his  right  thereto,  and  indemnify  the  depositary 
against  the  claim  of  the  depositor,  the  depositary  is  exoner- 
ated from  liability  to  the  person  to  whom  he  gave  the  notice, 
upon  returning  the  thing  to  the  depositor,  or  assuming,  in 
good  faith,  a  new  obligation  changing  his  position  in  respect 
to  the  thing,  to  his  prejudice. 

History:     Enacted  March   21,   1872. 

§1827.    DELIVERY   OF   THING   OWNED   JOINTLY,  ETC. 

If  a  thing  deposited  is  owned  jointly  or  in  common  by  per- 

990 


I 


Tit.III,ch.I,art.II.]        JOINT  deposits.  §1828 

sons  who  cannot  agree  upon  the  manner  of  its  delivery,  the 
depositary  may  deliver  to  each  his  proper  share  thereof,  if  it 
can  be  done  without  injury  to  the  thing. 

History:     Enacted  March   21,   1872. 
See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§  1828.    JOINT  DEPOSITS  BY  TWO  OR  MORE  PERSONS. 

When  a  deposit  is  made  in  the  name  of  two  or  more  persons, 
deliverable  or  payable  to  either  or  to  their  survivor  or  sur- 
vivors, such  deposit  or  any  part  thereof,  or  increase  thereof, 
may  be  delivered  or  paid  to  either  of  said  persons  or  to  the 
survivor  or  survivors  in  due  course  of  business. 

History:     Enacted  March  4,  1907,  Stats,  and  Amdts.  1907,  p.  92, 
Kerr's  Stats,  and  Amdts.  1906-7,  p.  426. 


991 


§1833 


CIVIL,  CODE.  [Div.III.Pt.IV. 

CHAPTER  II. 
DEPOSIT  FOR  KEEPING. 


Article  I.  General  Provisions,  §§  1833-1840. 

II.  Gratuitous  Deposit,  §§  1844-1847. 

111.  Storage,  §§  1851-1857. 

Ilia.  Warehousemen,  §§  1858-1858f. 

IV.  Innkeepers,  §§  1859-1863. 

V.  Finding,  §§  1864-1872. 


ARTICLE  I. 

GENERAL    PROVISIONS. 

§  1833.  Depositor  must  indemnify  depositary. 

§  1834.  Obligation    of   depositary   of   animals. 

§  1835.  Obligations  as  to  use  of  thing  deposited. 

§  1836.  Liability   for   damage   arising   from   wrongful   use. 

§  1837.  Sale  of  thing  in  danger  of  perishing. 

§  1838.  Injury  to,  or  loss  of  thing  deposited. 

§  1839.  Service  rendered  by  depositary. 

§  1840.  Extent  of  his  liability  for   negligence. 

§1833.    DEPOSITOR    MUST    INDEMNIFY    DEPOSITARY. 

A  depositor  must  indemnify  the  depositary: 

1.  For  all  damage  caused  to  him  by  the  defects  or  vices  of 
the  thing  deposited;   and, 

2.  For  all  expenses  necessarily  incurred  by  him  about  the 
thing,  other  than  such  as  are  involved  in  the  nature  of  the 
undertaking. 

History:     Enacted  March   21,   1872. 

As  to  lender's  liability  for  recalling  loan,  see  Kerr's  Cyc.  C.  C. 
§  1894  and  note. 

For  Commissioners'  comment  on  this  sect-ion,  see  Kerr's  Cyc. 
C.  C.  §  1833,  note. 

992 


Tit.III,ch.II,art.I.]     USE,    damage,   injury.  §§  1834-1838 

§  1834.    OBLIGATION  OF  DEPOSITARY  OF  ANIMALS.    A 

depositary  of  living  animals  must  provide  them  with  suitable 
food  and  shelter,  and  treat  them  kindly. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  lien  for  keepers  of  live  stock,  see  Kerr's  Cyc.  C.  C. 
§  3051  and  note. 

As  to  lien  for  services  at  common  law,  see  37  A.  D.  522. 

§1835.    OBLIGATIONS   AS   TO   USE    OF    THING   DEPOS- 

ITED.  A  depositary  may  not  use  the  thing  deposited,  or  per- 
mit it  to  be  used,  for  any  purpose,  without  the  consent  of 
the  depositor.  He  may  not,  if  it  is  purposely  fastened  by  the 
depositor,  open  it  without  the  consent  of  the  latter,  except 
in  case  of  necessity. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

94  C.  347,  350,  29  P.  869  (applied);  112  C.  598,  601,  53  A.  S.  228, 
44  P.  1063,  32  L.  479   (applied). 

As  to  hiring-,  see  Kerr's  Cyc.  C.  C.  §§  1925  et  seq.  and  notes. 

§1836.  LIABILITY  FOR  DAMAGE  ARISING  FROM 
WRONGFUL  USE.  A  depositary  is  liable  for  any  damage 
happening  to  the  thing  deposited,  during  his  wrongful  use 
thereof,  unless  such  damage  must  inevitably  have  happened 
though  the  property  had  not  been  thus  used. 

History:     Enacted  March   21,   1872. 

§1837.    SALE   OF   THING  IN  DANGER   OF   PERISHING. 

If  a  thing  deposited  is  in  actual  danger  of  perishing  before 
instructions  can  be  obtained  from  the  depositor,  the  depositary 
may  sell  it  for  the  best  price  obtainable,  and  retain  the  pro- 
ceeds as  a  deposit,  giving  immediate  notice  of  his  proceedings 
to  the  depositor. 

History:     Enacted  March  21,  1872. 

§  1838.    INJURY  TO,  OR  LOSS  OF  THING  DEPOSITED.   If 

a  thing  is  lost  or  injured  during  its  deposit,  and  the  depos- 
Kerr's    C.    C— 32  993 


§§  1839,  1840  CIVIL  CODE.  [Div.III,Pt.IV. 

itary  refuses  to  inform  the  depositor  of  the  circumstances 
under  which  the  loss  or  injury  occurred,  so  far  as  he  has 
information  concerning  them,  or  wilfully  misrepresents  the 
circumstances  to  him,  the  depositary  is  presumed  to  have 
wilfully,  or  by  gross  negligence,  permitted  the  loss  or  injury 
to  occur. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
53   C.   735,   736    (construed). 

§  1839.    SEEVICE  EENDERED  BY  DEPOSITARY.     So  far 

as  any  service  is  rendered  by  a  depositary,  or  required  from 
him,  his  duties  and  liabilities  are  prescribed  by  the  title  on 
employment  and  service. 

History:     Enacted  March   21,   1872. 

As  to   employment,   etc.,   see  Kerr's   Cyc.   C.   C.    §§  1965   et   seq. 
and  notes. 

As  to  service,  see  Kerr's  Cyc.  C.  C.  §§  1965  et  seq.  and  notes. 

§  1840.    EXTEIVT  OF  HIS  LIABILITY  FOR  NEGLIGENCE. 

The  liability  of  a  depositary  for  negligence  cannot  exceed  the 
amount  which  he  is  informed  by  the  depositor,  or  has  reason 
to  suppose,  the  thing  deposited  to  be  worth. 

History:      Enacted   March    21,    1872;   amended    March    30,    1874, 
Code  Amdts.   1873-4,  p.  244. 

133  C.  534,  538,  85  A.  S.  221,  65  P.  1099   (construed). 
For  construction  of  above  section,  see  Kerr's  Cyc.  C.  C.  §  1840, 
note  par.  2. 


994 


Tit.III,ch.II,art.II.]    GRATUITOUS   DEPOSITS.  §§1844-1847 


ARTICLE  II. 

GRATUITOUS    DEPOSIT. 

§  1844.  Gratuitous    deposit,    what. 

8  1845  Nature   of   involuntary   deposit. 

§  1846.  Degree  of  care  required  of  gratuitous  depositary. 

§  1847.  His  duties  cease,   when. 

§18M.      GRATUITOUS     DEPOSIT,     >YHAT.       Gratuitous 
deposit  is  a  deposit  for  which  the  depositary  receives  no  con- 
sideration beyond  the  mere  possession  of  the  thing  deposited. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

103  C.  377,  379,  37  P.  179   (cited).  -jq    \    S 

As  to  liability  of  gratuitous  bailees,  see  23  A.  D.  3-,  S>>  a.  ». 

779. 

§  1845.    >  ATUEE  OF  INVOLUNTARY  DEPOSIT.    An  invol- 
untary deposit  is  gratuitous,  the  depositary  being  entitled  to 

no  reward. 

History:     Enacted  March  21,  1872. 

As  to  definition  of  involuntary  deposit,   see  ante  §1815;   4  W. 
&  P.  3762. 

§  1846.    DEGREE  OF  CARE  REQUIRED  OF  GRATUITOUS 
DEPOSITARY.     A  gratuitous  depositary   must  use,   at  least, 
slight  care  for  the  preservation  of  the  thing  deposited. 
History:     Enacted  March   21,   1872. 

§  1847.    HIS  DUTIES  CEASE,  WHEN.  The  duties  of  a  gra- 
tuitous depositary  cease: 

1  Upon  his  restoring  the  thing  deposited  to  its  owner;  or, 

2  Upon  his  giring  reasonable  notice  to  the  owner  to  reniOTC 

it,  and  the  owner  failing  to  do  so  within  a  reasonable  time. 
But  an  involuntary  depositary,  under  subdivision  two  of  sec- 
tion eighteen  hundred  and  fifteen,  cannot  give  such  notice 
until  the  emergency  which  gave  rise  to  the  deposit  is  past. 

History:     Enacted  March   21,  1872. 
995 


§§  1851,  1852  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  III. 

STORAGE. 

§  1851.  Deposit    for    hire. 

§  1852.  Degree  of  care  required  of  depositary  for  hire. 

§  1853.  Rate  of  compensation  for  fraction  of  a  week,  etc. 

§  1854.  Termination    of    deposit. 

§  1855.  Same.     [On  payment  of  charges  to  become  due.] 

§  1856.  Lien  for  storage  charges    [and  money  advanced]. 

§  1857.  Storage   property   to    be   sold. 

§  1851.  DEPOSIT  FOR  HIRE.  A  deposit  not  gratuitous  is 
called  storage.  The  depositary  in  such  case  is  called  a  depos- 
itary for  hire. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
120  C.  596,  598,  52  P.  847   (cited). 

As  to  liiring  in  genera),  see  'Kerr's  Cyc.  C.  C.  §  1925  and  note; 
also  note  §  1925,  post. 

§  1852.  DEGREE  OF  CARE  REQUIRED  OF  DEPOSITARY 
FOR  HIRE.  A  depositary  for  hire  must  use  at  least  ordinary 
care  for  the  preservation  of  the  thing  deposited. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

56  C.  484,  486  (applied);  113  C.  97,  104,  45  P.  177  (applied); 
120  C.  596,  598,  52  P.  847  (cited). 

As  to  care  required  of  bankers  acting  as  bailees,  see  38  A.  S. 
773,  778. 

As  to  duties  and  liability  of  warehouseman  for  cold  storage, 
see  90  A.  S.  295. 

As  to  legislative  control  over  business  of  warehouseman; 
receipts;  obligation  to  return  the  thing  bailed;  assignment  and 
sale  of  property;  liability  for  negligence,  see  7  L.  529. 

As  to  liability  of  common  carriers,  see  Kerr's  Cyc.  C.  C. 
§§  2100,  2114,  2194  and  notes. 

As  to  liability  of  common  carriers  for  ^oods  left  with  them 
or  stored  with  them,  see  Kerr's  Cyc.  C.  C.  §§  2085  et  seq. 

As  to  liability  of  common  carriers  as  warehousemen,  see 
Kerr's  Cyc.  C.  C.  §§  2120,  2121. 

996 


Tit.III,ch.II,art.III.]        COMPENSATION.  §§  1853.  1856 

AS  to  liability  of  innkeepers,  see  Kerr's  Cyc.  C  a  §1859^ 
As  to  liability  of  safe  deposit  companies,  see  72  A.  b.  zub. 
As  to  liability  of  warehouseman,  see  24  A.  D.  145. 

8  1853  RATE  OF  COMPENSATION  FOR  FRACTION  OF  A 
WEEK  ETC.  In  the  absence  of  a  different  agreement  or 
usage,  'a  depositary  for  hire  is  entitled  to  one  week's  hire 
for  the  sustenance  and  shelter  of  living  animals  during  any 
fraction  of  a  week,  and  to  half  a  month's  hire  for  the  storage 
of  any  other  property  during  any  fraction  of  a  half  month. 
Hi!st«»ry:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

§  1854  TERMINATION  OF  DEPOSIT.  In  the  absence  of 
an  agreement  as  to  the  length  of  time  during  which  a  deposit 
is  to  continue,  it  may  be  terminated  by  the  depositor  at  any 
time,  and  by  the  depositary  upon  reasonable  notice. 

History:     Enacted  March   21,  1872. 
See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§1855.  SAME.  [ON  PAYMENT  OF  CHARGES  TO  BE- 
COME  DUE.]  Notwithstanding  an  agreement  respecting  the 
length  of  time  during  which  a  deposit  is  to  continue,  it  may 
be  terminated  by  the  depositor  on  paying  all  that  would 
become  due  to  the  depositary  in  case  of  the  deposit  so  con- 
tinuing. 

History:     Enacted  March   21,   1S(^. 

§1856.  LIEN  FOR  STORAGE  CHARGES  [AND  MONEY 
ADVANCED].  A  depositary  for  hire  has  a  lien  for  storage 
charges  and  for  advances  and  insurance  incurred  at  the 
request  of  the  bailor,  and  for  money  necessarily  expended  m 
and  about  the  care,  preservation  and  keeping  of  the  property 
stored  and  he  also  has  a  lien  for  money  advanced  at  the 
request  of  the  bailor,  to  discharge  a  prior  lien,  and  for  the 
expenses  of  a  sale  where  default  has  been  made  in  satisfying 
a  valid  lien.  The  rights  of  the  depositary  for  hire  to  such 
lien  are  regulated  by  the  title  on  liens. 

997 


§  1857  CIVIL  CODE.  [Div.III.Pt.IV. 

History:  Enacted  March  31,  1891,  Stats,  and  Amdts.  1891,  p. 
470;  amended  April  19,  1909,  Stats,  and  Amdts.  1909,  p.   1001. 

125  C.  593,  595,  58  P.  175  (applied);  125  C.  596,  599,  58  P.  186 
(applied — goods   stored   in  warehouse). 

As  to  factors  and  factors'  liens,  see  Kerr's  Cyc.  C.  C.  §§  2367 
et  seq.,  §  3053  and  notes. 

As  to  lien  for  storage,  pasturage,  living,  service,  etc.,  see 
Kerr's  Cyc.  C.  C.  §  3051  and  note. 

§  1857.  STORAGE  PEOPERTY  TO  BE  SOLD.  If  from  any 
cause  other  than  want  of  ordinary  care  and  diligence  on  his 
part,  a  depositary  for  hire  is  unable  to  deliver  perishable 
property,  baggage,  or  luggage  received  by  him  for  storage, 
or  to  collect  his  charges  for  storage  due  thereon,  he  may 
cause  such  property  to  be  sold,  in  open  market,  to  satisfy 
his  lien  for  storage;  provided,  that  no  property  except  perish- 
able property  shall  be  sold,  under  the  provisions  of  this  sec- 
tion, upon  which  storage  charges  shall  not  be  due  and  unpaid 
for  one  year  at  the  time  of  such  sale. 

History:     Enacted  March   31,  1891,  Stats,  and  Amdts.   1891,   p. 

470. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

125  C.  593,  595,  599,  58  P.  175   (construed). 

As  to  sales  of  property  stored  to  pay  liens  thereon,  except 
perishable  goods  and  baggage  or  luggage,  see  Kerr's  Cyc.  C.  C. 
§§  2827,  2898,  and  3000  to  3011  and  notes. 


998 


Tit.III.ch.II,art.IIIa.]        WAREHOUSE   RECEIPTS.  §1858 


ARTICLE  Ilia. 
WAREHOUSEMEN. 


[This   article,    including    §§  1858-1858f    was   ^^^^f  X^'stL^'Za 
mission  as  a  part  of  article  III.  Act  of  March  16,   1901,   Stats,  and 

A™  1900-l'  PP.    409-411.    held   — "^-^^-^^l^^^.^J^^^/'^el 
ante-    Commissioner  Davis   procured  a  re-enactment  of   these   sec 
trons'Jmproperly   designating   them   as    "Chapter   IHa—March    21, 
1905,   Stats,   and  Amdts.  1905,  pp.   611-613.] 

5  1858      Warehouse  receipts,   when  must  not  be  issued. 

1858a.  Property  not  to  be  removed  without  consent  m  writing. 
S  1858b    Warehouse  receipts,  classification  and  effect  of. 
n858c'  indorsement  on  negotiable  receipt  of  property  delivered. 
I  1858d.  Non-negotiable   receipts   and    their   effect. 
§  1858e.  Liability   for  loss   by   fire. 
§  1858f.  Penalties  and  liabilities. 

§  1858.    WAREHOUSE  RECEIPTS,  WHE!S^  MIST  >0T  BE 

ISSUED.  A  warehouseman,  wharfinger,  or  other  person  doing 
a  storage  business  must  not  issue  any  receipt  or  voucher  for 
any  merchandise,  grain,  or  other  product  or  thing  of  value, 
to  any  person  purporting  to  be  the  owner  thereof,  nor  to  any 
person  as  security  for  any  indebtedness  or  for  the  perform- 
ance of  any  obligation,  unless  such  merchandise,  grain,  or 
other  product,  commodity,  or  thing  has  been,  in  good  faith, 
received  by  such  warehouseman,  wharfinger,  or  other  person, 
and  is  in  his  store  or  under  his  control  at  the  time  of  issuing 
his  receipt;  nor  must  any  second  receipt  for  any  such  prop- 
erty be  issued  while  a  former  receipt  for  any  part  thereof 
is  outstanding  and  uncanceled. 

History:     Enacted  March  21,   1905:   see  introductory  note. 

1  C.  A.  488,  491  (erroneously  cited  as  "p.  799"),  82  P.  686  (same 
^'IT^to   whether  warehouseman's   receipt   is   conclusive   against 

him,  see   100  A.   D.   243.   244.  T'.,-r-«  Cvc    C    C 

As  to  who  may  issue  warehouse  receipts,  see  Keirs  C>c.  C.  c. 

§  1858.  note. 

999 


§§  1858a-1858c  CIVIL  CODE.  [Div.III,Pt.IV. 

§  1858a.    PROPERTY   NOT  TO  BE   REMOVED   WITHOUT 

CONSENT  IN  WRITING.  No  warehouseman,  wharfinger,  or 
other  person  must  sell  or  encumber,  ship,  transfer,  or  remove 
beyond  his  immediate  control  any  property  for  which  a 
receipt  has  been  given,  without  the  consent  in  writing  of  the 
person  holding  such  receipt  plainly  indorsed  thereon  in  ink. 

Hi8tur> :     i;r\.i;'t;d  March  21,   1905;   see  introductory  note. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§  1858b.      WAREHOUSE     RECEIPTS,     CLASSIFICATION 

AND  EFFECT  OF.  Warehouse  receipts  for  property  stored 
are  of  two  classes:  first,  transferable  or  negotiable;  and  sec- 
ond, non-transferable  or  non-negotiable.  Under  the  first  of 
these  classes  the  property  is  transferable  by  indorsement  of 
the  party  to  whose  order  such  receipt  was  issued,  and  such 
indorsement  is  a  valid  transfer  of  the  property  represented 
by  the  receipt,  and  may  be  in  blank  or  to  the  order  of  another. 
All  warehouse  receipts  must  distinctly  state  on  their  face 
for  what  they  are  issued  and  its  brands  and  distinguishing 
marks  and  the  rate  of  storage  per  month  or  season,  and,  in 
the  case  of  grain,  the  kind,  the  number  of  sacks,  and  pounds. 
If  a  receipt  is  not  negotiable,  it  must  have  printed  across 
its  face,  in  red  ink,  in  bold,  distinct  letters,  the  word  "Non- 
negotiable." 

History:     Enacted  March   21,    1905;   see   introductory   note. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

As  to  effect  on  warehouseman  of  recitals  in  receipts,  see  19 
L.   302. 

As  to  receipts  of  warehouseman,  whether  conclusive  as  to 
question  of  quality,  see  100  A.  D.  243. 

As  to  warehouse  receipts,  their  transfer  and  negotiability, 
see   84   A.   D.   752,   754,   3  A.   S.   200. 

As  to  warehouseman  receipts  in  general,  see  7  L.  529. 

§  1858c.  INDORSEMENT  ON  NEGOTIABLE  RECEIPT  OF 
PROPERTY  DELIVERED.  If  a  negotiable  receipt  is  issued 
for  any  property,  neither  the  person  issuing  it  nor  any  other 
person  into  whose  care  or  control  the  property  comes  must 
deliver  any  part  thereof  without  indorsing  on  the  back  of  the 
receipt  in  ink,  the  amount  and  date  of  the  delivery;  nor  can 

1000 


Tit.III,ch.II,art.IIIa.]      LOSS   by  fire.  §§  I858d-1858f 

he  be  allowed  to  make  any  offset,  claim,  or  demand  other 
than  is  expressed  on  the  face  of  the  receipt,  when  called 
upon  to  deliver  any  property  for  which  it  was  issued. 

History:     Enacted  March   21,    1905;    see   introductory   note. 

As  to  non-negotiable  warehouse  receipts,  see  Kerr's  Cyc.  C.  C. 
§  1858c,  note. 

§  1858d.  NON-NEGOTIABLE  RECEIPTS  AND  THEIR  EF- 
FECT. If  a  non-negotiable  receipt  is  issued  for  any  prop- 
erty, neither  the  person  issuing  nor  any  other  person  in 
whose  care  or  control  the  property  comes  must  deliver  any 
part  thereof,  except  upon  the  written  order  of  the  person 
to  whom  the  receipt  was  issued. 

History:     Enacted  March  21,   1905;   see  introductory  note. 

§  1858e.  LIABILITY  FOR  LOSS  BY  FIRE.  No  warehouse- 
man or  other  person  doing  a  general  storage  business  is 
responsible  for  any  loss  or  damage  to  property  by  fire  while 
in  his  custody,  if  he  exercises  reasonable  care  and  diligence 
for  its  protection  and  preservation. 

History:     Enacted  Marcli  21,   1905;   see  introductory  note. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

Act  of  God,  as  to  wliat  constitutes,  see  Kerr's  Cyc.  C.  C. 
§§1511,   2194  and  notes;   1   W.   &  P.   118-126. 

§1858f.  PEJfALTIES  AND  LIABILITIES.  Every  ware- 
houseman, wharfinger,  or  other  person  who  violates  any  of 
the  provisions  of  section  eighteen  hundred  and  fifty-eight  to 
eighteen  hundi'ed  and  fifty-eight  e,  inclusive;  is  guilty  of  a 
felony,  and,  upon  conviction  thereof,  may  be  fined  in  a  sum 
not  exceeding  five  thousand  dollars,  or  imprisoned  in  the 
state  prison  not  exceeding  five  years,  or  both.  He  is  also 
liable  to  any  person  aggrieved  by  such  violation  for  all  dam- 
ages, immediate  or  consequent,  which  he  may  have  sustained 
therefrom,  which  damages  may  be  recovered  by  a  civil  action 
in  any  court  of  competent  jurisdiction,  whether  the  offender 
has  been  convicted  or  not. 

History:     Enacted  March  21,   1905;   see  introductory  note. 

1001 


§  1859  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  IV. 

INNKEEPERS. 

§  1859.  Innkeeper's  liability. 

§  1860.  How  exempted   from  liability. 

§  1861.  Liicn    for    'liarges    on    baggage. 

§1862.  Unclaimed  baggage  may  be  sold  at  auction;   notice  of. 

§  1863.  Keepers  to  post  rates  of  charges. 

§  1859.  INKEEPER'S  LIABILITY.  The  liability  of  an  inn- 
keeper, hotel  keepei',  boarding-house  and  lodging-house 
keeper,  for  losses  of  or  injuries  to  personal  property,  other 
than  money,  placed  by  his  guests,  boarders,  or  lodgers  under 
his  care,  is  that  of  a  depositary  for  hire; 

[Amonnt  of  liability.]  Provided,  however,  that  in  no  case 
shall  such  liability  exceed  the  sum  of  one  hundred  dollars 
for  each  trunk  and  its  contents,  fifty  dollars  for  each  valise 
or  traveling-bag  and  contents,  and  ten  dollars  for  each  box, 
bundle,  or  package  and  contents,  so  placed  under  his  care, 
unless  he  shall  have  consented  in  writing  with  the  owner 
thereof  to  assume  a  greater  liability. 

History:  Enacted  March  21,  1872;  amended  March  12,  1895, 
Stats,  and  Amdts.  1895,  p.  49. 

See  Kerr's  Cyc.  C.  C.  for  39  pars,  annotation. 

93  C.  253,  261,  262,  27  A.  S.  198,  26  P.  1099,  1100,  1101,  28  P. 
943,  16  L.  188  (construed);  96  C.  490,  492,  493,  31  P.  560  (con- 
strued). 

As  to  compulsory  service  by  innkeepers,  see  15  L.  321. 

As  to  contributory  negligence  of  guest,  and  when  relieves 
innkeeper  from  liability,   see  41  A.  R.   777. 

As  to  definition  of  inn,  see  6  L.   483. 

As  to  liability  of  innkeepers,  see  35  A.  D.  125. 

As  to  liability  of  innkeepers  for  goods  of  their  guests,  see 
18  A.  R.  130;  99  A.  S.  577. 

As  to  liability  of  innkeepers  for  loss  of  property;  for  what 
property;  for  property  lost  or  stolen,  when  not  liable,  see  12 
L.   382. 

As  to  refusing  to  receive  guests,  see  19  A.  S.  584. 

As  to  responsibility  of  innkeeper;  liability  as  insurer;  as 
bailee,  see  6  L.  483,  809;  12  L.  382. 

1002 


il 


Tit.III,ch.II,art.IV.]    exemption— lien.  §§  1860-1861 

As  to  sleeping-car  companies  as  innkeepers,  see  21  L.  289. 

As  to  who  are  guests,  see  14  A.  D.  258,  259;  46  A.  D.  119. 

As  to  who  are  guests  or  innkeepers,  and  when  they  cease  to 
be  such,   see   62  A.  D.   586. 

As  to  wlio  are  innkeepers  and  their  respective  riglits, 
remedies,  and  obligations,  see  7  A.  D.  449,  458. 

As  to  what  goods  of  guest  innkeeper  is  liable  for,  see  69  A. 
D.  221,  226;  18  A.  R.  130-136. 

As  to  what  is  an  inn  or  tavern,  see  35  A.  D.  137. 

As  to  when  relation  of  innkeepers  and  guests  exists,  see  6  L. 
483,  809;   12  L.  382. 

§  1860.  HOW  EXEMPTED  FROM  LIABILITY.  If  an  inn- 
keeper, hotel  keeper,  boarding-house  or  lodging-house  keeper, 
keeps  a  fire-proof  safe,  and  gives  notice  to  a  guest,  boarder, 
or  lodger,  either  personally  or  by  putting  up  a  printed  notice 
in  a  prominent  place  in  the  office  or  the  room  occupied  by 
the  guest,  boarder,  or  lodger,  that  he  keeps  such  a  safe  and 
will  not  be  liable  for  money,  jewelry,  documents,  or  other 
articles  of  unusual  value  and  small  compass,  unless  placed 
therein,  he  is  not  liable,  except  so  far  as  his  own  acts  shall 
contribute  thereto,  for  any  loss  of  or  injury  to  such  articles, 
if  not  deposited  with  him  to  be  placed  therein,  nor  in  any 
case  more  than  the  sum  of  two  hundred  and  fifty  dollars  for 
any  or  all  such  property  of  any  individual  guest,  boarder,  or 
lodger,  unless  he  shall  have  given  a  receipt  in  writing  there- 
for to  such  guest,  boarder,  or  lodger. 

History:  Enacted  March  21,  1872;  amended  March  12,  1895, 
Stats,  and  Amdts.  1895,  p.  50. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

§  1861.  LIE?f  FOR  CHARGES  ON  BAGGAGE.  Hotel,  inn, 
boarding-house  and  lodging-house  keepers  shall  have  a  lien 
upon  the  baggage  and  other  property  of  value  of  their  guests, 
or  boarders,  or  lodgers,  brought  into  such  hotel,  inn,  or 
boarding  or  lodging  house,  by  such  guests,  or  boarders,  or 
lodgers,  for  the  proper  charges  due  from  such  guests,  or 
boarders,  or  lodgers,  for  their  accommodation,  board  and 
lodging,  and  room  rent,  [and]  such  extras  as  are  furnished 
at  their  own  request,  with  the  right  to  the  possession  of  such 

1003 


§  1862  CIVIL  CODE.  [Div.III,Pt.IV. 

baggage  or  other  property  of  value,   until   all   such   charges 
are  paid. 

History:     Enacted  April   1,  1876,  Code  Amdts.   1875-6,  p.   78. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
As  to  lien  of  innkeeper,  see  57  A.  R.  31. 

§1802.  t  UNCLAIMED  BAGGAGE  MAT  BE  SOLD  AT 
AUCTION;  NOTICE  OF.  Whenever  any  trunk,  carpet-bag, 
valise,  box,  bundle,  or  other  baggage  has  heretofore  come, 
or  shall  hereafter  come  into  the  possession  of  the  keeper  of 
any  hotel,  inn,  boarding  or  lodging  house,  as  such,  and  has 
remained  or  shall  remain  unclaimed  for  the  period  of  six 
months,  such  keeper  may  proceed  to  sell  the  same  at  public 
auction,  and  out  of  the  proceeds  of  such  sale  may  retain 
the  charges  for  storage,  if  any,  and  the  expenses  of  adver- 
tising and  sale  thereof;  but  no  such  sale  shall  be  made  until 
the  expiration  of  four  weeks  from  the  first  publication  of 
notice  of  such  sale  in  a  newspaper  published  in  or  nearest 
the  city,  town,  village,  or  place  in  which  said  hotel,  inn, 
boarding  or  lodging  house  is  situated.  Said  notice  shall  be 
published  once  a  week,  for  four  successire  weeks,  in  some 
newspaper,  daily  or  weekly,  of  general  circulation,  and  shall 
contain  a  description  of  each  trunk,  carpet-bag,  valise,  box, 
bundle,  or  other  baggage,  as  near  as  may  be;  the  name  of 
the  owner,  if  known;  the  name  of  such  keeper,  and  the  time 
and  place  of  sale;  and  the  expenses  incurred  for  advertis- 
ing shall  be  a  lien  upon  such  trunk,  carpet-bag,  valise,  box, 
bundle,  or  other  baggage,  in  a  ratable  proportion,  according 
to  the  value  of  such  piece  of  property,  or  thing,  or  article 
sold ;  and  in  case  any  balance  arising  from  such  sale  shall  not 
be  claimed  by  the  rightful  owner  within  one  week  from  the 
day  of  said  sale,  the  same  shall  be  paid  into  the  treasury  of 
the  county  in  which  such  sale  took  place;  and  if  the  same 
be  not  claimed  by  the  owner  thereof,  or  his  legal  representa- 
tives, within  one  year  thereafter,  the  same  shall  be  paid  into 
the  general  fund  of  said  county. 

History:     Enacted  April  1,  1876,  Code  Amdts.  1875-6,  p.  78. 

1004 


Tit.III,ch.II,art.lV.]        posting  RATES.  ETC.  §  1863 

§  1863.  KEEPERS  TO  POST  RATES  OF  CHARGES.  Every 
keeper  of  a  hotel,  inn,  boarding  or  lodging  house,  shall  post 
in  [a]  conspicuous  place  in  the  office  or  public  room,  and  in 
every  bedroom  of  said  hotel,  boarding-house,  inn,  or  lodging- 
house,  a  printed  copy  of  this  section,  and  a  statement  of 
charge  or  rate  of  charges  by  the  day,  and  for  meals  or  items 
furnished,  and  for  lodging.  No  charge  or  sum  shall  be  col- 
lected or  received  by  any  such  person  for  any  service  not 
actually  rendered,  or  for  any  item  not  actually  delivered, 
or  for  any  greater  or  other  sum  than  he  is  entitled  to  by 
the  general  rules  and  regulations  of  said  hotel,  inn,  board- 
ing or  lodging  house.  For  any  violation  of  this  section,  or 
any  provision  herein  contained,  the  offender  shall  forfeit  to 
the  injured  party  three  times  the  amount  of  the  sum  charged 
in  excess  of  what  he  is  entitled  to. 

History:  Enacted  April  1,  1876,  Code  Amdts.  1875-6,  p.  79; 
amended  by  Code  Commission,  Act  March  16.  1901  Stats,  and 
Amdts.  1900-1.  p.  411,  held  unconstitutional,  see  history,  S  4 
ante. 


1005 


§§  1864, 1865  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE    V. 

FINDING. 

§  1864.  Obligation  of  finder. 

§  1865.  Finder  to  notify  owner.     Duty  where  owner  not  known. 

§1866.  /""-limant   to  prove  ownersliip. 

§  1867.  Reward,   etc.,   to  finder. 

§  1868.  Finder  may  put  thing  found  on  storage. 

§  1869.  When  finder  may  sell  the  thing  found. 

§  1870.  How  sale  is  to  be  made. 

§  1871.  Property    vests    in    finder,    when.      Publication    in    certain 

cases.     Liability  of  finder  to  owner. 

§  1872.  Thing  abandoned. 

§  1864.  OBLIGATIOJf  OF  FINDER.  One  who  finds  a  thing 
lost  is  not  bound  to  take  charge  of  it,  but  if  he  does  so  he  is 
thenceforward  a  depositary  for  the  owner,  with  the  rights 
and  obligations  of  a  depositary  for  hire. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  rights  and  obligations  of  depositary  for  hire,  see  Kerr's 
Cyc.  C.  C.  §§  1851  et  seq.  and  notes. 

§1865.  FINDER  TO  NOTIFY  OWNER.  DUTY  WHERE 
OWNER  NOT  KNOWN.  If  the  finder  of  a  thing,  other  than 
a  domestic  animal,  takes  possession  thereof,  or  if  a  person 
saves  any  such  animal  from  drowning  or  starvation,  he  must, 
within  a  reasonable  time,  inform  the  owner  thereof,  if 
known,  and  make  restitution  to  him  upon  demand,  without 
compensation,  except  a  reasonable  charge  for  saving  and 
caring  therefor.  If  the  owner  is  not  known  to  such  finder 
or  saver,  he  must,  within  five  days,  file  an  affidavit  with  the 
justice  of  the  peace  of  the  county  whose  office  is  nearest  to 
the  place  of  such  finding  or  saving,  particularly  describing 
the  property  and  the  time,  place,  and  circumstances  under 
which  it  was  found  or  saved.  Such  justice  must  then  sum- 
mon three  disinterested  persons  to  appraise  the  property. 
They,  or   a  majority   of   them,   must   make   two   lists   of   the 

1006 


Tit.III,ch.II,art.V.]  CLAIMANT— finder.  §§  1866-1869 

valuation  and  description  of  the  property,  by  them  verified, 
and  deliver  one  of  such  lists  to  the  justice  of  the  peace, 
to  be  kept  by  him  on  file  in  his  office,  and  the  other  list 
must  be  delivered  to  such  finder  or  saver,  who  must,  within 
five  days  thereafter,  cause  it  to  be  filed  for  record  in  the 
office  of  the  county  recorder  of  the  county,  who  must  record 
it  in  a  book  known  as  the  "Estray  and  Lost  Property  Book." 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  411,  held 
unconstitutional,  see  history,  §  4  ante;  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  613. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  1865,  note. 

§  1866.  CLAIMANT  TO  PROVE  OWNERSHIP.  The  finder 
of  a  thing  may,  in  good  faith,  before  giving  it  up,  require 
reasonable  proof  of  ownership  from  any  person  claiming  it. 

History:     Enacted  March   21,   1872. 

§1867.  REWARD,  ETC.,  TO  FINDER.  The  finder  of  a 
thing  is  entitled  to  compensation  for  all  expenses  necessarily 
incurred  by  him  in  its  preservation,  and  for  any  other  service 
necessarily  performed  by  him  about  it,  and  to  a  reasonable 
reward  for  keeping  it. 

History:     Enacted  March   21,   1872. 

§  1868.     FINDER  MAY  PUT  THINO  FOUND  ON  STORAGE. 

The  finder  of  a  thing  may  exonerate  himself  from  liability 
at  any  time  by  placing  it  on  storage  with  any  responsible 
person  of  good  character,  at  a  reasonable  expense. 

History:     Enacted  March   21,  1872. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.   §  1868,  note. 

§  1869.    WHEN  FINDER  MAY  SELL  THE  THING  FOUND. 

The  finder  of  a  thing  may  sell  it,  if  it  is  a  thing  which  is 
commonly  the  subject  of  sale,  when  the  owner  cannot,  with 
reasonable  diligence,  be  found,  or,  being  found,  refuses  upon 

1007 


§§  1870, 1871  CIVIL  CODE.  [Div.III.Pt.IV. 

demand  to  pay  the  lawful  charges  of  the  finder,  in  the  fol- 
lowing cases: 

1.  When  the  thing  is  in  danger  of  perishing,  or  of  losing 
the  greater  part  of  its  value;   or, 

2.  When  the  lawful  charges  of  the  finder  amonnt  to  two- 
thirds  of  its  value. 

liistory:     Enacted  March   21,   1872. 
See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§  1870.  HOW  SALE  IS  TO  BE  MADE.  A  sale  under  the 
provisions  of  the  last  section  must  be  made  in  the  same  man- 
ner as  the  sale  of  a  thing  pledged. 

History:     Enacted  March   21,   1872. 

As  to  sale  of  pledge,  see  Kerr's  Cyc.  C.  C.  §§  3000  et  seq.  and 
notes. 

§  1871.  PROPERTY  VESTS  IN  FINDER,  WHEN.  PUBLI- 
CATION  IN  CERTAIN  CASES.  LIABILITY  OF  FINDER  TO 
OWNER.  If  no  owner  appears  within  six  months  after  such 
finding  or  saving  and  offers  reasonable  proof  of  his  owner- 
ship, and  compensates,  or  in  good  faith  offers  to  compensate, 
the  finder  or  saver  for  the  expense  necessarily  incurred  by 
him,  then  such  property  vests  in  such  finder  or  saver,  unless 
it  is  of  greater  value  than  twenty  dollars.  If  of  such  greater 
value,  he  must  publish  a  copy  of  such  verified  list  for  three 
successive  weeks  in  some  newspaper  of  general  circulation 
published  in  the  county,  and  if  the  owner  does  not,  within 
one  year  after  the  completion  of  such  publication,  prove  the 
property  and  pay,  or  in  good  faith  offer  to  pay,  all  charges 
thereon,  the  title  thereto  vests  in  such  finder  or  saver.  If 
the  finder  or  saver  of  property  does  not  comply  with  the 
provisions  of  section  hundred  and  sixty-five,  or  if,  though  he 
does  so  comply,  he  refuses  to  surrender  the  property  to  an 
owner  who  has  made  reasonable  proof  of  ownership,  and 
paid,  or  in  good  faith  offered  to  pay,  all  legal  charges  thereon, 
he  is  liable  to  the  owner  for  double  the  value  of  the  property, 
and  the  owner  may  exonerate  himself  from  all  liability  aris- 

1008 


Tit.III.Ch.III.]  THINGS  ABANDONED.  §§1872,1878 

ing  out  of  such  property  by  surrendering,  or  offering  to  sur- 
render, it  in  satisfaction  thereof. 

History:  Enacted  Marcli  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,  §  4  ante;  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.  614. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  1871,  note. 

§  1872.  THING  ABANDONED.  The  provisions  of  this  arti- 
cle have  no  application  to  things  which  have  been  inten- 
tionally abandoned  by  their  owners. 

History:     Enacted  March  21,   1872. 


CHAPTER  III. 

DEPOSIT  FOR  EXCHANGE. 

§  1878.     Relations   of  the  parties. 

§1878.  RELATIONS  OF  THE  PARTIES.  A  deposit  for 
exchange  transfers  to  the  depositary  the  title  to  the  thing 
deposited,  and  creates  between  him  and  the  depositor  the 
relation  of  debtor  and  creditor  merely. 

History:     Enacted  March  21,   1872. 

As  to  definition  of  deposit  for  exchange,  see  ante  §  1818. 

As  to  loan  for  exchange,  see  Kerr's  Cyc.  C.  C.  §  1902  and  note. 


1009 


§  1884  ^  CIVIL  CODE.  [Div.III,Pt.IV. 


TITLE  IV. 

LOAN. 

Chapter  I.     Loan  for  Use,   §§  1884-1896. 

11.     Loan  for  Exchange,  §§  1902-1906. 
m      Loan  of  Money,  §§  1912-1920. 

CHAPTER  I. 
LOAN    FOR    USE. 

§  1S84.  Loan,    what. 

§  1885.  Title   to  property  lent. 

§  1886.  Care   required   of   borrower. 

§  1887.  Same.      [Of  animal  for  use.] 

§  1888.  Degree   of  skill. 

§  1889.  Borrower,   when  to   repair  injuries. 

§  1890.  Use  of  thing  lent. 

§  1891.  Relending  forbidden. 

§  1892.  Borrower,  when  to  bear  expenses. 

§  1893.  Lender  liable  for  defects. 

§  1894.  Lender  may  require  return  of  thing  lent. 

§  1895.  When   returnable   without   demand. 

§  1896.  Place  of  return. 

§  1884.  LOAN,  WHAT.  A  loan  for  use  is  a  contract  by 
which  one  gives  to  another  the  temporary  possession  and  use 
of  personal  property,  and  the  latter  agrees  to  return  the 
same  thing  to  him  at  a  future  time,  without  reward  for  its 
use. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  difference  between  bailment  and  sale,  see  10  A.  D.  490; 
2  A.  S.  711;  94  A.  S.  216. 

As  to  distinction  between  loan  and  deposit,  see  19  Encyc.  L. 
465. 

As  to  distinction  between  loan  and  gift,  see  19  Encyc.  L.  462 
and  cases  cited  in  notes. 

As  to  distinction  between  loan  and  hiring,  see  19  Encyc.  L. 
463. 

As  to  distinction  between  loan  and  pledge,  mandate  or 
mutuum,  see  19  Encyc.  L.  464  and  notes. 

1010 


Tit.IV.ch.L]  TITLE,    CARE,   SKILL.  §§1885-1889 

§  1885.  TITLE  TO  PltOPEKTY  LENT.  A  loan  for  use  does 
not  transfer  the  title  to  the  thing;  and  all  its  increase  during 
the  period  of  the  loan  belongs  to  the  lender. 

History:     Enacted  March   21,   1872. 
See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

§  1886.  CARE  KEQIIRED  OF  BORROWER.  A  borrower 
for  use  must  use  great  care  for  the  preservation  in  safety 
and  in  good  condition  of  the  thing  lent. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  liability  of  gratuitous  bailee,  see  25  A.  D.  598:  97  A.  D. 
62;   38  A.  S.  779;   10  L.  481. 

Borrower  is  not  responsil)le  for  reasonable  wear  and  tear  of 
what  is  loaned,  or  for  its  utter  loss  or  damage  without  blame 
or  neglect  attributable  to  himself. — 5  Cyc.  188  and  cases  cited  in 
notes   37,  38,  and   39. 

Responsibility  for  slight  neglect. — See  3  Encyc.  L.  746  and 
cases  cited  in  note  1;  also  5  Cyc.  188. 

§  1887.  SAME.  [OF  ANIMAL  FOR  USE.]  One  who  bor- 
rows a  living  animal  for  use,  must  treat  it  with  great  kind- 
ness, and  provide  everything  necessary  and  suitable  for  it. 

History:     Enacted  Marcli   21,    1872. 

As  to  depositary  of  living  animals  for  keeping,  see  Kerr's 
Cyc.  C.  C.  §  1834  and  note. 

As  to  duty  of  borrower  of  horse  witlujut  compensating  for 
its  use,  see  Kerr's  Cyc.  C.  C.  §  1887,  note. 

§  1888.  DEGREE  OF  SKILL.  A  borrower  for  use  is  bound 
to  have  and  to  exercise  such  skill  in  the  care  of  the  thing 
lent  as  he  causes  the  lender  to  believe  him  to  possess. 

History:      Enacted  March   21,    1872. 
As  to   performance  of  service,   compare   with   §  1976,   post. 

§  1889.    BORROWER,  WHEN   TO   REPAIR  INJURIES.     A 

borrower  for   use   must  repair  all   deteriorations  or   injuries 

1011 


§§  1890-1893  CIVIL  CODE.  tDiv.III,Pt.IV. 

to  the  thing  lent,  which  are  occasioned  by  his  negligence, 
however  slight. 

History:     Enacted  March   21,   1872. 

§  1890.     USE  OF  THING  LENT.     The  borrower  of  a  thing 
for  use   may  use  it  for   such   purposes   only   as   the   lender 
might  reasonably   anticipate  at  the  time  of  lending. 
History:     Enacted  March  21,  1872. 

As  to  indemnifying  depositary,  see  ante  §  1833. 
As  to  liability  of  bailee  for  misuser,  see  12  A.  D.  619. 
As  to  loan  of  money  for  exchange,  see  post  §§  1902,  1906. 
"Lender  has  right  to  prescribe  terms  and  conditions,"  see   19 
Encyc.  L.  466  and  cases  cited  in  notes. 

§1891.  RELENDING  FORBIDDEN.  The  borrower  of  a 
thing  for  use  must  not  part  with  it  to  a  third  person,  without 
the  consent  of  the  lender. 

History:     Enacted  March   21,   1872. 

As  to  lender's  right  to  prescribe  terms  and  conditions,  see  19 
Encyc.  L.  466  and  cases  cited. 

As  to  power  of  bailees  to  make  sale,  see  66  A.  D.  758. 

As  to  purchaser  from  one  having  no  authority  to  sell  getting 
no  title,  see  3  A.  D.  345;  25  A.  D.  604;   32  A.  D.  541;  51  A.  D.   607. 

§  1892.    BORROWER,  WHEN  TO  BEAR  EXPENSES.    The 

borrower  of  a  thing  for  use  must  bear  all  its  expenses  during 
the  loan,  except  such  as  are  necessarily  incurred  by  him  to 
preserve  it  from  unexpected  and  unusual  injury.  For  such 
expenses  he  is  entitled  to  compensation  from  the  lender,  who 
may,  however,  exonerate  himself  by  surrendering  the  thing 
to  the  borrower. 

History:     Enacted  March  21,  1872. 

As  to  non-liability  for  depreciation  in  value  of  borrower  of 
stock  to  be  returned  on  demand,  see  Kerr's  Cyc.  C.  C.  §  1892, 
note. 

§  1893.  LENDER  LIABLE  FOR  DEFECTS.  The  lender  of 
a  thing  for  use   must  indemnify   the   borrower   for   damage 

1012 


« 


i 


TitlV.ch.L]  RETURN,  DEMAND,   PLACE.  §§1894-1896 

caused  by  defects  or  vices  in  it,  which  he  knew  at  the  time 
of  lending,  and  concealed  from  the  borrower. 

Historr:     Enacted  March   21,   1872. 
AS    to    duty    of   lender   to    disclose    <iefects    which   may    render 
loan  perilous  or  unprofitable,  see  19  Encyc.  L.  465,  466. 

8  1894.  LENDER  MAY  REQUIRE  RETURN  OF  THING 
LENT.  The  lender  of  a  thing  for  use  may  at  any  time  require 
its  return,  even  though  he  lent  it  for  a  specified  time  or  pur- 
pose But  if,  on  the  faith  of  such  an  agreement,  the  borrower 
has  made  such  arrangements  that  a  return  of  the  thing 
before  the  period  agreed  upon  would  cause  him  loss  exceed- 
ing the  benefit  derived  by  him  from  the  loan,  the  lender  must 
indemnifv  him  for  such  loss,  if  he  compels  such  return,  the 
.  borrower  not  having  in  any  manner  violated  his  duty. 

History:     Enacted  March  21,   1872. 
ciAP  TCprr's  Cvc.  C.  C.  for  5  pars,  annotation. 

AS  tfliabimy  of  bailee  for  act  of  servant  in  making  wrong- 
fnl  aDoropriation  of  thing  bailed,  see  29  U  y- 

is  to  Hability   of  gratuitous   bailees  for  non-feasance,  see   23 

A.  D.  322. 

§  1895.    WHEN  RETURNABLE  WITHOUT  DEMAND.    If  a 

thing  is  lent  for  use  for  a  specified  time  or  purpose,  it  must 
be  returned  to  the   lender  without  demand,  as  soon  as  the 
time  has  expired,  or  the  purpose  has  been  accomplished.     In 
other  cases  it  need  not  be  returned  until  demanded. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

AS  tfconversion  by  bailee,  and  necessity  of  demand,  see  1  L- 

318. 

5  1896.  PLACE  OF  RETURN.  The  borrower  of  a  thing  for 
use  must  return  it  to  the  lender,  at  the  place  contemplated 
by  the  parties  at  the  time  of  lending;  or  if  no  particular  place 
was  so  contemplated  by  them,  then  at  the  place  where  it  was 
at  that  time. 

Historv:     Enacted  March   21,   18(2. 

Borrower  must  return  to  lender,  at  --<!--  ^^f^.^J.^irary - 
otherwise    stipulated,    in    absence    of    agreement    to    contrary. 

See  19  Encyc.  L.  469. 

lOUi 


§§  1902-1905  CIVIL  CODE.  [Div.III.Pt.IV. 

CHAPTER  II. 

LOAN   FOR   EXCHANGE. 

§  1902.  Loan  for  exchange,   what. 

ij  iHd.S.  Same.     [Optional  loan.] 

§  1904.  Title  to  property  lent. 

§  1905.  Contract  cannot  be  modified  by  lender. 

§  1906.  Certain  sections  applicable. 

§  1902.  LOAN  FOK  EXCHANGE,  WHAT.  A  loan  for  ex- 
change is  a  contract  by  which  one  delivers  personal  property 
to  another,  and  the  latter  agrees  to  return  to  the  lender  a 
similar  thing  at  a  future  time,  without  reward  for  its  use. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  difference  between  exchange  of  property  and  sale,  see 
94  A.  S.   227. 

As  to  loan  of  money  for  exchange,  see  Kerr's  Cyc.  C.  C.  §  1912 
and  note. 

§1903.  SAME.  [OPTIONAL  LOAN.]  A  loan,  which  the 
borrower  is  allowed  by  the  lender  to  treat  as  a  loan  for  use, 
or  for  exchange,  at  his  option,  is  subject  to  all  the  provisions 
of  this  chapter. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§  1904.  TITLE  TO  PROPERTY  LENT.  By  a  loan  for  ex- 
change the  title  to  the  thing  lent  is  transferred  to  the  bor- 
rower, and  he  must  bear  all  its  expenses,  and  is  entitled  to 
all  its  increase. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

§  1905.    CONTRACT  CANNOT  BE  MODIFIED  BY  LENDER. 

A  lender  for  exchange  cannot  require  the  borrower  to  fulfil 

1014 


Tit.IV.ch.II.]  SECTIONS   APPLICABLE.  §  1906 

his  obligations  at  a  time,  or  in  a  manner,  different  from  that 
which  was  originally  agreed  upon. 

History:     Ejiacted  March  21,   1872. 

For  Commissioners'  comment  on  tliis  section,  see  Kerr's  Cyc. 
C.  C.   §  1905,  note. 

§1906.  CERTAIN  SECTIONS  APPLICABLE.  Sections 
eighteen  hundred  and  ninety-three,  eighteen  hundred  and 
ninety-five,  and  eighteen  hundred  and  ninety-six,  apply  to  a 
loan  for  exchange. 

History:     Enacted  March  21,   1872. 

As  to  conversion  by  exchange  and  liability  of  exchangee,  see 
Kerr's  Cyc.  C.  C.  §  1906,  note. 

As  to  conversion  of  coin  by  bailee,  and  payment  for  in  coin, 
see  29  L.  522. 

As  to  what  constitutes  conversion,  see  15  A.  D.  152;  16  A.  D. 
456;  18  A.  D.  567;  19  A.  D.  345;  23  A.  D.  703;  24  A.  D.  66:  28  A.  D. 
65,  359;  26  A.  D.  350;  30  A.  D.  446;  33  A.  D.  130;  43  A.  D.  765;  69 
A.  D.  121;  79  A.  D.  369;  100  A.  D.  458;  43  A.  R.  518;  67  A.  S.  454. 


1015 


§§  1912,  1913  CIVIL  CODE.  [Div.III.Pt.IV. 


CHAPTER  III. 

LOAN  OF  MONEY. 

[For  Commissioners  comment  on  this  chapter,  see  Kerr's  Cyc. 
C.  C] 

§  1912.  Loan  of  money.     [What  is.] 

§  1913.  Loan  to  be  repaid  in  current  money. 

§  1914.  Interest  on  loan. 

§  1915  Interest,   what. 

§  1916.  Annual   rate. 

§  1917.  Legal  interest. 

§  1918.  Same.     [By  agreement,   any  rate.] 

§  1919.  Interest   becomes   part   of   principal,    when. 

§  1920.  Interest  on  judgment. 

§  1912.  LOAN  OF  MONEY.  [WHAT  IS.]  A  loan  of  money 
is  a  contract  by  which  one  delivers  a  sum  of  money  to 
another,  and  the  latter  agrees  to  return  at  a  future  time  a 
sum  equivalent  to  that  which  he  borrowed.  A  loan  for  mere 
use  is  governed  by  the  chapter  on  loan  for  use. 

History:     Enacted  March   21,   1872. 

57  C.  594,  602    (applied). 

As  to  interest,  see  Kerr's  Cyc.  C.  C.  §§  1914  et  seq.  and  notes. 

Damages  for  breach  of  contract  to  loan  or  advance  money. — 
See  37  L.  233. 

Implied  ratification  of  an  unauthorized  loan  affected  by  an 
agent,  what  will   constitute. — See   6  L.   N.  S.   311. 

Validity  of  loan,  where  made  in  violation  of  law. — See  12  L. 
N.  S.   603. 

§1913.    LOAN    TO    BE    REPAID    IN    CURRENT    MONEY. 

A  borrower  of  money,  unless  there  is  an  express  contract 
to  the  contrary,  must  pay  the  amount  due  in  such  money  as 
is  current  at  the  time  when  the  loan  becomes  due,  whether 
such  money  is  worth  more  or  less  than  the  actual  money  lent. 
History:     Enacted  Mar.^h  21,   1872. 

113  C.  221,  229,  41  P.  1017,  45  P.  252  (applied);  114  C.  258,  261. 
55  A.  S.  66,  46  P.  82,  35  L.  492  (cited  by  mistake  for  C.  C.  P.). 

As  to  agreement  to  pay  loan  or  interest  in  gold,  see  Kerr's 
Cyc.  C.  C.  §  1913,  note  par.  2. 

1016 


Tit.IV,ch.III.]  INTEREST,  RATE.  §§  1914-1917 

§  1914.  INTEREST  OX  LOAJf.  Whenever  a  loan  of  money 
is  made,  it  is  presumed  to  be  made  upon  interest,  unless  it 
is  otherwise  expressly  stipulated  at  the  time  in  writing. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   245. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation., 

116  C.  533,  546,  58  A.  S.  200,  48  P.  618  (applied  with  §§1918, 
1919);  127  C.  669,  675,  60  P.  439,  49  L.  647  (applied);  137  C.  467, 
471,   70  P.  308    (applied). 

Presumption  as  to  law  of  other  states  as  to  interest,  see  21 
L.  471. 

§  1915.  IMEREST,  WHAT.  Interest  is  the  compensation, 
allowed  by  law  or  fixed  by  the  parties  for  the  use,  or  forbear- 
ance, or  detention  of  money. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  245. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

72  C.  146,  154,  13  P.  467,  471  (applied);  110  C.  311,  315,  42  P. 
811  (applied):  122  C.  117,  120,  54  P.  518  (applied);  129  C.  545, 
547,  79  A.  S.  137,  62  P.  104  (construed);  131  C.  356,  363,  63  P.  665 
(construed);  137  C.  467,  469  (cited),  470  (referred  to),  471 
(applied),  70  P.  308. 

§  1916.  ANNUAL  RATE.  When  a  rate  of  interest  is  pre- 
scribed by  a  law  or  contract,  without  specifying  the  period 
of  time  by  which  such  rate  is  to  be  calculated,  it  is  to  be 
deemed  an  annual  rate. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
92  C.  80,   82,   28  P.  97    (construed  and  applied). 

§1917.  LEGAL  INTEREST.  Unless  there  is  an  express 
contract  in  writing,  fixing  a  different  rate,  interest  is  payable 
on  all  moneys  at  the  rate  of  seven  per  centum  per  annum 
after  they  become  due,  on  any  instrument  of  writing,  except 
a  judgment,  and  on  moneys  lent,  or  due  on  any  settlement 
of  account,  from  the  day  on  which  the  balance  is  ascertained, 
and  on  moneys  received  to  the  use  of  another  and  detained 

1017 


§  1917  CIVIL  CODE.  [Div.III,Pt.IV. 

from  him.  In  the  computation  of  interest  for  a  period  less 
than  a  year,  three  hundred  and  sixty  days  are  deemed  to 
constitute  a  year. 

History:  Enacted  March  21.  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  245;  February  5,  1878,  Code  Amdts.  1877-8, 
p.   87. 

See  Kerr's  Cyc.  C.  C.  for  66  pars,  annotation. 

57  C.  641,  643  (judgment  does  not  illegally  compound  interest 
when);  65  C.  498,  499,  4  P.  502  (applied);  66  C.  236,  238,  5  P. 
155  (construed  and  applied);  70  C.  184,  186,  11  P.  624,  625 
(applied);  72  C.  146,  153,  13  P.  467,  471  (construed  and  applied): 
73  C.  317,  319,  2  A.  S.  812,  11  P.  791,  792,  14  P.  864  (applied);  89 
C.  632,  635,  27  P.  67,  68  (construed);  100  C.  18,  22,  34  P.  510  (con- 
strued and  applied);  102  C.  283,  292,  36  P.  580  (construed);  106 
C.  566.  573,  39  P.  933  (construed);  109  C.  378,  380,  50  A.  S.  49, 
42  P.  34  (construed);  110  C.  311,  316  (applied),  317  (construed), 
42  P.  811;  111  C.  57,  72.  52  A.  S.  149,  43  P.  418  (applied);  113  C. 
221,  229,  41  P.  1017,  45  P.  252  (applied);  116  C.  533,  545,  58  A.  S. 
200,  48  P.  618  (construed);  120  C.  106,  109,  122,  45  P.  333,  52  P. 
143  (cited);  131  C.  356,  363,  63  P.  665  (construed);  134  C.  673,  674, 
66  P.  963  (construed);  136  C.  368,  371,  68  P.  1032;  137  C.  467,  470, 
70  P.  308  (referred  to);  143  C.  525,  527,  77  P.  479  (applied);  148 
C.  206,  207,  82  P.  961  (applied — interest  is  payable  on  all  moneys, 
at  rate  of  seven  per  cent  per  annum,  due  on  any  settlement  of 
account  from  day  on  which  balance  is  ascertained);  150  C.  131, 
139,  88  P.  722  (not  applicable  to  Dupont-street  bonds  of  City 
and  County  of  San  Francisco  as  act  of  1876  does  not  declare 
that  interest  shall  not  be  paid  after  maturity). 

As  to  allowance  of  interest  by  way  of  damages,  see  Kerr's 
Cyc.  C.  C.  §§  3287-3290  and  notes. 

As  to  allowance  of  interest  or  amount  due  for  arrearages  of 
annuity,  see  63  L.  629. 

As  to  claims  against  state  for  interest,  see  42  L.  62. 

As  to  compounding  interest,  see  Kerr's  Cyc.  C.  C.  §  1919  and 
note. 

As  to  computing  interest,  rules  for,  see  50  A.   D.   287. 

As  to  conflict  of  laws  as  to  interest  and  usury,  see  62  L.  33. 

As  to  conflict  of  laws  as  to  interest,  in  action  to  foreclose  real 
estate  mortgage,  see  55  L.   933. 

As  to  effect  of  offer  of  performance  as  stopping  interest,  see 
Kerr's  Cyc.  C.  C.   §  1504  and  note. 

As  to  interest  allowable  in  actions  ex  delicto,  see  K<'rr"s  Cyc. 
C.  C.   §  3288  and  note. 

As  to  interest  allowed  as  damages,  see  par.  30  this  note,  and 
Kerr's  Cyc.  C.  C.  §§  32S7-3290  and  notes;  also  6  A.  D.  188-199. 

1018 


TitlV.ch.IIL]  LEGAI.  INTEREST.  §1917 

AS  to  interest  on  Judgments,  see  Kerr's  Cyc.  C.  C.  §  1920  and 

"Ts"  to    interest    on    legacies,    see   Kerr's   Cyc.    C.   C.    §  1369    and 

"?s  to  interest  on  penal  bonds,  whether  they  may  be  recovered 

beyond  their  penalty,  see  8^/^^,J^';     j.^^,.^  cvc.   C.   C.    §456 
As  to  interest  on  railroad   bonds,   see   ivei 

""IsTlnterest   on   withdrawals   tron,   M.lding  and  loan  asso- 

°' aL";  rte'L^ece^-aWe  .y  speCa,  partner,  see  Kerr^s  Cyc. 

C.  C.  i  2494  and  note.  ^^.^__^^    ^^^  „  L.  761. 

^:  l:  Sm;ro"cotrnt'.or  interest  on  rents  and  pro«.s,  see 

"i:-  tl".-ia„i,ity  o,  executors  -■'^'---f-^rard 'n'ott""' 

-""  '""rfV^roriuardfan  Jor  Inte're"' on  ward^s  ntoney  in 

AS  to   liability   of   guardian   lo  ^^^^^ 

"irri.r.l,S"ot?;..ro«L-J;or  interest  coi.ected  on 
''T:T.  l^lMU^rortr^^.S  "or"int;e.t,  see  Kerr.  Cyc.  C.  C. 
-f  to-,Lro.3est    o      .^orrowed    n^one.    .y    .o.nestead 

corporation,  see  Kerr  s  C^^-  ^V  \;^  ^,    contract,    see   Kerr's 

As    to    rate    of    interest   after    breacn 
cyc.  C.  C    13289   -d  note  ^^^^^^^  ^^^  ^^^^   conversion 

AS   to   interest  being  aHowea  ^^^  ^^^^ 

of  property,  see  Kerr  s  ^y^-  C-  O.  §  ^^^   ^^^^.^   ^.y,. 

As   to    interest   on   amount    of   protestea 
C.  C.  §3236  and  note.  mutual    life    insurance 

AS    to    interest    on    guaranty    notes    of    mutual 

companies,  see  ante  §  441.  ,^,^„„fls    see  4  L.  566. 

AS  to  interest  -/i^-^;;^^tott"mry   contract,   see  Kerr's  Cyc. 
As  to  rate   of  interest   on   bottomiy 

"■^s  tVrll'of  intr'est  on  buiiding  and  loan  corporation  .oans. 

see  Kerr's  Cyc.  C.  C    «  «''  »"<'„;^S„5,    „„„ds,   see    Kerr's    Cyc. 

As    to    rate    of    interest    on    cemeteij' 

C.   C.   §  611  and  note.  .^^^«t    see   50  A.  D.  287-292. 

l:  \:  -Sr  Srrc:;:^;^-^  -eres.  see  Kerr. 

cyc.  C.  C.  §3290  and  note.  .^    ^^sence    of   an    express 

As   to   when    interest    is    alloMaine 
contract,  see  28  A.  R.  314. 


§§1918,1919  CIVIL  CODE.  [Div.III.Pt.IV. 

§  1918.  SAME.  [BY  AGREEMENT,  ANY  BATE.]  Parties 
may  agree  in  writing  for  the  payment  of  any  rate  of  inter- 
est, and  it  shall  be  allowed,  according  to  the  terms  of  the 
agreement,  until  the  entry  of  judgment. 

History!'     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  39  pars,  annotation. 

60  C.  229,  232  ^construed);  60  C.  387,  393  (referred  to);  65  C. 
391,  393,  4  P.  375  (construed);  108  C.  148,  151,  41  P.  38  (applied); 
no' C.  107,  112,  42  P.  473  (applied);  113  C.  221,  229,  41  P.  1017. 
45  P.  252  (construed);  114  C.  64,  66,  45  P.  1004  (applied);  116  C. 
533,  538  (construed),  541  (applied),  542  (referred  to),  545  (con- 
strued), 546  (construed),  58  A.  S.  200,  48  P.  618;  120  C.  106,  109 
(cited),  122   (referred  to),  45  P.  333,  52  P.  143. 

As  to  accord  as  to  interest,  see  20  L.  789. 

As  to  agreement  to  pay  a  higher  rate  of  interest  after  ma- 
turity or  after  date  specified,  see  Kerr's  Cyc.  C.  C.  §  1919,  note 
pars.  11-15;  63  A.  D.  438. 

As  to  allowance  of  interest,  special  and  implied  contracts  for, 
see  46  A.  S.   190. 

As  to  compound  interest,  when  not  recoverable,  see  Kerr's 
Cyc.  C.  C.  §  1919,  note  pars.  3-6,  and  34  A.  R.  101. 

As  to  increase  of  interest  after  maturity,  provisions  for,  when 
valid,  see  53  A.  R.  21;  91  A.  S.  584;  also  Kerr's  Cyc.  C.  C.  §  1919, 
note  pars.   11-15. 

As  to  when  interest  continues  at  conventional  rate  after 
maturity,  see  30  A.  R.   47;  34  A.  R.  253;  47  A.  R.  70. 

§1919.  INTEREST  BECOMES  PART  OF  PRINCIPAL, 
WHEN.  The  parties  may,  in  any  contract  in  writing  whereby 
any  debt  is  secured  to  be  paid,  agree  that  if  the  interest  on 
such  debt  is  not  punctually  paid,  it  shall  become  a  part  of 
the  principal,  and  thereafter  bear  the  same  rate  of  interest 
as  the  principal  debt. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

63  C.  105,  106  (construed);  65  C.  391,  393,  4  P.  375  (applied); 
114  C.  64,  66,  45  P.  1004  (applied);  116  C.  533,  536  (construed), 
538  (construed),  539  (referred  to),  540  (referred  to),  541 
(referred  to),  542  (construed),  545  (construed),  546  (construed), 
58  A.  S.  200,  48  P.  618;  153  C.  64,  75,  94  P.  225  (construed— 
severable  provision  of  note  for  payment  of  interest  on  unpaid 
instalments — unpaid  interest  cannot  be  made  to  bear  interest 
at  rate  greater  than  that  borne  by  principal  debt). 

1020 


Tit.IV.ch.III.]  JUDGMENT,    ON.  §  1920 

§1920.  INTEREST  OX  JUDGMENT.  Interest  is  payable 
on  judgments  recovered  in  the  courts  of  this  state,  at  the  rate 
of  seven  per  cent  per  annum,  and  no  greater  rate,  but  such 
interest  must  not  be  compounded  in  any  manner  or  form. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    245. 

See  Kerr's  Cyc.  C.  C.  for  30  pars,  annotation. 
49  C.  313,  314   (applied);  127  C.   58,  59,  59  P.  197   (applied);   129  C. 
545,  546,  79  A.  S.  137,  62  P.  104   (construed);  137  C.  467,  469   (cited 
with   other  sections),  471    (construed),  70  P.   308. 

As  to   interest   on   judgments,  see   17  L.    612. 

Foreign  judgment — No  interest  on,  when. — See  89  A.  D.  673, 
674;  6  A.  S.  62. 


1021 


§  1925  CIVIL  CODE.  [Div.III.Pt.IV. 

TITLE  V. 

HIRING. 

Chapter   I.     Hiring  in   General,    §§  1925-1935. 

II.     Hiring  of  Real  Property,   §§  1941-1950. 
III.     Hiring  of  Personal  Property,   §§  1955-1959. 

CHAPTER   I. 

HIRING  IN  GENERAL. 

§  1925.  Hiring,    what. 

§  1926.  Products  of   thing. 

§  1927.  Quiet    possession. 

§  1928.  Degree  of  care,   etc.,   on  part  of  hirer. 

§  1929.  Must    repair    injuries,    etc. 

§  1930.  Thing  let  for  a  particular  purpose. 

§  1931.  When  letter  may  terminate  the  hiring. 

§  1932.  When  hirer  may  terminate   the  hiring. 

§  1933.  When   hiring  terminates. 

§  1934.  When  terminated  by  death,  etc.,  of  party. 

§  1935.  Apportionment  of  hire. 

§  1925.  HIRING,  WHAT.  Hiring  is  a  contract  by  which 
one  gives  to  another  the  temporary  possession  and  use  of 
property,  other  than  money,  for  reward,  and  the  latter  agrees 
to  return  the  same  to  the  former  at  a  future  time. 

History:     Enacted  March  21,  1872. 
See  Kerr's  Cyc.  C.  C.  for  66  pars,  annotation. 
HIRING — GENERALLY. 

As  to  estoppel  by  "lease"  of  water-right  to  deny  lessor's 
title,  see  Kerr's  Cyc.  C.  C.   §  1948  and  note. 

As  to  extension  of  time  of  payment  by  parol,  see  Kerr's  Cyc. 
C.   C.   §  1947  and   note. 

As  to  implied  covenants,  see  Kerr's  Cyc.  C.  C.   §  113   and  note. 

As  to  lessor's  right  to  relet  when  surrender  of  premises  not 
accepted,  see  Kerr's  Cyc.  C.  C.  §  1927  and  note  par.  4. 

As  to  liability  of  sublessee  to  lessor  for  rent,  see  Kerr's  Cyc. 
C.  C.  §  1947  and  note. 

1022 


TitV.ch.I.] 


HIRING— PRODUCTS.  §  1926 


As  to  liability  of  sublessee  to  pay  taxes,  see  Kerr's  Cyc.  C. 
C.  §  1947  and  note. 

As  to  new  lease  as  affecting  right  under  old  lease  to  remove 
fixtures,  see  Kerr's  Cyc.  C.  C.  §  660  note  par.  44.  _ 

As  to  oral  warranty  of  fitness  of  premises,  etc.,  see  Kerr  s 
Cyc.  C.  C.  §  1941  and  note. 

As  to  surrender  of  lease  by  accepting  new  lease,  see  Kerr  s 
Cyc.  C.  C.   §  1925,   note  pars.   58,   59. 

As  to  undertaking  of  lessor  that  land  shall  be  fit  for  purposes 
for  which  leased,  see  Kerr's  Cyc.  C.  C.  §  1941  and  note. 

As    to    what    are    unlawful    contracts,    see    Kerr  s    Cyc.    U    <^. 

§  1667  and  note.  ,    -,  o    r  i  c 

Abandonment,   generally.— See  6  Cent.  Dig.  col.   13,   §  16. 
Agreement  to  farm  land  on  shares.— See  100  A.  D.   4.8. 
As  engaged  in  services.— See  4  W.  &  P.  3310. 
Bailment   by   letting   to   hire.— See    notes    6   L.    619,    620,    1-    L. 

397. 

Bailment  for.— See   6  Cent.- Dig.  col.   13,  §16. 

Borrowing   distinguished. — See    4   W.    &   P.    3310. 

Definition   of.— See   12   A.  R.  642;   4  W.  &  P.   3309. 

Employment  distinguished. — See  3  W.  &  P.  2382. 

Fixing   time    of    enjoyment.— See    Kerr's    Cyc.    C.    C.    §  707    and 

note. 

Hired  persons,  who  are. — See  4  W.  &  P.  3311. 

Hirer,  who  is. — See   4  W.  &  P.   3311. 

Infant's  liability  for  rent.— See  18  A.  S.  589-592. 

Of  animals.— See   2  Cent.   Dig.  col.  458,  §§70-78;   1  Decen.   Dig. 

p.   717,   I  27. 

Of  servants.— See  34  Cent.  Dig.  col.  407,  §  4. 

Presumption    that    hiring    continues    during    continuance     of 
hirer's  possession.— See  Kerr's  Cyc.  C.  C.  §  1933  and  note. 

Reassignment     of     lease     to     lessee.— See     Kerr's     Cyc.     C.     O. 

§  1947  and  note.  ^    e-,oi<        ^ 

.Recordation  of  lease  of  land.— See  Kerr's  Cyc.  C.  C.  §  1214  and 

Termination    of    the    hiring.— See    Kerr's    Cyc.    C.    C.    §§  1931- 
1935  and  notes. 

Transfer  of  title  by  lessor.— See   Kerr's  Cyc.   C.  C.   §1933  and 

note. 

§  1926.    PRODUCTS  OF  THI>'ti.    The  products  of  a  thing 
hired,  during  the  hiring,  belong  to  the  hirer. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cvc.  C.  C.  for  13  pars,  annotation. 
As    to    distinction    between    cropping    contract    and    lease,    see 
Kerr's  Cyc.   C.  C.   §  1925   and  note  par.    24. 

1023 


§  1927  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  lien  on  crop  for  rent,  see  Kerr's  Cyc.  C.  C.  §  1947  and 
note. 

As  to  ownership  of  increase  of  animals  liired,  see  1  Cent.  Dig. 
col.    442,    §  10. 

Fixtures — To  whom  belong-. — See  Kerr's  Cyc.  C.  C.  §§  660, 
1013,   1019  and  notes. 

Lease  of  land  with  live  stock  thereon. — See  Kerr's  Cyc.  C.  C. 
§  1958  and  note. 

Products  and  accessions  to  property — To  whom  belong. — 
See  Kerr's  Cyc.  C.  C.  §§  732,  1013-1033  and  notes. 

Rights  to  emblements. — See  3  L.  120;  11  L.  800. 

§  1927.  QUIET  POSSESSION.  An  agreement  to  let  upon 
hire  binds  the  letter  to  secure  to  the  hirer  the  quiet  possession 
of  the  thing  hired  during  the  term  of  the  hiring,  against  all 
persons  lawfully  claiming  the  same. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  61  pars,  annotation. 

86  C.  298,  304,  24  P.  1015,  1017  (construed  and  applied);  117  C. 
67,  70,  48  P.  984   (construed  and  applied). 

As  to  action  by  lessor  of  chattel  for  trespass  committed 
during  continuance  of  lease,  see  Kerr's  Cyc.  C.  C.  §  1955  and 
note. 

As  to  attornment,  see  Kerr's  Cyc.  C.  C.   §  1948  and  note. 

As  to  lessee's  right  to  possession  of  crop,  see  Kerr's  Cyc. 
C.    C.    §  1926    and    note. 

As  to  liability  for  rent  when  possession  interfered  with  by 
stranger,  see  Kerr's  Cyc.  C.  C.  §  1947  and  note  par.  42. 

As  to  liability  of  lessor  to  adjoining  proprietors,  see  Kerr's 
Cyc.  C.  C.   §  1930   and  note  par.   5. 

As  to  recovery  of  rent  after  eviction  from  portion  of  premises, 
see  Kerr's  Cyc.  C.  C.  §  1947  and  note  pars.  44,  45. 

As  to  right  of  re-entry  to  make  necessary  repairs,  see 
Kerr's  Cyc.  C.   C.   §  1941   and  note. 

As  to  trespass  against  stranger,  see  Kerr's  Cyc.  C.  C.  §  1927, 
note  pars.  15,  16,  58. 

Acts  of  third  parties,  when  justify  abandonment. — See  38  A.  S. 
484. 

Counterclaim  for  damages  in  action  for  rent. — See  Kerr's  Cyc. 
C.  C.  §  1947  and  note  par.  34. 

Damages  for  breach  of  covenant  of  quiet  enjoyment. — See 
Kerr's  Cyc.  C.  C.   §  3304  and  note. 

Damages  for  failure  to  give  possession  and  for  eviction. — 
See   100   A.   D.   428,   429;    58   A.   R.    606-614. 

Improvements  designated  as  part  of  property  leased. — See 
Kerr's  Cyc.  C.  C.  §  1941  and  note  par.  22. 

1024 


Tit.V,ch-I.]  DEGREE   OP   CARE.  §§  1928,  1929 

Partial  eviction  by  lessor,  effect  of. — See  38  A.  S.  491,  492. 

Personal  property — Right  of  hirer  to  quiet  possession  of. — 
•See  Kerr's  Cyc.  C.  C.  §  1955  and  note. 

Property  in  adverse  possession  of  anotlier  may  be  leased. — 
See  Kerr's  Cyc.  C.  C.  §  1925  and  note. 

Recovery  back  of  rent  paid  after  eviction. — See  Kerr's  Cyc. 
C.  C.  §  1947  and  note  pars.  91,  93. 

Replevin  for  skins  of  wild  animals  taken  fro'm  premises. — See 
Kerr's  Cyc.  C.  C.   §  1926  and  note. 

Right  of  lessee  to  light  and  air. — See  22  L.  540-543;  23  L.  158. 

"Term"  defined. — See  Kerr's  Cyc.  C.  C.  §  1925  and  note  par.  61. 

Verbal  notice  of  paramount  title  asserted  by  stranger. — See 
Kerr's  Cyc.   C.   C.   §  1949   and   note. 

What  justifies  tenant  in  abandoning  leased  premises. — See 
38  A.  S.   476-492. 


§  1928.    DEGREE  OF  CARE,  ETC  05  PART  OF  HIRER. 

The  hirer  of  a  thing  must  use  ordinary  care  for  its  preserva- 
tion in  safety  and  in  good  condition. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

118  C.   368,  369,   50  P.   650    (referred  to). 

As  to  excuses  for  non-performance,  see  Kerr's  Cyc.  C.  C. 
§§  1511,  1512  and  notes. 

As  to  liability  where  horse  is  driven  beyond  point  agreed 
upon,  see  Kerr's  Cyc.  C.  C.  §  1930  and  note  par.  6. 

Death  of  animal  hired. — See  Kerr's  Cyc.  C.  C.  §  1958  and  note. 

Depositary  for  hire  required  to  use  ordinary  care. — See 
Kerr's  Cyc.  C.  C.   §1852  and  note. 

Escape  of  hired  animal. — See  Kerr's  Cyc.  C.  C.  §  1958  and  note. 

Letting   of   horse   for  hire. — See    12    L.    397. 

Repair  of  injuries  occasioned  by  hirer's  want  of  ordinary 
care. — See  Kerr's  Cyc.  C.  C.   §  1929  and  note. 

Use  of  thing  for  other  than  particular  purpose  for  which 
let. — See  Kerr's  Cyc.  C.   C.   §  1930   and  note. 


§  1929.  MIST  REPAIR  INJURIES,  ETC.  The  hirer  of  a 
thing  must  repair  all  deteriorations  or  injuries  thereto  occa- 
sioned by  his  want  of  ordinary  care. 

Hi.story:     Enacted  March   21,   1S72:  amended  by  Code  Commis- 
sion,  Act  March    16,   1901,   Stats,   and  Amdts.    1900-1,   p.    412,   held 
unconstitutional,    see    history,    §   4   ante;    amendment   re-enacted 
March   21,   1905,  Stats,  and  Amdts.   1905,  p.  614. 
Kerr's    C.    C. — 33  1025 


§§  1930,  1931  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C  C.  for  7  pars,  annotation. 

59  C.  563,  566  (referred  to  with  §1941);  86  C.  298,  304,  24  P. 
1015  (referred  to  in  construing-  §1941);  92  C.  548,  551,  28  P.  599, 
600  (referred  to  with  §1941);  102  C.  476,  480,  36  P.  835  (referred 
to  with  §1941);  118  C.  368,  369,  50  P.  650    (referred  to). 

Action  for  damages  lies. — See  Kerr's  Cyc.  C.  C.  §  1922  and  note 
par.  2. 

Charterer  of  ship  liable  for  repairs  during  voyage. — See  Kerr's 
Cyc.  C.  C.  §  965  and  note. 

Commissioners'  note  cites  2  Hil.  Torts,  525,  note  8b;  Story 
Bailm.   §§  i'JS,   iO^-413. 

Dwelling-house  must  be  put  in  fit  condition  and  repaired  by, 
whom. — See  Kerr's  Cyc.  C.  C.   §§  1941,   1942   and  notes. 

Termination  of  hiring  for  failure  of  hirer  to  make  repairs. — 
See   Kerr's  Cyc.   C.   C.    §  1931   subd.    2   and  note. 

§1930.    THING    LET    FOR    A    PARTICULAR    PURPOSE. 

When  a  thing  is  let  for  a  particular  purpose  the  hirer  must  not 
use  it  for  any  other  purpose;  and  if  he  does,  he  is  liable 
to  the  letter  for  all  damages  resulting  from  such  use,  or 
the  letter  may  treat  the  contract  as  thereby  rescinded. 

History;  Enacted  Marcli  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  614. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

118  C.  368,  369,  50  P.  650  (referred  to);  147  C.  659,  661,  662, 
82  P.  317  (provision  is  applicable  to  hiring  of  real  property, 
and  why). 

Action  for  damages  lies,  when. — See  Kerr's  Cyc.  C.  C.  §  1928 
and  note  par.  2. 

Care  which  must  be  used  by  hirer  for  preservation  of  thing 
let. — See   Kerr's  Cyc.  C.   C.    §  1928   and   note. 

Letting  of  horse  for  hire. — See  12   L.  397. 

Negligence  in  use  of  barge. — See  Kerr's  Cyc.  C.  C.  §  1928  and 
note  par.  13. 

Sublessee  of  hirer  liable. — See  Kerr's  Cyc.  C.  C.  §  1928  and 
note  par.   16. 

§  1931.     WHEN  LETTER  MAY  TERMINATE  THE  HIRING. 

The  letter  of  a  thing  may  terminate  the  hiring  and  reclaim 
the  thing  before  the  end  of  the  term  agreed  upon: 

1.  When  the  hirer  uses  or  permits  a  use  of  the  thing  hired 
in  a  manner  contrary  to  the  agreement  of  the  parties;  or, 

1026 


I 


Tit.V.ch.I.]  TERMINATION    OF    HIRING.  §  1932 

2.  When  the  hirer  does  not,  within  a  reasonable  time  after 
request,  make  such  repairs  as  he  is  bound  to  make. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

As  to  recovery  of  treble  damages  for  waste,  see  Kerr's  Cyc. 
C.  C.  §  1715  and  note,  and  Kerr's  Cyc.  C.  C.  P.  §  1732  and  note, 
which  sections  are  identical. 

Breach  of  covenant  as  ground  of  forfeiture. — See  Kerr's  Cyc. 
C.  C.  P.   §  1161  subd.  3  and  note. 

Deposit  may  be  terminated  by  depositor,  at  what  time. — See 
Kerr's   Cyc.   C.   C.    §§  1854,   1855   and  notes. 

Forfeiture  of  lease  for  breach  of  condition  by  lessee. — See 
26  A.  S.  911-913. 

Notice  is  not  necessary  at  end  of  term  agreed  upon. — See 
Kerr's  Cyc.  C.  C.  §  1946  and  note  par.  10. 

Presumption  that  hiring  continues  during  continuance  of. 
hirer's   possession. — See   Kerr's   Cyc.    C.    C.    §  1945    and    note. 

Re-entry  after  forfeiture — Election  of  remedies. — See  8  L.  759, 
760. 

Unlawful  detainer  after  default  in  payment  of  rent. — See 
Kerr's  Cyc.  C.  C.  P.  §  1161  subd.  2  and  note. 

Waiver  of  forfeiture  by  acceptance  of  rent. — See  47  A.  S.  198, 
199. 

§  1932.     WHEX  HIKER  M.VY  TEKmXATE   THE   HIRING. 

The  hirer  of  a  thing  may  terminate  the  hiring  before  the  end 
of  the  term  agreed  upon: 

1.  When  the  letter  does  not,  within  a  reasonable  time  after 
request,  fulfil  his  obligations,  if  any,  as  to  placing  and  secur- 
ing the  hirer  in  the  quiet  possession  of  the  thing  hired,  or 
putting  it  into  good  condition,  or  repairing;  or, 

2.  When  the  greater  part  of  the  thing  hired,  or  that  part 
which  was  and  which  the  latter  had  at  the  time  of  the  hiring 
reason  to  believe  was  the  material  inducement  to  the  hirer 
to  enter  into  the  contract,  perishes  from  any  other  cause  than 
the  want  of  ordinary  care  of  the  hirer. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  614. 

92  C.  548,  552,  28  P.  599,  600   (subd.   1  referred  to  with   §  1941). 
Abandonment  of  lease  by  lessee. — See  Kerr's  Cyc.  C.  C.   §  1925 
and  note  pars.  1-5. 

1027 


§  1933  CIVIL  CODE.  [Div.III.Pt.IV. 

Commissioners'  note. — See  Kerr's  Cyc.  C.  C.  §  1931  and  note 
par.  2. 

Depositary  may  terminate  deposit  iipon  reasonable  notice, 
when. — See  Kerr's  Cyc.  C.  C.  §  1854  and  note. 

Presumption  tliat  liiring-  continues  during  continuance  of 
liirer's  possession. — See   Kerr's  Cyc.   C.   C.   §  1945  and  note. 

Rescission  of  lease  by  lessee  without  notice  to  make  repairs. 
— See  Kerr's  Cyc.  C.  C.  §  1941  and  note. 

What  justifies  tenant  in  abandoning-  leased  property. — See 
38  A.  S;    iVG- 192. 


§1933.  WHEN  HIRING}  TERMINATES.  The  hiring  of  a 
thing  terminates: 

1.  At  the  end  of  the  term  agreed  upon; 

2.  By  the  mutual  consent  of  the  parties; 

3.  By  the  hirer  acquiring  a  title  to  the  thing  hired  superior 
to  that  of  the  letter;  or, 

4.  By  the  destruction  of  the  thing  hired. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  41  pars,  annotation. 

98  C.  422,  425,  33  P.  729,  730   (construed  and  applied). 

As  to  covenants  which  run  with  land,  see  Kerr's  Cyc.  C.  C. 
§§  1460-1468  and  notes. 

As  to  estoppel  of  lessee  to  deny  lessor's  title,  see  Kerr's  Cyc. 
C.  C.  §  1948  and  note. 

As  to  measure  of  damages  for  breach  of  contract,  see  Kerr's 
Cyc.  C.  C.   §§  3300   et  seq.  and  notes. 

As  to  necessity  for  notice  at  end  of  term,  see  Kerr's  Cyc.  C. 
C.   §  1946  and  note  par.  10.' 

As  to  necessity  for  notice  to  quit  at  expiration  of  the  term, 
see  Kerr's  Cyc.  C.  C.  §  1946  and  note  par.  10. 

As  to  unlawful  detainer,  see  Kerr's  Cyc.  C.  C.  P.  §  1161  and 
note. 

As  to  unlawful  detainer  after  three  days'  notice  to  quit  upon 
breach  of  covenant,  see  Kerr's  Cyc.  C.  C.  P.  §  1161  subd.  3  and 
note. 

Abandonment  of  lease  by  lessee. — See  Kerr's  Cyc.  C.  C.  §  1925 
and  note  pars.  1-5. 

Breach  of  covenant  as  ground  of  forfeiture. — See  Kerr's  Cyc. 
C.  C.  P.  §  1161  subd.  3  and  note. 

Covenant  of  lessor  to  renew  lease. — See  Kerr's  Cyc.  C.  C. 
§  1925   and  note  par.   22. 

Covenant  that  lease  shall  be  terminable  upon  sale  of  premises 
by  lessor. — See  Kerr's  Cyc.  C.  C.  §  1931  and  note  pars.  3,  4. 

1028 


TitV,ch.I.] 


TERMINATION    BY    DEATH.  §§  1934,  1935 


-See    64. 


Death  of  lessor  terminates  tenancy  by  sufferance  or  at  will. 
—See  Kerr's  Cyc.  C.  C.  §  1934  and  note. 

Death   of  party— Effect  of.— See   23   L.   707,  70S. 

Destruction  of  building  on  leased  premises— Liability  for 
rent.— See   Kerr's  Cyc.  C.  C.   §  1947,   note   pars.   39,   40. 

Distinction  between  lease  for  month  and  one  from  month 
to  month.— See  Kerr's  Cyc.  C.  C.  §  1946  and  note  par.  7. 

Ejectment  maintainable  by  lessor  after  expiration  of  term 
without  notice  or  demand.— See  Kerr's  Cyc.  C.  C.  §  793  and  note, 
and  Kerr's  Cyc.  C.  C.  P.  §  1161  and  note. 

Fixing    time    of    enjoyment.- See    Kerr's    Cyc.    C.    C.    §70<    and 

note. 

Forcible    expulsion   after   termination— Liability   of   lessor   for. 

—See  16  L.  798,  799. 

Holding  over— Liability  of  lessee  for  use  and  occupation.— 
See  Kerr's  Cyc.  C.  C.  §  1947  and  note  par.  54. 

Lessee's    duty    to    leave    premises    in    good    condition.- 
L.    648-667. 

Right    of    landlord    to    enter   after    termination    of    lease. — bee 

69  A.  D.  754-756. 

Rights  and  liabilities  of  lessee  upon  destruction  of  leased 
premises. — See  61  A.  S.  566-572;  22  L.  613-616. 

Surrender  during  term.— See  Kerr's  Cyc.  C.  C.  §  1925  and  note 
pars.  58,  59. 

"Term"  defined.— See  Kerr's  Cyc.  C.  C.  §  1925  and  note  par.  61. 

Unlawful  detainer  after  default  in  payment  of  rent.— See 
Kerr's  Cyc.  C.  C.  P.  §  1161  subd.  2  and  note. 

What  landowner  may  do  to  take  possession  of  his  land.— See 
note   69   A.   D.   754-756. 

§1934.  ^VHEX  TERMINATED  BY  DEATH,  ETC.,  OF 
PARTY.  If  the  hiring  of  a  thing  is  terminable  at  the  pleas- 
ure of  one  of  the  parties,  it  is  terminated  by  notice  to  the 
other  of  his  death  or  incapacity  to  contract.  In  other  cases 
it  is  not  terminated  thereby. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

§  1935.  ArrORTIOWENT  OF  HIRE.  When  the  hiring  of 
a  thing  is  terminated  before  the  time  originally  agreed  upon, 
the  hirer  must  pay  the  due  proportion  of  the  hire  for  such 
use  as  he  has  actually  made  of  the  thing,  unless  such  use 
is  merely  nominal,  and  of  no  benefit  to  him. 


History  s 


Enacted  March   21 
1029 


1872. 


§  1941  CIVIL,  CODE.  [Div.III,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

4  C.  A.  192,  195,  87  P.  235  (referred  to — counsel  contending 
that  this  section  has  no  application  to  leasing  of  real  property). 

Apportionment  of  rent. — See  37  A.  R.  283. 

Compensation  of  depositary  for  hire  during  fraction  of  week, 
etc. — See  Kerr's  Cyc.  C.  C.  §  1853  and  note. 


CHAPTER  II. 

HIRING  OF  REAL  PROFERTY. 

§  1941.  Lessor  to  make  dwelling-house  fit  for  its  purpose. 

§  1942.  Lessee  may  make  repairs,  etc. 

§  1943.  Term  of  hiring  when  no  limit  is  fixed. 

§  1944.  Hiring  of  lodgings  for  indefinite  term. 

§  1945.  Renewal  of  lease  by  lessee's   continued  possession. 

§  1946.  Notice  to  quit. 

§  1947.  Rent,    when   payable. 

§  1948.  Attornment  of  a  tenant  to  a  stranger. 

§  1949.  Tenant  must  deliver  notice  served  on  him. 

§  1950.  Letting  parts  of  rooms  forbidden. 

§  1941.  LESSOR  TO  MAKE  DWELLING-HOUSE  FIT  FOR 
ITS  PURPOSE.  The  lessor  of  a  building  intended  for  the 
occupation  of  human  beings  must,  in  the  absence  of  an  agree- 
ment to  the  contrary,  put  it  into  a  condition  fit  for  such  occu- 
pation, and  repair  all  subsequent  dilapidations  thereof,  which 
render  it  untenantable,  except  such  as  are  mentioned  in  sec- 
tion nineteen  hundred  and  twenty-nine. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  245,  246,  by  inserting  the  words  "in 
absence  .of  any  agreement  to  the  contrary;"  59  C.  563,  566. 

See  Kerr's  Cyc.  C.  C.  for  40  pars,  annotation. 

59  C.  563,  565,  566  (construed  with  reference  to  §1942);  66  C. 
182,  4  P.-  1188  (referred  to);  76  C.  173,  174,  18  P.  260,  261  (con- 
strued with  reference  to  §1942);  81  C.  58,  59,  22  P.  304  (con- 
strued with  reference  to  §1942);  86  C.  203,  205,  24  P.  1009 
(construed  with  §1942);  86  C.  298,  304,  24  P.  1015,  1017  (con- 
strued); 92  C.  548,  551,  552,  28  P.  599,  600  (construed  with 
reference  to  §1942);  31  P.  529,  530  (construed);  102  C.  476,  480, 
36  P.  835  (construed);  124  C.  520,  522,  523,  57  P.  567  (construed 
With  §1942);  128  C.  187,  190,  60  P.  687  (referred  to);  4  C.  A. 
12,   16,   87  P.   222    (referred  to). 

1030 


Tit  V  Ch.ll.]  LEASES,  GENERALLY.  §  1941 

HIRING     OF     REAL,     PROPERTY— I.EASE. 

As    to    covenant    of    lessor    to    make    repairs,    see    Kerr's    Cyc. 
C.  C.  §1941,  note  pars.  11-14. 

As  to  deterioration  or  injuries  occasioned  by  ordinary  negli- 
gence of  hirer,  see  Kerr's  Cyc.  C.  C.  §  1929  and  note. 

As    to    fixtures   and   property    on    premises    and    rights    of    the 
parties  therein.— See  5  L.  150;  9  L.  700;  10  L.  722;  19  L.  443. 

As    to    injury    to    goods    in    premises    leased    for    storage,    see 
Kerr's  Cyc.  C.  C.  §  1941,  note  pars.   6-8. 

As   to   liability   of  lessor   and   lessee   for   nuisance    in    connec- 
tion with  leased  premises,  see  Kerr's  Cyc.  C.  C.  §  3493  and  note. 

As  to  negligence  in  making  repairs  undertaken  by  lessor,  see 
Kerr's  Cyc.  C.  C.  §  1941,  note  par.  28. 

As  to  right  of  lessor  to  re-enter  for  purpose  of  makmg  altera- 
tions, see  Kerr's  Cyc.  C.  C.  §  1927  and  note  par.  3. 

As  to  what  constitutes  act  of  God,  see  Kerr's  Cyc.  C.  C.  §  1511 
and  note  pars.  2-13;  1  W.  &  P.  118-125. 

As  to   what   constitutes   deceit,   see    Kerr's   Cyc.   C.    C.    §§1(09, 
1710  and  notes. 

Abandonment— What  justifies  the  tenant  in.— See  38  A.  b.  4(b. 

Same— What    may     be     done    after    abandonment^  by     tenant 
and  still  hold  him  to  his  obligation. — See  14  A.  S.  717. 

Acceptance— Of    lease    by   one    already    in    possession. — See    13 

A.  D.  168. 

Same— Of     rent    accruing    after     cause     for     forfeiture,     with 
knowledge    of    such    cause,    as    waiver    of   forfeiture.— See    12    L. 

N.  S.  831. 

Actions  for  rent,  counterclaims  of  tenant  in. — See  46  A.  R.  4  <  4. 
Adverse    possession    by    tenant    as    against    landlord.— See    12 

L.  N.  S.  148.  ^  „. 

Agreement    for    cultivation    of    land    on    the    shares. — bee     Si 

A.  D.   317. 

Agreement    to    comply    with    lease    as,    consideration    for    new 

promise. — See  34  L.  36. 

Alteration  of  terms  of  lease,  as  discharge  of  sureties  of  lessee. 
—See  6  A.  C.  359. 

Apportionment  of  rent — As  to  generally,  see  31   A.  D.   517;   37 

A.  R.   283.  ^        ,^     ^ 

Same— On   destruction   of  part  of  leased  property.— See   31   A. 

D.    517:    37    A.    R.    283. 

Assignee   of  lease,   right   to   enforce   option    of   purchase. — See 
5   A.   C.   914. 

Assignees    and    sublessees,    remedies    against. — See    15     A.    D. 

543. 

Assignment    of    lease — As    to    generally,    see    7    A.    C.    536;    14 
L.   151;   15  L.   754;    34  L.    62. 

Same— Covenant     against,     as     affected     by     transmission     of 
lessee's  interest  upon  his  death. — See  12  A.  C.  978. 

1031 


§  1941  CIVIL  CODE.  [Div.III.PtlV. 

Same — Distinction    between    lease    and    sublease. — See    7    A.    C. 
537. 

Same — Respective  rights  and  liabilities  of  the  lessor,  assignee, 
and  assignor.- — See  10  A.  S.  557. 

Attornment — And  its  effect. — See  89  A.  S.   101. 

Same — To  mortgagee   in  possession. — See   8  L.   568. 

Breach  of  condition,  forfeiture  of  lease  for. — See   26  A.  S.   910. 

Breach  of  covenant  for  quiet  enjoyment,  measure  of  damages 
for. — P?^  ^S  A.  R.  606. 

By  the  elements,   what  constitutes  damages  by,  within  mean- 
ing of  lease. — See  53  L.  673. 

Compensation   when   lease   invalid   under   statute   of   frauds. — 
See   26  L.   799-802. 

Construction    of   lease — As    to,    generally,    see    7    A.    C.    591;    10 
A.  C.  357;  1  L.  529. 

Same — Parol  evidence  in  aid  of. — See  3  L.  331. 

Same — "Water  rents  and  taxes  as  rates  within  covenants  of. — 
See  8  A.  C.  111. 

Crops — Right   of  tenant   to   maintain   his  possession   by   means 
of  wrongful  injunction. — See  12  L.  N.  S.   194. 

Same — To    be    raised    by    tenant,    reservation    of    lien    on    or 
title  to.— See  14  A.  S.  166. 

Counterclaims  by  tenant  in  actions  for  rent. — See  46  A.  R.  474. 

Courthouse,    lease    of    for   private    uses. — See    33    L.    118. 

Covenants — Implied  on  part  of  landlord. — See  34  A.  D.   355;   43 
A.  R.  227. 

Same — Of    landlord    to    repair    or    make     improvements. — See 
87  A.   D.   237. 

Same — Of  tenant  to  pay  rent. — See  87  A.  D.  237. 

Same — To    pay    rent   and    to    make    repairs    or    improvements, 
whether   dependent   or   independent. — See   87   A.    D.    237. 

Same — To   repair,   express   or   implied. — See   95   A.   D.    118. 

Covenants   and   putting   in   possession,    as   to,    generally,    see    4 
L.  N.  S.   466;   9  L.  N.  S.   1127;   9  L.  N.   S.   1131. 

Covenants  for  renewal,  right  of  assignee  of  lease  to  enforce. — 
See  12  A.  C.  969. 

Covenants  in  lease,  water  rents  as  taxes  or  rates  within  mean- 
ing of.— See  8  A.   C.   111. 

Damage — "By  the   elements",   what   constitutes   within    mean- 
ing of  lease. — See  3  W.  &  P.  2345. 

Same — Measure  of  when  lessee   is  evicted   or  prevented   from 
taking  possession. — See   100   A.   D.    428. 

Dangerous  premises,  liability  of  landlord  for   injuries  caused 
by. — See  28  A.  R.  32. 

Death  of  lessor  or  lessee,  effect  on  lease. — See  23  L.   707. 

Defective    and    dangerous    premises,    liability    of    lessor    for. — 
See  66  A.  S.  785. 

Destruction    of,    or    injuries    to    building,    effect    upon    lease    of 
part  of  building. — See  9  A.  C.  107. 

1032 


Tit.V,ch.II.]  LEASES,  GENERALLY.  §  1941 

Destruction  of  whole  or  part  of  leased  premises — Apportion- 
ment of  rents. — See   31   A.   D.    517;    37   A.   R.    283. 

Same — Rights  and  liabilities  of  tenant  upon. — See  94  A.  D. 
662;   61   A.   S.   566;   22  L.  613. 

Same — When  releases  tenant. — See  56  A.  R.  469. 

Distinction  between  a  lease  and  a  license. — See   18  L.  491. 

Distress — Exemption  from  seizure  under. — See  17  A.  D.   458. 

Same — For   rent. — See   15   A.   D.   585. 

Distress  warrant,  use  of  to  enforce  payment  of  compensation 
for  use  of  property  other  tlian  land. — See  11  L.  N.  S.  836. 

Duty  and  liability  of  landlord  as  to  condition  of  premises — As 
to  generally,  see  9  L.  798;  10  L.  147;  10  L.  794;  34  L.  562;  46  L. 
93;  66  L.  154. 

Same — As  to  part  of  premises  not  controlled  by  tenant. — See 
23   L.    155;   29  L.   358. 

Same — For  injuries  from  defects  in  portions  of  building 
remaining  in  his  possession. — See  14  L.  238. 

Same — For  injuries  to  tenant  from  defect  in  premises. — See 
34  L.   824-831. 

Same — For  injuries  to  tenant's  guests  and  servants  from 
defect  in  premises. — See  34  L.  609;  46  L.  86-93. 

Same — To  third  persons,  for  condition  of  premises  in  posses- 
sion of  tenant. — See  26  L.  197-203. 

Duty  of  intending  lessee  to  inspect  premises. — See  38  A.  S. 
478,    479. 

Effect  of  express   stipulations. — See   38  A.  S.   481. 

Effect  of  making  improvements  under  oral  lease  void  under 
statute  of  frauds. — See   3   L.  N.   S.   852. 

Effect  on  liability  of  tenant's  surety  of  surrender  of  lease  con- 
taining an  oijtion  to  purchase. — See  9  L.  N.  S.  557. 

Emblements,  rights  to. — See  3  L.  124;  11  L.  800. 

Eminent  domain,  rights  of  parties  to  lease  on  condemnation 
of  property  by. — See  21  L.  212. 

Entrances,  right  of  tenant  to  liave  kept  open. — See  4  L.  N. 
S.  565. 

Entry  under  parol  agreement  for  lease  as  part  performance. 
— See  20  L.  36. 

Estoppel — By  tenant  to  deny  landlord's  title. — See  15  A.  D.  40; 
89  A.  S.  62. 

Same — Of  tenant  to  dispute  lessor's  title. — See   1   L.  N.  S.   1181. 

Equitable  relief  against  forfeiture — For  non-payment  of  rent. 
— See    69   L.    844. 

Same — Of  estate  for   non-renewal   of  lease. — See   69   L.   846. 

Eviction — Actual  eviction. — See  1  W.  &  P.  157. 

Same — By  admitting  inconsistent  business  into  building. — See 
5  L.  N.  S.   855. 

Same — Constructive  eviction. — See  2  W.  &  P.  1470. 

Same — Damages  to  lessee  on. — See  100  A.  D.  428. 

1033 


§  1941  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Liability  of  landlord  for  forcible,  after  expiration 
of  term.— See  11  L.  N.  S.  468. 

Same — So  as  to  relieve  tenant  from  payment  of  rent,  by 
reason  of  the  enforcement  by  public  officials  of  restrictions  on 
the  use  of  the  premises. — See  2  L.  N.  S.  973. 

Same— What  may  amount  to.— See  17  A.  R.  62;  3  W.  &  P.  2517. 

Exception  in  case  of  furnished  houses  hired  for  short  period. 
—See  38  A.  S.  479,  480. 

Exei^ntion — Against  claim  for  rent. — See  24  L.  812. 

Same — From   seizure  under   distress. — See   17   A.  D.    458. 

First   and   last  days   in   computing   time — For   proceedings   to 
distrain  for  rent. — See  49  L.  239. 
•Same — On  contract  of  lease. — See  49  L.  210. 

Fixtures — Removal  of. — See  note  §  660  ante. 

Same — To  whom  belong. — See  Kerr's  Cyc.  C.  C.  §§  1013,  1019 
and  notes. 

Forfeiture  of  lease — For  breach  of  condition. — See  26  A.  S. 
910. 

Same — Of  oil  or  gas  lease. — See  31  L.  673. 

Same — Positive  clause  of  as  embracing  negative  covenants. 
— See  1  A.  C.  794. 

Same — Waiver  of. — See  47  A.  S.  197. 

Same — Same — By  acceptance  of  rent  when. — See  11  L.  N.  S. 
831. 

Fraud  on  part  of  lessor. — See  38  A.  S.  480,  481. 

Guarantor  of  lease,  necessity  of  notice  in  order  to  bind. — 
See  20  L.  259. 

Holding  over — By  tenant  under  lease  giving  option  for 
renewal  as  exercise  of  option. — See  6  A.  C.  341. 

Same — When  tenant  guilty  of. — See  70  A.  S.  533. 

Immoral  or  prohibited  places. — See  "Lease  of  premises  for 
immoral  or  prohibited  places",  this  note. 

Implied  covenant  as  to  fitness  of  premises  for  possession 
intended. — See  33  L.  449,  455. 

Implied  renewal  and  continuance  of  lease  and  terms  for 
which  deemed  renewed. — See  91  A.  D.  653. 

Implied  trust  arising  from  renewal  of  lease. — See  7  A.  C.  925. 

Improvement-s — Tenant's  right  to  be  allowed  for. — See  81  A.  S. 
181. 

Same — Under  oral  lease  void  under  the  statute  of  frauds, 
effect  of  making. — See  3  L.  N.  S.  852. 

Injunction — As  to  judgment  by  or  against  surety  in  summary 
proceedings,  see  31  L.  63. 

Same — Against  dispossession  by  summary  proceedings. — See 
30  L.  129. 

Same — Equitable  relief  against  forfeiture  of  estate  for 
renewal   of  lease. — See   69  L.   486. 

Same — To  prevent  improper  use  of  leased  premises. — See  59 
A.  D.  870. 

1034 


I 

i  Tit.V,ch.II.]  LEASES,  GENERALLY.  §  1941 

Insurance — Effect  on  vacancy  clause  in  policy  of  tenant's 
removal  without  insurer's  knowledge. — See  3  L.  N.  S.  966. 

Same — Effect  upon,  of  breach  of  condition  by  tenant. — See  12 
L.  N.  S.  484. 

Same — On  leased  premises,  tenant  cannot  compel  application 
of,  to  repairs. — See  37  A.  R.   283. 

Interpleader  between  landlord  and  tenant. — See  10  L.  N.  S. 
751. 

Judgment  against  tenant — Effect  of  as  res  judicata. — See  112 
A.    S.    21. 

Same — When   binding  on   landlord. — See   95   A.   D.   473. 

Landlord — Liability  for  injuries — As  to,  generally,  see  3  L.  N. 
S.  316;  3  L.  N.  S.  1097;  4  L.  N.  S.  1142;  5  L.  N.  S.  316;  6  L.  N.  S. 
977;  11  L.  N.  S.  504;  12  L.  N.  S.  1025. 

Same — Same — Resulting  from  condition  of  the  premises  after 
the  execution  of  the  lease. — See  17  A.  R.  127. 

Same — Same — To  third  persons. — See  59  A.  D.  733;  92  A.  g. 
499. 

Same — Power  to  reserve  lien  on  crops  to  be  raised. — See  14 
A.  S.  166. 

Same — Right  to  lien  on  tenant's  property. — See   119  A.  S.   122. 

Same — Validity  of  statute  holding  liable  for  water  and  light 
furnished  tenant. — See  6  L.  N.  S.  198. 

Landlord's  lien — As  to,  generally,  see  12  L.  605;  12  L.  848;  30 
L.   129;   49  L.  437;   59  L.   737. 

Same — Waiver  of  by  attachment. — See  50  L.  717. 

Lease — Alteration  of  terms  of  as  discharge  of  sureties  of 
lessee. — See  6  A.  C.  359. 

Same — Covenant  against  assignment  of,  as  affected  by  trans- 
mission of  lessee's  interest  upon  his  death. — See  12  A.  C.  978. 

Same — Covenant  for  renewal  in,  right  of  assignee  of  lease 
to   enforce. — See    12  A.   C.    969. 

Same — Of  courtliouse  for  private  uses. — See  33  L.  118. 

Same — Of  land — As  conveyance. — See  11  L.  N.  S.   99. 

Same — Same — Validity  of,  made  in  violation  of  law. — See 
12  L.  N.  S.  605. 

Same — Of  mines,  as  to,  gencrallj',  see  1  L.  N.  S.  333;  4  L.  N. 
S.  207;  4  L.  N.  S.  477;  11  L.  N.  S.  417. 

Same — Of  oil  lands. — See  12  L.  290. 

Same — Of  premises — For  immoral  or  prohibited  purposes. — 
See   8  A.  R.    140. 

Same — Same — Within  statute  of  frauds,  compensation  for. — 
See  26  L.   799. 

Lease  and  sublease  distinguished. — See  86  A.  D.  394;  15  L. 
236;  1  W.  &  P.  569. 

Lease  for  more  than  one  year  to  be  in  writing. — See  7  L.  671. 

Lease  to  commence  at  future  time,  what  is  lease  for  one  year. 
—See  10  L.  726. 

1035 


§  1941  CIVIL  CODE.  [Div.III.Pt.IV. 

Leasehold   interest — As   subject   of   taxation. — See    15   L.    297. 

Same — In   real  estate  as  partnership   property. — See   27   L.    4S3. 

Lessee    of    life    tenant. — See    11    L.    N.    S.    688. 

Levy    on    interest   of   parties   in    crops. — See    23   L.    260. 

Liability — For   evicting-  tenant. — See    16   L.    798;    55   L.    258. 

Same — For  injuries  from  failure  to  repair  demised  premises. 
— See  95   A.   D.   123-125. 

Same — For  nuisance  on  leased  premises. — See  15  A.  R.  78; 
15  A.  B.  398. 

Same— For  rtjUi  of  premises  occupied  by  receiver  or  assignee 
for  creditors. — See  59  L.  673-696. 

Same — Of  assignee  of  leasehold  for  rent. — See  14  L.  151-155. 

Same — Of  landlord — For  damages  for  forcibly  dispossessing 
tenant  after  expiration  of  term. — See  11  L.  N.  S.  468. 

Same — Same — For  injuries  resulting  from  condition  of  prem- 
ises after  execution  of  lease. — See  17  A.  R.   127. 

Same— Same — For    injuries    to    third    persons. — See    59    A.    D. 
733;  92  A.  S.  499. 

Same — Same — Letting  premises  in  defective  and  dangerous 
condition.— See  66  A.  S.  785-789. 

Same — Of  lessor — For  injuries  resulting  from  condition  of 
premises.— See  14  L.  238-241;  23  L.  158,  159;  34  L.  609-616,  824- 
832;    46  L.    83-94. 

Same — Same — To  third  person. — See  50  A.  D.  779-783. 

Same — Of  tenant's  surety,  effect  on  of  surrender  of  lease  con- 
taining an  option  of  purchase. — See  9  L.  N.  S.  557. 

Lien  on  crops  to  be  raised,  power  of  landlord  to  reserve. 
—See  14  A.  S.  166. 

Same — On  tenant's  property,  right  of  landlord  to. — See  119  A. 
S.   122. 

Life  tenant,  lessee  of. — See   11  L.  N.  S.   688. 

Light  furnished  tenant,  liability  of  landlord  for. — See  6  L.  N. 
S.    198. 

Manure — Made  on  farm  belongs  to  realty. — See  28  A.  R.  39; 
31  L.  698. 

Mechanics'  lien — On  building  erected  by  lessee  upon  lessor's 
land. — See   23   L.   375. 

Same — On  landlord's  interest  for  labor  and  materials 
furnished  tenant  for  building  or  improvements  removable  by 
tenant. — See   6   L.   N.   S.   485. 

Mining  lease  as  sale  of  land. — See  9  A.  C.  524. 

Negligence  of  lessor  in  allowing  overflow  of  water. — See 
Kerr's  Cyc.  C.  C.  §  1927  and  note  par.  38. 

New  lease  as  affecting  right  to  remove  fixtures. — See  3  A.  C. 
331;  also  note  ante  §  660. 

No  implied  warranty  that  premises  are  suitable. — See  50  A.  D. 
776-779;  46  A.  R.  474,  475;  55  A.  R.  265-269;  38  A.  S.  477,  478; 
note  33  L.  449-456. 

1036 

t 


I 

?  Tit.V.ch.II.]  LEASES,  GENERALLY.  §  1941 

Notice,  necessity  of  in  order  to  bind  guarantor  of  lease. — See 
20  L.  259. 

Notice   to   quit — Eviction    of  tenant. — See   8   L.    221. 

Same — ^Necessity  and  sufficiency  of. — See  42  A.  D.  125. 

Nuisance — In  connection  with  leased  premises — Liability  of 
lessor  and  lessee. — See  Kerr's  Cyc.  C.  C.   §  3493  and  note. 

Same — Lessee's  riglit  to  maintain  suit  to  enjoin. — See  3  L. 
N.   S.   448. 

Same — On  leased  premises,  liability  for. — See  15  A.  R.  78;  15 
A.  R.  398. 

Same — Respective  liabilities  of  landlord  and  tenant  for. — See 
50  A.  D.  776;   86  A.  S.   516. 

Same — Right  of  owner  to  recover  damages  to  property  from, 
not  of  a  permanent  character,  ■while  in  possession  of  tenant. — 
See  3  L.  N.  S.  1060. 

Oil  lands,  lease  of. — See  12  L.  290. 

Oil  or  gas  lease — Lease  of — Effect  of  assignment  of. — See  3.4 
L.    62. 

Same — Same — Forfeiture  of. — See  31  L.  673. 

Option  to  purchase — As  to  generally,  see  5  A.  C.  912;  10  A.  C. 
357. 

Same — Right    of   assignee    to    enforce. — See    5    A.    C.    914. 

Option  to  renew  lease — As  to  generally,  see  6  A.  C.  102;  6  A. 
C.  339. 

Same — Holding  over  by  tenant  as  exercise  of. — See  6  A.  C. 
341. 

Parol  lease  within  statute  of  frauds,  effect  of. — See  17  A.  S. 
752. 

Partner — Power  of  to  make  and  renew  lease  of  partnership 
real  estate. — See  28  L.  97. 

Same — Right  of  surviving  to  lease  firm  real  property. — See 
28    L.    135. 

Premises  defectively  constructed  or  out  of  repair — Liability 
for  injuries  resulting  therefrom. — See  59  A.  D.  733-740. 

Priority  of  claims  for  leases  and  rental  against  property  in 
hands  of  receiver  over  recorded  liens. — See  2  L.  N.  S.  1030,  1044, 
1060,    1066. 

Prohibited  purposes. — See  "Lease  of  premises  for  immoral  or 
prohibited  purposes,"  this  note. 

Proof  of  claim  based  on  lease,  as  fixed  liability,  in  bank- 
ruptcy.— See   54   L.   374. 

Quiet  enjoyment,  measure  of  damages  for  breach  of  cove- 
nant  of. — See   58   A.   R.    606. 

Re-entry  on  forfeiture,  election  of  remedies. — See  8  L.  759. 

Renewal  and  continuance  of  lease — Implied,  and  terms  for 
which  deemed  renewed. — See  91  A.  D.  653. 

Same — Right  of  assignee  of  lease  to  enforce  covenant  for. — 
See   12  A.  C.   969. 

1037 


§  1941  CIVIL  CODE.  [Div.III.Pt.IV. 

Rent— As  to,  generally,  see  11  L.  855;  14  L.  156;  17  L.  275;  22 
L.  613;  26  L.  802;  33  L.  487;  40  L.  321;  49  L.  239;  49  L.  436;  54  L. 
374;  55  L.   50,  54,  64;   61  L.   538;   69  L.   848. 

Same — Acceptance  of  as  waiver  of  forfeiture,  when. — See  11  L. 
N.  S.  831. 

Same — Apportionment  of. — See  31  A.  D.  517;  37  A.  R.  283. 

Same — Effect  of  partial  eviction  upon  liability  to  pay. — See 
17  L.  275. 

Same — Equitable  relief  against  forfeiture  for  non-payment  of. 
—See  t>i  L.  Sii. 

Same — Guaranty   of. — See   9   L.    353. 

Same — Liability  for  after  desertion  of  premises. — See  22  L. 
613. 

Same — Liability  for  on  oil  and  gas  lease. — See  33  L.   847. 

Rent — Liability  of  assignee  of  leasehold  for. — See  14  L.  151. 

Same — Liability  of  vendee  or  mortgagee  under  stipulation  to 
become  tenant  and  pay  on  default. — See  49  L.  436. 

Same — Sublessee  not  liable  on  original  lease. — See  11  L.   855. 

Reservation  of  lien  on  or  title  to  crops  raised  by  tenant. — 
See   14  A.   S.   166. 

Restoration  of  destroyed  or  injured  building — Landlord's  duty 
as  to.— See  38  A.  S.  482-484. 

Right  of  entry  of  landlord  after  termination  of  lease. — See  69 
A.  D.  754. 

Right  of  surviving  partner  to  lease  Arm  real  property. — See 
28  L.  135. 

Right  of  tenant — After  expiration  of  lease. — See  69  A.  D.  508. 

Same — To  cut  wood  for  fires  or  fences. — See   63  L.   641-649. 

Rights  and  liabilities  of  lessee  upon  destruction  of  leased 
premises. — See    61    A.    S.    566-572. 

Rights  and  liabilities  of  parties  to  lease — As  to,  generally,  see 
20  L.  33;  22  L.  540;  23  L.  158;  44  L.  737;  53  L.  97;  64  L.  611; 
68  L.   695. 

Same — Rights  on  condemnation  of  property  by  eminent 
domain. — See   21   L.    212. 

Rights  and  liabilities  of  tenant  on  destruction  of  leased 
building. — See  22  L.   613. 

Sale  of  leased  premises — As  to  and  effect  of. — See  6  A.  C. 
356. 

Sale  or  mortgage  of  crops  by  tenant. — See  23  L.  468. 

Sublessees  effect  upon  rights  of,  of  surrender  of  leased 
premises  by  lessee  to  lessor. — See  10  A.  C.  424;  7  L.  N.  S.  221. 

Same — Not  liable  on  original  lease.— See  11  L.  855. 

Sublessees  and  assignees,  remedies  against. — See  15  A.  D.  543. 

Sublessor  not  bound  to  repair  for  sublessee,  there  being  no 
difference  in  principle. — See  33  C.  341,  346. 

Subletting  of  leased  premises. — See  117  A.  S.  91. 

Summary  proceedings  to  oust  tenant — Appeal  in. — See  9  L. 
SOL 

1038 


Tit.V.ch.II.]  LEASES,  GENERALLY.  §  1941 

Same — Notice  in. — See  9  L.  798. 

Surrender — As  to  generally,  see  10  A.  C.  357. 

Same — Effect  of  upon  riglits  of  sublessee  of  surrender  by 
lessee  to  lessor. — See  10  A.  C.  420,  424. 

Same — Effect  upon  liability  for  rent,  where  between  rent  days. 
—See  10  A.  C.  365. 

Surrender  of  original  lease,  effect  on  rights  of  sublessees. — See 
10  A.  C.  424;  7  L.  N.  S.  221. 

Surrender  of  premises. — See  11  L.  498. 

Surviving  partner,  right  to  lease  firm  real  property. — See  28 
L.    135. 

Tax  sale,  effect  to  create  relation  of  landlord  and  tenant 
between  purchaser  and  prior  lessee. — See  6  L.  N.  S.   260. 

Tenancy  from  year  to  year — Effect  of  payment   of  rent. — See 

8  L.  221. 

Tenant — Acquisition  of  title  by,  as  to,  generally,  see  53  L. 
934-951. 

Same — Damages,  measure  of,  when  evicted  or  prevented  frorri 
taking  possession. — See  100  A.  D.  428. 

Same — Estopped  to  deny  landlord's  title. — See  15  A.  D.  40; 
89  A.  S.  62;  1  L.  N.  S.  1181. 

Same — Guilty  of  holding  over  when. — See  70  A.  S.  533. 

Same — Judgment  against,  effect  of  res  judicata. — See  112  A. 
S.  21. 

Same — Right  to  allowance  for  improvements. — See  81  A.  S. 
181. 

Same — Right  to  maintain  his  possession  by  means  of  wrong- 
ful injunction,  to  crops  grown  on  the  leasehold. — See  12  L.  N. 
S.   194. 

Same — Sale  or  mortgage  of  crops  by. — See  23  L.  468. 

Tenant's  duty  to  leave  premises  in  good  condition. — See  64 
L.  649-667. 

Termination   of  lease — As   to  generally,  see   1  A.   C.   790. 

Same — Effect  upon  lease  of  accidental  destruction  of  or  injury 
to   part   of   building.— See   9   A.   C.    107. 

Same — Positive  clause  of  forfeiture  as  embracing  negative 
covenant. — See  1  A.  C.  794. 

Termination  of  tenancy — Effect  of  death  of  lessor  or  lessee. — 
See  23  L.  707. 

Same — First  and  last  days  in  computing  time. — See  49  L.  210; 
49   L.   239. 

Same — Forfeiture  of  oil  or  gas  lease. — See  31  L.  673. 

Same — Injunction  against  dispossession  by  summary  proceed- 
ings.— See  30  L.  129. 

Same — Notice   to    quit,   eviction    of   tenant. — See    8   L.    221. 

Same — Re-entry  on  forfeiture,  election  of  remedies. — See  8 
L.   759. 

Same — Summary    proceedings    to    oust    tenant,    notice    in. — See 

9  L.  798. 

1039 


§  1942  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Same — Appeal  in. — See  9  L.  801. 

Same — Surrender  of  premises. — See   11   L.   498. 

Time  for  which  renewal  may  be  had  under  indefinite  agree- 
ment in  lease  granting  option  of  renewal. — See  6  A.  C.  102. 

Unliealthfulness  of  premises,  effect  of  on  the  rights  of  the 
parties. — See  55  A.  R.  265. 

Validity  of  lease  made  in  violation  of  law. — See  12  L.  N.  S. 
605. 

Validitj  of  statute  holding  property  owner  liable  for  water 
and  light  furnished  tenant. — See   6  L.  N.  S.   198. 

Waiver  of  forfeiture  of  lease. — See  47  A.  S.  197. 

Water  and  light  furnished  tenant,  liability  of  landlord  for. — 
See  8  A.  C.   Ill;   6  L.  N.  S.   198. 

Water  rents  as  taxes  or  rates  within  meaning  of  cove- 
nants in  lease. — See  8  A.  C.  Ill;   6  L.  N.  S.   198. 

When  action  for  use  and  occupation  for  premises  will  lie. — See 
14  L.  156;  26  L.  802. 

§1942.  LESSEE  MAY  MAKE  REPAIRS,  ETC.  If  within 
a  reasonable  time  after  notice  to  the  lessor,  of  dilapidations 
which  he  ought  to  repair,  he  neglects  to  do  so,  the  lessee 
may  repair  the  same  himself,  where  the  cost  of  such  repairs 
do  not  require  an  expenditure  greater  than  one  month's  rent 
of  the  premises,  and  deduct  the  expenses  of  such  repairs 
from  the  rent,  or  the  lessee  may  vacate  the  premises,  in 
which  case  he  shall  be  discharged  from  further  payment  of 
rent,  or  performance  of  other  conditions. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  246.  This  section  as  originally  enacted 
provided  that  lessee  might  make  repairs  himself  "and  deduct 
'the  expense  of  such  repairs  from  the  rent,  or  otherwise  recover 
it  from  the  lessor,"  without  providing,  as  it  was  made  to  read 
by  amendment  in  1874,  that  "where  the  costs  of  such  repairs  do 
not  require  an  expenditure  greater  than  one  month's  rent  of 
the  premises,"  etc.,  to  the  end  of  the  section  as  it  now  reads;  59 
C.   563,  566. 

See  Kerr's  Cyc.  C.  C.  for  la  pars,  annotation. 

59  C.  563,  565,  566  (referred  to  in  construing  §1941);  72  C. 
307,  312  (applied),  13  P.  866,  868  (erroneously  cited  as  §  1942 
C.  C.  P.);  76  C.  173,  174,  18  P.  260,  261  (referred  to  in  construing 
§  1941);  81  C.  58,  59,  22  P.  304  (referred  to  in  construing  §  1941); 
86  C.  203,  205,  24  P.  1009  (referred  to  in  construing  §1941);  92 
C.  548,  550,  552,  28  P.  599,  600  (referred  to  in  construing  §  1941); 
102  C.   476,  480,  481,   36  P.  835   (referred  to  in  construing  §1941); 

1040 


i 


Tit.V,ch.II.]  LIMIT   NOT   FIXED.  §§1943,1944 

110  C.  219,  220,  42  P.  560  (construed);  124  C.  520,  523,  57  P. 
567  (referred  to  in  construing  §1941):  128  C.  187,  190,  60  P. 
687  (referred  to);  4  C.  A.  12,  16,  87  P.  222  (referred  to). 

As  to  hiring-  of  real  property  generally,  see  note  §  1941,  ante. 

As  to  offset  for  repairs  made  by  lessee,  see  Kerr's  Cyc.  C.  C. 
§  1941  and  note  par.  18. 

Covenant  to  repair — Notice  must  be  given  by  lessee. — See 
Kerr's  Cyc.  C.  C.   §  1941  and  note  par.  13. 

Fixtures — To  whom  belong. — See  Kerr's  Cyc.  C.  C.  §§  660,  1013, 
1019  and  notes. 

Lessee's  duty  to  leave  premises  in  good  condition. — See  64  L. 
648-667. 

Refusal  of  lessor  to  allow  lessee  to  make  the  repairs. — See 
Kerr's  Cyc.  C.  C.  §  1941  and  note  par.  19. 

Rescission  of  lease  by  lessee  without  notice  to  make  repairs. 
— See  Kerr's  Cyc.  C.  C.  §  1941  and  note  par.  37. 

§  1943.    TERiT  OF  HIRING  WHEN  >0  LI^TIT  IS  FIXED. 

A  hiring  of  real  property,  other  than  lodgings  and  dwelling- 
houses,  in  places  where  there  is  no  usage  on  the  subject,  is 
presumed  to  be  for  one  year  from  its  commencement,  unless 
otherwise  expressed  in   the  hiring. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.   for  9  pars,  annotation. 

2  C.  A.  331,  333,  334,  84  P.  57  (applied  to  lease  of  premises  for 
private  hotel);  6  C.  A.  618,  622,  92  P.  749  (construed  with  subd. 
1,  §  1624  as  to  oral  lease). 

As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 

Distinction  between  option  to  renew  and  privilege  of  exten- 
sion.— See  Kerr's  Cyc.  C.  C.  §  1945  and  note  par.  9. 

Fixing  time  of  enjoyment. — See  Kerr's  Cyc.  C.  C.  §  707  and 
note. 

Forcible   detainer. — See   Kerr's   Cyc.   C.   C.   P.    §  1160   and   note. 

Lumbering  contract  construed. — See  Kerr's  Cyc.  C.  C.  §  1947 
and  note  par.  61. 

Option  to  purchase  given  lessee  in  lease. — See  Kerr's  Cyc.  C. 
C.  §  1731  and  note. 

Rights  of  lessee  after  expiration  of  lease. — See  69  A.  D.  508- 
510. 

"Term"  defined. — See  Kerr's  Cyc.  C.  C.   §  1925  and  note  par.   61. 

Unlawful  detainer. — See  Kerr's  Cyc.  C.  C.  P.  §§  1161,  1162  and 
notes. 

§  1944.     HIRING  OF  LODGINGS  FOR  INDEFINITE  TERM. 

A  hiring  of  lodgings  or  a  dwelling-house  for  an  unspecified 

1041 


§  1945  CIVIL  CODE.  [Div.III,Pt.IV. 

term  is  presumed  to  have  been  made  for  such  length  of  time 
as  the  parties  adopt  for  the  estimation  of  the  rent.  Thus  a 
hiring  at  a  monthly  rate  of  rent  is  presumed  to  be  for  one 
month.  In  the  absence  of  any  agreement  respecting  the 
length   of   time   or   the   rent,    the   hiring   is   presumed   to   be 

monthly. 

History:     Enacted  March   21,  1872. 

As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 
Servant    discharged    and    notified    to    vacate     premises. — See 
Kerr's  Cyc.  C.  C.  §  1946  and  note  par.  13. 


§  1945.    RENEWAL  OF  LEASE  BY  LESSEE'S  CONTINUED 

POSSESSION.  If  a  lessee  of  real  property  remains  in  pos- 
session thereof  after  the  expiration  of  the  hiring,  and  the 
lessor  accepts  rent  from  him,  the  parties  are  presumed  to 
have  renewed  the  hiring  on  the  same  terms  and  for  the 
same  time,  not  exceeding  one  month  when  the  rent  is  pay- 
able monthly,  nor  in  any  case  one  year. 

History:  Enacted  March  21,  1872,  founded  upon  §  6  Act  1863; 
42  C.   316,   323. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

86  C.  433,  440,  25  P.  7,  9  (construed  and  applied);  123  C. 
587,  591,  69  A.  S.  84,  56  P.  422  (cited);  124  C.  244,  248,  56  P.  1032 
(applied);  2  C.  A.  331,  333,  334,  84  P.  57  (applied  to  lease  of 
premises  for  private  hotel). 

As  to  effect  of  re-entry  and  demand  of  surrender,  see  Kerr's 
Cyc.  C.  C.   §  1933  and  note  par.  24. 

As  to  effect  of  transfer  of  title,  see  Kerr's  Cyc.  C.  C.  §  1933  and 
note  par.  39. 

As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 

Covenant  of  lessor  to  renew  lease. — See  Kerr's  Cyc.  C.  C.  §  1925 
and  note  par.  22. 

Distinction  between  lease  for  month  and  one  from  month  to 
month. — See  Kerr's  Cyc.  C.  C.  §  1946  and  note  par.  7. 

Forcible  detainer. — See  Kerr's  Cyc.  C.  C.  P.  §  1160  and  note. 

Implied  renewal  and  continuance  of  leases  and  terms  for 
which  deemed  renewed. — See  91  A.  D.  563,  564. 

Option  to  purchase  given  lessee  in  lease. — See  Kerr's  Cyc.  C. 
C.   §  1731  and  note. 

Surrender  and  evacuation  of  premises  by  lessee  after  expira- 
tion of  term. — See  Kerr's  Cyc.  C.  C.  §  1933  and  note  par.  37. 

1042 


I 


i 


Tit.V.ch.II.]  NOTICE    TO   QUIT.  §  1946 

Unlawful  detainer. — See  Kerr's  Cyc.  C.  C.  P.  §§  1161,  1162  and 
notes. 

Use  and  occupation — Liability  of  lessee  holding  over. — See 
Kerr's  Cyc.  C.  C.  §    1947  and  note  par.  54. 


§  1946.  NOTICE  TO  QUIT.  A  hiring  of  real  property,  for 
a  term  not  specified  by  the  parties,  is  deemed  to  be  renewed 
as  stated  in  the  last  section,  at  the  end  of  the  term  implied 
by  law,  unless  one  of  the  parties  gives  notice  to  the  other 
of  his  intention  to  terminate  the  same,  at  least  as  long  before 
the  expiration  thereof  as  the  term  of  the  hiring  itself,  not 
exceeding  one  month. 

His/ory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

86  C.  433,  439,  25  P.  7,  9  (cited);  124  C.  244,  248,  56  P.  1032 
(cited  with  §  1945);  2  A.  C.  622,  623,  84  P.  274  (notice,  under  this 
section,  in  month-to-month  tenancy  must  be  for  one  month). 

As  to  action  without  notice  when  plaintiff  has  riglit  of 
re-entry,  see  Kerr's  Cyc.  C.  C.   §  793  and  note. 

As  to  estoppel  of  lessee  to  deny  lessor's  title,  see  Kerr's  Cyc. 
C.  C.  §  1948  and  note. 

As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 

As  to  necessity  for  notice  at  end  of  term,  see  Kerr's  Cyc.  C. 
C.   §  1946,  note  par.  10. 

As  to  termination  of  tenancy  by  denial  of  lessor's  title,  see 
Kerr's  Cyc.  C.  C.  §  1933  and  note  par.  11. 

Action  for  possession  lies  without  notice,  when. — Sec  Kerr's 
Cyc.  C.  C.  §  793  and  note. 

Deposit  terminated  by  depositary,  how. — See  Kerr's  Cyc.  C. 
C.   §§  1854,   1855  and   notes. 

Exercise  of  option  to  purchase  by  lessee  under  lease. — See 
Kerr's  Cyc.  C.  C.  §  1945  and  note  par.  5. 

Forcible  detainer. — See  Kerr's  Cyc.  C.  C.  P.  §  1160  and  note. 

Notice  to  quit. — See  42  A.  D.  125-140. 

Re-entry,  when  and  how  to  be  made. — See  Kerr's  Cyc.  C.  C. 
§  791  and  note,  and  Kerr's  Cyc.  C.  C.  P.  §§  1161,  1162  and  notes. 

Rent  may  be  increased  by  lessor  upon  giving  notice,  when. — 
See  Kerr's  Cyc.  C.  C.  §  827  and  note. 

Right  of  entry  of  lessee  against  sublessee  at  end  of  term. — 
See  Kerr's  Cyc.  C.  C.  §  1933  and  note  par.  21. 

Tenancy  at  will  terminated  by  notice. — See  Kerr's  Cyc.  C.  C. 
§§  789,  790  and  notes. 

Unlawful  detainer,— See  Kerr's  Cyc.  C.  C.  P.  §§  1161,  1162 
and  notes, 

1013 


§  1947  CIVIL  CODE.  [Div.III,Pt.IV. 

§  1947.  RENT,  WHEIV  PAYABLE.  When  there  is  no  usage 
or  contract  to  the  contrary,  rents  are  payable  at  the  termina- 
tion of  the  holding,  when  it  does  not  exceed  one  year.  If 
the  holding  is  by  the  day,  week,  month,  quarter,  or  year,  rent 
is  payable  at  the  termination  of  the  respective  periods,  as  it 
successively  becomes  due. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  104  pars,  annotation. 

As  to  alteration  of  contract  by  parol,  see  Kerr's  Cyc.  C.  C. 
§  1925  and  note  par.  12. 

As  to  amendment  changing  form  of  action,  see  Kerr's  Cyc. 
C.  C.   S  1947,  note  par.   73. 

As  to  effect  of  destruction  where  porfion  of  building  is 
leased,  see  Kerr's  Cyc.  C.  C.  §  1933  and  note  par.  15. 

As  to  estoppel  of  lessee  to  deny  lessor's  title,  see  Kerr's  Cyc. 
C.   C.   §  1948  and  note   pars.    13   et   seq. 

As  to  eviction  being  defense  in  action  for  rent,  see  Kerr's  Cyc. 
C.   C.  §  1947,   note   pars.    41-43. 

As  to  computation  of  time,  see  Kerr's  Cyc.  C.  C.  §  10  and  note. 

As  to  covenants  which  run  with  land,  see  Kerr's  Cyc.  C.  C. 
§§  1460,  1468  and  notes. 

As  to  covenants  running  with  land,  see  Kerr's  Cyc.  C.  C. 
§§  1460-1468  and  notes. 

As  to  distinction  between  cropping  contract  and  lease,  see 
Kerr's  Cyc.  C.   C.   §  1925   and  note. 

As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 

As  to  invalidity  of  lease  for  immoral  purposes,  see  Kerr's 
Cyc.  C.  C.   §  1925  and  note  par.   65. 

As  to  lessor's  duty  to  defend  lessee's  possession  against 
unlawful  claims,  see  Kerr's  Cyc.  C.  C.  §  1927  and  note. 

As  to  oral  agreement  by  lessor  to  repair,  see  Kerr's  Cyc.  C.  C. 
§  1925  and  note. 

As  to  payment  of  rent  to  lessor  before  notice  of  assignment  by 
lessee,  see  Kerr's  Cyc.  C.  C.  §  1111  and  note. 

As  to  protection  of  lessee  who  pays  rent  to  grantor  without 
notice  of  grant,  see  Kerr's  Cyc.  C.  C.   §  1111  and  note. 

As  to  recovery  back  of  money  paid,  see  Kerr's  Cyc.  C.  C. 
§1473  and  note  pars.  95-128. 

As  to  release  of  lessee  from  rent  by  eviction,  see  Kerr's  Cyc.  C. 
C.    §  1947,    note   pars.    41-46. 

As  to  theory  upon  which  action  for  rent  is  brought,  see  Kerr's 
Cyc.   C.   C.    §  1947,   note   par.    58. 

As  to  hiring  of  real  property  generally,   see  note   §  1941,   ante. 

Abandonment  of  lease  without  lawful  cause  by  lessee  does 
not  discharge  from  obligation  to  pay  rent. — See  85  C.  119,  121,  24 

■  1044 


Tit.V.ch.II.]  ATTORNMENT.  §  1948 

P.    633:    89    C.    464,    466,    26    P.    967,    23    A.    S.    488,    91    C    223.    230. 
27    P.   612,   14   L.    151,    157.      See    22   Oreg.    566.    30   P.    430.    29    A.   S. 

Accrual  of  liability  for  rent.— See  29  A.  R.  218.  219. 
Action  for  use  and  occupation. — See  46  A.  D.  289.  290. 
Agreement  to   reduce   rent.— See   Kerr's  Cyc.   C.   C.    §  192o   and 

note  par.   11.  ^*:„o 

Contract  of  hiring  may  be  upon  any  terms  which  parties 
choose.— See   Kerr's   Cyc.   C.   C.   §  1925  and  note. 

Destruction  of  leased  building  as  affecting  liability  for  rent.— 
See  22  L.   613-616. 

Execution  sale— Rent  from  time  of  sale  until  redemption.— 
See  Kerr's  Cyc.  C.  C.  P.  §  707  and  note. 

Forfeiture  for  breach  of  covenant  to  pay  rent,  and  breaches 
of  covenant  generally—See  Kerr's  Cyc.  C.  C.  P.  §  1161  subds. 
2,  3  and  note. 

Infant's  liability  for  rent.— See  18  A.  S.   589-592. 
Offset  for  failure  of  lessor  to  make  improvements  and  repairs. 
—See  Kerr's  Cyc.  C.  C.  §  1941  and  note  pars.  14.  18. 

Partnership  entered  into  between  lessor  and  lessee.— See 
■Kerr's  Cyc.  C.  C.   §  1933  and  note  par.   35. 

Property  left  on  premises  by  outgoing  lessee— Lessor  is  not 
liable  for.— See  Kerr's  Cyc.  C.  C.  §  1933  and  note  par.  36. 

Purchaser  under  executory  contract  of  sale— Liability  for 
rent.— See  Kerr's  Cyc.  C.  C.   §  1925  and  note  pars.   45.   46. 

Rights  and  liabilities  of  tenant  on  destruction  of  leased  build- 
ing._See  22   L.   613-616. 

Rights  of  grantees  of  rents  and  reversions  to  recover  rent.— 
See  Kerr's  Cyc.  C.  C.   §  821  and  note. 

Sublessee's  liability  for  rent. — See   11   L.   855. 
Unlawful    detainer    after    default    in    payment    of    rent.— See 
Kerr's  Cyc.  C.  C.  P.  §  1161  subd.  2  and  note. 

Waiver  of  breach  of  covenant  to  make  improvements  and 
repairs.— See  Kerr's  Cyc.  C.  C.  §  1941  and  note. 

§  1948.    A TT0R>3IE>T  OF  A  TENAM  TO  A  STRANGER. 

The  attornment  of  a  tenant  to  a  stranger  is  void,  unless  it 
is  made  with  the  consent  of  the  landlord,  or  in  consequence 
of  a  judgment  of  a  court  of  competent  jurisdiction. 

History:  Enacted  March  21,  1872;  founded  upon  Stats.  1855, 
p.   171,  §    7. 

See  Kerr's  Cyc.  C.  C.  for  53  pars,  annotation. 

58    P.    1,    3    (applied). 

As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 

As  to  relation  of  landlord  and  tenant  as  affecting  adverse 
possession,  see  Kerr's  Cyc.  C.  C.  P.  §  326  and  note. 

1045 


§§  1949,  1950  CIVIL  CODE.  [Div.III,Pt.IV. 

Acceptance  of  lease  by  one  in  possession. — See  13  A.  D.  68,  69. 

Acceptance  of  lease  induced  by  fraud,  mistake,  etc. — See  13 
A.  D.  69. 

Bill  of  interpleader  where  adverse  claims  to  rent  asserted. — 
See  Kerr's  Cyc.  C.  C.  §  1947  and  note  par.  29. 

Denial  of  landlord's  title  by  tenant  not  permitted. — See  Kerr's 
Cyc.  C.  C.   P.   §  1962  and  note. 

Duration   of  estoppel. — See   69   A.   D.    71. 

Estoppel  to  deny  lessor's  title. — See  13  A.   D.  68-72. 

Grai-tj  <-,f  rents,  reversions,  and  remainders  without  attorn- 
ments.— See  Kerr's  Cyc.  C.  C.  §  1111  and  note. 

Presumption  of  surrender  and  ouster  from  long-continued 
adverse  holding. — See  13  A.  D.   71,   72. 

Tenant  can  dispute  landlord's  title,  when. — See  69  A.  D.  510, 
511. 

Termination  of  tenancy  by  refusal  to  recognize  lessor  as 
such. — See  Kerr's  Cyc.  C.  C.  §  1933  and  note. 


§1949.  TENANT  MUST  DELIVER  NOTICE  SERVED  ON 
HIM.  Every  tenant  who  receives  notice  of  any  proceeding 
to  recover  the  real  property  occupied  by  him,  or  the  posses- 
sion thereof,  must  immediately  inform  his  landlord  of  the 
same,  and  also  deliver  to  the  landlord  the  notice,  if  in  writ- 
ing, and  is  responsible  to  the  landlord  for  all  damages  which 
he  may  sustain  by  reason  of  any  omission  to  inform  him  of 
the  notice,  or  to  deliver  it  to  him  [if]  in  writing. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  246. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
As  to  hiring  of  real  property  generally,  see  note  §  1941,  ante. 
Action  against  stranger  to  recover  possession  not  incumbent 
on  lessee.— See  Kerr's  Cyc.  C.  C.  §  1927  and  note  par.  51. 

§  1950.    LETTING  PARTS  OF  ROOMS  FORBIDDEN.     One 

who  hires  part  of  a  room  for  a  dwelling  is  entitled  to  the 
whole  of  the  room,  notwithstanding  any  agreement  to  the 
contrary;  and  if  a  landlord  lets  a  room  as  a  dwelling  for 
more  than  one  family,  the  person  to  whom  he  first  lets  any 
part  of  it  is  entitled  to  the  possession  of  the  whole  room  for 
the  term  agreed  upon,  and  every  tenant  in  the  building,  under 

1046 


Tit.V,Ch.III.]  OBLIGATIONS    OF    LETTER.  §  1955 

the  same  landlord,  is  relieved  from  all  obligation  to  pay  rent 
to  him  while  such  double  letting  of  any  room  continues. 

History:     Enacted  March   21,   1872. 

As  to  hiring  of  real  property  generally,  see  note  §  ^^^V  ante. 
For  CommiLioners-  comment  on  this  section,  see  Kerr  s  Cyc.      . 
C.   C.   §  1950.   note. 

CHAPTER  III. 
HIRING  OF  PERSONAL  PROPERTY. 
§  1955.     Obligations  of  letter  of  personal  property. 
§  1956.     Ordinary  expenses. 
§  1957.     Extraordinary    expenses. 
§  1958.     Return  of  thing  hired. 
§  1959.     Charter  party,  what. 

§  1955.    OBLIGATIONS  OF  LETTER  OF  PERSONAL  PROP- 

ERTY.  one  who  lets  personal  property  must  deliver  it  to 
the  hirer,  secure  his  quiet  enjoyment  thereof  agamst  all  law- 
fu  Claimants,  put  it  into  a  condition  fit  for  the  purpose  fo 
which  he  lets  it,  and  repair  all  deterioration  «^  -^^  - 
occasioned  by  the  fault  of  the  hirer  and  not  the  natuial 
result  of  its  use. 

History:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

HIRE   OF  PERSONALTY— BAILMENTS. 

AS  to  action  by  bailor  or  ^^il^^    see  1  A^D^587.  588.  ^^^^^^^^ 
As   to   trespass   quare   clausum   ^^egit   oy  ^^^ 

entry    on    land    during    term,    see    Kerr  s    Cyc.    C.    C.    9  i» 

"Tctro'n'agai'nl't  baiiee.-See  1  Obiter  Dig.   200. 

fction  alainst  wrong-doer.-See   1  ObUer^J   200. 

^^.^^^:'^i:^-^'^o:S^^!^  L-coid  stor. 

age.— See    52   L.   106.  c   .  i    a     p    21-   4  A    C.  1083. 

Same— Liability  for  loss.— See  1  A.  C.  21.  4  a.  ^- 

lame-Same-For  loss  by  ^-^^-^--f-  ^^  ^^  ^6 
<aamP_Same— For  theft  of  servant.— See  1  A.  c.  ao. 
SmeJame-Presumptions     of    negligence    from.-See     1    A. 

1047 


§  1955  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Liability  for  misuser. — See  12  A.  D.  619. 

Same — Liability  of  for  conversion. — See  3  A.  C.  468. 

Same — Liability  of  for  wrongful  appropriation  by  his  servant 
of   thing   bailed. — See    29    L.    92. 

Same — Liability   to   third   person. — See    92    A.    S.    547. 

Same — Of  bicycle,   liability  of. — See   47  L.   305. 

Same— Of  horse,  liability  of.— See  12  L.  397;   26  L.  366. 

Same — Unauthorized  use  of  chattel  by  as  conversion. — See  3 
A.   C.    470. 

Bailee  ior  hire,  liability  of. — See  12  L.  397. 

Same — Although  no  direct  hire  is  paid. — See   1  A.  C.  21. 

Bailment — Disting-uished  from  sale. — See  10  L.  233;  3  Encyc. 
L.    734. 

Same — For  hire  although  no  direct  hire  is  paid. — See  1  A.  C. 
21;   also    12   L.    397. 

Same — What  is. — See  1  Obiter  Dig.  199;  1  W.  &  P.  673. 

Same — With   provision   for   sale. — See   3   Encyc.   L.    739. 

Bailor,  duty  and  liability  of. — See  12  L.  397;  19  L.  283;  46 
L.    104.     . 

Bath-house  keeper,  liability  of  for  loss  of  guest's  valuables. — 
See   6   L.  N.   S.   828. 

Burglary,  liability  of  bailee  for  loss  by. — See  4  A.  C.  1085. 

Carrier  as  bailee,  liability  of. — See   6  L.   853. 

Conditional  sale  distinguished  from  bailment. — See  1  Obiter 
Dig.    674. 

Consignment   for   sale. — See    1    Obiter   Dig.    675. 

Conversion — By  bailee — Necessity  of  demand. — See  1  L.  318. 

Same — Liability  of  bailee  for. — See   3   A.   C.    468. 

Same — Of  coin,  payment  for  in  coin. — See  29  L.   522. 

Same — Unauthorized  use  of  chattel  by  bailee  as  a. — See  3  A. 
C.    470. 

Criminal  responsibility  of  child  for  larceny  while  bailee. — See 
36   L.   202. 

Degree  of  care  required  of  bailee. — See   1   Obiter  Dig.   199. 

Deposit  of  grain  in  warehouse  as  bailment  or  sale. — See  10 
A.  C.   1074. 

Difference  between  bailment  and  a  sale. — See  10  A.  D.  409; 
2   A.   S.   711;   94   A.   S.   216. 

Duties,  rights  and  liabilities  of  parties  to  bailment. — See  3 
Encyc.    L.    742-763. 

Duty  and  liability  of  bailee,  as  to,  generally,  see  1  L.  319; 
6  L.  853;  7  L.  529;  8  L.  98;  10  L.  481;  12  L.  397;  26  L.  366;  29 
L.  92;  36  L.  139;   47  L.  305;   57  L.   690. 

Duty  of  bailor  to  inform  bailee  as  to  character  of  horse. — 
See    12   L.    397. 

Duty  of  bailee — As  to  return  property. — See  1  Obiter  Dig.  200. 

Same — Absolute  liability  under  contract. — See  1  Obiter  Dig. 
200. 

1048 


I 

i  Tit.V,ch.III.]  LEASE— EXPENSES.  §  1956 

Same — Delivery  to  true  owner  good  defense. — See  1  Obiter 
Dig.   200. 

Same — Delivery   under   legal   process. — See    1    Obiter   Dig.    200. 

Same — Loss   without    fault. — See    1    Obiter   Dig.    200. 

Gratuitous   bailees — Liability   of. — See   38   A.   S.    779;    10   L.    481. 

Same — Liability   of  for  nonfeasance. — See  23   A.   D.    322. 

Horse,  implied  warranty  of. — See  19  L.  283. 

Implied  warranty  of  horse  or  vehicle. — See  19  L.  283;  12  L. 
N.    S.    632. 

Infant  bailee,  liability  for  negligence  or  wilful  injury. — See 
57    L.    680. 

Inn-keeper  as  bailee,  liability  of. — See  8  L.  98. 

Interpleader  between  bailor  and  bailee. — See  10  L.  N.  S.  756. 

Liability  of  hirer  of  personal  property  to  third  person. — See 
92   A.   S.    547. 

Kinds  of  bailments. — See  3  Encyc.  L.   741. 

Lender  of  chattel,  responsibility  of  for  injuries  to  the  bor^ 
rower  or  a  third  person  due  to  its  unsafe  condition. — See  12 
L.    N.    S.    632. 

Liability  of  livery-stable  keeper  for  loss  of  property  of 
patron. — See  3  L.  N.  S.  348. 

Livery-stable  keeper,  liability  for  loss  of  property  of  patron. 
—See   3   L.   N.   S.   348. 

Person  in  charge  of  a  vehicle  under  a  contract  purporting 
to  be  a  bailment  or  a  lease,  as  a  servant  of  tlie  owner  as  to 
third  persons  injured  by  the  vehicle.— See   6  L.  N.  S.   544. 

Presumption  of  negligence  from  loss  of  goods  in  possession 
of   bailee. — See    1    A.    C.    23. 

Reservation  of  title  as  against  creditors  in  bailment  for  sale. 
—See  22  L.   850. 

Sales,  power  of  bailees  to  make. — See   66  A.   D.   758. 

Statute  of  limitations  begins  to  run  in  favor  of  bailee  when. — 
See  1  L.  319. 

Store  keeper,  liability  of  for  property  stolen  from  customer. — 
See   10   L.   N.   S.   314. 

Termination   of  bailment. — See   3   Encyc.   L.    764. 

Theft  by  servant,  liability  of  bailee  for. — See  1  A.  C.  96:  29 
L.    92. 

Unauthorized  use  of  chattel  by  bailee  as  conv^ersion. — See  3 
A.   C.    470. 

Vehicle,  implied  warranty  of. — See  19  L.  283. 

Warehouseman   as  bailee,   liability  of. — See   6   L.   857;   7   L.    529. 


§  1956.     OKDINAKY  EXPENSES.    A  hirer  of  personal  prop- 
erty must  bear  all  such  expenses  concerning  it  as  might  nat- 


1049 


§§  1957-1959  CIVIL  CODE.  [Div.III,Pt.IV. 

urally  be  foreseen  to  attend  it  during  its  use  by  him.     All 
other  expenses  must  be  borne  by  the  letter. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
As  to  bailments  generally,  see  note  §  1955,  ante. 

§19?i7.  EXTRAORDINARY  EXPENSES.  If  a  letter  fails 
to  fulfil  his  obligations,  as  prescribed  by  section  nineteen 
hundred  and  fifty-five,  the  hirer,  after  giving  him  notice  to 
do  so,  if  such  notice  can  conveniently  be  given,  may  expend 
any  reasonable  amount  necessary  to  make  good  the  letter's 
default,  and  may  recover  such  amount  from  him. 

History:     Enacted  March   21,   1872. 

106  C.  673,  680  (erroneously  cited  for  §2957),  39  P.  1071,  1073 
(correct  citation). 

As  to  bailments  generally,  see  note  §  1955,  ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.   §  1957,  note. 

§  1958.  RETURN  OF  THING  HIRED.  At  the  expiration  of 
the  term  for  which  personal  property  is  hired,  the  hirer  must 
return  it  to  the  letter  at  the  place  contemplated  by  the  parties 
at  the  time  of  hiring;  or,  if  no  particular  place  was  so 
contemplated  by  them,  at  the  place  at  which  it  was  at  that 
time. 

History:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.   for   13   pars,  annotation. 

As  to  bailments  generally,   see  note  §  1955,  ante. 

Estoppel  of  hirer  to  deny  letter's  title. — See  Kerr's  Cyc.  C. 
C.  §  1948  and  note  par.  34. 

Express  promise  to  pay  for  thing  if  lost. — See  Kerr's  Cyc. 
C.   C.    §  1928   and   note  par.   9. 

"Term"  defined.— See  Kerr's  Cyc.  C.  C.  §  1925  and  note  par.   61. 

Unlawful  detainer  of  real  property. — See  Kerr's  Cyc.  C.  C. 
P.   §  1161   and  note. 

§  1959.  CHARTER  PARTY,  WHAT.  The  contract  by  which 
a  ship  is  let  is  termed  a  charter  party.  By  it  the  owner  may 
either  let  the  capacity  or  burden  of  the  ship,  continuing  the 

1050 


Tit.V.ch.IIL] 


CHARTER    PARTY. 


§1959 


employment  of  the  owner's  master,  crew,  and  equipments, 
or  may  surrender  the  entire  ship  to  the  charterer,  who  then, 
provides  them  himself.  The  master  or  a  part  owner  may 
be  a  charterer. 

History:      Enacted  iviarch   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
As  to  carrier's  lien  for  freightage,  see  Kerr's  Cyc.  C.  C.  §  2144 
and  note. 

CHARTER   PARTY. 

Construction — As  to,  generally,  see  5  A.  C.  620;  8  A.  C.  491. 

Same — Covenants  as  conditions  precedent. — See  1  Obiter  Dig. 
314. 

Same — Intent  of  parties  and  usage  of  trade. — See  1  Obiter 
Dig.   314. 

Same — Liberal  and  according  to  intent  of  parties. — See  1- 
Obiter   Dig.    314. 

Same — To  preserve  lien. — See  1  Obiter  Dig.  314. 

Definition  of.— See  8  L.  ed.  352;  15  L.  ed.  554;  16  L.  ed.  249; 
1  Obiter  Dig.  313;  2  W.  &  P.  1090. 

Demise  of  vessel  by  charter  party. — See  5  A.  C.   623. 

Distinguished  from  demise  or  affreightment. — See  8  A.  C. 
491;   1  Obiter.  Dig.  313;   2  W.  &  P.  1091. 

Exemption  from  liability. — See  1  Obiter  Dig.  315. 

Liabilities  under. — See   1   Obiter  Dig.    314. 

Loss  of  profits  as  element  of  damage  for  breach  of. — See  53 
L.    105. 

Party's  contract  with  reference  to  loss  of  their  country. — 
See   1   Obiter  Dig.    315. 

Payment  of  freight. — See  1  Obiter  Dig.  315. 

Right  to  rescind  or  to  abandon. — See  30  L.   37. 

Seaworthiness  of  vessels,  liability  for. — See  1  Obiter  Dig.  314. 

Subsequent  solvency  or  insolvency  of  parties. — See  1  Obiter 
Dig.    314. 


1051 


§196? 


CIVIL  CODE. 


[Div.III.Pt.IV. 


TITLE  VI. 

SERVICE. 

Chapter  I.      Service  with  Employment,  §§  1965-2003. 
II.     Particular  Employments,   §§  2009-2072. 
ill.     Service  without  Employment,  §§  2078,  2079. 

CHAPTER  I. 

SERVICE    WITH    EMPLOYMENT. 

Article    I.  Definition  of  Employment,  §  1965. 

II.  Obligations  of  the  Employer,   §§  1969-1971. 

III.  Obligations  of  the  Employee,  §§  1975-1992. 

IV.  Termination  of  Employment,  §§  1996-2003. 

ARTICLE  I. 
DEFINITION  OF  EMPLOYMENT. 

§  1965.     Employment,    what. 

§  1965.  EMPLOYMENT,  WHAT.  The  contract  of  employ- 
ment is  a  contract  by  which  one,  who  is  called  the  employer, 
engages  another,  who  is  called  the  employee,  to  do  some- 
thing for  the  benefit  of  the  employer,  or  of  a  third  person. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  412,  held 
unconstitutional,  see  history,   §   4   ante. 

See  Kerr's  Cyc.   C.   C.   for  7   pars,  annotation. 

55  C.  273,  274  (applied — what  agreement  is  contract  of  employ- 
ment); 80  C.  553,  558,  22  P.  339  (what  is  contract  for  labor  to 
be  performed,  and  to  be  paid  for  by  share  of  profits  realized 
from    such   labor). 

As  to  constitutionality  of  statutes  interfering  with  the  right 
to  contract  with  each  other,  see  62  A.  S.  176;  Hen.  G.  L.  note 
pp.   417-419. 

As  to  partnership  as  disting-uished  from  employment,  see 
Kerr's  Cyc.  C.  .C.   §  2395  and  note. 

1052 


'A 


Tit.VI,ch.I,art.II.]  EMPLOYER'S  DUTIES.  §§  1969,  1970 

ARTICLE    II. 

OBLIGATIONS   OF   THE   EMPLOYER. 

§  1969.  When  employer  must  indemnify  employee. 
§  1970.  When  not  [bound  to  indemnify  employee]. 
§  1971.     Employer  to  indemnify  for  his  own  negligence. 

§1969.  WHEX  EMPLOYEE  MUST  INDEMMFl  EM- 
PLOYEE. An  employer  must  indemnify  his  employee,  except 
as  prescribed  in  the  next  section,  for  all  that  he  necessarily 
expends  or  loses  in  direct  consequence  of  the  discharge  of 
his  duties  as  such,  or  of  his  obedience  to  the  directions  of. 
the  employer,  even  though  unlawful,  unless  the  employee,  at 
the  time  of  obeying  such  directions,  believed  them  to  be 
unlawful. 

History:     Enacted  March   21,  1872. 

68  C.   171,  173,  7  P.   447, .8  P.  828,  829    (cited  and  applied). 

As  to  employer's  liability  to  his  employee  generally,  s'ee 
Kerr's  Cyc.  C.  C.   §  1970  and  note. 

As  to  employer's  liability  for  his  own  negligence  to  his 
employee,  see  Kerr's  Cyc.  C.  C.  §  1971  and  note. 

§  1970.  WHEN  NOT  [BOUND  TO  INDEMNIFY  EM- 
PLOYEE.] An  employer  is  not  bound  to  indemnify  his 
employee  for  losses  suffered  by  the  latter  in  consequence  of 
the  ordinary  risks  of  the  business  in  which  he  is  employed, 
nor  in  consequence  of  the  negligence  of  another  person  em- 
ployed by  the  same  employer  in  the  same  general  business, 
unless  the  negligence  causing  the  injury  was  committed  in 
the  performance  of  a  duty  the  employer  owes  by  law  to 
the  employee,  or  unless  the  employer  has  neglected  to  use 
ordinary  care  in  the  selection  of  the  culpable  employee;  pro- 
vided, nevertheless,  that  the  employer  shall  be  liable  for  such 
injury  when  the  same  results  from  the  wrongful  act,  neglect 
or  default  of  any  agent  or  officer  of  such  employer,  superior 
to  the  employee  injured,  or  of  a  person  employed  by  such 
employer  having  the  right  to  control  or  direct  the   services 

1053 


§  1970  CIVIL  CODE.  [Div.III,Pt.IV. 

of  such  employee  injured,  and  also  when  such  injury  results 
from  the  wrongful  act,  neglect  or  default  of  a  co-employee 
engaged  in  another  department  of  labor  from  that  of  the 
employee  injured,  or  employed  upon  a  machine,  railroad 
train,  switch  signal  point,  locomotive  engine,  or  other  appli- 
ance than  that  upon  which  the  employee  is  injured  is  em- 
ployed, or  who  is  charged  with  dispatching  trains,  or  trans- 
mitting Lelegrapi'ic  or  telephonic  orders  upon  any  railroad, 
or  in  the  operation  of  any  mine,  factory,  machine  shop,  or 
other   industrial   establishment. 

Knowledge  by  an  employee  injured  of  the  defective  or 
unsafe  character  or  condition  of  any  machinery,  ways,  appli- 
ances or  structures  of  such  employer  shall  not  be  a  bar  to 
recovery  for  any  injury  or  death  caused  thereby,  unless  it 
shall  also  appear  that  such  employee  fully  understood,  com- 
prehended and  appreciated  the  dangers  incident  to  the  use 
of  such  defective  machinery,  ways,  appliances  or  structures, 
and  thereafter  consented  to  use  the  same,  or  continued  in 
the  use  thereof. 

[Right  of  action  for  death  of  employee.]  When  death, 
whether  instantaneous  or  otherwise,  results  from  an  injury 
to  an  employee  received  as  aforesaid,  the  personal  repre- 
sentative of  such  employee  shall  have  a  right  of  action  there- 
for against  such  employer,  and  may  recover  damages  in 
respect  thereof,  for  and  on  behalf,  and  for  the  benefit  of 
the  widow,  children,  dependent  parents,  and  dependent 
brothers  and  sisters,  in  order  of  precedence  as  herein  stated, 
but  no  more  than  one  action  shall  be  brought  for  such 
recovery. 

[Benefits  of  this  section  may  not  he  waired.]  Any  contract 
or  agreement,  express  or  implied,  made  by  any  such  employee 
to  waive  the  benefits  of  this  section,  or  any  part  thereof, 
shall  be  null  and  void,  and  this  section  shall  not  be  construed 
to  deprive  any  such  employee  or  his  personal  representative, 
of  any  right  or  remedy  to  which  he  is  now  entitled  under 
the  laws  of  this  state. 

[Contributory  negligence.]     The  rules  and  principles  of  law 

1054 


Tit.VI,ch.I,art.II.]  not  bound,  when.  §  1970 

as  to  contributory  negligence  which  apply  to  other  cases 
shall  apply  to  cases  arising  under  this  section,  except  in  so 
far  as  the  same  are  herein  modified  or  changed. 

[In  effect,  when.]  Sec.  2.  This  act  shall  take  effect  and 
be  in  force  from  and  after  its  passage. 

History:  Enacted  March  21,  1872;  amended  March  20,  1903, 
Stats,  and  Amdts.  1903,  p.  256;  amended  March  6,  1907,  Stats. 
and  Amdts.  1907,  p.  119,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  426. 

See  Kerr's  Cyc.  C.  C.  for  198  pars,  annotation. 

51  C.  116,  117  (referred  to);  51  C.  255,  257  (construed):  53 
C.  35,  36  (applied);  57  C.  20,  29  (applied),  31  (construed);  66 
C.  302,  304,  5  P.  482  (applied);  68  C.  171,  173  (applied),  175 
(construed),  7  P.  447,  8  P.  828,  829;  70  C.  392,  394,  11  P.  740, 
741  (construed);  12  P.  512,  513  (quoted — action  for  wrongful 
death);  73  C.  26,  28,  14  P.  378,  379  (construed);  79  C.  97,  99,  21 
P.  437,  438,  3  L.  824  (applied);  88  C.  360,  367  (construed),  368 
(cited),  371  (construed),  26  P.  175,  176,  177,  178;  92  C.  388,  392, 
28  P.  485,  486  (applied);  96  C.  269,  273,  31' P.  170  (applied);  96  C. 
494,  498,  28  P.  571,  572,  31  P.  561  (quoted  in  action  to  recover 
damages  for  personal  injuries  caused  through  alleged  negli- 
gence); 98  C.  19,  21  (construed),  22  (applied),  26  (applied),  35 
A.  S.  133,  32  P.  708;  100  C.  554,  564,  567,  35  P.  165  (referred  to); 
103  C.  258,  264,  37  P.  149  (construed);  108  C.  129,  132,  41  P.  22 
(construed);  113  C.  593,  601,  45  P.  1017  (applied);  126  C.  61,  64, 
(construed),  65  (referred  to),  77  A.  S.  149,  58  P.  375;  128  C. 
48,  53,  79  A.  S.  25,  60  P.  519  (construed);  142  C.  248,  255,  75 
P.  839  (applied);  148  C.  35,  37,  82  P.  367  (applied);  148  C.  274, 
282,  113  A.  S.  243,  83  P.  30,  3  L.  N.  S.  500  (construed);  148  C. 
426,  429,  430,  83  P.  439,  7  A.  C.  636  (applied — "student  brake- 
man"  as  a  fellow-servant);  4  C.  A.  460,  465,  88  P.  587  (quoted 
and  applied);  7  C.  A.  375,  378,  94  P.  376,  377  (employer  is  not 
answerable  for  negligence  of  fellow-servant). 

As  to  assumption  by  servant  of  risk  in  general,  see  1  L.  131; 
4  L.  51;   6  L.  75;   13  L.  374. 

As  to  duty  of  master  to  servant,  see  75  A.  S.  591. 

As  to  fellow-servants,  who  are,  and  who  are  not,  see  16  A.  R. 
495;    53   A.   R.    45. 

As  to  liability  of  master  for  negligence  of  fellow-servants,  see 
36  A.  D.  279;  1  L.  483;  3  L.  559;  4  L.  793;  18  L.  792. 

As  to  liability  of  master  to  servant — General  rules,  see  3 
A.  R.   147. 

As  to  liability  of  master  to  servant  volunteering  upon  a  duty 
with  which  he  is  not  charged,  see  85  A.  S.  622. 

As  to  liens  for  labor  and  services,  see  post  §§  3052,  3061,  3065 
and  notes. 

1055 


§  1971  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  miners'  assumption  of  risks,  see  8  L.   490. 

As  to  right  of  recovery  by  employee  accepting  extrahazardous 
duties,  see   97  A.  S.   884. 

As  to  risks  known  or  ordinarily  incident  to  service,  see  4  L. 
51;   47  L.   161-201. 

As  to  who  are  fellow-servants,  see  3  L.  559;  4  L.  793;  5  L. 
735;  7  L.  500;   18  L.  792,  817;  50  L.  417. 

As  to  who  are  not  fellow-servants,  employees  of  railways,  see 
53  A.  "R    621. 

As  to  who  are  vice-principals,  see  41  A.  S.  94;  75  A.  S.  584. 


§1971.  EMPLOYER  TO  INDEMNIFY  FOR  HIS  OWN 
NEGLIGENCE.  An  employer  must  in  all  cases  indemnify  his 
employee  for  losses  caused  by  the  former's  want  of  ordinary 

care. 

Hisfory:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  37  pars,  annotation. 

67  C.  607,  609,  8  P.  377,  379  (applied);  90  C.  496,  499,  27  P.  371, 
372  (applied);  91  C.  48,  58,  27  P.  590,  592  (applied);  108  C.  129, 
133,  41  P.  22  (construed);  47  P.  773,  775  (construed);  125  C.  627, 
635,  58  P.  200  (applied);  148  C.  35,  37,  82  P.  367  (cited);  4  C.  A. 
460,  465,  88  P.  587   (quoted  and  applied). 

As  to  duties  of  master  to  instruct  and  warn  his  servants  as 
to  perils  of  employment,  see  1  L.  174;  4  L.  850;  44  L.  33. 

As  to  duty  of  employer  to  employee  to  furnish  safe  appliances, 
tools,  place  to  work,  and  to  warn  of  danger,  see  Kerr's  Cyc.  C.  C. 
§  1970  and  note  pars.  18  et  seq. 

As  to  duty  of  master  to  furnish  safe  appliances  and  machinery, 
see  92  A.  D.  213;  21  A.  R.  579;  34  A.  R.  621;  54  A.  R.  726;  57  A.  R. 
727. 

As  to  employer's  liability  to  his  employee  for  negligence  of 
fellow-employees,  see  Kerr's  Cyc.  C.  C.  §  1970  and  note. 

As  to  injuries  caused  by  defects  in  machinery  while  used  for 
purpose  not  contemplated,  see  18  L.  124. 

As  to  liability  for  negligence  in  general,  see  Kerr's  Cyc.  C.  C. 
§  1714  and  note. 

As  to  liability  of  master  for  exposing  servant  for  extraor- 
dinary risks,  see  7  L.  172. 

As  to  liability  of  employers,  employees,  master  and  servant 
to  third  parties  for  negligence,  see  Kerr's  Cyc.  C.  C.  §  1714  and 
note. 

As  to  liability  of  master  for  injuries  to  servant  by  defective 
machinery,  see  77  A.  D.  218;  34  A.  R.  621;   98  A.  S.   289. 

As  to  liability  of  masters  to  servants  injured  by  elevators, 
see  56  A.  S.  806. 

1056 


Tit.VI,ch.I,art.III.3       CxRATUITOUS   EMPLOYEE.  §  I975 

As  to  liability  of  master  to  servant  for  injuries  due  to 
defective  machinery  or  materials,  see  77  A.  D.  218;  98  A.  S.  289. 

As  to  liability  of  master  to  servant  for  injuries  due  to  failure 
to  make  repairs,  see  59  A.  R.  75. 

As  to  machinery,  tools,  and  appliances,  see  1  L.  520;  4  L.  793; 
8  L.   636;   13  L.  374;   48  L.   96. 

As  to  master's  liability  for  injuries  received  by  servant  in 
performance  of  duties  outside  scope  of  his  ordinary  contract, 
see  48  L.  796. 

As  to  risks  assumed  by  servant,  see  52  A.  R.  737. 

As  to  M'arnings  and  instructions  to  servants  and  infant 
employees,  see  notes  43  A.  R.  269;  1  A.  S.  28,  548. 

Servant's  implied  assumption  of  risks. — See  14  Encyc.  L.  856 
et  seq. 


ARTICLE  III. 

OBLIGATIONS    OF   THE   EMPLOYEE. 

§  1975.  Duties    of    gratuitous    employee. 

§  1976.  Same.      [By   special   request.] 

§  1977.  Same.      [Under  written   power  of  attorney.] 

§  1978.  Duties   of  emploj'ee  for  reward. 

§  1979.  Duties    of   employee   for   his   own   benefit. 

§  1980.  Contracts  for  ser\^ice  limited  to  two  years. 

§  1981.  Employee    must   obey   employer. 

§  1982.  Employee  to  conform  to  usage. 

§  1983.  Degree   of   skill    required. 

§  1984.  Must   use   what   skill   he   has. 

§  1985.  What   belongs   to    employer. 

§  1986.  Duty   to   account. 

§  1987.  Employee  not  bound   to  deliver  without  demand. 

§  1988.  Preference  to  be  given  to  employers. 

§  1989.  Responsibility  of  employee   for  substitute. 

§  1990.  Responsibility   for   negligence. 

§  1991.  Surviving   employee. 

§  1992.  Confidential   employment. 

§  1975.  DUTIES  OF  GRATUITOUS  EMPLOYEE.  One  who, 
without  consideration,  undertakes  to  do  a  service  for  another, 
is  not  bound  to  perform  the  same,  but  if  he  actually  enters 
upon  its  performance,  he  must  use  at  least  slight  care  and 
diligence  therein. 

HLstopy:      Enacted   March   21,   1872. 
Kerr's    C.    C— 34  1057 


§§  1976-1979  CIVIL  CODE.  [Div.III.Pt.IV. 

4  C.  A.  598,  602,  603,  604,  88  P.  643  (duty  and  liability  of 
gratuitous  agent — this  section,  though  requiring  only  slight 
care  and  diligence  in  ordinary  cases,  does  not  dispense  with 
exercise  of  good  faith). 

As  to  obligations  of  gratuitous  carrier,  see  post  §  2089. 

As  to  salvage,  see  post  §  2079. 

As  to  service  without  employment,  see  post  §  2078. 

§  19"(>.  SAME.  [BY  SPECIAL  REQUEST.]  One  who,  by 
his  own  special  request,  induces  another  to  intrust  him  with 
the  performance  of  a  service,  must  perform  the  same  fully. 
In  other  cases,  one  who  undertakes  a  gratuitous  service  may 
relinquish  it  at  any  time. 

History:     Enacted  March   21,   1872. 

4  C.  A.  598,  604,  88  P.  643  (voluntary  agent  must  exercise  good 
faith). 

As  to  borrower  for  use,  degree  of  skill  required,  see  ante 
§  1888. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.   §  1976,  note. 

§  1977.    SAME.     [UNDER  WRITTEN  POWER  OF  ATTOR- 
NEY.]    A  gratuitous  employee,  who  accepts  a  written  power 
of  attorney,  must  act  under  it  so  long  as  it  remains  in  force, 
or  until  he  gives  notice  to  his  employer  that  he  will  not  do  so. 
History:      Enacted  March   21,   1872. 

§  1978.  DUTIES  OF  EMPLOYEE  FOR  REWARD.  One  who, 
for  a  good  consideration,  agrees  to  serve  another,  must  per- 
form the  service,  and  must  use  ordinary  care  and  diligence 
therein,  so  long  as  he  is  thus  employed. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
113  C.  97,  104,  45  P.  177   (applied). 

As  to  degree  of  skill  required  in  employee,  see  post  §  1983. 
As  to  employee's  liability  to  employer  for  negligence,  see  post 
§  1990. 

As  to  skill  employee  must  use,  see  post  §  1984. 

§  1979.    DUTIES  OF  EMPLOYEE  FOR  HIS  OWN  BENEFIT. 

One  who  is  employed  at  his  own  request  to  do  that  which 

1058 


I 


Tit.VI,ch.T,art.III.]  LIMIT  OP  CONTRACT.         §§  1980-1982 

is  more  for  his  own  advantage  than  for  that  of  his  employer, 
must  use  great  care  and  diligence  therein  to  protect  the 
interest  of  the  latter. 

History:     Enacted  March   21,   1872. 

§1980.  CONTRACTS  FOR  SERVICE  LIMITED  TO  TWO 
YEARS.  A  contract  to  render  personal  service,  other  than 
a  contract  of  apprenticeship,  as  provided  in  the  chapter  on 
master  and  servant,  cannot  be  enforced  against  the  employee 
beyond  the  term  of  two  years  from  the  commencement  of 
service  under  it;  but  if  the  employee  voluntarily  continues  his 
service  under  it  beyond  that  time,  the  contract  may  be 
referred  to  as  affording  a  presumptive  measure  of  the  com- 
pensation. 

History:  Enacted  Marcli  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  413,  held 
unconstitutional,  see   history,    §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

139  C.  78,  81,  84,  70  P.  1017,  1018,  72  P.  717   (construed). 

As  to  apprenticeship,  see  Kerr's  Cyc.  C.  C.  §§  264  et  seq.  and 
notes. 

As  to  master  and  servant,  see  Kerr's  Cyc.  C.  C.  §§  2009  et  seq. 
and  notes. 

§  1981.  EMPLOYEE  3IUST  OBEY  EMPLOYER.  An  em- 
ployee must  substantially  comply  with  all  the  directions  of 
his  employer  concerning  the  service  on  which  he  is  engaged, 
except  where  such  obedience  is  impossible  or  unlawful,  or 
would  impose  new  and  unreasonable  burdens  upon  the 
employee. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.   246. 

As  to  obedience  required  from  factor,  see  Kerr's  Cyc.  C.  C. 
§  2027  and  note. 

§  1982.  EMPLOYEE  TO  CONFORM  TO  USAGE.  An  em- 
ployee must  perform  his  service  in  conformity  to  the  usage 
of  the  place  of  performance,  unless  otherwise  directed  by  his 

1059 


§§  1983-1985  CIVIL  CODE.  [Div.III.Pt.IV. 

employer,  or  unless  it  is  impracticable,  or  manifestly  injuri- 
ous to  his  employer  to  do  so. 

History:      Enacted  March   21,   1872. 
99  C.  363,  371,   33  P.  916,  919    (applied). 

§  1983.  DEGREE  OF  SKILL  REQUIRED.  An  employee  is 
bound  _•  exercise  a  reasonable  degree  of  skill,  unless  his 
employer  has  notice,  before  employing  him,  of  his  want  of 
skill. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

107  C.  206,  209,  40  P.  336   (applied). 

As  to  liability  of  agent  or  servant  to  third  person  for  his  own 
negligence  or  nonfeasance,  see  28  L.  433. 

As  to  liability  of  agent  or  servant  for  torts  under  orders  of 
his  employer,  see  50  L.  644. 

§  1984.  MUST  USE  WHAT  SKILL  HE  HAS.  An  employee 
is  always  bound  to  use  such  skill  as  he  possesses,  so  far  as 
the  same  is  required,  for  the  service  specified. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   247. 

107  C.  206,  209,  40  P.  336   (applied). 

As  to  responsibility  of  employee  for  substitute,  see  post  §  1989. 

§1985.  WHAT  BELONGS  TO  EMPLOYER.  Everything 
which  an  employee  acquires  by  virtue  of  his  employment, 
except  the  compensation,  if  any,  which  is  due  to  him  from 
his  employer,  belongs  to  the  latter,  whether  acquired  lawfully 
or  unlawfully,  or  during  or  after  the  expiration  of  the  term 
of  his  employment. 

Hi.story:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

138  C.  634,  638,  85  A.  S.  233,  66  P.  12  (referred  to);  1  C.  A.  121, 
124,  81  P.  713  (applied  to  gold  found  by  employee  in  excavating 
mill-site). 

As  to  aerolite  found  on  land,  see  Kerr's  Cyc.  C.  C.  §  659,  note 
par.   2. 

As  to  inventions  made  by  servant,  rights  of  employer 
thereto,  see  52  A.  S.   820. 

1060 


i 


Tit.VI.ch.I.art.TIL]       DUTY  OF  EMPLOYEE.  §§  1986-1989 

§  1986.  DUTY  TO  ACCOUNT.  An  employee  must,  on  de- 
mand, render  to  his  employer  just  accounts  of  all  his  trans- 
actions in  the  course  of  his  service,  as  often  as  may  be  rea- 
sonable, and  must,  without  demand,  give  prompt  notice  to 
his  employer  of  everything  which  he  receives  for  his  account. 

History:      Enacted  March   21,   1872. 

4  C.  A.  347,  351,  87  P.  1105  (applied  to  contract  of  employment 
calling  for  equal  division  of  all  commissions  on  sale  of  real 
estate  secured  by  employee). 

As  to  dishonesty  of  employee  as  affecting-  right  to  wages,  see 
note  13  L.  72. 

§1987.  EMPLOYEE  NOT  BOUND  TO  DELIVER  IVITH- 
OUT  DEMAND.  An  employee  who  receives  anything  on' 
account  of  his  employer,  in  any  capacity  other  than  that 
of  a  mere  servant,  is  not  bound  to  deliver  it  to  him  until 
demanded,  and  is  not  at  liberty  to  send  it  to  him  from  a 
distance,  without  demand,  in  any  mode  involving  greater 
risk  than  its  retention  by  the  employee  himself. 

History:     Enacted  March    21,   1872. 

As  to  duty  of  secretary  of  corporation  to  pay  over,  see  Kerr's 
Cyc.   C.   C.   §  1987,   note. 

As  to  duty  of  servant  to  deliver  to  master,  without  demand, 
see  post  §  2014. 

§  1988.     PREFERENCE    TO    BE    GIVEN    TO    EMPLOYERS. 

An  employee  who  has  any  business  to  transact  on  his  own 
account,  similar  to  that  intrusted  to  him  by  his  employer, 
must  always  give  the  latter  the  preference. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   247. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

§  1989.  RESPONSIBILITY  OF  EMPLOYEE  FOR  SUBSTI- 
TUTE. An  employee  who  is  expressly  authorized  to  employ 
a  substitute  is  liable  to  his  principal  only  for  want  of  ordi- 
nary care  in  his  selection.  The  substitute  is  directly  responsi- 
ble to  the  principal. 

History:      Enacted  March    21,   1872. 
1061 


§§  1990-1992  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  delegation  of  agent's  authority,  see  Kerr's  Cyc.  C.  C. 
§§  2394   et  seq.  and  notes. 

§1990.  RESPONSIBILITY  FOR  NEGLIGENCE.  An  em- 
ployee who  is  guilty  of  a  culpable  degree  of  negligence  is 
liable  to  his  employer  for  the  damage  thereby  caused  to  the 
latter;  and  the  employer  is  liable  to  him,  if  the  service  is 
not  gr^iaitous,  for  the  value  of  such  services  only  as  are 
properly  rendered. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  413,  held 
unconstitutional,   see   history,    §   4   ante. 

78  C.  310,  314,  12  A.  S.  58,  20  P.  715,  717,  3  L.  781. 
As  to  duties  of  master  and  servant  with  regard  to  rules  pro- 
mulgated for  the  safe  conduct  of  business,  see  43  L.  305. 

§  1991.  SURVIVING  EMPLOYEE.  Where  service  is  to  be 
rendered  by  two  or  more  persons  jointly,  and  one  of  them 
dies,  the  survivor  must  act  alone,  if  the  service  to  be  rendered 
is  such  as  he  can  rightly  perform  without  the  aid  of  the 
deceased  person,  but  not  otherwise. 

History:     Enacted  March   21,  1872. 

§1992.  CONFIDENTIAL  EMPLOYMENT.  The  obligations 
peculiar  to  confidential  employments  are  defined  in  the  title 
on  trusts. 

History:     Enacted  March  21,  1872. 

As  to  trustees,  etc.,  see  title  on  ti-usts,  Kerr's  Cyc.  C.  C.  §§  2215 
et  seq.  and  notes. 


1062 


Tit.VI,ch.I,art.IV.]        TERMINATION  OP.  §§  1996, 1997 

ARTICLE  IV. 

TERMINATION  OF  EMPLOYMENT. 

§  1996.  Termination   by  death,    etc.,    of   employer. 

§  1997.  Employment,    how   terminated. 

§  1998.  Continuance   of  service  in   certain   cases. 

§  1999.  Termination    at   will. 

§  2000.  Termination  by  employer  for  fault. 

§  2001.  Termination  by  employee  for  fault. 

§  2002.  Compensation  of  employee  dismissed  for  cause. 

§  2003.  Compensation  of  employee  leaving  for   cause. 

§  1996.     TERMINATION  BY  DEATH,  ETC.,  OF  EMPLOYER. 

Every  employment  in  which  the  power  of  the  employee  is  not 
coupled  with  an  interest  in  its  subject  is  terminated  by 
notice  to  him  of: 

1.  The  death  of  the  employer;   or, 

2.  His  legal  incapacity  to  contract. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  413,  held 
unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

76  C.  508,  509,  18  P.  435,  436  (applied  in  connection  with 
§1998);  89  C.  547,  550  (applied  but  erroneously  cited  as  §1196), 
26  P.   1095,   1096    (correct  citation). 

As  to  termination  of  agency,  see  Kerr's  Cyc.  C.  C.  §§  2355  et 
seq.  and  notes. 

As  to  termination  of  employment,  see  Kerr's  Cyc.  C.  C.  §  1997 
and  note. 

As  to  termination  of  employment  by  death  of  party,  see  23 
L.   712. 

§  1997.  EMPLOYMENT,  HOIY  TERMINATED.  Every  em- 
ployment is  terminated: 

1.  By  the  expiration  of  its  appointed  term; 

2.  By  the  extinction  of  its  subject; 

3.  By  the  death  of  the  employee;  or, 

4.  By  his  legal  incapacity  to  act  as  such. 

HLstory:     Enacted  March   21,  1872. 
1063 


§§  1998-2t)00  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

89  C.  547,  550  (applied  but  erroneously  cited  as  §  1197),  26  P. 
1095,  1096  (correct  citation);  124  C.  95,  98,  56  P.  795  (cited  with 
other  sections). 

As  to  termination  of  agency,  see  Kerr's  Cyc.  C.  C.  §§  2355  et 
seq.  and  notes. 

As  to  termination  of  employment,  see  ante  §  1996. 

§  199».    COMfNUANCE  OF  SERVICE  IN  CERTAIN  CASES. 

An  employee,  unless  the  term  of  his  service  has  expired,  or 
unless  he  has  a  right  to  discontinue  it  at  any  time  without 
notice,  must  continue  his  service  after  notice  of  the  death  or 
incapacity  of  his  employer,  so  far  as  is  necessary  to  protect 
from  serious  injury  the  interests  of  the  employer's  successor 
in  interest,  until  a  reasonable  time  after  notice  of  the  facts 
has  been  communicated  to  such  successor.  The  successor 
must  compensate  the  employee  for  such  service  according  to 
the  terms  of  the  contract  of  employment. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
76  C.  508,  509,   18  P.   435,   436   (applied). 

§  1999.  TERMINATION  AT  WILL.  An  employment  hav- 
ing no  specified  term  may  be  terminated  at  the  will  of  either 
party,  on  notice  to  the  other,  except  where  otherwise  pro- 
vided by  this  title. 

HLsfory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

124  C.  95,  96,  56  P.  795  (referred  to);  68  P.  101,  103  (agreement 
to  give  party  "permanent"  employment  may  be  terminated  at 
any  time). 

§  2000.    TERMINATION  BY  EMPLOYER  FOR  FAULT.   An 

employment,  even  for  a  specified  term,  may  be  terminated  at 
any  time  by  the  employer,  in  case  of  any  wilful  breach  of 
duty  by  the  employee  in  the  course  of  his  employment,  or  in 
case  of  his  habitual  neglect  of  his  duty  or  continued  inca- 
pacity to  perform  it. 

History:     Enacted  March   21,   1872. 
1064 


I 


Tit.VI,ch.I,art.IV.]     DISMISSAL  FOR  CAUSE.  §§  2001-2003 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

69   C.   643,  646,  11   P.   581,   583    (applied). 

As  to  discliarge  of  employee  under  contract  for  permanent 
employment,  see  35  L.  512. 

As  to  remedies  of  servant  wrongfully  discharged,  see  43  A.  D. 
205;   58  A.  R.   828;   51  A.  S.   515. 

As  to  when  seaman  may  be  discharged,  see  post  §  2050. 

As  to   when   servant  may  be  discharged,  see  post  §  2015. 

As  to  wrongful  discharge  of  seaman,  see  post  §  2057. 

§  2001.     TERMINATION  BY  EMPLOYEE  FOR  FAULT.     An 

employment,  even  for  a  specified  term,  may  be  terminated  by 
the  employee  at  any  time,  in  case  of  any  wilful  or  permanent 
breach    of    the    obligations    of    his    employer    to    him    as    an 

employee. 

History:     Enacted  March   21,  1872. 

As  to  employee's  compensation  when  he  terminates  employ- 
ment for  cause,  see  Kerr's  Cyc.  C.  C.   §  2003  and  note. 

§2002.  COMPENSATION  OF  EMPLOYEE  DISMISSED 
FOR  CAUSE.  An  employee,  dismissed  by  his  employer  for 
good  cause,  is  not  entitled  to  any  compensation  for  services 
rendered  since  the  last  day  upon  which  a  payment  became 
due  to  him  under  the  contract. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

69  C.   643,  646,  11  P.  581,  583    (applied). 

As  to  when  servant  may  be  discharged,  see  post  §  2015. 

§2003.    COxMPENSATION   OF   EMPLOYEE   LEAVING  FOR 

CAUSE.  An  employee  who  quits  the  service  of  his  employer 
for  good  cause  is  entitled  to  such  proportion  of  the  compensa- 
tion which  would  become  due  in  case  of  full  performance  as 
the  services  which  he  has  already  rendered  bear  to  the  serv- 
ices which  he  was  to  render  as  full  performance. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  liens  for  wages  of  persons  employed  as  laborers  on 
threshing  machines,  see  Stats.  1885,  p.  109,  as  construed  in  116 
C.   292,   48  P.   123. 

1065 


§  2009  CIVIL  CODE.  [Div.III.PtlV. 

As  to  right  of  servant  to  recover  part  performance — Entirety 
of  contract,  see  31  A.  R.  100. 

As  to  right  of  wages  on  part  performance  of  contract,  see  24 
L.  231. 

As  to  right  to  recover  for  services  interrupted  by  sickness  or 
death,  see  16  L.  858. 

As  to  terminating  employment  by  employees,  see  ante  §  2001. 


CHAPTER  II. 

PARTICULAR  EMPLOYMENT. 

Article    I.  Master  and  Servant,  §§  2009-2015. 

II.  Agents,  §§2019-2022. 

III.  Factors,  §§  2026-2030. 

IV.  Shipmasters,  §§  2034-2044. 

V.     Mates  and  Seamen,  §§  2048-2066. 
VI.     Ship's  Manager,  §§  2070-2072. 

ARTICLE  I. 

MASTER    AND    SERVANT. 

§  2009.  Servant,    what. 

§  2010.  Term  of  hiring. 

§  2011.  Same.      [Presumed   to   be   monthly,    when.] 

§  2012.  Renewal  of  hiring. 

§  2013.  Time  of  service. 

§  2014.  Servant  to  pay  over  without  demand. 

§  2015.  When   servant  may  be  discharged. 

§2009.  SERVANT,  WHAT.  A  servant  is  one  who  is  em- 
ployed to  render  personal  service  to  his  employer,  otherwise 
than  in  the  pursuit  of  an  independent  calling,  and  who  in  such 
service  remains  entirely  under  the  control  and  direction  of 
the  latter,  who  is  called  his  master. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

124  C.  95,  97  (referred  to),  98  (construed),  56  P.  795;  131  C. 
455,  459,  82  A.  S.  366,  63  P.  721,  64  P.  106  (construed);  138  C. 
116.  118,  70  P.  1065  (applied);  4  C.  A.  347,  350,  87  P.  1105  (applied 
to  contract  of  employment  to  sell  real  estate). 

1066 


TitVI,ch.II,art.I.]  TERM— RENEWAI..  §§  2010-2012 

As  to  distinction  between  agent  and  servant,  see  2  L.  192. 

As  to  fellow-servants  train  dispatchers,  and  otlier  employees, 
see  18  A.  S.  455. 

As  to  when  relation  of  master  and  servant  exists,  see  22  A.  S. 
459. 

As  to  who  are  fellow-servants  and  who  are  not,  see  Kerr's 
Cyc.  C.  C.  §  1970  and  note. 

As  to  who  are  independent  contractors,  see  Kerr's  Cyc.  C.  C. 
§  1970  and  note. 

As  to  who  are  laborers  within  meaning-  of  statutes  protecting 
wages,  see  18  L.  305. 


§2010.  TERM  OF  HIRING.  A  servant  is  presumed  to 
have  been  hired  for  such  length  of  time  as  the  parties  adopt 
for  the  estimation  of  wages.  A  hiring  at  a  yearly  rate  is- 
presumed  to  be  for  one  year;  a  hiring  at  a  daily  rate,  for 
one  day;  a  hiring  by  piecework,  for  no  specified  term. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 
Ill  C.  313,  316,  43  P.  963   (applied);   124  C.  95,  97   (applied),  98 
(construed),  56  P.  795;  127  C.  588,  592,  60  P.  45    (applied). 

§  2011.     SAME.     [PRESUMED  TO  BE  MONTHLY,  WHEN.] 

In  the  absence  of  any  agreement  or  custom  as  to  the  term  of 
service,  the  time  of  payment,  or  rate  or  value  of  wages,  a 
servant  is  presumed  to  be  hired  by  the  month,  at  a  monthly 
rate  of  reasonable  wages,  to  be  paid  when  the  service  is  per- 
formed. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

Ill  C.  313,  317,  43  P.  963  (applied);  50  P.  397,  399  (court  will 
not  presume  that  there  was  no  agreement  when);  124  C.  95,  97 
(applied),  98  (construed),  56  P.  795;  127  C.  588,  592,  60  P.  45 
(applied). 

As  to  employer  and  employee  generally,  see  Kerr's  Cyc.  C.  C. 
§§  1965  et  seq.  and  notes. 

§  2012.  RENEWAL  OF  HIRING.  Where,  after  the  expira- 
tion of  an  agreement  respecting  the  wages  and  the  term  of 
service,  the  parties  continue  the  relation  of  master  and  serv- 

1067 


§§  2013-2015  CIVIL  CODE.  [Div.III,Pt.IV. 

ant,  they  are  presumed  to  have   renewed  the  agreement  for 
the  same  wages  and  term  of  service. 

History;     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

89    C.    547,    550,    26    P.    1095,    1096    (applied);    145    C.    266,    267.   78 
P.  736    (applied). 


§  2013.  TIME  OF  SERVICE.  The  entire  time  of  a  domes- 
tic servant  belongs  to  the  master;  and  the  time  of  other 
servants  to  such  extent  as  is  usual  in  the  business  in  which 
they  serve,  not  exceeding  in  any  case  ten  hours  in  the  day. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  statutory  limitation  of  hours  of  labor,  see  note  Hen.  G. 
L.,  pp.  417-419;  also  19  L.   141;   21  L.   796. 

§2014.    SERVANT   TO   PAY   OVER   WITHOUT   DEMAND. 

A  servant  must  deliver  to  his  master,  as  soon  as  with  reason- 
able diligence  he  can  find  him,  everything  that  he  receives  for 
his  account,  without  demand;  but  he  is  not  bound,  without 
orders  from  his  master,  to  send  anything  to  .him  through 
another  person. 

History:     Enacted  March   21,   1872. 

As  to  employee  not  bound  to  deliver  to  employer  without 
demand,  see  ante  §  1987. 


§  2015.  WHEN  SERVANT  MAY  BE  DISCHARGED.  A  mas- 
ter may  discharge  any  servant,  other  than  an  apprentice, 
whether  engaged  for  a  fixed  term  or  not: 

1.  If  he  is  guilty  of  misconduct  in  the  course  of  his  service, 
or  of  gross  immorality,  though  unconnected  with  the  same; 
or, 

2.  If,  being  employed  about  the  person  of  the  master,  or  in 
a  confidential  position,  the  master  discovers  that  he  has  been 
guilty  of  misconduct,  before  or  after  the  commencement  of 

1068 


Tit.VI,ch.II,art.II.]       AGENTS,  AUTHORITY.  §§  2019-2021 

his  service,  of  such  a  nature  that,  if  the  master  had  known 
or  contemplated  it,  he  would  not  have  so  employed  him. 
History:     Enacted  March   21,   1872. 

As  to  compensation  of  employee  dismissed  for  cause,  see 
Kerr's  Cyc.  C.  C.  §  2002  and  note. 

As  to  discharge  of  servant  when  justified  by  his  absence 
without  leave,   see   55   A.   R.    717. 

As  to  termination  of  employment,  see  ante  §  2001. 


ARTICLE  II. 

AGENTS. 

§  2019.  Agent  to  conform  to  his  authority. 

§  2020.  Must   keep    his    principal    informed. 

§  2021.  Collecting  agent. 

§  2022.  Responsibility  of   sub-agent. 

§  2019.    AGENT  TO  CONFORM  TO  HIS  AUTHORITY.    An 

agent  must  not  exceed  the  limits  of  his  actual  authority,  as 
defined  by  the  title  on  agency. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

68  C.  156,  162,  8  P.  824  (applied);  125  C.  613,  614,  58  P.  153 
(applied). 

As  to  agents  and  agency,  see  Kerr's  Cyc.  C.  C.  §§  2295  et  seq. 
and  notes,  and  particularly  §  2330. 

§2020.    MUST    KEEP   HIS   PRINCIPAL   INF0R3IED.     An 

agent   must   use     ordinary     diligence     to   keep    his    principal 
informed  of  his  acts  in  the  course  of  the  agency. 
History:      Enacted  March   21,   1,872. 

71  C.  513,  532,  12  P.  570,  580  (applied  to  sales  and  conveyances 
of  property  by   attorney,  acting  as  agent). 

As  to  agents  and  agency,  see  Kerr's  Cyc.  C.  C.  §§  2295  et  seq. 
and  notes. 

§  2021.  COLLECTING  AGENT.  An  agent  employed  to  col- 
lect a  negotiable   instrument   must  collect  it  promptly,   and 

1069 


§§  2022-2027  CIVIL  CODE.  [Div.III.Pt.IV. 

take  all  measures  necessary  to  charge  the  parties  thereto,  in 
case  of  its  dishonor;  and,  if  it  is  a  bill  of  exchange,  must  pre- 
sent it  for  acceptance  with  reasonable  diligence. 
History:     Enacted  March   21,  1872. 

As  to  ag-ents  and  agency,  see  Kerr's  Cyc.  C.  C.  §§  2295  et  seq. 
and  notes. 

§  2022.  RESPOTVSIBILITY  OV  SUB-AUENT.  A  mere  agent 
of  an  agent  is  not  responsible  as  such  to  the  principal  of 
the  latter. 

HLstory:     Enacted  March   21,   1872. 

As  to  agents  and  agency,  see  Kerr's  Cyc.  C.  C.  §§  2295  et  seq. 
and  notes. 


ARTICLE  III. 

FACTORS. 

§  2026.  Factor,    what. 

§  2027.  Obedience  required  from  factor. 

§  2028.  Sales  on  credit. 

§  2029.  Liability   of   factor   under  guaranty   commission. 

§  2030.  Factor  cannot  relieve  himself  from  liability. 

§  2026.  FACTOR,  WHAT.  A  factor  is  an  agent  who,  in  the 
pursuit  of  an  independent  calling,  is  employed  by  another  to 
sell  property  for  him,  and  is  vested  by  the  latter  with  the 
possession  or  control  of  the  property,  or  authorized  to  receive 
payment  therefor  from  the  purchaser. 

History:     Enacted  March   21,   1872. 

66  C.  459,  461,  6  P.  91  (construed);  22  P.  973,  974  (applied); 
24  P.   120    (applied  with  other  sections). 

As  to  factors,  see  Kerr's  Cyc.  C.  C.  §§  2367-2369  and  notes. 

As  to  factor's  power  to  pledge  principal's  g-oods,  see  post 
§§  2368,   2991. 

§  2027.  OBEDIENCE  REQUIRED  FROM  FACTOR.  A  fac- 
tor must  obey  the  instructions  of  his  principal  to  the  same 
extent  as  any  other  employee,  notwithstanding  any  advances 
he  may  have  made  to  his  principal  upon  the  property  con- 

1070 


Tit.VI,ch.II,art.III.]       FACTOR,  liability.  §§2028-2030 

signed  to  him,  except  that  if  the  principal  forbids  him  to  sell 
at  the  market  price,  he  may,  nevertheless,  sell  for  his  reim- 
bursement, after  giving  to  his  principal  reasonable  notice  of 
his  intention  to  do  so,  and  of  the  time  and  place  of  sale,  and 
proceeding  in  all  respects  as  a  pledgee. 

History:     Enacted  March   21,   1872. 

85  C.  376,  377,  24  P.  806,  807   (applied). 

As  to  factors,  see  Kerr's  Cyc.  C.  C.  §§  2367-2369  and  notes. 
As  to  obedience  required  from  employees  generally,   see  ante 
§  1981. 

§2028.  SALES  ON  CREDIT.  A  factor  may  sell  property 
consigned  to  him  on  such  credit  as  is  usual;  but,  having  once^ 
agreed  with  the  purchaser  upon  the  term  of  credit,  may  not 
extend  it. 

History:     Enacted  March   21,  1872. 

As  to  factors,  see  Kerr's  Cyc.  C.  C.  §§  2367-2369  and  notes. 
As  to  duty  of  factor  to  inquire  into  the  responsibility  of  the 
purchaser,  see  Kerr's  Cyc.   C.  C.   §  2368  and  note. 

§2029.  LIABILITY  OF  FACTOR  UNDER  GUARANTY 
COMMISSION.  A  factor  who  charges  his  principal  with  a 
guaranty  commission  upon  a  sale,  thereby  assumes  absolutely 
to  pay  the  price  when  it  falls  due,  as  if  it  were  a  debt  of  his 
own,  and  not  as  a  mere  guarantor  for  the  purchaser;  but  he 
does  not  thereby  assume  any  additional  responsibility  for  the 
safety  of  his  remittance  of  the  proceeds. 

History:     Enacted  March   21,  1872. 

53  P.  693,  697  (factor  is  liable  for  price  when  it  becomes  due, 
though  he  was  purchaser). 

As  to  factors,  see  Kerr's  Cyc.  C.  C.  §§  2367-2369  and  notes. 

§2030.  FACTOR  CANNOT  RELIEVE  HIMSELF  FROM 
LIABILITY.  A  factor  who  receives  property  for  sale,  under 
a  general  agreement  or  usage  to  guarantee  the  sales  or  the 
remittance  of  the  proceeds,  cannot  relieve  himself  from 
responsibility  therefor  without  the  consent  of  his  principal. 

History:     Enacted  March  21,  1872. 

As  to  factors,  see  Kerr's  Cyc.  C.  C.  §§  2367-2369  and  notes. 

1071 


§§  2034-2037  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  IV. 

SHIPMASTERS. 

§  2034.  Appointment   of    master. 

§  2035.  When  must  be  on   board. 

§  -'ijao  Pil'.tage. 

§  2037.  Power  of  master  over  seamen. 

§  2038.  Power  of  master  over  passengers. 

§  2039.  Impressing    private    stores. 

§  2040.  Wlien    may    abandon    the    ship. 

§  2041.  Duties   on   abandonment. 

§  2042.  When   master  cannot  trade  on   his  own  account. 

§  2043.  Care    and    diligence. 

§  2044.  Authority    of   master. 

§2034.     APPOINTMENT    OF   MASTER.     The   master   of   a 
ship  is  appointed  by  the  owner,  and  holds  during  his  pleasure. 
History:     Enacted  March  21,  1872. 

Master  dismissed,  being  one  of  owners,  right  to  renounce 
interest  and  demand  value,  see  Kerr's  Cyc.  C.  C.  §  2034,  note. 

§2035.  WHEN  MUST  BE  ON  BOARD.  The  master  of  a 
ship  is  bound  to  be  always  on  board  when  entering  or  leaving 
a  port,  harbor,  or  river. 

History:  Enacted  Marcli  21,  1872,  founded  upon  Code  de  Com. 
art.   227. 

§  2036.  PILOTAGE.  On  entering  or  leaving  a  port,  harbor, 
or  river,  the  master  of  a  ship  must  take  a  pilot  if  one  offers 
himself,  and  while  the  pilot  is  on  board  the  navigation  of  the 
ship  devolves  on  him. 

History:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

Pilot  and  pilot  commissioners — Duties  and  regulations  of. — 
See  Kerr's  Cyc.  Pol.  C.   §§  2429-2491,  particularly   §  2436. 

§  2037.  POWER  OF  MASTER  OVER  SEAMEN.  The  master 
of  a  ship  may  enforce  the  obedience  of  the  mate  and  seamen 

1072 


Tit.VI,ch.II,art.IV.]  POWER  OF  MASTER.  §§2038-2041 

to  his  lawful  commands  bj'  confinement  and  other  reasonable 
corporal  punishment,  not  prohibited  by  acts  of  Congress, 
being  responsible  for  the  abuse  of  his  power. 

History:      ^^nacted  March   21.   1872. 
See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

§  2038.    POWER  OF  MASTER  OVER  PASSENGERS.     The 

master  of  a  ship  may  confine  any  person  on  board,  during  a 
voyage,  for  wilful  disobedience  to  his  lawful  commands. 

History:      Enacted  March    21,   1872. 

As  to  imprisonment  of  passenger  by  master,  see  Kerr's  Cyc. 
C.  C.   §  2038,  note. 

§2039.  IMPRESSING  PRIVATE  STORES.  If,  during  a 
voyage,  the  ship's  supplies  fail,  the  master,  with  the  advice 
of  the  officers,  may  compel  persons  who  have  private  sup- 
plies on  board  to  surrender  them  for  the  common  want,  on 
payment  of  their  value,  or  giving  security  therefor. 

History:  Enacted  March  21,  1872,  founded  upon  Code  de  Com. 
art.   249. 

§  2040.  WHEN  MAY  ABANDON  THE  SHIP.  The  master  of 
a  ship  must  not  abandon  it  during  the  voyage,  without  the 
advice  of  the  other  officers. 

History:     Enacted   March   21,   1872. 
As  to  jettison,  see  Kerr's  Cyc.  C.  C.  §§  2040,  2149  and  notes. 

§2041.  DUTIES  ON  ABANDONMENT.  The  master  of  a 
ship,  upon  abandoning  it,  must  carry  with  him,  so  far  as  it 
is  in  his  power,  the  money  and  the  most  valuable  of  the  goods 
on  board,  under  penalty  of  being  personally  responsible.  If 
the  articles  thus  taken  are  lost  from  causes  beyond  his  con- 
trol, he  is  exonerated  from  liability. 

History:  Enacted  March  21,  1872,  founded  upon  Code  de  Com. 
art.   241. 

1073 


§§  2042-2044  CIVIL  CODE.  [Div.III,Pt.IV. 

§2042.  WHEJf  MASTER  CANNOT  TRADE  ON  HIS  OWN 
ACCOUNT.  The  master  of  a  ship,  who  engages  for  a  com- 
mon profit  on  the  cargo,  must  not  trade  on  his  own  account, 
and  if  he  does,  he  must  account  to  his  employer  for  all  profits 
thus  made  by  him. 

History:  Enacted  March  21,  1872.  See  Code  de  Com.  arts. 
239,   24U. 

§2043.  CARE  AND  DILIGENCE.  The  master  of  a  ship 
must  use  great  care  and  diligence  in  the  performance  of  his 
duties,  and  is  responsible  for  all  damage  occasioned  by  his 
negligence,  however  slight. 

History:     Enacted  March  21,   1872. 

§  2044.  AUTHORITY  OF  MASTER.  The  authority  and  lia- 
bility of  the  master  of  a  ship,  as  an  agent  for  the  owners  of 
the  ship  and  cargo,  are  regulated  by  the  title  on  agency. 

History:     Enacted  March   21,   1872. 

As  to  agency  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2295  et  seq. 
and  notes. 

As  to  authority  over  seamen  and  passengers,  see  Kerr's  Cyc. 
C.  C.  §§  2037,  2038  and  notes. 

As  to  respondentia — Master's  hypothecation  upon,  see  Kerr's 
Cyc.   C.   C.   §  3038  and  note. 

Bottomry,  hypothecation  by  master  upon,  see  Kerr's  Cyc. 
C.  C.   §§  3019  et  seq.  and  notes. 


1074 


Tit.VI,ch.II,art.V.]  MATE,  SEAMEN.  §§  2048-2050 

ARTICLE  V. 

MATES    AND    SEAMEN. 

§  2048.  Mate,   what. 

§  2049.  Seamen,    what. 

§  2050.  Mate  and  seamen,   how   engaged  and   discharged. 

§  2051.  Unseaworthy    vessel. 

§  2052.  Seamen  not  to  lose  wages  or  lien  by  agreement. 

§  2053.  Special    agreement   with    seamen. 

§  2054.  Wages   depend  on   freightage. 

§  2055.  When  wages,   etc.,   begin. 

§  2056.  Wages,   where  voyage  is  broken  up  before  departure. 

§  2057.  Wrongful  discharge. 

§  2058.  Wages,  when  not  lost  by  wreck. 

§  2059.  Certificate. 

§  2060.  Disabled   seamen. 

§  2061.  Maintenance  of  seamen   during  sickness. 

§  2062.  Death  on  the  voyage. 

§  2063.  Theft,    etc.,    forfeits    wages. 

§  2064.  Seamen  cannot  ship  goods. 

§  2065.  Embezzlement  and   injuries    [repealed]. 

§  2066.  Law  governing  seamen. 

§2048,  MATE,  WHAT.  The  mate  of  a  ship  is  the  officer 
next  in  rank  to  the  master,  and  in  case  of  the  master's  dis- 
ability he  must  take  his  place.  By  so  doing  he  does  not  lose 
any  of  his  rights  as  mate. 

History:     Enacted  March   21,   1872. 

§2049.  SEAMEN,  WHAT.  All  persons  employed  in  the 
navigation  of  a  ship,  or  upon  a  voyage,  other  than  the  mas- 
ter and  mate,  are  to  be  deemed  seamen  within  the  provisions 

of  this  code. 

History:     Enacted  March   21,   1872. 

As  to  mate  succeeding  master  by  virtue  of  his  office,  see 
Kerr's  Cyc.  C.  C.  §  2048,  note. 

§  2050.  MATE  A>D  SEAMEN,  HOW  ENGAGED  AND  DIS- 
CHARGED.  The  mate  and  seamen  of  a  ship  are  engaged  by 
the  master,  and  may  be  discharged  by  him  at  any  period  of 

1075 


§§  2051-2054  CIVIL  CODE.  [Div.III.Pt.IV. 

the  voyage,  for  wilful  and  persistent  disobedience  or  gross 
disqualification,  but  cannot  otherwise  be  discharged  before 
the  termination  of  the  voyage. 

HLstory:     Enacted  March   21,   1872. 

§2051.  UNSEAWORTHY  VESSEL.  A  mate  or  seaman  is 
[are]  ul/l  bound  to  go  to  sea  in  a  ship  that  is  not  seaworthy; 
and  if  there  is  reasonable  doubt  of  its  seaworthiness,  he  may 
refuse  to  proceed  until  a  proper  survey  has  been  had. 

History:     Enacted  March  21,   1872. 

As  to  seaworthiness,  see  Kerr's  Cyc.  C.  C.  §§  2051,  2682  and 
notes. 

§2052.  SEAMEN  NOT  TO  LOSE  UAGES  OR  LIEN  BY 
AGREEMENT.  A  seaman  cannot,  by  reason  of  any  agree- 
ment, be  deprived  of  his  lien  upon  the  ship,  or  of  any  remedy 
for  the  recovery  of  his  wages  to  which  he  would  otherwise 
have  been  entitled.  Any  stipulation  by  which  he  consents 
to  abandon  his  right  to  wages  in  case  of  the  loss  of  the  ship, 
or  to  abandon  any  right  he  may  have  or  obtain  in  the  nature 
of  salvage,  is  void. 

HLstory:     Enacted  March  21,   1872. 

As  to  wag-es  in  case  of  loss  of  ship,   see  post   §  2059. 

§  2053.  SPECIAL  AGREEMENT  WITH  SEAMEN.  No  spe- 
cial agreement  entered  into  by  a  seaman  can  impair  any  of 
his  rights,  or  add  to  any  of  his  obligations,  as  defined  by  law, 
unless  he  fully  understands  the  effect  of  the  agreement,  and 
receives  a  fair  compensation  therefor. 

HLstory:     Enacted  March   21,   1872. 

§2054.    WAGES  DEPEND   ON   FREIGHTAGE.     Except   as 
hereinafter  provided,  the  wages  of  seamen  are  due  when,  and 
so  far  only  as,  freightage  is  earned,  unless  the  loss  of  freight- 
age is  owing  to  the  fault  of  the  owner  or  master. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

1076 


Tit.VI,ch.II,art.V.]  WAGES.  §§  2055-2059 

§2055.  WHEX  WAGES,  ETC.,  BEGI>.  The  right  of  a 
mate  or  seaman  to  wages  and  provisions  begins  either  from 
the  time  he  begins  work,  or  from  the  time  specified  in  the 
agreement  for  his  beginning  work,  or  from  his  presence  on 
board,  whichever  first  happens. 

History:  Enacted  March  21,  1872,  founded  upon  13  and  14 
Vic,  c.    93,   §   56. 

§2056.  WAGES,  WHERE  VOYAGE  IS  BROKEN  UP  BE- 
FORE  DEPARTURE.  Where  a  voyage  is  broken  up  before 
departure  of  the  ship,  the  seamen  must  be  paid  for  the  time 
they  have  served,  and  may  retain  for  their  indemnity  such 
advances  as  they  have  received. 

Hi.story:  Enacted  March  21,  1872,  modified  from  Code  de  Com. 
art.    252. 

§2057.  WRONGFUL  DISCHARGE.  When  a  mate  or  sea- 
man is  wrongfully  discharged,  or  is  driven  to  leave  the  ship 
by  the  cruelty  of  the  master  on  the  voyage,  it  is  then  ended 
with  respect  to  him,  and  he  may  thereupon  recover  his  full 

wages. 

History:     Enacted  March    21,   1872. 

As  to  cruelty  of  master,  see  Kerr's  Cyc.  C.  C.  §  2057,  note. 

§  2058.  WAGES,  WHEN  >0T  LOST  BY  W RECK.  In  case 
of  loss  or  wreck  of  the  ship,  a  seaman  is  entitled  to  his  wages 
up  to  the  time  of  the  loss  or  wreck,  whether  freightage  has 
been  earned  or  not,  if  he  exerts  himself  to  the  utmost  to  save 
the  ship,  cargo,  and  stores. 

History:  Enacted  March  21,  1872,  substantially  same  as  Stats. 
7  and   8  Vic,  c.   112,  §   17. 

For  Commissioners'  Comment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §  2058,    note. 

§  2059.  CERTIFICATE.  A  certificate  from  the  master  or 
chief  surviving  officer  of  a  ship,  to  the  effect  that  a  seaman 
exerted  himself  to  the  utmost  to  save  the  ship,  cargo,  and 
stores,  is  presumptive  evidence  of  the  fact. 

History:     Enacted  March  21,  1872. 

1077 


§§  2060-2064  CIVIL  CODE.  [Div.III.Pt.IV. 

§2060.  DISABLED  SEAMAN.  Where  a  mate  or  seaman 
is  prevented  from  rendering  service  by  illness  or  injury, 
incurred  without  his  fault  in  the  discharge  of  his  duty  on  the 
voyage,  or  by  being  wrongfully  discharged,  or  by  a  capture 
of  the  ship,  he  is  entitled  to  wages  notwithstanding;  but  in 
case  of  a  capture,  a  ratable  deduction  for  salvage  is  to  be 
made. 

History:     Enacted  March   21,   1872. 

§  2061.    MAIISTENANCE  OF  SEAMEX  DURING  SICKNESS. 

If  a  mate  or  seaman  becomes  sick  or  disabled  during  the  voy- 
age, without  his  fault,  the  expense  of  furnishing  him  with 
suitable  medical  advice,  medicine,  attendance,  and  other  pro- 
vision for  his  wants,  must  be  borne  by  the  ship  till  the  close 
of  the  voyage. 

History:     Enacted  March   21,   1872. 

§  2062.  DEATH  ON  THE  VOYAGE.  If  a  mate  or  seaman 
dies  during  the  voyage,  his  personal  representatives  are  enti- 
tled to  his  wages  to  the  time  of  his  death,  if  he  would  have 
been  entitled  to  them  had  he  lived  to  the  end  of  the  voyage. 

History:     Enacted  March   21,   1872. 

As  to  death  during  voyage  of  seaman  on  monthly  wage,  see 
Kerr's  Cyc.  C.  C.  §  2062,  note. 

§2063.  THEFT,  ETC.,  FORFEITS  WAGES.  Desertion  of 
the  ship  without  cause,  or  a  justifiable  discharge  by  the  mas- 
ter during  the  voyage,  for  misconduct,  or  a  theft  of  any  part 
of  the  cargo  or  appurtenances  of  the  ship,  or  a  wilful  injury 
thereto  or  to  the  ship,  forfeits  all  wages  due  for  the  voyage 
to  a  mate  or  seaman  thus  in  fault. 

History:     Enacted  March   21,  1872. 

§  2064.  SEAMAN  CANNOT  SHIP  GOODS.  A  mate  or  sea- 
man may  not,  under  any  pretext,  ship  goods  on  his  own 
account  without  permission  from  the   master. 

History:  Enacted  March  21,  1S72,  founded  upon  Code  de  Com. 
art.  251. 

1078 


Tit.VI,ch.II,art.VI-]  MANAGER.  §§  2065-2072 

§2065.    EMBEZZLEMENT  AND  INJURIES   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30.  1874, 
Code  Amdts.  1873-4,  p.  247. 

§2066.  LAW  GOVERNING  SEAMEN.  The  shipment  of 
officers  and  seamen,  and  their  rights  and  duties,  are  further 
regulated  by  acts  of  Congress. 

History:     Enacted  March   21,   1872. 

ARTICLE  VI. 

SHIP'S    MANAGERS. 

§  2070.     Manager,   what. 

§  2071.     Duties  of  manager. 

§  2072.     Compensation. 

§2070.  MANAGER,  WHAT.  The  general  agent  for  the 
owners,  in  respect  to  the  care  of  a  ship  and  freight,  is  called 
the  manager.  If  he  is  a  part  owner,  he  is  also  called  the 
managing  owner. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

121  C.  564,  569,  570,  66  A.  S.  65,  54  P.   89   (referred  to). 

§  2071.  DUTIES  OF  MANAGER.  Unless  otherwise  directed, 
it  is  the  duty  of  the  manager  of  a  ship  to  provide  for  the  com- 
plete seaworthiness  of  a  ship;  to  take  care  of  it  in  port;  to 
see  that  it  is  provided  with  necessary  papers,  with  a  proper 
master,  mate,  and  crew,  and  supplies  of  provisions  and  stores. 

History:     Enacted  March  21,  1872. 

121  C.  564,  569,  66  A.  S.  65,  54  P.  89  (construed  with  other  sec- 
tions). 

§  2072.  COMPENSATION.  A  managing  owner  is  presumed 
to  have  no  right  to  compensation  for  his  own  services. 

History:     Enacted  March   21,   1872. 


1079 


§§  2078,  2079  CIVIL  CODE.  [Div.III,Pt.IV. 

CHAPTER  III. 

SERVICE  WITHOUT  EMPLOYMENT. 

§  2078.     Voluntary  interference  with  property. 
§  2079.     Salvage. 

§207s.  VOMXTARY  INTERFERENCE  WITH  PROP- 
ERTY. One  who  officiously,  and  without  the  consent  of  the 
real  or  apparent  owner  of  a  thing,  takes  it  into  his  possession 
for  the  purpose  of  rendering  a  service  about  it,  must  com- 
plete such  service,  and  use  ordinary  care,  diligence,  and  rea- 
sonable skill  about  the  same.  He  is  not  entitled  to  any  com- 
pensation for  his  service  or  expenses,  except  that  he  may 
deduct  actual  and  necessary  expenses  incurred  by  him  about 
such  service  from  any  profits  which  his  service  has  caused  the 
thing  to  acquire  for  its  owner,  and  must  account  to  the  owner 
for  the  residue. 

History:     Enacted  March   21,   1872. 

As  to  employment  without  reward,  see  Kerr's  Cyc.  C.  C. 
§§  1975   et  seq.   and  notes. 

As   to   gratuitous   carriers,   see   post   §  2089. 

As  to  gratuitous  services,  and  what  are  deemed  to  be  such, 
see  53  A.  D.  306. 

§  2079.  SALVAGE.  Any  person,  other  than  the  master, 
mate,  or  a  seaman  thereof,  who  rescues  a  ship,  her  appurte- 
nances or  cargo,  from  danger,  is  entitled  to  a  reasonable  com- 
pensation therefor,  to  be  paid  out  of  the  property  saved.  He 
has  a  lien  for  such  claim,  which  is  regulated  by  the  title  on 
liens;  but  no  claim  for  salvage,  as  such,  can  accrue  against 
any  vessel,  or  her  freight,  or  cargo,  in  favor  of  the  owners, 
officers,  or  crew  of  another  vessel  belonging  to  the  same 
owners;  but  the  actual  cost[s]  at  the  time  of  the  services  ren- 
dered by  one  such  vessel  to  another,  when  in  distress,  are 
payable  through  a  general  average  contribution  on  the  prop- 
erty saved. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.  1873-4,  p.  247;  amended  by  Code  Commission  Aqt 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  413,  held  unconstitu- 
tional,  see  history,   §   4  ante. 

1080 


Tit  III.ch.L]  CARRIAGE,    CONTRACT.  §  2085 

TITLE  VII. 

CARRIAGE. 

Chapter  I.  Carriage  in  General,  §§  2085-2090. 

II.  Carriage  of  Persons,  §§  2096-2104. 

III.  Carriage  of  Property,   §§  2110-2155. 

IV.  Carriage  of  Messages,  §§  2161,  2162. 
V.  Common   Carriers,   §§2168-2209. 


CHAPTER  I. 

CARRIAGE    IN    GENERAL. 

§  2085.  Contract   of   carriage. 

§  2086.  Different  kinds  of  carriers. 

§  2087.  Marine   and   inland   carriers,    what. 

§  2088.  Carriers  by  sea. 

§  2089.  Obligations   of   gratuitous    carriers. 

§  2090.  Obligations  of  gratuitous   carrier  wlio   has   begun   to   carry. 

§  2085.  COMRACT  OF  CARRIAGE.  The  contract  of  car- 
riage is  a  contract  for  the  conveyance  of  property,  persons,  of 
messages,  from  one  place  to  another. 

Hi-story:     Enacted  March   21,   1872. 

As   to  bills  of  lading,  see  Kerr's  Cyc.  C.   C.   §§  2126   et  seq.  and 

As  to  carriers  of  messages,  see  Kerr's  Cyc.  C.  C.   §§2161,  2162 

and  notes.  , 

As    to    carriage    of    persons    witliout    reward,    see    Kerr  s    Cyc. 

C.  C.  §  2096  and  note. 

As  to  change  of  liability  of  carrier  of  property  from  that  of 
carrier  to  warehouseman,  and  requirement  of  notice  to  con- 
signee on  arrival  of  freight  for  that  purpose,  see  Kerr's  Cyc. 
C.  C.   §  2120  and  note.  ^ 

As  to  common  carriers  generally,  see  Kerr's  Cyc.  C.  C.  H  -168- 
2177  and  notes. 

As  to  common  carriers  of  persons,  see  Kerr's  Cyc.  C.  C.  §§  2096, 
2100,   2180-2191  and  notes. 

As  to  common  carriers  of  property,  liability,  etc.,  see  Kerr  s 
Cyc    C    C    §§  2114,  2168,  2194  et  seq.  and  notes. 

1081 


§§  2086,  2087  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  duties  and  obligations  of  carriers  of  persons  for  reward, 
see  Kerr's  Cyc.  C.  C.   §§  2100-2104  and  notes. 

As  to  duties  and  obligations  of  carriers  of  property  for 
reward,  see  Kerr's  Cyc.  C.  C.  §§  2114-2121  and  notes. 

As  to  freightage,  liens  therefor,  etc.,  see  Kerr's  Cyc.  C.  C. 
§§  2110,   2136-2144   and  notes. 

As  to  general  average,  see  Kerr's  Cyc.  C.  C.  §§  2148-2155  and 
notes. 

As  to  iumud  cf  rriers  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2096, 
2100,  2114,   2168  and  notes. 

As  to  limitations  of  common  carriers'  liability,  see  Kerr's 
Cyc.   C.   C.   §§  2174,   2175,   2176,   and   2200   and  notes. 

As  to  marine  carriers,  see  Kerr's  Cyc.  C.  C.  §§  2088,  2100,  2168 
and  notes. 


§2086.  DIFFERENT  KINDS  OF  CARRIERS.  Carriage  is 
either: 

1.  Inland;    or, 

2.  Marine. 

History:     Enacted  March   21,  1872. 

As  to  inland  carriers  in  general,  see  references  ante  §  2085. 
As  to  marine  carriers  in  general,  see  Kerr's  Cyc.  C.  C.  §  2085 
and  note,  and  post  §  2088. 

§  2087.  MARINE  AND  INLAND  CARRIERS,  WHAT.  Car- 
riers upon  the  ocean  and  upon  arms  of  the  sea  are  marine 
carriers.     All  others  are  inland  carriers. 

History:     Enacted  March   21,  1872. 

As  to  apportionment  of  losses  caused  by  collision  of  marine 
carriers,  see  Kerr's  Cyc.  C.  C.  §  973  and  note. 

As  to  bottomry  contracts,  see  Kerr's  Cyc.  C.  C.  §§  2017  et  seq. 
and  notes. 

As  to  bridge,  ferry,  wharf,  chute,  and  pier  corporations,  see 
Kerr's  Cyc.  C.  C.  §|  528  et  seq.  and  notes. 

As  to  carriers  by  land,  see  47  A.  D.   650. 

As  to  compensation  for  salvage,  see  Kerr's  Cyc.  C.  C.  §  2079 
and  note. 

As  to  duties  and  authority  of  shipmasters,  see  Kerr's  Cyc. 
C.  C.   §§  2034-2044  and  notes. 

As  to  duties  of  shipmasters,  see  Kerr's  Cyc.  C.  C.  §§  2034-2044 
and  notes. 

As  to  embezzlement  of  property  by  carriers,  see  Kerr's  Cyc. 
Pen.  C.  §  505  and  note. 

1082 


Tit.VII,ch.L]  CARRIER  BY  SEA.  §  2088 

As  to  jettison  and  general  average,  see  Kerr's  Cyo.  C.  C. 
§§  2048-2055  and  notes. 

As  to  laws  governing  seamen,  see  Kerr's  Cyc.  C.  C.  §§  2048- 
2066,    2088  and  notes. 

As  to  liability  of  marine  carriers,  see  Kerr's  Cyc.  C.  C.  §  2197 
and  note. 

As  to  liability  and  duties  of  shipmasters  and  pilots,  see  Kerr's 
Cyc.  C.  C.   §§  2373-2385  and  notes. 

As  to  marine  insurance,  see  Kerr's  Cyc.  C.  C.  §§  2655  et  seq. 
and  notes. 

As  to  national  and  state  regulations  in  general,  see  Kerr's 
Cyc.  C.  C.   §  2088  and  note. 

As  to  navigation,  foreign  and  domestic,  definition  of,  see 
Kerr's  Cyc.  C.  C.  §§  962,  963  and  notes. 

As  to  offense  by  common  carrier  in  transporting  or  taking 
game,  etc.,  out  of  state,  see  Kerr's  Cyc.  Pen.  C.  §§  627a,  627b  and 
notes. 

As  to  powers,  etc.,  of  ship's  manager,  see  Kerr's  Cyc.  C.  C. 
§§  2388,  2389  and  notes. 

As  to  registry,  enrolment,  and  license  of  ships,  see  Kerr's 
Cyc.  C.  C.   §  966  and  note. 

As  to  respondentia  contracts,  see  Kerr's  Cyc.  C.  C.  §  3036  and 
note. 

As  to  rules  of  navigation,  collisions,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  970  and  notes. 

As  to  seaworthiness,  definition,  see  Kerr's  Cyc.  C.  C.  §  2682 
and  note. 

As  to  ships  and  shipping,  definition  of,  see  ante  §  960. 

As  to  ships  as  common  carriers,  see  47  A.  D.  651,  652. 

As  to  ship's  managers  and  their  duties,  see  Kerr's  Cyc.  C.  C. 
§§  2070,  2071  and  notes. 

As  to  street  railroad  corporations,  see  Kerr's  Cyc.  C.  C. 
§§  497-511  and  notes. 

As  to  telegraph  and  telephone  corporations,  see  Kerr's  Cyc. 
C.   C.   §  536  and  note. 

As  to  wagon  and  road  corporations,  see  Kerr's  Cyc.  C.  C. 
§§  512  et  seq.  and  notes. 

As  to  water  and  canal  corporations,  see  Kerr's  Cyc.  C.  C. 
§§  548  et  seq.  and  notes. 

§2088.  CARRIERS  BY  SEA.  Rights  and  duties  peculiar 
to  carriers  by  sea  are  defined  by  acts  of  Congress. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  34  pars,  annotation. 
As  to  charterer  of  vessel,  when  deemed  owner,  see  U.  S.  Rev. 
Stats.  §  4286,  4  F.  S.  A.  851  and  note. 

1083 


§  2088  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  Chinese  Exclusion  Acts,  see  act  of  Congress  April  22, 
1902,  eh.  641,  32  Stats,  at  L.  176,  1  Fed.  Stats.  Ann.  755-758;  act 
of  March  3,  1901,  ch.  845,  31  Stats,  at  L.  1093;  act  of  November 
3,  1893,  ch.  14,  28  Stats,  at  L.  7;  act  of  May  5,  1892,  ch.  60,  27 
Stats,  at  L.  25;  act  of  October  1,  1888,  ch.  1064,  25  Stats,  at  L. 
504;  act  of  September  13,  1888,  ch.  1015,  25  Stats,  at  L.  476;  act 
of  May  6.  1882,  ch.  126,  22  Stats,  at  L.  58,  amended  by  act  of  July 
5,  1884,  ch.  220,  23  Stats,  at  L.  115,  1  F.  S.  A.  754-784  and  notes. 

As  to  clearance  and  entry  of  vessels,  see  U.  S.  Rev.  Stats. 
§§  4197-4218;   7  F.   S.  A.   45-50  and  notes. 

As  to  crimes  and  offenses  relating  to  concealment  or  destruc- 
tion of  invoices,  evading  legal  duties,  entry  of  goods  upon  false 
classification,  etc.,  see  U.  S.  Rev.  Stats.  §§5443-5445;  2  F.  S.  A. 
773   and  notes. 

As  to  customs  duties,  see  Tariff  Act  July  24,  1897,  ch.  11,  30 
Stats,  at  L.  151,  2  F.  S.  A.  391;  also  generally  U.  S.  Rev.  Stats. 
§§  2766-3094,  and  act  of  October  1,  1-890,  ch.  1244,  26  Stats,  at  L. 
567. 

As  to  duties  of  ship's  managers  and  managing  owners,  see 
Kerr's  Cyc.  C.  C.  §§  2070-2072  and  notes. 

As  to  exemptions  from  liability  for  loss  at  sea,  see  Kerr's 
Cyc.  C.  C.  §  2197  and  note. 

As  to  immigration  from  foreign  countries  in  general,  see  U. 
S.  Rev.  Stats.  §§  2158-2164,  3  F.  S.  A.  290. 

As  to  limitation  of  liability  of  masters,  owners,  etc.,  as  car- 
riers, see  U.  S.  Rev.  Stats.  §§  4281-4289;  also  act  of  June  26,  1884, 
ch.  121,  23  Stats,  at  L.  57;  also  act  of  February  13,  1893,  ch.  105, 
27  Stats,  at  L.  445. 

As  to  navigation  in  general,  see  U.  S.  Rev.  Stats.  §§  4233-4251; 
also  act  of  March  3,  1897,  ch.  389,  29  Stats,  at  L.  687. 

As  to  navigation  of  vessels,  bills  of  lading,  and  to  certain 
obligations,  duties,  and  rights  in  connection  with  carriage  of 
property,  see  U.  S.  act  of  February  13,  1893,  ch.  105,  27  Stats,  at 
L.  445. 

As  to  quarantine  regulations,  see  U.  S.  Rev.  Stats.  §§  4792-4800; 
also  act  of  Congress  April  29,  1878,  ch.  66,  20  Stats,  at  L.  37;  act 
of  August  1,  1888,  ch.  727,  25  Stats,  at  L.  355;  act  of  March  27, 
1890,  ch.  51,  26  Stats,  at  L.  31;  act  of  February  15,  1893,  ch.  114, 
27  Stats,  at  L.  449. 

As  to  registry  and  recording  of  vessels,  see  U.  S.  Rev.  Stats. 
§§  4131-4196,  7  F.  S.  A.   10-45  and  notes. 

As  to  regulating  carriage  of  passengers  by  sea,  see  act  of 
August  2,  1882,  ch.  374,  22  Stats,  at  L.  186,  amended  by  act  of 
March  2,  1889,  and  act  of  February  8,  1895,  28  Stats,  at  L.  643. 

As  to  regulation  of  steam  vessels,  see  U.  S.  Rev.  Stats.  §§  4399- 
4462,  7  F.  S.  A.  161  et  seq. 

As  to  regulation  of  vessels  engaged  in  domestic  commerce,  see 
U.  S.  Rev.  Stats.   §§  4311-4390,   7  F.  S.  A.  56  et  seq. 

1084 


Tit.VII.ch.I.]  GRATUITOUS  CARRIERS.  §§2089,2090 

As  to  regulation  of  vessels  engaged  in  foreign  commerce,  see 
U.  S.  Rev.  Stats.  §§  4306-4310,  7  F.  S.  A.   53-55. 

As  to  regulation  for  preventing  collision,  see  act  of  Congress 
of  August  19,  1890,  ch.  802,  26  Stats,  at  L.  320,  amended  act  of 
May  28,  1894,  ch.  83,  28  Stats,  at  L.  82,  and  further  amended 
by  act  of  June  10,  1896,  26  Stats,  at  L.  381. 

As  to  regulations  applicable  to  inland  waters,  see  act  of  Con- 
gress of  June  7.  1897,  ch.  4,  30  Stats,  at  L.  96,   2  F.  S.  A.  173. 

As  to  regulation  of  commerce  with  Canada  and  Mexico,  see 
U.   S.   Rev.  Stats.   §§  3095-3129,    2   F.   S.  A.    762-772  and   notes. 

As  to  remedies  against  masters,  owners,  etc.,  for  embezzle- 
ment, etc.,  see  U.  S.  Rev.  Stats.  §  4289,  4  F.  S.  A.  852. 

As  to  requirement  that  all  ofRcers  of  vessels  of  U.  S.  registry 
be  citizens  of  United  States,  see  U.  S.  Rev.  Stats.  §  1431,  5  F.  S. 
A.   278. 

As  to  shipmasters,  pilots  and  ship's  managers,  see  Kerr's  Cyc. 
C.  C.   §§  2373-2389  and  notes. 

As  to  state  regulation  of  immigration,  see  Kerr's  Cyc.  Pol.  C. 
§§  2949-2969   and   notes. 

As  to  transportation  of  nitroglycerin  and  other  dangerous 
explosives  or  inflammable  materials,  and  offenses  related  thereto, 
see  U.  S.  Rev.  Stats.  §§  4278,  4279,  4280,  4288,  5353,  5354.  and 
5355,  1   F.  S.  A.  719,  720. 

As  to  transportation  of  passengers  and  merchandise  by 
marine  carriers,  see  U.  S.  Rev.  Stats.  §§  4463-4500,  7  F.  S.  A. 
181-198. 


§  2089.  OBLIG.VTIONS  OF  GR.VTlITOrS  CARRIERS.  Car- 
riers without  reward  are  subject  to  tiie  same  rules  as  em- 
ployees without  reward,  except  so  far  as  is  otherwise  pro- 
vided bj'  this  title. 

History:     Enacted  March   21,   1872. 

As  to  carriers  of  persons  without  reward,  see  Kerr's  Cyc.  C.  C. 
§  2096  and  note. 

As  to  duties  of  employees  without  reward,  see  Kerr's  Cyc. 
C.  C.   §§  1975,   1976,  1977  and  notes. 

As  to  duty  of  one  who  undertakes  a  service  without  employ- 
ment, see  Kerr's  Cyc.  C.  C.  §  2078  and  note. 

§2090.  OBLIGATIONS  OF  GRATIITOIS  CARRIER  AVHO 
HAS  BEGUN  TO  CARRY.  A  carrier  without  reward,  who 
has  begun  to  perform  his  undertaking,  must  complete  it  in 
like  manner  as  if  he  had  received  a  reward,  unless  he  restores 

1085 


§  2096  CIVIL.    CODE.  [Div.III.Pt.IV. 

the   person   or   thing   carried   to   as   favorable   a   position    as 
before  he  commenced  the  carriage. 

Hifstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  duties,  etc.,  of  mere  depositary  without  reward,  see 
Kerr'r.  Cyc.  C.  C.  §§  1844-1847  and  notes. 

As  to  liability  of  gratuitous  bailee  for  safety  of  property,  see 
53  A.  D.  581. 

As  to  obligations  and  duties  of  carriers  of  persons  for  reward, 
see  Kerr's  Cyc.  C.  C.  §  2100  and  note. 

As  to  obligations  and  duties  of  carriers  of  property  for 
reward,  see  Kerr's  Cyc.  C.  C.  §  2114  and  note. 


CHAPTER  II. 

CARRIAGE   OF  PERSONS. 

Article  I.     Gratuitous  Carriage,  §  2096. 

II.     Carriage   for   Reward,   §§  2100-2104. 

ARTICLE  I. 

GRATUITOUS  CARRIAGE  OF  PERSONS. 

§  2096.     Degree  of  care   required. 

§  2096.  DEGREE  OF  CARE  REQUIRED.  A  carrier  of  per- 
sons without  reward  must  use  ordinary  care  and  diligence  for 
their  safe  carriage. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  degrees  of  negligence,  see  32  A.  D.  502;  7  Am.  R.  R.  & 
Corp.  Rep.  298,  299. 

As  to  distinction  between  gross  negligence  and  slight  negli- 
gence under  our  code  with  respect  to  transmission  and  delivery 
of  messages,  etc.,  see  Kerr's  Cyc.  C.  C.  §  2162  and  note. 

As  to  gross  negligence  in  the  carriage  of  persons  or  of  prop- 
erty, see  Kerr's  Cyc.  C.  C.  §  2175  and  note. 

As  to  passengers  carried  gratuitously,  in  general,  see  61  A.  D. 
109;  61  A.  S.  87,  89;  5  L.  820,  7  Am.  R.  R.  &  Corp.  Rep.  299,  and 
note  31  C.  C.  A.  157,  164. 

1086 


i 


Tit.VII,ch.II,art.II.]  OP  PASSENGERS.  §  2100 


ARTICLE  II. 

CARRIAGE   FOR   REWARD. 

I  2100.  General  duties  of  carrier. 

§  2101.  Vehicles. 

§  2102.  Not  to  overload  his  vehicle. 

§  2103.  Treatment  of  passengers. 

§  2104.  Rate   of   speed    and   delays. 

§2100.  GENERAL  DUTIES  OF  CARRIER.  A  carrier  of 
persons  for  reward  must  use  the  utmost  care  and  diligence 
for  their  safe  carriage,  must  provide  everything  necessary  for 
that  purpose,  and  must  exercise  to  that  end  a  reasonable 
degree  of  skill. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  207  pars,  annotation. 

63  C.  431,  433  (construed  and  applied);  89  C.  399,  405,  26  P. 
894,  895  (construed  and  applied);  137  C.  280,  281,  92  A.  S.  171, 
174,  70  P.  169  (construed  and  applied);  147  C.  178,  182,  81  P.  531; 
150  C.  741,  745,  746,  90  P.  125  (section,  in  substance,  embodies 
pre-existing-  law);  151  C.  534,  537,  91  P.  481  (what  instruction 
is  equivalent,  and  no  more  than  equivalent,  of  rule  announced 
by  this  section);  4  C.  A.  745,  747,  89  P.  367   (applied). 

CARRIERS    OF   PASSENGERS. 

As  to  accidents  due  to  "act  of  God,"  etc.,  and  presumption 
relating  thereto,  see  Kerr's  Cyc.  C.  C.  §1511,  note  pars.  2-13; 
§  2194  and  note:  also  note  §  2114,  post. 

As  to  action  for  death  of  child  not  passenger,  see  Kerr's  Cyc. 
C.  C.  P.  §§  376,  377  and  notes. 

As  to  admission  of  testimony  of  physicians  or  surgeons  in 
case  of  injury  due  to  negligence  of  carrier,  see  Kerr's  Cyc.  C. 
C.  P.  §  1881  subd.  4  and  note. 

As  to  admissions  made  as  affecting  liability  for  negligence, 
see  Kerr's  Cyc.  C.  C.  P.  §  1870  subd.  2  and  §  2061  subd.  4  and 
notes. 

As  to  baggage,  see  note  §  2180,  post. 

As  to  carrier's  liability  for  injury  or  death  of  employee,  see 
Kerr's  Cyc.  C.  C.   §§  1969-1971  and  notes. 

As  to  carriers  not  liable  as  insurers  of  life  or  safety  of  pas- 
sengers, see  2  L.  252. 

As  to  carriers  not  liable  for  injuries  resulting  from  inevitable 
accident,  see  2  L.  252. 

1087 


§  2100  CIVIL  CODE.  [Div.IIl'.Pt.IV. 

As  to  children  jumping  on  and  off  trains  in  motion,  see  21  L. 
355,   356. 

As   to  common   carrier's  liability  for  torts   to   passengers,   see 

I  L.  143;   3  L.   635,  636;   12  L.  113;   12  L.   337-339;  14  L.   737-740. 
As  to  complaint  in  action  for  damages  for  wrongful  expulsion, 

see  Kerr's  Cyc.  C.  C.   §  2188  and  note. 

As  to  connecting  lines,  negligence  of  connecting  carriers, 
etc.,  s^e  Kerr's  Cyc.  C.  C.  §  2201  and  note. 

As  to  damages  arising  from  deviation  from  route,  delays, 
etc.,  see  Kerr's  Cyc.  C.  C.  §  2104  and  note. 

As  to  damages  for  death  of  person  not  minor,  and  recovery 
thereof  by  personal  representative,  see  Kerr's  Cyc.  C.  C.  P.  §  377 
and  note.  , 

As  to  damages  for  injuries  received  while  waiting  for  train, 
see  Kerr's  Cyc.  C.  C.  §  3333  and  note. 

As  to  damages  for  wrongful  expulsion,  see  Kerr's  Cyc.  C.  C. 
§  2188  and  note. 

As  to  damages,  measure  of,  for  death  of  child  not  passenger, 
see  Kerr's  Cyc.  C.  C.   §  3333  and  note. 

As  to  defects  in  vehicles,  machinery,  etc.,  see  Kerr's  Cyc.  C. 
C.   §  2101  and  note. 

As  to  detriment  caused  by  breach  of  carrier's  obligation  to 
accept  passengers,  etc.,  see  Kerr's  Cyc.  C.  C.  §  3315  and  note. 

As  to  discrimination  against  persons  on  account  of  race  or 
color,   see   11   A.  S.   651. 

As  to  distinction  in  liability  between  carriers  of  goods  and 
passenger  carriers,  see  2  L.  84  and  252. 

As  to  duty  of  railroads  to  furnish  safe  stations  and  plat- 
forms, see  7  L.  111. 

As  to  duty  of  railroads  to  give  stop-over  privileges,  see 
Kerr's  Cyc.  C.  C.  §  490  and  notes,  and  generally  as  to  right  of 
passenger  to  such  privileges,  see  28  L.  773-776. 

As  to  exemplary  or  vindictive  damages  generally,  see  Kerr's 
Cyc.   C.   C.    §  3294  and  note. 

As  to  injuries  caused  by  want  of  ordinary  care  or  skill  in 
management  of  property,  see  Kerr's  Cyc.  C.  C.  §  1714  and  note. 

As   to   liability   for   injuries   caused   by   defective   platform,   see 

II  L.  721. 

As  to  liability  for  injury  to  passenger  alighting  from  train, 
see  7  L.  112. 

As  to  liability  of  carrier  for  false  arrest  or  malicious  prosecu- 
tion of  passengers,  see  14  L.  793-796. 

As  to  liability  of  carriers  of  passengers  as  affected  by  con- 
tract, see  Kerr's  Cyc.  C.  C.  §§  2174,  2175  and  notes. 

As  to  liability  of  common  carriers  for  injuries  to  passengers, 
generally,  see  43  A.  D.  355-367;  61  A.  D.  109. 

As  to  measure  of  care   required  of,   see  2  L.   N.   S.   645;   3  L.  N. 

1088 


Tit.VII,ch.II,art.II.]      PASSENGERS,  GENERALLY.  §  2100 

S.  218;  4.  L.  N.  S.  122;  4  L.  N.  S.  399;  4  L.  N.  S.  729;  4  L.  N.  S. 
947;  5  L.'n.  S.  721;   12  L.  N.  S.  197;   12  L.  N.  S.  840. 

As  to  negligence  of  carriers  and  injuries  to  persons  on  high- 
ways or  streets,  see  Kerr's  Cyc.  C.  C.  §§  486,  3333  and  notes. 

As  to  negligence  of  carriers  respecting  injuries  to  person  not 
passenger,  see  Kerr's  Cyc.  C.  C.  §  3333  and  note. 

As  to  parol  agreement  to  vary  contract  of  carrier,  see  56  A.  S. 
663. 

As  to  passengers  on  freight  trains,  special  trains,  etc.,  see 
61  A.  S.  95,  96;  19  L.  310,  311. 

As  to  passengers  temporarily  leaving  vehicle  before  com- 
pletion of  journey,  see  2  L.  83;  15  L.  399,  400. 

As  to  railroad  companies,  see  note  §  454,  ante. 

As  to  removal  of  trespasser  from  train,  see  Kerr's  Cyc.  C.  C. 
§  2188  and  note. 

As  to  riding  on  platform  or  steps,  see  Kerr's  Cyc.  C.  C.  §  484 
note  pars.  5-20. 

As  to  right  of  heirs  or  personal  representatives  to  maintain 
action  for  damages  against  person  causing  death  of  another 
through  wrongful  act  or  neglect,  see  Kerr's  Cyc.  C.  C.  P.  §  377 
and  note. 

As  to  sleeping-car  companies'  liabilities  for  negligence, 
.personal  injuries,  etc.,  see  21  L.  292-296. 

As  to  statute  of  limitations  respecting  actions  based  upon 
negligence,  see  Kerr's  Cyc.  C.  C.  P.  §§  339,  458  and  notes. 

As  to  stipulations  limiting  time  of  bringing  action,  see  13  A. 
S.   785. 

As  to  street  car  companies,  see  note  §  497,  ante. 

As  to  sufficiency  of  complaint  to  impose  upon  defendant  liabil- 
ity for  entire  route  where  he  holds  himself  out  as  carrier  beyond 
his  own  lines,  see  Kerr's  Cyc.  C.  C.  §  2174  and  note. 

As  to  vehicles,  see  Kerr's  Cyc.  C.  C.  §  2101  and  note. 

As  to  who  are  common  carriers  of  passengers,  see  Kerr's  Cyc. 
C.  C.  §  2168  and  note;  47  A.  D.  650,  654;  10  L.  415-420. 

As  to  who  are  not  passengers,  generally,  see  61  A.  S.  77. 

As  to  who  are  passengers,  in  general,  see  61  A.  S.  77,  78;  2 
L.  166;  11  L.  720;  24  L.  521-523. 

Assault  upon  passenger — Duty  to  protect  from. — See  43  A.  S.  90. 

Same — Liability  of  for.— See  28  A.  R.  112. 

Baggage,  as  to,  see  §  2180  post. 

Care  and  skill  which  must  be  exercised  with  respect  to  roads. 
—See  37  A.  R.  479. 

Child — Riding  free  with  parent,  duty  and  liability  of  to. — See 
9  A.  C.  962,  963. 

Same — -Right  of  father  to  recover  for  loss,  as  baggage,  of 
articles  used  for  or  by. — See  7  A.  C.  61. 

Contributory  negligence  of  passenger. — As  to,  generally,  see 
Kerr's    C.    C— 35  1089 


§  2100  CIVIL   CODE.  [Div.III,Pt.IV. 

1  L.  N.   S.    1145;   2  L.   N.   S.   1191;   5   L.   N.   S.    274;    10   L.  N,  S.    352; 
12  L.  N.  S.   359;   12  L.  N.  S.   381. 

Same — Boarding    or   alighting   from    moving    train. — See    2    A. 
C.  936,  939. 

Same — Ejected    from    train,    in    walking    on    railroad. — See    12 
L.  N.  S.   359. 

Same— In  alighting.— See   1  A.  C.   177,   178;  3  A.   C.   1015. 

Same — Same — And   crossing  track. — See    6    A.   C.    699,   705. 

Saitiu — In  riding  or  standing  on  running  board  of  open  street 
car.— See  6  A.  C.  666;  9  A.  C.  1025. 

Same — Leaving   seat   before   train    or   car   stops. — See    4    A.    C. 
748,   750;   6  A.  C.   721. 

Same — Protrusion    of  part   of   body   beyond   car. — See    1    A.    C. 
708,  710;  8  A.  C.  1036;  5  L.  N.  S.  274. 

Same — Riding  on  platform.^See  1  A.  C.  313,   315;  10  A.  C.   813, 
816;  12  L.  N.  S.  831. 

Same — Riding    or   standing    on    running    board    of    street    car. 
—See   2  L.  N.  S.   1191;   10  L.  N.   S.   352. 

Same — Walking    on    station    premises    in    dark. — See    7    A.    C. 
961. 

Damages    for    refusal    to    carry    as    passenger. — See    8    A.    C. 
218. 

Drover's  pass — Liability   of  to   person   riding   on. — See   5    A.   C. 
764;   6  A.  C.  799. 

Same — Validity     of     stipulation     in     exempting     carrier     from 
liability  for  negligence. — See  5  A.  C.   768. 

Drummer's  samples  carried  as  baggage,   liability   of   for.- — See 
6  A.  C.  828;  see  also  note  §  2180,  post. 

Duty    and    liability    of    proprietor    of    public    hack    or    cab    to 
passenger. — See  5  L.  N.  S.  1069. 

Duty    of— Announce    station,   to    awake    passengers. — See    2    A. 
C.  675,  676;  6  A.  C.  675;  7  A.  C.  711. 

Same — Degree  of  care  required. — See  6  A.  C.  793. 

Same — Of    vessel    to    return    to    wharf    to    permit    visitor    to 
depart. — See  10  L.  N.  S.  969. 

Same — Persons  assisting. — See   29  A.   S.   54. 

Same — To  assist  infirm  passenger. — See  8  L.  N.  S.   299. 

Same — To  carry  on  freight  or  special  trains. — See  5  A.  C.  43. 

Same — To  carry  person  afflicted  with  contagious  disease. — See 
8  A.  C.  221. 

Same — To   carry  to   point   indicated   by  sign    on   car. — See   3   A. 
C.   1074,  1080. 

Same — To   give   information   as   to   quarantine. — See   6   L.   N.   S. 
1009. 

Same — To    give    information    to    prevent    passengers    exposing 
themselves  to  danger  and  injury. — See  7  A.  S.  830. 

Same — To  heat  cars. — See  9  A.  C.  553,  555. 

Same — To  light  station. — See  7  A.  C.  961,  969. 

1090 


Tit.VII,ch.II,art.II]    passengers,  generally.  §  21OO 

Same — To  look  after  drunken  passenger  after  he  has  left  the 
train. — See  8  L.  N.  S.   298. 

Same — To  one  assisting  passenger  on  train. — See  3  L.  N.  S. 
432. 

Same — To  one  whom  it  permits  to  enter  its  cars  upon  his  own 
business  and  not  as  a  passenger. — See  8  L.  N.  S.  1240. 

Same — To  passenger  on  overcrowded  street  car. — See  4  L.  N. 
S.   399. 

Same— To  persons  attending  or  visiting  passenger. — See  10 
A.  C.  161. 

Same — To  protect  passengers — From  assault^ — See  32  A.  S.  90. 

Same — Same — From  cold. — See  11  L.  N.  S.  1142. 

Same — Same — From  fellow  passengers  or  third  persons. — See 
3  A.  C.  254;  8  A.  C.   222;   8  A.  C.   584. 

Same — Same — From  intoxicated  person. — See  8  A.  C.  222,  225. 

Same— Same— From  servants. — See  1  A.  C.  617;  6  A.  C.  22;  6 
A.  C.   929. 

Same — Same — Liability  of  for  assault  on  passenger. — See 
3  A.  C.  254. 

Same — To  provide  waiting  room  at  station. — See  6  A.  C.  569, 
571. 

Same — To  stop  at  passenger's  destination. — See  4  A.  C.  770; 
6  A.  C.  22.  24. 

Same — To  supply  drinking  water  to  passengers. — See  5  A.  C. 
411. 

Same — Toward  intoxicated  passenger. — See  5  A.  C.  72;  9  A.  C. 
485,  488. 

Same — Toward  passenger  boarding  or  alighting — Generally, 
see   1  A.  C.   912;   9  A.  C.  852;   9  A.   C.   964,  965. 

Same — Same — Allow  sufficient  time  to  alight. — See  7  A.  C. 
756,  760. 

Same — Same — Duty  to  provide  safe  place  for  boarding  and 
alighting.— See  1  A.  C.  916;  9  A.  C.  854. 

Same — Same — To  assist  passengers. — See   10  A.  C.   366,   367. 

Duty  of  motorman,  for  protection  of  passenger,  to  warn  one 
driving  along  highway  of  the  approach  of  a  car. — See  12  L.  N. 
S.  197. 

Duty  to  passenger — Protection  of,  generally,  see  3  L.  N.  S.  318; 
5  L.  N.  S.  1012;  6  L.  N.  S.  1009;  10  L.  N.  S.  384;  10  L.  N.  S.  969; 
11  L.  N.  S.  926;   11  L.  N.  S.   1142 

Duty  to  receive  passenger  from  carriage — Person  Avith  con- 
tagious or  infectious  disease. — See  8  A.  D.  218,  221. 

Same — Right  to  designate  car  on  train. — See  9  A.  C.  84;  9  A. 
C.  535. 

Ejection  of  passengers — As  to,  generally,  see  9  A.  C.  84; 
9  A.  C.   883. 

Same — As  to  what  is  reasonable  sum  passenger  may  tender 
payment  of  fare  avoiding  writing  of. — See  10  A.  C.  624. 

1091 


s  2100  CIVIL  CODE.  [Div.III.Pt.IV.        I 

1 

Same — For  refusal  to  pay  extra  fare — where  no  opportunity 
to  buy  ticket  was  presented. — See   3  A.  C.   887. 

Same — Same — Where  sufficient  opportunity  to  buy  ticket  was 
not  presented. — See   10   A.  C.   923. 

Same — Liability  for  made  through  mistake  as  to  identity. — 
See  2  L.  N.  S.  472. 

Same — Mental  suffering  as  an  element  of  damage  for  wrong- 
ful.—See  12  L.  N.  S.   184. 

Sai>-\'^ — Right  of  one  having  a  contagious  disease. — See  4  L.  N. 
S.  113. 

Same — Where  passenger  receives  incorrect  transfer. — See  10 
A.  C.  277. 

Same — Where  passenger  tenders  fare  after  refusal  to  pay. — See 
10  A.  C.   941. 

Same — Where  ticket  invalid  through  its  own  fault. — See  9  A. 
C.   889. 

Evidence — Declarations  of  agent  as  to  negligence  bind 
principal. — See  12  A.  C.   326;  54  A.  D.  308;  70  A.  D.  655. 

Exemplary  damages  for  personal  injuries. — See  9  A.  C.   1114. 

Express  messenger  as  passenger. — See  22  L.  796. 

Failure  to  stop  at  station,  liability  for. — See  2  L.  N.  S.  585; 
7  L.  N.  S.   1177. 

Free  pass,  duty  and  liability  of  to  person  riding  on. — See  4 
A.   C.  1126,  1131. 

Free  passenger — Degree  of  care  owed  to  in  absence  of  stipula- 
tion.—See  5  L.  N.  S.  721. 

Same — Liability  of  for  injuries  to. — See  6  A.  C.  669;  10  A.  C. 
870. 

Freight  train — Duty  and  liabilities  of  to. — See  1  A.  C.  447; 
5  A.  C.  42;  9  A.  C.  535. 

Same — Duty  of  to  carry  passengers  on. — See  5  A.  C.  43. 

Injuries  resulting  from  defects  in  vehicles  and  appliances, 
liability  of  for. — See  64  A.  D.   521. 

Intending  passenger  actually  becomes  such  when. — See  1  A.  C. 
605;   9  A.  C.   1104. 

Intoxicated  passenger — Duty  of  carrier  to  look  after,  after  he 
has  left  the  train. — See  8  L.  N.  S.  298.  . 

Same — Liability  of  to. — See  5  A.  C.  72;  9  A.  C.  488. 

Liability  of — Generally,  see  34  A.  R.  824. 

Same — As  to  termination  of. — See  6  A.  C.  1033. 

Same — Drummer's  samples  carried  as  baggage. — See  6  A. 
C.  828;  see  also  note  §  2180,  post. 

Same — Exemption  from  by  contract. — See  82  A.  D.  290. 

Same — For  accident  through  leaving  vestibule  door  open. — See 
2  L.  N.  S.  645. 

Same — For  acts  of  servants. — See  8  A.  R.  317. 

Same — For  assaults  upon  passengers. — See  28  A.  R.   112. 


1092 


[ 


Tit.VII,ch.II,art.II.]     PASSENGERS,  GENERALLY.  §  2100 

Same — For  assistance  negligently  rendered  passenger  by 
employee. — See  10  L.  N.  S.  411. 

Same — For  failure  to  supply  berth. — See  5  L.  N.  S.   1012. 

Same— For  injuries  to,  generally,  see  43  A.  D.  355. 

Same — For  injuries  done  by  strikes  and  mobs.- — See  97  A. 
S.   526. 

Same — For  injuries  received  by  passengers  riding  on  platform. 
—See  1  A.  C.  315;  10  A.  C.  816. 

Same — For  injuries  resulting  from  defects  in  their  vehicles 
and  other  appliances. — See  64  A.  D.  521. 

Same — For  injuries  to  free  passenger. — See  6  A.  C.  669;  10  A.  C. 
870. 

Same — For  injuries  to  passenger — By  dog  or  other  animal. — See 
4  L.  N.  S.  947. 

Same — Same — By  draught  or  rain  from  open  window  or  doors. 
—See  11  L.  N.  S.  926. 

Same — Same — By  servant  in  use  of  dangerous  agency  placed  in 
servant's  control. — See  10  L.  N.  S.  384. 

Same — Same— By  sportive  act  of  servant. — See   3  L.  N.  S.   605. 

Same — Same — By  wrongful  act  of  stranger  directed  against 
cars  or  passengers  therein. — See  3  L.  N.  S.  318. 

Same — Same — Caused  by  obstruction  placed  on  track  by 
stranger. — See  12  L.  N.  S.   840. 

Same — For  injury  to  person  wrongfully  on  train  by  collision 
with  a  train  employee. — See  5  L.  N.  S.  1025. 

Same — For  misdirection  of  passenger  by  ticket  agent  as  to 
route.— See  2  L.  N.  S.   110. 

Same — For  passenger's  effects. — See  10  A.  C.  893. 

Same — For  personal  injuries  inflicted  on  passengers  by  third 
persons. — See  6  A.  S.   734. 

Same — For  stranger's  assault  on  passenger. — See  2  L.  N.  S.  105. 

Same — For  wrongful  arrest  by  servant. — See  7  L.  N.  S.  162. 

Same — Limitation  of,  as  to,  generally,  see  4  A.  C.  556. 

Same — Loss  of  property  left  in  berth  while  temporarily  absent 
therefrom.— See  10  A.  C.  895. 

Same — Of  sleeping-car  companies. — See  26  A.  S.   331. 

Same — To  in-toxicated  passenger. — See  5  A.  C.  72;  9  A.  C.  488. 

Same — To  passengers  for  assaults  by  employees  and  servants. — 
See  8  A.  R.  318. 

Same — To  persons  riding  on  drovers  or  free  passes. — See  48 
A.  R.   115. 

Same — To  postal  clerk  for  failure  to  keep  account  in  proper 
condition. — See  3  L.  N.  S.  218. 

Liability  of  proprietor  of  logging  railroad,  or  other  rail- 
road used  for  a  private  purpose,  for  injury  sustained  by  one 
other  than  an  employee  while  being  carried  thereon. — See  12 
L.  N.  S.  131. 

Liability    of    railroad   conipany   to    persons    wrongfully    riding 

1093 


§  2100  CIVIL  CODE.  [Div.III.Pt.IV. 

on  train  by  permission   or  direction   of  railroad  employee. — See 
9  a;  C.  540. 

Limitation  of  liability  of — As  to,  generally,  see  4  A.  C.  556. 

Same — As  to  loss  of  bag-gage,  does  it  cover  losses  due  to 
negligence.— See  8  L.  N.  S.  199;  see  also  note  §  2180,  post. 

Same — Application  of  limitation  to  hand  baggage. — See  5  L. 
N.  S.  650. 

Same — ^For  negligent  injury  to  sleeping-car  employers  or 
others  suistaining  a  similar  relation  to  the  company. — See  11  L. 
N.   S.   432. 

Same — Refusal  to  give  effect  to  foreign  contract  exempting 
from.— See    5   L.    N.   S.    425. 

Same — Right  to  stipulation  against  liability  in  consideration 
of  reduced  fare. — See  4  L.  N.  S.  1081. 

Same — Risk  of  negligence  assumed  by  contract  with,  as 
including  gross  negligence. — See  1  L.  N.  S.  675. 

Same — Validity  of  stipulation — In  drover's  pass  exempting 
from  liability  for  negligence. — See  5  A.  C.  763. 

Same — Same — In  free  pass  as  to  for  negligence. — See  4  A.  C. 
557. 

Same — Same — In  ocean_  steamer  tickets  limiting  liability  for 
passenger's  baggage. — See  9  A.  C.  913. 

Locomotive,  duty  of  to  person  riding  on. — See  1  A.  C.  447;  5  A. 
C.  42;   9  A.  C.   535. 

Misdirection  of  passenger  by  ticket  agent  as  to  route,  liability 
for.— See  2  L.  N.  S.  110. 

Mixed  questions,  negligence  and  contributory  negligence. — See 
48  A.  S.   139. 

Negligence,  burden  and  sufficiency  of  proof  of. — See  62  A.  D. 
679. 

Newsboy  or  news  agent,  liability  of  to. — See  7  A.  C.   525,  528. 

Obligation  to  stop  for  passengers  at  the  time  advertised. — See 
66  A.  D.   603. 

Pass  fraudulently  procured,  duty  of  to  person  riding  on. — 
See  7  A.  C.  586,  587. 

Passenger — Express  messenger  as  a. — See  22  L.  796. 

Same — On  wrong  car  or  train  by  his  own  mistake. — See  3  L. 
N.  S.  588. 

Person  attending  or  visiting  passenger. — See  10  A.  C.  159,  161. 

Person  impliedly  invited  upon  station  platform. — See  9  A.  C. 
1096. 

Person  intending  to  ride,  as  a  passenger. — See  1  A.  C.  603; 
9  A.  C.  1096. 

Person  riding  gratuitously. — See  6  A.  C.  666,  669;  10  A.  C. 
869,  870. 

Person  riding  on  drover's  pass,  liability  of  to. — See  5  A.  C. 
764;    6   A.   C.    799. 

1094 


Tit.VII,ch.II,art.II-]     PASSENGERS,  GENERALLY.  §  2100 

Person  riding  on  free  pass,  liability  of  to.-See  4  A.  C.  1126, 
''person  riding  on  locomotive,  freight  or  special  train  duty  and 
^'^Zr:l^::i^i^^o:':^^  ^aSd^LJl^^P^c^a,  liaMl- 
ity  of  to.-See  7  A.  C.  586,  587.      _         ^       ,    .    p    0.1 

Person  temporarily  leaving  tram —See  7  A.  a  9bl. 

Postal  clerk,  duty  and  liability  of  ^^--See  6  A   C.  863. 

Power  of  state  to  regulate  and  restrict  sale  of  passenger 
tickets.— See  96  A.  S.  828. 

Power  to  limit  their  liability,  how  may  be  exercised.-See   3. 

""  P^'resumption  as  to  negligence  of  as  to,  generally  see  2  K  N. 
S.  725;  2  L.  N.  S.  836;  7  L.  N.  S.  231;  7  L.  N.  S.  1076,  12  L.  N.  b. 

'^Same-From  collision  resulting  in  injury  to  passenger.-See 
'  PubHc°offlcer  on  train  in  discharge  of  duty-As  to,  generally, 
see  9  A.  C.  1121.  .    ^    -,190 

r.™  ™.r'aS;;r:r'cfeVSs,'"uty  ana  >..M,U.  „,  to.-See 

^  t?ecUo;*or  "rst'^ar'assen^e.  r,.M  o,  „>,ere  he  >,as  a 
contagious  disease.— See  4  L.  N.  S.  103. 

Right  of-To  grant  exclusive  privileges  to  hackmen  and  other 

^^Lamr-^reject^pe'rsons   having   contagious   diseases.-See    4 

"^rngM  o'f'passenger  to  bring  action  ex  contractu  for  personal 
iniuries  or  ejection  from  train.— See  10  A.  C.  4b^. 

Sleeping-cL   company-Functions,   duties  and  liabihties   of.- 

'lame^LiabUity  of-For  loss  of  passenger's  property  left  by 
him  in  berth  while  temporarily  absent  therefrom.-See  10  A.  C. 

^^Same-Same-For  theft  of  property  of  passengers.-See  56  A. 

""  special  trains-Duty  and  liabilities  of  to.-See  1  A.  C.  447;  5 
A.  C.  42;  9  A.  C.  535.  .    a    n    .q 

oanie— 'Duty  of  to  carry  passengers  on.— See  5  A.  c.  4d. 

IS'on-Reasonable  time  to  keep  station  open  before  and 
after  trains. — See  1  L.  N.  S.  851.  q    A    r 

Station  platform,  person   impliedly  invited  upon.-See  9  A.  C. 

'"It'ipulation-ln  drover's  pass  exempting  carrier  from  liability 
for    ne°-ligence,    validity    of. — See    5    A.    C.    768. 

Same-fn  fr^e  pass  exempting  from  liability  for  negligence, 
validity  of. — See  4  A.  C.  557. 

1095 


§  2100  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — In     ocean    steamship     tickets     limiting     liability     for 
passenger's  baggage,  validity  of. — See  9  A.  C.  913. 

Strikes  and  mobs,  liability  of  for  injuries  done  by. — See  97  A. 
S.  526. 

Termination   of  relation — As  to,  generally,  see   2  L.  N.  S.   873, 
876. 

Same — Of    carrier   and   passenger. — See    6    A.    C.    1032,    1033;    7 
A.  C.  g"! 

Ticket    or    pass    fraudulently    procured,    duty    of    railroad    to 
person  riding  on. — See  7  A.  C.  586,  587. 

Ticket  procured  by  fraud  or  misrepresentation,  right  on  train 
of  person  holding. — See  6  L.  N.  S.  1146. 

Tickets — Effect  of  conditions  on  unsigned. — See  84  A.  S.  397. 

Same — ^Power  of  state  to  regulate  and  restrict  sale  of. — See  96 
A.  S.  828. 

What   persons   they   may   refuse    to   receive    and   transport   as 
passengers. — See  107  A.  S.  298. 

When  person  ceases  to  be  a  passenger. — See  37  A.  R.  384. 

Who  are  passepgers  of — As  to,  generally,  see  1  A.  C.  451. 

Same — And  when  may  become  such. — See  61  A.  S.  75. 

Same — Children  riding  free  with  parent. — See  9  A.  C.  962. 

Same — Same- — Duty   and    liability    of   carrier    to. — See    9    A.    C. 
963. 

Same — Meaning  of  phrase  "a  passenger  being  transported"  in 
statute  defining  duty  and  liability  of. — See  4  L.  N.  S.  254. 

Same — Newsboy  or  agent. — See  7  A.  C.  525. 

Same — Same — Liability  of  to. — See  7  A.  C.  528. 

Same — Passenger  temporarily  leaving  train. — See  7  A.  C.  961. 

Same — ^Persons  attending  or  visiting  passengers. — See  10  A.  C. 
159. 

Same — Same — Duty  and  liability   as  to. — See   10   A.   C.    161. 

Same— Person   on   wrong  car  or  train   by  his  own  mistake. — 
See  3  L.  N.  S.  588. 

Same — Persons   impliedly   invited  upon   station   platform. — See 
9  A.  C.  1086. 

Same— Persons    intending    to    ride. — See    1    A.    C.    618;    9    A.    C. 
1096. 

Same — Persons  permitted  to  enter  cars  upon   own  business. — 
See    8   L.   N.    S.    1240. 

Same — Persons  procuring  tickets  by  fraud  or  misrepresenta- 
tion.— See  6  L.  N.  S.  1146. 

Same — Pei'sons  riding  gratuitously.-^See   6  A.  C.   666;   10  A.   C. 
869. 

Same — Same — Liability   of  for   injury   to. — See    6   A.   C.    669;    10 
A.   C.    870. 

Same — Persons  riding  on  drover's  pass. — See  5  A.  C.  764. 

Same — Same — Liability  of  to. — See  6  A.  C.  799. 

Same — Persons  riding  on  free  pass. — See  4  A.  C.   1126. 

1096 


I 


Tit.VII,ch.II,art.II.]  VEHICLES,   LOAD.  §§2101,2102 

Same— Same— Liability  of  to.— See  4  A.  C.  1131. 

Same— Persons  riding  on  locomotive,  freight  or  special  train. 
—See  1  A.  C.  447;  5  A.  C.  42;  9  A.  C.  535. 

Same— Persons  riding  on  ticket  or  pass  fraudulently  procured. 
—See  7  A.  C.  586-587.  .       , 

Same— Persons  wrongfully  on  train,  liability  to  for  injuries  by 
collision  with  a  train  employee. — See  5  L.  N.  S.  1025. 

Same — Postal  clerk,  duty  of  to. — See  6  A.  C.  863. 

Same— Public    officer    on    train    in    discharge    of    duty.— See    9 

A.  C.  1121. 

Same— Same— Liability  of  to.— See  9  A.  C.  1123. 

Same— Railway  mail  agents  or  clerks.- See  6  A.  C.  862,  863; 
10   A.   C.   789. 

Same — Termination   of  liability. — See  6  A.  C.   1033. 

Same— Termination  of  relation.— See  6  A.  C.  1132;  7  A.  C.  961;  2 

L.   N.   S.    873.  • 

Same— When  intending  passenger  actually  becomes  such.— bee 

1  A.  C.  605;  9  A.  C.  1104. 

Who  liable  as. — See  47  A.  D.  648. 

§2101.  YEHICLES.  A  carrier  of  persons  for  reward  is 
bound  to  provide  vehicles  safe  and  fit  for  the  purposes  to 
which  they  are  put,  and  is  not  excused  for  default  in  this 
respect  by  any  degree  of  care. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.   C.   for    14   pars,   annotation. 

89  C  399  406  26  P.  894,  895  (construed  and  applied);  118  C. 
648,  653  (cited  by  error  for  §  2201),  50  P.  775,  40  L.  78  (correct 
citation). 

As  to  degree  of  car£  required  of  carriers  of  passengers  m  gen- 
eral, see  Kerr's  Cyc.  C.  C.  §  2100  note  parS.  15,  16,  23. 

As  to  duty  of  carriers  to  exercise  high  degree  of  care  in  pro- 
viding necessary  and  safe  appliances  for  accommodation  of 
passengers,  and  as  to  liability  of  carriers  for  defects,  etc.,   see 

43  A.  D.   362.  ,  .o    a     r> 

As  to  liability  for  defects  in  vehicles  in  general,  see  43  A.  D. 

362;   64  A.  D.  523;  75  A.  D.  265. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note   §  2100,   ante. 

As  to  responsibility  for  defects  attributable  to  fault  of  manu- 
facturer, see  Kerr's  Cyc.  C.  C.  §  2100  and  notes,  also  2  L.  86. 

§  2102.  NOT  TO  OVERLOAD  HIS  VEHICLE.  A  carrier  of 
persons    for    reward    must    not    overcrowd    or    overload    his 

vehicle. 

History:     Enacted  March  21,  1872. 
1097 


§§  2103,  2104  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see   note    §  2100,    ante. 

§2103.  TREATMENT  OF  PASSENGERS.  A  carrier  of 
persons  for  reward  must  give  to  passengers  all  such  accom- 
modati'^'^'^  as  are  usual  and  reasonable,  and  must  treat  them 
with  civility,  and  give  them  a  reasonable  degree  of  attention. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  carrier's  duty  to  care  for  safety  of  passengers,  see  8  L. 
673,  674. 

As  to  carrier's  duty  to  protect  passengers  from  injuries  oy 
third  person,  see  6  A.  S.  734,   737. 

As  to  carrier's  duty  to  protect  passengers  from  rudeness  and 
insult,  see  3  L.  634. 

As  to  car»ier's  liability  for  injuries  resulting  from  miscon- 
duct of  servants,  see  Kerr's  Cyc.  C.  C.  §  2100  par.  74;  §  2188  and 
note;  also  3  L.  635. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see   note   §  2100,   ante. 

As  to  providing  proper  accommodations  for  passengers,  see 
Kerr's  Cyc.  C.  C.   §  2102  and  note. 

As  to  right  of  carrier  to  eject  passengers,  see  Kerr's  Cyc.  C. 
C.  §  2188  and  note.. 

§  2104.  RATE  OF  SPEED  AND  DELAYS.  A  carrier  of  per- 
sons for  reward  must  travel  at  a  reasonable  rate  of  speed,  and 
without  any  unreasonable  delay,  or  deviation  from  his  proper 
route. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see   note   §  2100,   ante. 

As  to  speed  of  street  cars,  see  Kerr's  Cyc.  C.  C.  §  501  note 
par.  8;  also  25  L.  663;  57  A.  S.  735;  60  A.  S.  591;  27  Encyc.  L.  49. 

Deviation  defined  as  relates  to  marine  insurance. — See  post 
§  2694. 

Deviation — Duties  of  railroad  corporations  to  observe  regular 
time  schedule,  etc.,  see  Kerr's  Cyc.  C.  C.  §  481  and  note. 


1098 


Tit.VII,ch.III,art.I.]  DEFINITIONS.  §  2110 

CHAPTER  III. 

CARRIAGE    OF    PROPERTY. 

Article  I.  General  Definitions,   §  2110. 

II.  Obligations  of  the  Carrier,  §§  2114-2122. 

III.  Bill  of  Lading,   §§  2126-2132. 

IV.  Freightage,   §§  2136-2144. 

V.     General  Average,   §§  2148-2155. 

ARTICLE  I. 

GENERAL   DEFINITIONS. 

§  2110.     Freight,   consignor,   etc.,   what. 

§2110.  FREIGHT,  CONSIGNOR,  ETC.,  IVHAT.  Property 
carried  is  called  freight;  the  reward,  if  any,  to  be  paid  for  its 
carriage  is  called  freightage;  the  person  who  delivers  the 
freight  to  the  carrier  is  called  the  consignor;  and  the  person 
to  whom  it  is  to  be  delivered  is  called  the  consignee. 
Hi.stor>-:     Enacted  March  21,  1872. 

As  to  bills  of  lading,  see  Kerr's  Cyc.  C.  C.  §§2126-2132  and 
notes. 

As  to  carriers  of  property  generally  and  their  liability  for 
damages  occasioned  by  negligence,  etc.,  see  Kerr's  Cyc.  C.  C. 
§§  2194-2204    and    notes. 

As  to  common  carriers  in  general,  see  Kerr's  Cyc.  C.  C.  §  2168 
and  note. 

As  to  lien  of  carrier  for  freightage,  see  Kerr's  Cyc.  C.  C.  §  2144 
and  note. 

As  to  obligations  of  carriers  of  property,  see  Kerr's  Cyc.  C.  C. 
§§  2114-2121  and  notes. 

As  to  when  consignee  is  liable  for  freightage,  see  Kerr's  Cyc. 
C.  C.  §  2138  and  note. 

As  to  when  consignor  is  liable  for  freightage,  see  Kerr's  Cyc. 
C.  C.  §  2137  and  note. 

As  to  when  payment  of  freightage  may  be  required,  see 
Kerr's  Cyc.  C.  C.  §  2136  and  note;  also  60  A.  D.  150. 


1099 


§  2114  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  II. 

OBLIGATIONS   OF   THE   CARRIER. 

§  2114.  Care  and   diligence   required   of   carrier. 

§  ?1T5.  Carrier   to    obey   directions. 

§  2116.  Confli'^t    of    orders. 

§  2117.  Stowage,   deviation,   etc. 

§  2118.  Delivery   of  freiglit. 

§  2119.  Place  of  delivery. 

§  2120.  Notice  when  freight  not  delivei-ed. 

§  2121.  When  consignee  does  not  accept. 

§  2122.  When  consignee  cannot  be  found  [repealed]. 

§2114.  CARE  AND  DILIGE>CE  REQUIRED  OF  CAR- 
RIERS. A  carrier  of  property  for  reward  must  use  at  least 
ordinary  care  and  diligence  in  tlie  performance  of  all  his 
duties.  A  carrier  wittiout  reward  must  use  at  least  slight 
care  and  diligence. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  39  pars,  annotation. 

121  C.  564,  568,  66  A.  S.  65,  54  P.  89    (construed  and  applied).  ii 

CARRIERS      OF      PROPERTY — GENERALLY.  | 

As  to  action  for  damages  for  loss  of  goods  in  general,  see  note  J 

10  L.  418.  % 

As  to  burden  of  proof  in  case  of  loss  of  baggage,   see  Kerr's  4- 

Cyc.  C.  C.  §  2182  and  note.  I 

As  to  carriage  of  property  without  reward,  being  mere  bail- 
ment, see  Kerr's  Cyc.  C.  C.  §2090  and  note.  V 

As  to  common  carriers,  who  are,   see  Kerr's  Cyc.   C.  C.   §  2168  J 

and  note.  ; 

As  to  conversion  committed  by  common  carrier,  see  note  24 
A.  S.  815,  816. 

As  to  defense  under  special  contract  limiting  liability,  see 
Kerr's  Cyc.  C.  C.  §  2174  and  note. 

As  to  defenses  of  "acts  of  God",  public  enemy,  etc.,  see  Kerr's 
Cyc.  C.  C.  §  2194  and  note;  also  "Act  of  God,"  this  note. 

As  to  delay  and  losses  caused  thereby,  see  Kerr's  Cyc.  C.  C. 
§  2194  and  note. 

As  to  delivery,  see  Kerr's  Cyc.  C.  C.  §§  2118,  2119,  2130,  2131, 
2132  and  notes. 

As  to  discrimination  in  favor  of  large  shippers,  see  note  11 
A.  S.  650. 

1100  I 


Tit.VII,ch.III,art.II.]       CARRIERS,    GENERALLY.  §2114 

As   to   detriment  caused  by   breach    of   carrier's   obligation    to 
accept  freight,  see  Kerr's  Cyc.  C.  C.  §  3315  and  note. 

As    to    express    companies    as    common    carriers,    see    notes    47 
A.    D.    648-654;    61    A.    S.    360-385. 

As  to  g'eneral  average,  see  Kerr's  Cyc.  C.  C.  §  2148  and  note. 

As  to  liability  for  acts  of  agents,  see  note  61  A.  S.  381. 

As   to   liability   for   carrying   goods    in    cold   storage    cars,    see 
note  90  A.  S.  300-302. 

As   to  liability  for  loss  on  connecting  lines,  see  note  52  A.  S. 
103. 

As  to  liability  for  negligent  loss  of  goods,  see  note  10  L.  417. 

As   to   liability   of   forwarders   as    distinguished   from'  that   of 
carriers,  see  Kerr's  Cyc.  C.  C.  §  2174  and  note. 

As  to  liability  of  marine  carrier,  when  begins,  etc.,  see  Kerr's 
Cyc.  C.  C.  §  2197  and  note. 

As  to  liability  of  common  carrier  of  property  in  general,  see 
Kerr's  Cyc.   C.   C.   §  2194  and   note. 

As   to   liability  of  express   companies   for  goods   shipped   over 
connecting  lines,  see  note  61  A.  S.   371. 

As  to  live  stock,   carriage   of,   duty   of   feeding  and   watering, 
etc.,  see  note  63  A.  S.  554,  558. 

As  to  live  stock,  claims  for  damages  to,  see  9  L.  449-452. 

As   to   live   stock,   duty   to    prevent   escape   of,   see   note    63   A. 
S.  560. 

As  to  measure  of  care  required,  in  general,  see  note  10  L.  416. 

As  to  police  regulations  relating  to   carrying  cattle,  etc.,  see 
Hen.   G.  L.  pp.  154,   155,  note. 

As  to  property  stored  in  warehouse  upon  reaching  destination, 
see   Kerr's  Cyc.   C.  C.   §§  2120,    2121   and  notes. 

As  to  right  of  carrier  to  grant  preferences,  see  note  11  A.  S. 
648. 

As  to  storage  of  goods  not  creating  new  contract,  which  must 
be  specially  pleaded,  see  Kerr's  Cyc.  C.  C.  §  2120  and  note. 

As  to  stipulations  limiting  time  of  bringing  actions,  see  note 
13  A.  S.  785. 

As  to  strikes  as  affecting  liability  of  carrier,   see  Kerr's  Cyc. 
C.  C.  §  2196  and  note. 

As   to    subrogation    of   insurer    to    rights    of   carrier,    see    note 
44   A.   S.   734,   736. 

As    to    when    declarations    of    agent    are    admissible    against 
principal,  see  note  52  A.  D.  312. 

Act  of  God— As  affecting  liability  of.— See  3  A.  C.  450;  4  A.  C. 
128;  8  A.  C.  45;  8  A.  C.  308. 

Same — As   excuse,   exception    In    contract,    Inevitable    accident. 
— See  11  L.  615. 

Same — As  irresistible,  superhuman  cause. — See  27  A.  S.  198;  19 
L.  188;   1  W.   &  P.   120. 

Same — As  to  what  Is  within  the  meaning'  of  the  law  of. — See 
18  A,  R.  618. 

1101 


§  2114  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — As  without  negligence. — See  86  A.  D.  415;  95  A.  D.  115; 
1  W.  &  P.  120. 

Same — Climatic  conditions. — See  1  W.  «&  P.  121. 

Same— Collision.— See  80  A.  D.   627;   1  W.  &  P.   121. 

Same— Contagious  disease.— See  38  A.   R.   206;    1   W.   &  P.   121 

Same — ^Co-operating  with  negligence  of  carrier. — See  3  A.  C 
453. 

Sam       Defective  appliances,  materials,  etc. — See  23  A.  D.  131 

42  A.  D.  264;  1  W.  &  P.  121. 

Same— Definition  of.— See  4  A.  C.  128;  6  A.  D.  306;  7  A.  D.  2:^" 

43  A.  D.  444;  64  A.  D.  394;  71  A.  D.  582;  80  A.  D.  627;  91  A.  D 
452;  97  A.  D.  406;  19  A.  R.  631;  53  A.  S.  332;  35  L.  356;  41  L, 
ed.  1039;  1  W.  &  P.  118-126. 

Same — Earthquake. — See  1  W.  &  P.  122. 

Same— Fire.- See  74  A.  D.  639;  18  A.  R.  613;  1  W.  &  P.  122. 

Same — Flood.— See  71  A.  D.  153;  86  A.  D.  415;  95  A.  D.  115; 
24  A.  S.  929;  53  A.  S.  332;  1  L.  619;  35  L.  356;  19  L.  ed.  909;  1 
W.  &  P.  122. 

Same— Freezing.— See  28  A.  D.  521;  97  A.  D.  406;  41  A.  R.  696; 
1  W.  &  P.   123. 

Same— Illness.— See  37  A.  D.  66;  46  A.  D.  393;  47  L.  581;  33  L. 
ed.  458;  1  W.  &  P.  124. 

Same — Inevitable  or  unavoidable  accident. — See  86  A.  D.  292; 
22   A.  S.   403:   11  L.   615;   1  W.   &   P.   120. 

Same — Negligence  or  tortious  act  of  insane  agent  or  servant, 
liability  of  principal  for. — See  4  A.  C.   135. 

Same — Of  obstructions  at  sea. — See  7  A.  D.  235;  71  A.  D.  532;  86 
A.  D.  292;  27  A.  R.  28;  41  L.  ed.  1039;  1  W.  &  P.  124. 

Same — Perils  of  the  sea. — See  1  W.  &  P.  124. 

Same — Rain.— See  91  A.  D.  452;   35  L.  458;   1  W.   &  P.   125. 

Same— Snow.— See  93  A.  D.  315;  1  W.  &  P.  125. 

Same — Storm.— See  11  A.  D.  632;  64  A.  D.  394;  1  W.  &  P.  125. 

Same— Wind.— See  5  A.  D.  200;  6  A.  D.  306;  19  A.  R.  631;  1  W. 
&  P.  126. 

Action  against — Allegations  and  proof. — See  5  A.  C.  97. 

Same — Damages  recoverable  for  misdelivery  of  stock. — See 
5  A.  C.   59. 

Same — Estoppel  to  plead  defense  of  limitation  of  action  on 
carrier's  contract. — See   63  L.   206. 

Same — Questions  of  law  and  fact. — See  4  A.  C.  128. 

Same — Who  is  real  party  in  interest  entitled  to  maintain. — 
See  64  L.  617. 

Agreements  and  stipulations  which  may  extort  from  shippers 
and  their  effect  as  extorted. — See  13  A.  S.  782;  46  A.  S.  777. 

Agreements  fixing  the  value  of  property  shipped. — See  23  A. 
S.  595. 

Animals — Liability  for  injuries  to  during  transportation. — See 
67  A.  D.  208;  12  A.  R.  500. 

1102 


Tit.VII,ch.III,art.II.]     CARRIERS,  generally.  §2114 

As  bailees. — See  6  L.  619;  6  L.  853. 

As  insurer. — See  1  L.  702;  3  L.  424. 

Assault  by  employees,  liability  for. — See  42  A.  R.  36. 

Baggage  transfer  companies — As  common  carriers. — See  34  L. 
137-140. 

Bill  of  lading — As  to  generally,  see  note  §  2126,  post. 

By  messengers — Liability  of  for. — See  4  A.  C.  767;   5  A.  C.  796. 

By  water — Loss  for  which  not  liable. — See  41  A.  D.  281. 

Same — Responsibility  of. — See  2  L.  173. 

Carrier's  contract — Conflict  of  laws  as  to. — See  4  A.  C.  1102, 
1106;  63  L.  513. 

Claims  against,  conditions  limiting  time  within  which  may  be 
presented. — See  31  A.  R.  509. 

Cold  storage  or  refrigerator  cars,  duty  respecting. — See  90 
'A.  S.  300. 

Conditions  limiting  time  within  which  claims  against  may  be' 
presented. — See  31  A.  R.  509. 

Connecting  carriers — As  to  liability  beyond  own  line,  see  4 
L.  545;  9  L.  833,  834;   63  L.  530. 

Same — Burden  of  proof  as  between  to  show  who  is  at.  fault  for 
loss  or  injury. — See  101  A.  S.  392. 

Same— Joint  liability  of. — See  4  L.  545;  9  L.  834. 

Same — Liability  beyond  own  line. — See  1  L.  705;  4  L.  545;  6  L. 
853;    9   L.    835;    13   L.    34. 

Same — Liability  of  first  carrier  for  goods  lost  on. — See  2 
A.  R.  141;  1  L.  705. 

Same — Liability  of  for  detaining  freight  on  account  of  mis- 
take as  to  amount  due. — See  6  L.  N.  S.  1054. 

Same — Liability  of  the  receiving  carrier  beyond  his  line. — 
See   42  A.  R.   664. 

Same — Refusal  of  to  surrender  freight  induced  by  mistake  as 
to  the  rate  due,  or  as  to  payment  of  charges,  as  a  conversion. 
—See  6  L.  N.  S.  1048. 

Same — Rights  and  liabilities  of. — See  4  L.  376;  4  L.  545;  6  L. 
849;  7  L.  214;  9  L.  833;  10  L.  415. 

Same — Statute  regulating  liability  of  as  interference  with 
interstate  commerce. — See  7  L.  N.  S.   388. 

Connecting  lines — Liability  of  initial  carriers  for  the  torts  or 
negligence  of. — See  106  A.  S.  604. 

Consignee — Liability  of  to  servants  of  carrier. — See  46  L. 
97. 

Same— Right  of  as  against  carrier  to  reject  consignment  of 
freight  for  delay  in  transportation. — See  12  L.  N.  S.  431. 

Same — Right  to  goods  without  payment  6f  freight,  where 
damages  equal  or  exceed  amount  of  freight  due.— See  9  A.  C. 
794. 

Contract — Of  transportation,  made  by  agent. — See  9  L.  833. 

Same — To  impostor  by  carrier. — See  37  L.  177. 

1103 


§  2114  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — To  make  at  designated  point. — See  10  L.  416. 

Same — To  whom  to  be  made  under  bill  of  lading. — See  38  L. 
358-366. 

Conversion  by — As  to,  generally,  see  2  L.  80. 

Same — Effect  of  seizure  of  goods  by  judicial  process  to  relieve 
carrier  from  liability. — See  9  L.  263;  13  L.  135. 

Same — Payment  or  tender  of  freight  charges  conditions 
precedent  to  action  of  trover. — See  21  L.  117. 

Sanip — Permitting  unauthorized  inspection  as. — See  3  L.  N. 
S.  1126. 

Same — Refusal  of  connecting  carrier  to  surrender  freight 
induced  by  a  mistake  as  to  rate  due  and  as  to  payment  of 
charges,  as  a. — See  6  L.  N.  S.  148. 

Same — When  tender  of  freight  money  not  condition  of,  by 
carrier's  refusal  to  surrender  goods. — See  6  L.  N.  S.   1058. 

Customs  and  usages  of  and  their  effect. — See   50  A.  D.   99. 

Damage — Liability  of  for. — See  "Liability  of — For  loss  or 
damage,"  this  note. 

Delay — In  transportation,  what  will  excuse. — See  9  L.  836. 

Same — In  unloading  caused  by  strike. — See  35  L.  630. 

Same — Liability  for. — See  9  A.  C.  790. 

Same — Measure  of  damages  for. — See  "Measure  of  damages," 
this  note. 

Delay  in  transportation — Liability  of  railroad  company  for, 
due   to   inadequate   facilities. — See   10   L.   N.   S.    432. 

Same — Right  of  consignee  to  reject  consignments  for. — See  12 
L.  N.  S.  431. 

Delivery — Custom  or  usage  at  port  of,  as  part  of  contract. — 
See  1  L.  650. 

Same — Effect  of  misdelivery. — See  6  L.  849. 

Same — Failure  to  make  as  prima  facie  evidence  of  negligence 
and  liability. — See  13  L.  33. 

Same — Liability  for  wrongful. — See  6  L.  853. 

Same — Sufflciency  of  by  carrier  by  water  to  terminate  its 
liability. — See  6  A.  C.  16. 

Same — Time  of  notice  to  warrant  special  damages  for  failure 
of   carrier   to  make. — See   3   L.   N.    S.    1111. 

Same — To  carrier,  as  delivery  to  purchaser. — See  62  L.  798. 

Same — To  wrong  person,  liability  foi-. — See  5  A.  C.  97,  100. 

Same — What  amounts  to. — See  8  A.  D.   214. 

Same — When  excused  by  their  seizure  under  process. — See  34 
A.   S.   735. 

Same — Who  may  maintain  action  for  non. — See  22  L.  427. 

Delivery  of  goods  by,  to  whom  may  be  made,  and  liability  for 
delivery  to  wrong  person. — See  9  A.  S.  511. 

Demurrage — As  to  generally,  see  "Freight",  this  note. 

Same — ^Charge  for  detention  of  caused  by  consignee. — See 
22  L.   530. 

1104 


Tit.VII,cll.III,art.II.]       CARRIERS,    GENERALLY.  §  2114 

Same — Effect  and  construction  of  express  provision  in  charter 
party,  as  to  in  case  of  strike,  see  5  L.  N.  S.  126. 

Same — Liability  of  shipper  for. — See  30  A.  S.  635. 

Same — Lien   for. — See   3   L.   N.   S.   327. 

Same — Lien  of  carrier  by  water  for  in  absence  of  contract. — 
See  5  A.  C.  388. 

Same — Lien   of  railroad  company  for. — See   4  A.   C.    15. 

Same — Maritime  lien  for. — See  70  L.  374. 

Deterioration  of  goods  caused  by  delivery,  liability  of  for. — 
See  11  A.  S.  360. 

Discrimination  by — Between  shippers  as  to  rates.— See  1  A.  C. 
52,   55. 

Same — What  are  unreasonable  and  unlawful. — See  11  A.  S.  647. 

Same — When  improper  and  unlawful. — See  44  A.  R.  568;  54 
A.    R.    862. 

Distinction  as  to  liability  between  carriers  of  goods  and  pas- 
sengers.— See  2  L.  252. 

Domestic  commerce — As  to  whether  shipments  between  points 
in  same  state  lose  their  character  as,  by  passing  out  of  the 
state  delivering  the  cars  of  transportation. — See  17  L.  443. 

Duty  of — As  to  damaged  goods,  see  13  A.  D.  472. 

Same — As  to  delivery  and  collection  of  packages  by  express 
company,   see  33  L.   36. 

Same — As  affected  after  strike. — See   35  L.   623. 

Same — On  adverse  claim  being  made  to  goods. — See  34  A.  S.  731. 

Same — Persons  loading  or  unloading  not  bare  licensees. — See 
1.   A.   C.   601. 

Same — Railroad  company  to  give  equal  facilities  to  express 
companies. — See   18  L.   393. 

Same — To  furnish  cars,  independentlj'  of  contract. — See  43  L. 
225;   8  L.  N.   S.   108. 

Same — To  ice  cars  containing  perishable  freight. — See  10  A. 
C.    171. 

Same — To  inspect  cold  storage  or  refrigerator  cars. — See  90 
A.    S.    300. 

Same — To  keep  premises  safe  for  shippers  or  consignees. — 
See   1  A.  C.   598;   9  A.   C.   988. 

Same — To  recognize  demands  of  strangers  on  property  deliv- 
ered to  it  for  transportation. — See   12  L.  N.  S.   254. 

Same — With  respect  to  refrigerator  cars. — See   10  L.  N.  S.   307. 

Employees,  liability  for  assault  by. — See  42  A.  R.   36. 

Estoppel  to  plead  defense  of  limitation  of  action  on  carrier's 
contract. — See   63   L.    206. 

Express    companies — Duties   of. — See    61   A.    S.    360. 

Same — In  delivery  of  C.  O.  D.  packages  may  be  agents  of 
both  the  seller  and  the  purchaser. — See  51  A.  R.  570. 

Same — Relation  of  and  of  their  employees  to  the  carrier. — 
See   64  A.   S.   513. 

1105 


§  2114  CIVIL  CODE.  [Div.III.Pt.IV. 

Fire,  liability  of  for  loss  or  injury  by. — See  5  A.  C.  818,  821. 

Forwarding  merchants,  who  are. — See  7  A.  D.  313;  3  W.  & 
P.    2926. 

Freight — Excessive,  payment  of,  when  deemed  voluntary  and 
when    involuntary. — See   51   A.   R.    820. 

Same — Right  to,  when  becomes  complete. — See  60  A.  D.  49. 

Same — ^Unreasonable  charges  by  interstate  carriers. — See  9  A. 
C.  1075,  1082. 

Garn->.'-iment  of  goods  in  transit. — See  50  A.  S.  465;  69  A.  S.  125. 

GootJs  wrongfully  shipped,  liability  for. — See  9  A.  C.   677. 

Holding  goods,  after  arrival  at  destination,  at  request  and 
for  convenience  of  consignee,  liability  of  for. — See  10  A.  G.  442. 

Icing  cars,  duty  of  where  carrying  perishable  freight. — See 
10  A.  C.  171. 

Impossibilities  of  performance  as  affecting  carrier's  liability 
under  contract. — See  14  L.  216. 

Interstate  or  foreign  transportation,  shipment  within  state 
as  part  of. — See   17  L.   643. 

Interstate  transportation,  of  intoxicating  liquors,  what  is 
sufficient. — See    11   L.   N.   S.    550. 

Intoxicating  liquors,  liability  of  carrier  for  transporting. — 
See  46  L.   417-422. 

Liability  of — As  carrier  of  money. — See  4  A.  C.  769. 

Same — As  warehouseman. — See  10  A.  C.  437,  442. 

Same — Distinction  as  to  between  carriers  of  goods  and  pas- 
sengers.-— See  2  L.   252. 

Same — Extent  of — Allowance  of  interest  on  damages. — See  18 
L.   451. 

Same — Same — Conclusiveness  of  shipper's  valuation. — See  4 
L.    545. 

Same — Same — Conflict  of  laws  as  to. — See  63  L.   529. 

Same^ — Same — Loss  of  profits  as  elements  of  damage. — See  53 
L.   83. 

Same — Same — Restriction  of  by  valuation. — See  6  L.  851. 

Same — Same — Rule  as  to  valuation  fixed  in  bill  of  lading. — 
See   12  L.   799. 

Same — For  acts  of  servants. — See  8  A.  R.  317. 

Same — For  assault  by  employees. — See  42  A.  R.  36. 

Same — For  damages  caused  by  act  of  God. — See  "Act  of  God," 
this   note. 

Same — For  damages  caused  by  act  of  God  co-operating  with 
its   own   negligence. — See  3   A.   C.   453. 

Same — For  delay  caused  by  mobs  or  unlawful  conduct  of  em- 
ployers.— See   9  A.  C.   790;    4  L.   545. 

Same — For  delivery  to  wrong  person. — See  5  A.  C.  97,  100. 

Same — For  discrimination  between  shippers  as  to  rates. — See 
1  A.   C.   52,   55. 

Same — For  failure  to  forward  bonded  merchandise. — See  4  L. 
N.  S.   1060. 

1106 


i 


Tit.VII,ch.III,ait.II.]      CARRIERS,    GENERALLY.  §  2114 

Same— For  goods  wrongfully  shipped.— See  9  A.  C.  677. 
Same— For  Injuries  caused  to  shippers  or  consignees  by  unsafe 
premises.— See    1    A.  C.    598;    9   A.   C.    998.  ^         o         qt     a 

Same— For    injuries    done    by    strikes    and    mobs.— See    97    A. 

Same— For  injuries  resulting  to  consignor  or  consignee  from 
failure   to  furnish   safe  cars.— See   9  A.  C.    990. 

Same— For  injuries  to  animals  during  transportation.— See 
67   A.   D.    208;    12    A.   R.    500. 

Same— For  injuries  to  consignor  or  consignee^  or  their  em- 
ployees caused  by  unsafe  car.— See   9  L.  N.   S.   857. 

Same— For  loss  occasioned  partly  by  the  act  of  God  and 
partly   by   other   means. — See   97   A.   S.    409. 

Same— For  loss  of  goods.— See  31  A.  D.  554.  ^     .-r, 

Same— For  loss  or  damage— As  to,  generally,  see  o  A.  C.   4oU. 

Same-Same-By  act  of  God.-See   "Act  of  God,"   this   note. 

Same— Same— Co-operating     with     on     negligence.— See     3     A. 

C.   453. 
'same- Same— For  loss  by  fire.— See  5  A.  C.  818,  821. 

Same— Same— Misrepresentation  or  concealment  of  nature  or 
value  of  goods  by  shipper  as  affecting  liability  for  loss  or 
injury.— See   5    A.    C.    118,    120. 

Same— Same— Selection  of  suitable  car  by  shipper  as  affect- 
ing   liability    for    damage    by    defective    car.— See    4    A.    C.    11 4U. 

Same— Same— To   perishable    freight.— See    3    A.    C.    450,    10    A. 

C.   169,   171.  ^      ^       ^   ,  a„^    11 

Same— For   loss   or   deterioration    of   goods   by    delay.— bee    ii 

■game—For  malicious  refusal  of  freight  agent  to  deliver 
freight.— See   7   L.  N.   S.   926. 

Same— For  negligent  or  tortious  act  of  insane  agent  or 
employee. — See    4   A.   C.    135. 

Same— For  property  removed  by,  or  delivered  to  one  whom 
it  was  directed  to  notify.— See  4  L.  N.  S.  1056. 

Same— Impossibilities  of  performance  as  affecting  under  con- 
tract.—See    14    L.    216.  .     A      r     767-     5    A 

Same— In    carriage    by    messengers.- See    4    A.    C.    7b/,    i>    a. 

'same- Initial    carriers    for    the    torts    or    negligence    of    con- 
necting lines.— See  106  A.  S.  406.  a-o-    a    a 
Same— Limitation   of— As  to,   generally,   see   1   A.   C.    6.-.    4   A. 
C    128-   7  A    C.   281;  7  A.  C.  468;  9  A.  C.  15;   9  A.  C.   1143. 

'same— Same— Authority  of  agent  shipping  goods  to  enter 
into  contract  limiting  liability  of  carrier.- See  1  A.  C.   6<6. 

Same— Same— By  notices  or  tickets,  baggage  checks,  bills  of 
lading,   etc.— See    50    A.    S.    719. 

Same— Same— Conflict  of  laws.— See   4   A.   C.   1102,    1106. 

1107 


§  2114  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Same — Effect  of  authorized  deviation  by  vessel  on 
contract    limiting    liability    for   loss    or    damage    to    cargo. — See 

7  A.   C.   283. 

Same — Same — Validity  and  effect  of  contract  stipulation  lim- 
iting  time   to   present   claim. — See    9   A.    C.    17. 

Same — Same — Validity  of  stipulation  in  bill  of  lading  limit- 
ing liability  of  connecting  carrier  to  its  own  line. — See  7  A. 
C.    471. 

Same^-Limited   by   bill    of   lading. — See   88   A.   S.    74. 

Same — Measure  of  damages. — See  "Measure  of  damages,"  this 
note. 

Same — On  holding  goods,  after  arrival  at  destination,  at 
request  and  convenience  of  consignee. — See  10  A.  C.   442. 

Same — Power  to  limit  in  the  event  of  loss  to  a  sum  less 
than    the   injury    suffered. — See    23    A.    S.    593. 

Same — Power  to  limit,  and  how  may  be  exercised. — See  32 
A.    D.    495. 

Same — Railroad  for  delay  in  transportation,  due  to  inade- 
quate   facilities.— See    10    L.    N.    S.    432. 

Same — Railroad  for  loss  of  registered  letter. — See  5  L.  N. 
S.    459. 

Same — Stipulations  exempting  from,  when  void. — See  31  A. 
R.    567. 

Same — Termination   of — As  to  generally,   see   6  A.   C.   13,   16. 

Same — Same — As  affected  by  its  fault  preventing  removal  of 
goods.— See   8  L.  N.   S.   235. 

Same — To  persons  loading  or  unloading  cars. — See  1  A. 
C.  601. 

Same — When  commences. — See   13   L.   33. 

Same — When    ends,   and    what    amounts    to    delivery    by. — See 

8  A.   D.   214;   7   A.  R.    595. 

Same — When  reduced  to  that  of  warehouseman. — See  97  A. 
S.    84. 

Liens — As  to,  generally,  see  3  A.  C.  1092:  4  A.  C.  12;  5  A.  C. 
387;   7   A.  C.   790;   7   A.   C.   960;   9  A.  C.   790. 

Same— For   charges. — See    "Demurrage,"    "Freight,"    this   note. 

Same — For  freight. — See  4  L.   376. 

Same — Maritime  for  freight. — See   70   L.   368. 

Same^ — Of  carrier  by  water  for  deinurrage  in  absence  of  con- 
tract.— See   5    A.    C.    388. 

Same — Of  railroad  for  demurrage  charges. — See  4  A.  C.   15. 

Same — On  goods  tortiously  delivered  to  it. — See  3  A.  C.  1095. 

Same — Right  of  consignee  to  goods  without  payment  of 
freight  where  damages  equal  or  exceed  amount  of  freight  due. 
—See   9   A.    C.    794. 

Same — Waiver  of,  by  attachment  or  execution. — See  50  L.  721. 

Same — Waiver  of  by  delivery  to  consignor's  agent  on  prom- 
ise to  retain  goods  until  payment  of  freight  charges. — See  7 
A.  0.  961. 

1108 


Tit.VII,ch.III,art.TI.]     CARRIERS,    GENERALLY.  §  2114 

Limitation  of  liability  of.-See  "Liability  of-Limitation,"  this 

Same— Bv  carrier  of  live  stock.— See  4  A.  C.   128;   5  A.  C.   97. 

lame-By  notices  or  tickets,  baggage  checks,  bills  of  ladmg. 
etc.— See  5  A.  S.   719. 

Same— By   valuation.— See    6   L.    851. 

Same-Conflict  of  laws  as  to.-See  4  A.  C.  1102    1106^63  L    525. 

Same— Contracts  for  reasonable  exemptions.— See  13  L.  ibz. 

Same— For  loss  by  fire  or  flood.— See  10  L.   417. 

Same— In  case  of  dangerous  articles.- See  36  L.   64b. 

Same-Misrepresentation  of  value  of  goods  by  shipper^  as 
affecting  amount   of  liability   for  loss   or   damage.-See   2   L.   N. 

S     973 
■game— Of  baggage  transfer  company.— See  34  L.    138. 
Same— Power  to  limit  in  case  of  negligence.— See  14  L    iS6. 
Same— Right  to  limit  common  law.   in  absence  of  negligence.  . 

""lame-Right'to  restrict  common  law  ^^'^"^0?;.  Tr'iS-'lI 
1    L.    500;    3    L.    343;    3    L.    425;    6    L.    849;    7   L.    214.    10    L.    419.    13 

"^"slme-Validity  and  effect  of  contract  stipulation  limiting 
time   to   present   claim   against   carrier   of   live   stock.-See    9    A. 

*^'slme-Validity   of  contract   limiting  time   to   bring   suit.-See 

^  Samt-Valuation  of  property  as  affecting  recovery  for  loss 
by  negligence. — See   1  L.  N.  S.   985. 

Samc-What  constitutes  damage  by  the  elements  in  contiact 
of —See  53  L.   676;   3  W.   &  P.   2345. 

Live  stock— Contract  for  presentation  of  claim  for  damages, 
reasonableness  of  time  fixed.— See  7  L.  N.  S.   1041. 

Same— Liability  of.  for.— See  13  A.  R.   53. 

Same-Respective   duties   of.  and   of   the   shippers   of.— Sec    63 

""'t^osI'ov  damage,  liability  for.-See  "Liability  of-For  loss  or 
damage,"   this  note. 

Mandamus  against. — See  37  A.  S.  320. 

Maritime  lien  for  freight.— See  70  L.   368.  .0^.    - 

Measure    of    damages.— As    to.    generally,    see    3    A.    C.    58-. 
A    C    573-    5   A.   C.   825;   9   A.   C.   790.  . 

'same— For  delay  in  transportin^g  property  intended  for  exhi- 
bition   purposes. — See    5    A.    C.    827. 

Misrepresentation    where    concealment    of   nature   or   value   of 

goods  by   shipper,   as  affecting  carrier's  liability  for  their  loss 

or  injury. — See    5  A.   C.   120.  ,    •    •*•    1 

Negligence    or   torts    of    connecting    lines,    liability    of    initial 

carriers  for. — See   106   A.  S.   604. 

1109 


I  2114  CIVIL  CODE.  [Div.III.Pt.IV. 

Notices  contained  in   tickets  and  bill   of  lading. — See   15   A.   R. 
457;   29  A.  R.   166;   5  A.  S.   719. 

Obligation    of   to   receive   goods   from   all   persons. — See    44    A. 
R.   568. 

Of  live  stock — Contract  limiting  liability. — See  9  L.   452. 

Same — Duties    and    liabilities    of — As    to    condition    of    stock 
pens,  see  2  L.  75;  4  L.  545;' 10  L.  N.  S.  571. 

Sanifc   -Same — As    to    fences    or    gates    at    stations. — See    4    L. 
289-296. 

Same — Same — As  to  loading  live  stock. — See  13  L.  262. 

Same — Same — As  to   shipment  of   stock. — See   9  L.   449-452. 

Same — Same — Burden    of    proof    of    cause    of    injury    to    live 
stock  during  transportation. — See   17  L.  339. 

Same — Same — Extraordinary  unloading  of  live  stock   in  tran- 
sit.—See   14  L.    550. 

Same — Same — To    furnish    cars    for    transportation. — See    9    L. 
449. 

Same — Same — To    owner's    caretaker    for    condition    of    stock 
pen.— See   10  L.  N.  S.   576. 

Same — Same — With   reference   to  care   of   stock   during  trans- 
portation.— See  44  L.   449-456. 

Perishable   freight — Liability    of    on. — See    3    A.    C.    450;    10    A. 
C.    169,   171. 

Permitting   unauthorized    inspection    as   conversion. — See    3    L. 
N.    S.    1126. 

Power  of — To  limit  liability  and  how   may  be  exercised — See 
32   A.   D.   495. 

Same — To    limit    their    liability    in    the    event    of    a    loss    to    a 
sum  less  than  the  injury  suffered. — See   23  A.  S.   593. 

Railroad — Liability  of  for  delay  in  transportation   of  freight, 
due  to  inadequate  facilities. — See  10  L.  N.  S.   432. 

Rebates  and  discriminations. — See   12  L.  N.   S.   609. 

Refrigerator    cars — Duty    of    carrier    with    respect    to. — See    10 
L.   N.   S.    317. 

Removal    of   goods — Act   or   fault   of   preventing,    as   affecting 
termination    of   liability. — See    8   L.    N.   S.    235. 

Same — What  a  reasonable  time  for,  after  which   the  liability 
of  the  carrier  as  such  terminates. — See  8  L.  N.  S.  240. 

Right — To  demand  goods  against  owner  when  possession  was 
not  received  from,  when. — See  40  A.  D.   44. 

Same — To  deny,  as  against  bona   fide  holder  of  bill   of   lading 
that  goods  were  delivered  to  it. — See  6  L.  N.  S.  302. 

Same — To    terminate    its    responsibility    as    warehouseman. — 
See  9  L.  N.  S.   577. 

Rights,    duties  and    obligations    of,    in    general,    see    2    L.    102; 
3  L.  342;  3  L.  424;   5  L.   587;   6  L.   849;   10  L.  415. 

Selection  of  unsuitable  car  by  shipping,  effect  of  on   liability 
of.— See   4  A.  C.   1140,   1144. 

1110 


Tit.VII,ch.III,art.II.]     CARRIERS,  generally.  §2115 

Servants,  liability  of  for  acts  of. — See  8  A.  R.  317. 

Special  contracts,  right  to  exact  from  shippers. — See  40  A. 
S.   777. 

Stoppage  in  transitu — Rig'lit  of,  when  terminates. — See  60 
A.    R.    51. 

Same — Right  of,  when  and  by  whom  may  be  exercised. — See 
29  A.   D.   384;   19   A.   R.   87;   1   A.   S.   312. 

Strike — As  affecting  duty  of  railroad  to  furnish  cars.— See 
35  L.  623. 

Same — ^Effect  of  upon  carrier's  liability. — See  35  L.   623. 

Same — Express  provision  as  to  charter  party  against  demur- 
rage in  case  of. — See  5  L.  N.  S.  126. 

Strikes  and  mobs,  liability  for  injuries  done  by.— See  97  A. 
S.    526. 

Termination  of  interstate  transportation  of  intoxicating 
liquors,  what  is  sufficient. — See   11  L.  N.  S.   550. 

Termination  of  liability  of — As  to,  generally,  see  6  A.  C.  13, 
16;  17  L.  691. 

Same — Conflict  of  laws  as  to. — See  63  L.  531. 

Time  of  notice  to  warrant  special  damage  for  failure  to 
deliver  property. — See   3  L.  N.   S.   1111. 

Title,  passing  of  to  property  by  delivery  of  carrier  for  trans- 
portation.— See    22   L.    415. 

Torts  or  negligence  of  connecting  lines,  liability  of  initial 
carriers  for. — See  106  A.  S.   604. 

Unloading,  delay  in  caused  by  strike. — See  35  L.  630. 

Unreasonable  charges  by  interstate  carriers. — See  9  A.  C. 
1075,   1082. 

Unsuitable  car,  selection  of  by  shipper  as  affecting  carrier's 
liability  for  damage  to  goods  by  defective  car. — See  4  A.  C.  1144. 

Va'lidity  of  contract  for  transportation  in  violation  of  par- 
ticular statute. — See   12  L.  N.  S.   609. 

Value  of  goods — Inquiry  and  representation  as  to. — See  13 
L.    33. 

Same — Concealment  or  misrepresentation  as  to,  effect  on  lia- 
bility for  loss  or  damage. — See  5  A.  C.  118,  120;  13  L.  33. 

Warehouseman — Liability  as. — See   10  A.  C.   437,   442. 

Same — Right  to  terminate  responsibility  as.— See  9  L.  N.  S. 
577. 

Water,  loss  by,  for  which  not  liable. — See   41  A.  D.  281. 

Wlio  liable  for  loss  or  deterioration  of  goods  caused  by  deliv- 
ery, liability  of  for.— See  11  A.  S.  360. 

§  2115.  CARRIER  TO  OBEY  DIRECTIONS.  A  carrier  must 
comply  with  the  directions  of  the  consignor  or  consignee  to 
the  same  extent  that  an  employee  is  bound  to  comply  with 
those  of  his  employer. 

History:     Enacted  March   21,   1872. 
1111 


§§  2116,  2117  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  duty  of  employee  to  observe  directions  of  employer, 
see  Kerr's  Cyc.  C.  C.   §  1981  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  prop- 
erty,  see   note    §  2114,    ante. 

As  to  obligation  and  duty  of  employee  to  comply  with  direc- 
tions of  employer,  and  his  liability  in  damages  for  failure,  see 
Kerr's  Cyc.  C.  C.  §§  1978,  1979,  1981  and  notes. 

As  to  right  of  stoppage  in  transitu,  see  Kerr's  Cyc.  C.  C. 
§§  211-S,   3076  and  notes. 

§2116.  CONFLICT  OF  ORDERS.  When  the  directions  of 
a  consignor  and  consignee  are  conflicting,  the  carrier  must 
comply  with  those  of  the  consignor  in  respect  to  all  matters 
except  the  delivery  of  the  freight,  as  to  which  he  must  com- 
ply with  the  directions  of  the  consignee,  unless  the  consignor 
has  specially  forbidden  the  carrier  to  receive  orders  from 
the  consignee  inconsistent  with  his  own. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see   note   §  2114,   ante. 

As  to  stoppage  in  transitu,  see  Kerr's  Cyc.  C.  C.  §  2118  and 
note,  and  generally  as  to  such  right,  see  §  3076  and  note. 

§2117.  STOWAGE,  DEVIATION,  ETC.  A  marine  carrier 
must  not  stow  freight  upon  deck  during  the  voyage,  except 
where  it  is  usual  to  do  so,  nor  make  any  improper  deviation 
from  or  delay  in  the  voyage,  nor  do  any  other  unnecessai*y  act 
which  would  avoid  an  insurance  in  the  usual  form  upon  the 
freight. 

History:     Enacted  March   21,   1872. 

125  C.  684,  685  (erroneously  cited  for  §  3117),  58  P.  297.  298 
(correct    citation). 

As  to  deviation  affecting  insurer's  liability  for  loss,  see  Kerr's 
Cyc.  C.  C.  §  2697  and  note. 

As  to  insurable  interest,  see  Kerr's  Cyc.  C.  C.  §§  2659-2665 
and  notes. 

As  to  loss  caused  by  delay  and  deviation  from  route,  see 
Kerr's  Cyc.  C.  C.   §  2196  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  prop- 
erty, see  note  §  2114,  ante. 

As  to  marine  insurance,  see  Kerr's  Cyc.  C.  C.  §  2655  and  note. 

As  to  voyage  and  deviation  from  route  in  general,  see  Kerr's 
Cyc.  C.  C.  §§  2692-2694  and  notes;  44  Cent.  Dig.  col.  513,  §  455. 

1112 


Tit.Vir,cll.III,art.II.]  DELIVERY.  -  §2118 

As  to  when  deviation  from  route  is  improper,  see  Kerr's 
Cyc.   C.   C.   §  2696   and  note. 

As  to  when  deviation  from  route  is  proper,  see  Kerr's  Cyc. 
C.  C.   §  2695  and  note. 

§2118.  DELIVERY  OF  FKEIGHT.  A  carrier  of  property 
must  deliver  it  to  the  consignee,  at  the  place  to  which  it  is 
addressed,  in  the  manner  usual  at  that  place. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

94  C.  166,  170,  178,  29  P.  861,  17  L.  685  (construed  and  applied). 

As  to  carrier's  place  of  delivery,  see  52  A.  S.   103. 

As  to  custom  of  usag-e,  see  Kerr's  Cyc.  C.  C.   §  2119  and  note. 

As  to  delays  and  damages,  see  Kerr's  Cyc.  C.  C.  §  2114  and 
note. 

As  to  delivery  to  consignee  or  his  agent,  see  9  A.  S.  511,  512; 
61   A.    S.   374. 

As  to  delivery  to  employees,^  agents,  etc.,  see  61  A.  S.   372. 

As  to  duty  and  liability  as  to  goods  sent  C.  O.  D.,  see  61  A. 
S.    379. 

As  to  effect  of  custom  regarding-  delivery  of  baggage  by 
baggage   transfer  companies,  see   34   L.   140. 

As  to  evidence  of  usage  varying  common  carrier's  liability, 
see    42    A.   D.    498. 

As  to  liability  for  loss  of  letters  containing  money,,  etc.,  see 
Kerr's   Cyc.    C.   C.    §  2177   and   note. 

As  to  liability  of  carrier  for  delivery  of  goods  to  wrong 
persoji,  see  Kerr's  Cyc.  C.  C.  §  2126  and  note;  52  A.  S.  103. 

As  to  liability  of  carrier  when  claim  of  third  person  is  set 
up,  see'  Kerr's  Cyc.  C.  C.  §  2115  and  note;   34  A.  S.   731,  735. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see   note   §  2114,   ante. 

As  to  rights  and  equities  of  bona  fide  assignee  of  bill  of  lad- 
ing for  value  as  against  vendor's  lien,  see  Kerr's  Cyc.  C.  C. 
§  2127  and  note. 

As  to  seizure  under  legal  i)rocoss  as  excuse  for  failure  to 
deliver,   see    34   A.   S.   735,   736. 

As  to  strikes  affecting  liability  of  carrier  for  delivery  of 
freight,   see  Kerr's  Cyc.  C.   C.   §  2194  and  note. 

As  to  usage  regulating  manner  of  delivery,  see  8  A.  D.  217. 

As  to  usage  varying  liability  of  carriers,  see  27  A.  D.  518; 
31  A.  D.   302,  303. 

As  to  vendor's  lien  on  freight  during  transit,  see  Kerr's  Cyc. 
C.  C.   §  2131  and  note. 

Right  of  stoppage  in  transitu  continues. — See  11  A.  S.  767; 
22   A.   S.   715;   34   A.   S.   541. 

1113 


§§  2119,  2120  CIVIL  CODE.  [Div.III.Pt.IV. 

§2119.  PLACE  OF  DELIVERY.  If  there  is  no  usage  to 
the  contrary  at  the  place  of  deliverJ^  freight  must  be  deliv- 
ered as  follows: 

1.  If  carried  upon  a  railway  owned  or  managed  by  the  car- 
rier, it  may  be  delivered  at  the  station  nearest  to  the  place 
to  which  it  is  addressed; 

2.  If  carried  by  sea  from  a  foreign  country,  it  may  be  deliv- 
ered at  the  wharf  where  the  ship  moors,  within  a  reasonable 
distance  from  the  place  of  address;  or,  if  there  is  no  wharf, 
on  board  a  lighter  alongside  the  ship;  or, 

3.  In  other  cases,  it  must  be  delivered  to  the  consignee  or 
his  agent,  personally,  if  either  can,  with  reasonable  diligence, 
be  found. 

History:     Enacted  March   21,  1872. 

■  See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

56  C.  484,  486  (construed  with  post  §2120);  94  C.  166,  178. 
29  P.  861,  17  L.   685    (construed  with   §  2120  and  other  sections). 

As  to  contract  to  deliver  at  designated  point,   see   10  L.   416. 

As  to  custom  and  usage  with  respect  to  delivery,  see  Kerr's 
Cyc.  C.  C.   §  2118  and  note. 

As  to  delivery  to  connecting  carriers,  see  Kerr's  Cyc.  C.  C. 
§  2201  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see   note    §  2114,   ante. 

As  to  reason  for  enacting  this  and  related  sections,  see  Kerr's 
Cyc.   C.   C.    §  2118   and   note. 

As  to  usage  determining  manner  of  delivery  of  letters  con- 
taining money,  etc.,  see  Kerr's  Cyc.  C.  C.   §  2177  and  note. 

§  2120.     NOTICE  WHEN  FREIGHT  NOT  DELIVERED.     If, 

for  any  reason,  a  carrier  does  not  deliver  freight  to  the  con- 
signee or  his  agent  personally,  he  must  give  notice  to  the 
consignee  of  its  arrival,  and  keep  the  same  in  safety,  upon  his 
responsibility  as  a  warehouseman,  until  the  consignee  has 
had  a  reasonable  time  to  remove  it.  If  the  place  of  residence 
or  business  of  the  consignee  be  unknown  to  the  carrier,  he 
may  give  the  notice  by  letter  dropped  in  the  nearest  post- 
office. 

History:  Enacted  March  21.  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  247. 

1114 


i 


Tit.VII,ch.III,art.II.]     failure  TO  accept.  §§2121.2122 

See   Kerr's   Cyc.   C.   C.    for    20   pars,  annotation. 

56  C.  484,  485,  486  (construed  and  applied);  94  C.  166,  170. 
177,  178,  179  (construed  and  applied),  29  P.  861,  862,  17  L.  685; 
110  C.  348,  356,  52  A.  S.  94,  42  P.  918   (construed  and  applied). 

As  to  detriment  caused  by  breach  of  carrier's  obligation  to 
deliver  freight,  see  Kerr's  Cyc.  C.  C.  §  3316  and  note. 

As  to  detriment  caused  by  carrier's  delay  in  delivery  of 
freight,  see  Kerr's  Cyc.  C.  C.  §  3317  and  note. 

As  to  liability  of  carrier  for  baggage  after  arrival  at  destina- 
tion, see  Kerr's  Cyc.  C.  C.   §  2182  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note   §  2114,  ante. 

As  to  reason  for  enacting  this  and  related  sections,  see  Kerr's 
Cyc.  C.  C.   §  2118  and  note. 

As  to  when  liability  of  railroad  carrier  ceases,  see  17  L.  691. 

§2121.    WHEN   CONSIGNEE   DOES   NOT   ACCEPT.     If   a 

consignee  does  not  accept  and  remove  freight  within  a  rea- 
sonable time  after  the  carrier  has  fulfilled  his  obligation  to 
deliver,  or  duly  offered  to  fulfil  the  same,  the  carrier  may 
exonerate  himself  from  further  liability  by  placing  the  freight 
in  a  suitable  warehouse,  on  storage,  on  account  of  the  con- 
signee, and  giving  notice  thereof  to  him. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  248. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  burden  of  proof  in  case  of  loss  of  goods  in  storage, 
see  Kerr's  Cyc.  C.  C.  §  2120  and  note  pars.  11-14. 

As  to  delivery  in  general,  see  Kerr's  Cyc.  C.  C.  §  2118  and 
note. 

As  to  delivery  to  person  otlier  than  consignee,  see  Kerr's 
Cyc.   C.   C.   §  2131  and   note. 

As  to  duty  of  consignee  to  receive  and  take  goods,  see  52 
A.  S.   103. 

As  to  liability  of  warehouseman,  see  Kerr's  Cyc.  C.  C.  §§  1851- 
1855,   2120  and  notes;  also   24  A.  D.   146. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  when  and  how  liability  of  carrier  is  reduced  to  that 
of  warehouseman,  see  Kerr's  Cyc.  C.  C.  §  2120  and  note  pars.  4-7. 

§2122.  WHEN  CONSIGNEE  CANNOT  BE  FOUND  (re- 
pealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.  1873-4,  p.  248. 

1115 


/ 


§  2126  CIVIL  CODE.  [Div.III.Pt.IV. 


ARTICLE  III. 

BILL  OF  LADING. 

§  2126.  Bill  of  lading,    what. 

§  2127.  Bill  of  lading  negotiable. 

§  2128.  Same.     [To   "bearer."] 

§  2129.  Effect  of  bill  of  lading  on  rights,  etc.,  of  carrier. 

§  2130.  Bills   of  lading  to  ,be   given   to   consignor. 

§  2131.  Carrier  exonerated  by  delivery  according  to  bill  of  lading. 

§  2132.  Carrier    may    demand    surrender    of    bill    of    lading    before 
delivery. 

§  2126.  BILL  or  LADING,  WHAT.  A  bill  of  lading  is  an 
instrument  in  writing",  signed  by  a  carrier  or  his  agent, 
describing  the  freight  so  as  to  identify  it,  stating  the  name 
of  the  consignor,  the  terms  of  the  contract  for  carriage,  and 
agreeing  or  directing  that  the  freight  be  delivered  to  the 
order  or  assigns  of  a  specified  person  at  a  specified  place. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.   C  for   20   pars,   annotation. 
61  C.  405,  416   (construed  and  applied). 

BIL.I,   OF   LADING. 

As  contract  of  carriage. — See  1  W.  &  P.  790. 
•    Same — By  water. — See   20  L.  ed.   804;   1  W.   &  P.   790. 

As  receipt. — See  35  A.  R.  327;  51  A.  R.  51;  20  L.  ed.  779;  1 
W.   &  P.   793. 

As  receipt  and  contract. — See  56  A.  D.  676;  93  A.  D.  184;  11 
A.  R.  109;  44  A.  S.  37;  44  A.  S.  852;  4  L.  244;  10  L.  416;  20  L. 
ed.  779;  26  L.  ed.  998;  30  L.  ed.  1077;  1  W.  &  P.  794. 

As  to  bills  of  lading  in  general,  see  10  L.  416;  38  A.  D. 
407-426. 

As  to  clauses  in  bill  of  lading  to  which  consignor  does  not 
assent  in  writing  as  affecting  liability  of  carrier,  see  Kerr's 
Cyc.   C.   C.   §  2176  and  note. 

Same — As  to  insurer,  see  Kerr's  Cyc.  C.  C.   §  2697  and  note. 

As  to  delivery  of  goods  to  person  other  than  consignee  named 
in  bill  of  lading,  see  Kerr's  Cyc.  C.  C.  §§  2118,   2119  and  notes. 

As  to  destroying  or  suppressing  bill  of  lading,  etc.,  see  Kerr's 
Cyc.   Pen.   C.    §  579   and   note. 

As  to  false  bill  of  lading,  making  of,  etc.,  see  Kerr's  Cyc.  Pen. 
C.    §  541   and   note. 

1116 


i 


Tit.VII,ch.III,art.III.]       negotiability.  §  2127 

As  to  issuing  fictitious  warehouse  receipts,  see  Kerr's  Cyc. 
Pen.  C.   §  578  and  note. 

As  to  limiting  liability  by  terms  in  bills  of  lading,  etc.,  see 
Kerr's  Cyc.  C.   C.   §2176  and   note;   61  A.  S.   364. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note   §  2114,  ante. 

As  to  offense  of  issuing  fictitious  bill  of  lading,  see  Kerr's 
Cyc.  Pen.  C.  §  577  and  note. 

As  to  offense  of  selling,  etc.,  merchandise  for  wliich  bill  of 
lading  has  been  issued,  see  Kerr's  Cyc.  Pen.  C.  §  581  and  note. 

As  to  warehouse  receipts,  see  52  A.  S.   103. 

Assignee    of    bill    of    lading   with    draft   attached,    liability    of^ 
consignee  for  failure   of  title  to   or  defect  in   goods,  or  failure 
of   consideration. — See   91   A.   S.    212. 

Assignee's  rights  and  liabilities  under.— See   105  A.  S.   332. 

Character  and   effect  of. — See   10  L.   416. 

Conclusiveness  of. — See  30  A.  S.  634. 

Contradict,   right   to. — See   9   L.    263. 

Definition  and  effect  of. — See  38  A.  D.   407;   1  W.  &  P.   790. 

For  goods   not   delivered  for   shipment. — See   53   A.   R.    453. 

Issuance   without  receipt  of  goods.— See   7  A.  C.   728. 

Liability  of  carrier  upon,  issued  without  receipt  of  goods. — 
See   7  A.   C.   731. 

Limiting  liability  by.— See  5  A.  S.   719;    88  A.  S.   74. 

Manifest  includes. — See  1  W.  &  P.   791. 

Negotiability  of.— See  7  A.  C.  728;  32  A.  D.  541;  93  A.  D.  208; 
18  A.  R.  299;  9  A.  S.  504;  27  A.  S.  861;  54  A.  S.  672;  82  A.  S. 
771;  1  L.  «50;  20  L.  ed.  779;  25  L.  ed.  892;  38  L.  ed.  944;  1  W. 
&  P.  791. 

Restriction    in. — See    6   L.    489;    10   L.    415. 

Right  to  contradict. — See   9  L.   263. 

Rule   as  to  valuation   fixed  in. — See   12   L.    799. 

To  whom  may  delivery  be  made  under. — See  38  L.  358. 

Warehouse  receipts,  under  Statutes  1877;8,  p.  949.  See  tit. 
"Warehouse  and  Wharfinger  Receipts,"  Stats.  1877-8,  p.  949,  c. 
CDVII  in  Hen.  G.  L.  p.  1472  and  note,  and  Stats.  1905,  c.  CDLII, 
p.   611,  for  statute  as  re-enacted  and  now  in   force. 


§  2127.  BILL  OF  LADING  NEGOTIABLE.  All  the  title  to 
the  freight  which  the  first  holder  of  a  bill  of  lading  had 
when  he  received  it,  passes  to  every  subsequent  indorsee 
thereof  in  good  faith  and  for  value,  in  the  ordinary  course  of 
business,  with  like  effect  and  in  like  manner  as  in  the  case 
of  a  bill  of  exchange. 

History:     Enacted  March   21.   1872. 
1117 


§§  2128, 2129 


CIVIL  CODE. 


[Div.III.Pt.IV. 


See  Kerr's  Cyc.  C.   C.  for   6   pars,  annotation. 

61  C.  405,  416  (construed  and  applied  with  other  sections); 
110  C.  348,  358,  359,  52  A.  S.  94,  42  P.  918  (construed  and  applied 
with  other  sections);  54  F.  306,  310,  311  (construed  with  §2128, 
showing  that  title  to  goods  described  in  bills  of  lading  drawn 
to  order  passes  by  indorsement,  drawn  to  bearer  by  delivery, 
but  reversing,  47  F.  468,  471,  on  ground  that  there  was  no 
indorsement  by  the  party  in  whose  favor  the  bill  was  drawn). 

As  L^  allowing-  another  to  assume  apparent  ownersliip  of 
property  for  purpose  of  making  transfer  of  it,  and  as  to  right 
of  transferee  in  good  faith  in  ordinary  course  of  business  and 
for  value,  see  Kerr's  Cyc.  C.  C.  §  2991  and  note. 

As  to  bills  of  lading,  carrier's  receipts,  and  warehouse  receipts 
and  transfer  thereof  by  indorsement  in  general,  see  Kerr's  Cyc. 
C.  C.  §  2126  and  note  pars.  4-6,  12,  13  and  references. 

As  to  indorsement  of  bill  of  lading  and  rights  of  indorsee 
thereunder,  see  Kerr's  Cyc.  C.  C.  §  2126  and  note;  55  A.  D.  219. 

As  to  many  miscellaneous  matters  as  to  carriers  of  pas- 
sengers, see  note  §  2114,  ante. 


§2128.  SAME.  [TO  "BEARER."]  When  a  bill  of  lading 
is  made  to  "bearer,"  or  in  equivalent  terms,  a  simple  transfer 
thereof,  by  delivery,  conveys  the  same  title  as  an  indorse- 
ment. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.  C.  C.  for   5   pars,   annotation. 

61  C.  405,  416  (construed  and  applied  with  other  sections);  110 
C.  348,  359,  52  A.  S.  94,  42  P.  918  (construed  and  applied  with 
other   sections);    54   F.    306,   310  .(applied). 

As  to  bills  of  lading,  carrier's  receipts,  and  warehouse  re- 
ceipts, and  transfer  thereof  in  general,  see  Kerr's  Cyc.  C.  C. 
§  2126    and   note   pars.    4-6,    12,    13    and    references. 

As  to  delivery  of  freight  under  bill  of  lading  made  to  bearer 
or  to  any  holder  of  bill  of  lading,  properly  indorsed,  see  Kerr's 
Cyc.  C.  C.   §  2131  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note   §  2114,   ante. 

As  to  title  passing  by  transfer  of  bill  of  lading,  see  Kerr's 
Cyc.  C.   C.   §2127  and   note;    55  A.   D.   299,   300. 

§  2129.  EFFECT  OF  BILL  OF  LADING  ON  RIGHTS,  ETC., 
OF  CARRIER.  A  bill  of  lading  does  not  alter  the  rights  or 
obligations  of  the  carrier,  as  defined  in  this  chapter,  unless  it 
is  plainly  inconsistent  therewith. 

History:     Enacted  March   21,   1872. 
1118 


Tit.VII,ch.III,art.III.]     DELIVERY,  EFFECT.  §§  2130,  2131 

61    C.    405,    416    (cited   and    referred    to    with    other    sections); 

110  C.  348,  359,  52  A.  S.  94,  42  P.  918   (cited  with  other  sections). 

As  to   bills   of  lading  in  general,   see  Kerr's  Cyc.   C.   C.   §  2126 

and   note. 

As  to  bills  of  lading  in  general,  transfer  thereof,  etc.,  see 
•Kerr's  Cyc.  C.  C.  §§  2126-2128  and  notes. 

As  to  conversion  by  carrier,  see  Kerr's  Cyc.  C.  C.  §  2126  note 
pars.  17-20;  also  2  L.  80;  21  L.  117,  118. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see   note    §  2114,   ante. 

§  2130.    BILLS  OF  LADING  TO  BE  GIVEN  TO  CONSIGNOR. 

A  carrier  must  subscribe  and  deliver  to  the  consignor,  on 
demand,  any  reasonable  number  of  bills  of  lading,  of  the  same 
tenor,  expressing  truly  the  original  contract  for  carriage ;  and. 
if  he  refuses  to  do  so,  the  consignor  may  take  the  freight 
from  him,  and  recover  from  him,  besides,  all  damages  thereby 
occasioned. 

History:     Enacted  March   21,   1872. 

61  C.  405,  416  (cited  with  other  sections);  110  C.  348,  359,  52 
A    S    94    42' P.  918   (cited  and  referred  to  with  other  sections). 

As  to'  duplicate  bills  of  lading  and  effect  thereof,  see  Kerr's 
Cyc.  C.  C.   §  2126  and  note  par.  8. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  marking  duplicate  receipts,  bills  of  lading,  etc.,  with 
"duplicate,"  see  Kerr's  Cyc.  Pen.  C.  §  580  and  note. 

§2131.  CARRIER  EXONERATED  BY  DELIVERY  AC- 
CORDING TO  BILL  OF  LADING.     A  carrier  is  exonerated 

from  liability  for  freight  by  delivery  thereof,  in  good  faith, 
to  any  holder  of  a  bill  of  lading  therefor,  properly  indorsed, 
or  made  in  favor  of  the  bearer. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

61  C.  405,  416  (construed  and  applied  with,  other  sections); 
110  C.  348,'  357  (cited  as  not  applying),  359  (construed  and 
applied  with   other  sections),   52  A.   S.   94,  42  P.   918. 

As  to  delivery  in   general,  see  Kerr's  Cyc.  Pen.  C.   §  2118  and 

note.  ^^ 

As  to  delivery  upon  production  of  bill  of  lading,  see  Kerr  s 
Cyc.  Pen.  C.  §§  2126-2129  and  notes;  also  9  A.  S.  512,  513. 

1119 


§  2132  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  what  is  sufficient  delivery  to  terminate  carrier's  lia- 
bility, see  8  A.  D.  211;  42  A.  D.   497. 

§  2132.  CARRIER  MAY  DEMAND  SURRENDER  OF  BILL 
OF  LADING  BEFORE  DELIVERY.  When  a  carrier  has  given 
a  bill  ot  lading,  or  other  instrument  substantially  equivalent 
thereto,  he  may  require  its  surrender,  or  a  reasonable  indem- 
nity against  claims  thereon,  before  delivering  the  freight. 
History:     Enacted  March  21,  1872. 

61  C.  405,  416   (referred  to  with  other  sections). 

As  to  bill  of  lading,  presentation  and  surrender  of,  upon 
delivery  of  freight,  see  Kerr's  Cyc.  C.  C.  §§  2127,  2128,  2131  and 
notes. 

As  to  limitations  of  powers  of  general  agent,  see  Kerr's  Cyc. 
C.  C.  §  2322  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante.  - 


1120 


Tit.VII,ch.III,art.IV.]  freightage,   liability.   §§  2136-2138 


ARTICLE  IV. 

FREIGHTAGE. 

§  2136.  When   freightage  is   to   be  paid. 

§  2137.  Consignor,    when   liable   for  freightage. 

§  2138.  Consignee,    when    liable. 

§  2139.  Natural  increase  of  freight. 

§  2140.  Apportionment  by  contract. 

§  2141.  Same.      [No   objection   on   partial    delivery.] 

§  2142.  Apportionment   according   to   distance. 

§  2143.  Freight   carried   further   than   agreed,    etc. 

§  2144.  Carrier's   lien   for   freightage  [and  for  services]. 

§  2136.  WHEN  FKEIGHTAGE  IS  TO  BE  PAID.  A  carrier 
may  require  his  freightage  to  be  paid  upon  his  receiving  the 
freight;  but  if  he  does  not  demand  it  then,  he  cannot  until 
he  is  ready  to  deliver  the  freight  to  the  consignee. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  freightage,  when  earned,  etc.,  see  52  A.  D.  286;  60  A.  D. 
150-152,  160;   24  A.  R.   339. 

As  to  lien  for  freightage,  see  Kerr's  Cyc.  C.  C.  §  2144  and  note; 
also  note  79  A.  D.  368. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§  2137.    CONSIGNOR,  IVHEN  LIABLE  FOR  FREIGHTAGE. 

The  consignor  of  freight  is  presumed  to  be  liable  for  the 
freightage,  but  if  the  contract  between  him  and  the  carrier 
provides  that  the  consignee  shall  pay  it,  and  the  carrier  allows 
the  consignee  to  take  the  freight,  he  cannot  afterwards  recover 
the  freightage  from  the  consignor. 

Ili.-story:     Enacted  March   21,   1872. 

2138.  CONSIGNEE,  WHEN  LIABLE.  The  consignee  of 
freight  is  liable  for  the  freightage,  if  he  accepts  the  freight 
with  notice  of  the  intention  of  the  consignor  that  he  should 
pay  it. 

History:     Enacted  March  21,   1872. 
Kerr's    C.    C. — 36  1121 


§§  2139-2141  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  liability  of  consignee  for  freight  money,  see  Kerr's 
Cyc.  C.  C.  §  2138  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§  2139.  NATURAL  INCREASE  OF  FREIGHT.  No  freight- 
age can  be  charged  upon  the  natural  increase  of  freight. 

History:     Enacted  March   21,   1872. 

As  to  carriage  of  live  stock,  see  Kerr's  Cyc.  C.  C.  §  2194  and 
note. 

As  to  live  stock,  carriage  of,  etc.,  see  Kerr's  Cyc.  C.  C.  §  2194 
and  note;  also  note  §  2114,  ante. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§2140.  APPORTIONMENT  BY  CONTRACT.  If  freightage 
is  apportioned  by  a  bill  of  lading  or  other  contract  made 
between  a  consignor  and  carrier,  the  carrier  is  entitled  to 
payment,  according  to  the  apportionment,  for  so  much  as  he 
delivers. 

History:     Enacted  March   21,   1872. 

As  to  deduction  for' short  delivery,  damage  to  goods,  etc.,  see 
note  §  2114,  ante;  60  A.  D.  152. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§2141.  SAME.  [NO  OBJECTION  ON  PARTIAL  BELIY- 
ERT.]  If  a  part  of  the  freight  is  accepted  by  a  consignee, 
without  a  specific  objection  that  the  rest  is  not  delivered,  the 
freightage  must  be  apportioned  and  paid  as  to  that  part, 
though  not  apportioned  in  the  original  contract. 

HLstory:     Enacted  March  21,  1872. 

As  to  apportioninent  of  freight  in  general,  see  Kerr's  Cyc. 
C.  C.  §  2142  and  note. 

As  to  decay  of  part  of  cargo  in  transitu,  see  17  L.  ed.  89. 

As  to  deduction  for  short  delivery,  damage  to  freight,  etc., 
see    60  A.   D.   152. 

As  to  detriment  caused  by  breach  of  carrier's  obligation  to 
deliver  freight,   see  Kerr's  Cyc.  C.  C.   §  3316  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

1122 


Tit.VII,ch.III,art.IV.]        APPORTIONMENT.  §§  2142-2144 

§2142.    APPORTIOXME]NT    ACCORDOG    TO   DISTANCE. 

If  a  consignee  voluntarily  receives  freight  at  a  place  short 
of  the  one  appointed  for  deliverJ^  the  carrier  is  entitled  to  a 
just  proportion  of  the  freightage,  according  to  distance.  If 
the  carrier,  being  ready  and  willing,  offers  to  complete  the 
transit,  he  is  entitled  to  the  full  freightage.  If  he  does  not 
thus  offer  completion,  and  the  consignee  receives  the  freight 
only  from  necessity,  the  carrier  is  not  entitled  to  any  freight- 
age. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  carrier's  lien  for  full  freightage,  see  Kerr's  Cyc.  C.  C. 
§  2144  and  note. 

As  to  freightage  pro  rata  itineris,  see  62  A.  D.  153,  154. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 


§2143.  FREIGHT  CARRIED  FURTHER  THAN  AGREED, 
ETC.  If  freight  is  carried  further,  or  more  expeditiously, 
than  was  agreed  upon  by  the  parties,  the  carrier  is  not  enti- 
tled to  additional  compensation,  and  cannot  refuse  to  deliver 
it,  on  the  demand  of  the  consignee,  at  the  place  and  time  of 
its  arrival. 

History:     Enacted  March   21,   1872. 

As  to  carrying  freight  farther  than  agreed,  extra  charge,  see 
Kerr's  Cyc.  C.  C.  §  2143,  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§  2144.  CARRIER'S  LIEN  FOR  FREIGHTAGE  [AND  FOR 
SERVICES].  A  carrier  has  a  lien  for  freightage  and  for 
services  rendered  at  request  of  shipper  or  consignee  in  and 
about  the  transportation,  care  and  preservation  of  the  pro- 
perty, and  he  also  has  a  lien  for  money  advanced  at  request 
of  shipper  or  consignee  to  discharge  a  prior  lien.  His  rights 
to  such  lien  are  regulated  by  the  title  on  liens. 

History:  Enacted  Mai-ch  21,  1872;  amended  April  19,  1909, 
Stats,  and  Amdts.    1909,   p.    1000. 

1123 


§  2144  CIVIL  CODE.  [Div.III,Pt.IV. 

See  Kerr's  Cyc.  C.  C.   for  4  pars,  annotation. 

As  to  bottomry  contracts  and  liens,  see  Kerr's  Cyc.  C.  C. 
§§  3017-3029  and  notes. 

As  to  contracts  of  respondentia,  see  Kerr's  Cyc.  C.  C.  §§  3036- 
3040  and  notes. 

As  to  lien  of  master  of  ship  upon  ship  and  freightage  for 
advances,  etc.,  see  Kerr's  Cyc.  C.  C.  §  3055  and  note. 

As  to  lien  of  mate  and  seaman  of  ship  upon  ship  and  freight- 
age, see  Kerr's  Cyc.  C.  C.  §  3056  and  note. 

As  to  lien  on  passengers'  luggage,  see  Kerr's  Cyc.  C.  C.  §  2191 
and  note. 

As  to  lien  upon  vessel  for  materials  furnished  for  its  con- 
struction, repair,  or  equipment,  see  Kerr's  Cyc.  C.  C.  P.  §  813  and 
note. 

As  to  liens  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2872  et  seq.  and 
notes. 

As  to  liens  of  ship-owners  for  freightage  upon  cargoes 
received  from  shipping  merchants  in  usual  course  of  business 
of  shipping  and  selling  produce,  see  Kerr's  Cyc.  C.  C.  §§  2319, 
2369  and  notes. 

As  to  liens  on  cargo  for  salvage,  see  Kerr's  Cyc.  C.  C.  §  2079 
and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  non-authority  of  commission  merchants  to  pledge  goods 
of  another,  see  Kerr's  Cyc.  C.  C.  §  2368  subd.  2  and  note. 

As  to  seaman's  lien,  see  Kerr's  Cyc.  C.  C.  §  3056  and  note. 

As  to  stoppage  in  transitu  as  means  of  enforcing  lien  of 
seller,  see  Kerr's  Cyc.  C.  C.  §2118  and  note;  also  post  §§3076- 
3080. 


1124 


TitVII,ch.III,art.V.]  JETTISON,  ETC.  §2148 


ARTICLE  V. 

GENERAL  AVERAGE. 

§  2148.  Jettison   and  general   average,    what. 

§  2149.  Order   of  jettison. 

§  2150.  By  whom   made. 

§  2151.  Loss,  how  borne. 

§  2152.  General  average  loss,   how  adjusted. 

§  2153.  Values,   how   ascertained. 

§  2154.  Things   stowed  on   deck. 

§  2155.  Application   of  the   foregoing  rules. 

§  2148.    JETTISON  AND  GENERAL  AVERAGE,  WHAT.    A 

carrier  by  water  may,  when  in  case  of  extreme  peril  it  is 
necessary  for  the  safety  o£  the  ship  or  cargo,  throw  overboard, 
or  otherwise  sacrifice,  any  or  all  of  the  cargo  or  appurte- 
nances of  the  ship.  Throwing  property  overboard  for  such 
purpose  is  called  jettison,  and  the  loss  incurred  thereby  is 
called  a  general  average  loss. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  acts  of  God  in  general,  see  Kerr's  Cyc.  C.  C.   §  2194  and 
note. 

As   to   adjustment   of   loss   under   general   average,    see    Kerr's 
Cyc.   C.   C.   §  2153   and   note. 

As   to   admeasurement   of   values   of   ship   and   freightage,    see 
Kerr's  Cyc.  C.  C.  §  2153  and  note. 

As    to   authority    of    master    to    hypothecate    ship    freightage, 
cargo,  etc.,  see  Kerr's  Cyc.  C.  C.   §  2377  and  note. 

As    to    authority    of    master    to    sell    cargo    when    absolutely 
necessary,  see  Kerr's  Cyc.  C.  C.  §  2379  and  note. 

As  to  duty  of  manager   of  ship  to   provide  for  seaworthiness 
of  ship,  see  Kerr's  Cyc.  C.  C.  §  2071  and  note. 

As    to    estimating    value    of    ship    and    freight    to    determine 
various  contributory  interests,   see   2  A.   D.   207,   209. 

As  to  general  average,  see  14  A.  D.   613,   614. 

As  to  jettison  at  sea  being  act  of  God,  see  Kerr's  Cyc.  C.   C. 
§  2194  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As   to    obligations    of   marine    carriers    in    general,    see   Kerr's 
Cyc.  C.  C.  §  2114  and  note. 

1125 


§§  2149-2152  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  "perils  of  the  sea,"  see  Kerr's  Cyc.  C.  C.  §  2199  and  note. 

As  to  stowage  on  deck,  see  Kerr's  Cyc.  C.  C.   §  2154  and  note. 

As  to  voluntary  sacrifice  being  necessary  that  doctrine  of 
general  average  be  applied,  see   14  A.  D.   613,   614. 

As  to  wages  of  crew  and  value  of  provisions  as  subjects  of 
general  average,  see  2  A.  D.  207;  29  A.  D.   461. 

As  to  wages  of  crew,  value  of  provisions,  etc.,  as  subjects  of 
generai  ctvorage,   see  2  A.  D.   207;   29  A.  D.   461. 

§2149.  OEDEE  OF  JETTISON.  A  jettison  must  begin 
with  the  most  bulky  and  least  valuable  articles,  so  far  as 
possible. 

History:     Enacted  March  21,  1872.     See  Code  de  Com.  art.  411. 

As  to  jettison,  see  ante  §  2040  and  note,   post  §  2150. 
As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§2150.  BY  WHOM  MADE.  A  jettison  can  be  made  only 
by  authority  of  the  master  of  a  ship,  except  in  case  of  his 
disability,  or  of  an  overruling  necessity  when  it  may  be  made 
by  any  other  person. 

History:     Enacted  March  21,  1872. 

As  to  jettison,  etc.,  see  Kerr's  Cyc.  C.  C.  §  2148  and  note. 
As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§  2151.  LOSS,  HOW  BOEXE.  The  loss  incurred  by  a  jetti- 
son, when  lawfully  made,  must  be  borne  in  due  proportion  by 
all  that  part  of  the  ship,  appurtenances,  freightage,  and  cargo 
for  the  benefit  of  which  the  sacrifice  is  made,  as  well  as  by 
the  owner  of  the  thing  sacrificed. 

History:     Enacted  March  21,  1872. 

As  to  jettison,  adjustment  of  loss,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  2148  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§2152.    GENEEAL    AYEEAGE    LOSS,    HOW    ADJUSTED. 

The   proportions   in   which   a  general   average   loss   is   to   be 
borne   must  be  ascertained  by  an   adjustment,  in  which  the 

1126 


TitVII,ch.III,art.V.]  VALUES.  §§2153,2154 

owner  of  each  separate  interest  is  to  be  charged  with  such 
proportion  of  the  value  of  the  thing  lost  as  the  value  of  his 
part  of  the  property  affected  bears  to  the  value  of  the  whole. 
But  an  adjustment  made  at  the  end  of  the  voyage,  if  valid 
there,  is  valid  everywhere. 

History:     Enacted  March  21,  1872. 

58  F.  801,  803  (cited — regulating  adjustment  of  general  aver- 
age losses). 

As  to  general  average  loss,  how  borne  and  adjusted,  see 
Kerr's  Cyc.  C.  C.  §  2148  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§2153.  VALUES,  HOW  ASCERTAINED.  In  estimating 
values  for  the  purpose  of  a  general  average,  the  ship  and 
appurtenances  must  be  valued  as  at  the  end  of  the  voyage, 
the  freightage  at  one-half  the  amount  due  on  delivery,  and 
the  cargo  as  at  the  time  and  place  of  its  discharge;  adding, 
in  each  case,  the  amount  made  good  by  contribution. 

History:     Enacted  March  21,   1872. 

58  F.  801,  803  (the  provisions  of  this  section  are  conclusive 
as  to  the  rule  to  be  observed  in  ascertaining  contributory  value 
of  freight  in  general  average). 

As  to  estimating  value  of  ship,  cargo,  etc.,  for  purposes  of 
general  average,  see  Kerr's  Cyc.  C.  C.  §  2148  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  pas- 
sengers, see  note  §  2114,  ante. 


§2154.  THING  STOWED  ON  DECK.  The  owner  of  things 
stowed  on  deck,  in  case  of  their  jettison,  is  entitled  to  the 
benefit  of  a  general  average  contribution  only  in  case  it  is 
usual  to  stow  such  things  on  deck  upon  such  a  voyage. 

History:     Enacted  March   21,   1872. 

As  to  jettison  in  general,  see  Kerr's  Cyc.  C.  C.  §  2148  and 
note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  stowage  on  deck,  deviation,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  2117  and  note. 

1127 


§  2155  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2155.    APPLICATION  OF  THE  FOREGOING  RULES.  The 

rules  herein  stated  concerning  jettison  are  equally  applicable 
to  every  other  voluntary  sacrifice  of  property  on  a  ship,  or 
expense  necessarily  incurred,  for  the  preservation  of  the  ship 
and  cargo  from  extraordinary  perils. 

History:     Enacted  March  21,  1872. 

58  F.  801,  803  (cited — regulating  adjustment  of  general  aver- 
age losses). 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 


1128 


Tit.VII.ch.IV.]  MESSAGES.  §  2161 


CHAPTER  IV. 

CARRIERS    OF   MESSAGES. 

§  2161.     Obligation   of   carrier  of  messages. 
§  2162.     Degree  of  care  and  diligence  required. 

§2161.    OBLIGATION    OF    CARRIER   OF    MESSAGES.     A 

carrier  of  messages  for  reward,  other  than  by  telegraph  or 
telephone,  must  deliver  them  at  the  place  to  which  they  are 
addressed,  or  to  the  person  for  whom  they  are  intended.  Such 
carrier,  by  telegraph  or  telephone,  must  deliver  them  at  such 
place  and  to  such  person,  provided  the  place  of  address,  or 
the  person  for  whom  they  are  intended,  is  within  a  distance 
of  two  miles  from  the  main  office  of  the  carrier  in  the  city 
or  town  to  which  the  messages  are  transmitted,  and  the  car- 
rier is  not  required,  in  making  the  delivery,  to  pay  on  his 
route  toll  or  ferriage;  but  for  any  distance  beyond  one  mile 
from  such  office,  compensation  may  be  charged  for  a  messen- 
ger employed  by  the  carrier. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  248;  by  Code  Commission,  Act  March  16, 
1901,  Stats,  and  Amdts.  1900-1,  p.  413,  held  unconstitutional,  see 
history,  §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats, 
and  Amdts.   1905,  p.   627. 

66' C.  579,  586,  57  A.  R.  119,  6  P.  637  (construed  in  dis.  op.); 
123  C.  428,  430,  56  P.  103   (construed  and  applied  with  §  2162). 

As  to  carrier  of  messages,  generally,  see  note  §  536,  ante. 

As  to  carrier  of  messages  not  being  common  carrier,  see 
Kerr's   Cyc.   C.   C.    §  2168  and  note. 

As  to  duties,  liabilities,  etc.,  of  carriers  of  messages,  see  Kerr's 
Cyc.  C.  C.   §  2162  and  note. 

As  to  offense  committed  in  refusing  or  neglecting  to  send  or 
postpone  or  deliver  message,  see  Kerr's  Cyc.  Pen.  C.  §  638  and 
note. 

As  to  offense  of  agent,  operator,  or  employee  using  or  appro- 
priating information  from  private  message  to  his  own  advan- 
tage or  profit,  see  Kerr's  Cyc.  Pen.  C.  §  639  and  note. 

As  to  offense  of  bribing  or  attempting  to  bribe  telegraph 
operator,  see  Kerr's  Cyc.  Pen.  C.  §  641  and  note. 

1129 


§  2162  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  offense  of  person  who  by  means  of  machine,  instrument, 
or  contrivance,  etc.,  reads  or  attempts  to  read  message,  see 
Kerr's  Cyc.  Pen.  C.  §  640  and  note. 

§  2162.    DEGREE  OF  CARE  AND  DILIGENCE  REQUIRED. 

A  carrier  of  messages  for  reward  must  use  great  care  and  dili- 
gence in  the  transmission  and  delivery  of  messages. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code  Amdts.   1873-4,  p.   249. 

See  Kerr's  Cyc.  C.  C.  for  35  pars,  annotation. 

66  C.  579,  581,  586  (construed  in  dis.  op.),  56  A.  R.  119,  6  P.  637, 
638.  See  4  P.  657,  661;  123  C.  428,  430  (construed  and  applied). 
56  P.  103;  130  C.  657.  660  (construed  and  applied),  80  A.  S.  153, 
160,  63  P.  83,  53  L.  678;  61  Fed.  624,  625,  627,  15  U.  S.  App.  445, 
9  C.  C.  A.  680  (construed  with  §  2168 — degree  of  care  prescribed 
by  statute  is  complied  with  when). 

As  to  actual  damages  sustained  by  reason  of  delays,  errors, 
etc.,  in  transmission  of  messages,  see  10  A.  S.  782-785. 

As  to  damages  for  injury  to  feeling  for  failure  or  delay  in 
delivering  messages,  see  10  A.  S.  788-790. 

As  to  detriment  caused  by  breach  of  carrier's  obligation  to 
accept  messages,  see  Kerr's  Cyc.  Pen.  C.  §  3315  and  note. 

As  to  elements  of  damage  in  actions  against  telegraph  com- 
panies for  failure  to  send  or  deliver  messages,  see  10  A.  S. 
778,  782. 

As  to  knowledge  of  importance  of  message  as  affecting  ques- 
tion of  damages,  see  10  A.  S.  785,  786. 

As  to  limitation  of  liability  of  carrier  of  messages,  see  Kerr's 
Cyc.  C.  C.  §  2168  and  note. 

As  to  mental  suffering,  see  Kerr's  Cyc.  C.  C.  §  2100,  pars.  82,  83 
note. 

As  to  message  disclosing  its  own  importance,  see  10  A.  S. 
786,   788. 

As  to  regulation  as  to  repeating  messages,  see  32  A.  S.  798. 

Mental  suffering  not  element  of  damage  for  delay  in  delivery. 
See   66  A.   S.   873-875. 

Telegraph  companies  may  stipulate  for  limitation  of  liability 
for  errors. — See  71  A.  D.  467,  469,  472,  474;  1  A.  S.  358. 


1130 


Tit.VII,ch.V,art.I.]  COMMON   CARRIERS.  §  2168 

CHAPTER  V. 

COMMON  CARRIERS. 

Article    I.  Common  Carriers  in  General,   §§  2168-2177. 

II.  Common  Carriers  of  Persons,  §§  2180-2191. 

III.  Common  Carriers  of  Property,  §§  2194-2204. 

IV.  Common  Carriers  of  Messages,   §§2207-2209. 

ARTICLE  I. 

COMMON  CARRIERS  IN  GENERAL. 

§  2168.  Common    carrier,  what. 

§  2169.  Obligation  to  accept  freight. 

§  2170.  Common  carriers  not  to  give  preference. 

§  2171.  What  preferences  he   must  give. 

§  2172.  Starting. 

§  2173.  Compensation. 

§  2174.  Obligations   of   carrier  altered   only  by   agreement. 

§  2175.  Certain    agreements    void. 

§  2176.  Modifications  thereof. 

§  2177.  Loss   of  valuable  letters. 

§  2168.  COMMON  CARRIER,  WHAT.  Every  one  who  offers 
to  the  public  to  carry  persons,  property,  or  messages,  except- 
ing only  telegraphic  messages,  is  a  common  carrier  of  what- 
ever he  thus  offers  to  carry. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   249. 

-   See  Kerr's  Cyc.  C.  C.  for  33  pars,  annotation. 

66  C.  579,  581,  586,  56  A.  R.  119,  6  P.  637,  638  (construed  and 
applied);  61  F.  624,  625,  627  (construed  with  §2162 — degree  of 
care  prescribed  by  statute  is  complied  with  when). 

As  to  baggage  transfer  companies,  when  and  when  not  liable 
as  common  carriers,  see  34  L.  137-139. 

As  to  carriers  as  bailees,  see  6  L.  619,  620. 

As  to  carrier's  liability  where  a  servant  appropriates  money 
received  for  carriage,  see  56  A.  D.  84. 

As  to  common  carrier's  responsibilities  for  agent's  contracts, 
see  56  A.  D.  84. 

1131 


§  2168  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  common  carriers,  who  are,  in  general,  see  14  A.  D.  751, 
752;  26  A.  D.  467;  28  A.  D.  657;  31  A.  D.  751;  37  A.  D.  467;  40  A.  D. 
100,  782;  42  A.  D.  496,  497;  47  A.  D.  648-653;  63  A.  D.  138;  64 
A.  D.  124;  73  A.  D.  176;  83  A.  D.  82;  87  A.  D.  720-722;  91  A.  D. 
66;  11  A.  R.  656;  12  A.  R.  501;  36  A.  R.  504,  505;  4  A.  S.  628;  6  L.  619; 
10  L.  415,  416. 

As  to  deg-ree  of  care,  skill,  and  diligence  required  of  pas- 
senger carriers,  see  ante  §  2100  and  note,  and  see  2  L.  84. 

As  to  ferries  on  streams  between  counties,  see  Hen.  G.  L.  pp. 
455,  456;  see  also  note  §  528,  ante. 

As  to  ferry  depot  at  San  Francisco,  see  Hen.  G.  L.  pp.  456- 
459. 

As  to  fires  caused  by  engines  of  carriers,  see  Kerr's  Cyc. 
C.  C.   §  3333  and  note. 

As  to  inability  of  carrier  to  relieve  itself  from  liability 
imposed  upon  it  by  law,  see  Kerr's  Cyc.  C.  C.  §  2175  and  note. 

As  to  inspection  of  passengers  for  prevention  of  introduction 
of  diseases  into  the  state,  see  Hen.  G.  L.  pp.  506,  507. 

As  to  interstate  commerce,  see  act  of  Congress  of  February 
4,  1887,  ch.  104,  24  Stats,  at  L.  379,  3  F.  S.  A.  809;  act  of  March 
2,  1889,  ch.  382,  25  Stats,  at  L.  855,  3  F.  S.  A.  852;  act  of  March 
2,  1889,  ch.  411,  25  Stats,  at  L.  954,  3  F.  S.  A.  856;  act  of  August 
8,  1890,  ch.  728,  26  Stats,  at  L.  313,  3  F.  S.  A.  853;  act  of  February 
11,  1893,  ch.  83,  27  Stats,  at  L.  443,  3  F.  S.  A.  855. 

As  to  interstate  commerce,  power  of  Congress  to  regulate, 
etc.,  see  27  A.  S.  547-550. 

As  to  liability  of  carriers  at  common  law,  see  further  Kerr's 
Cyc.  C.  C.  §  2194  and  note. 

As  to  liability  of  sleeping-car  company,  see  21  L.   289. 

As  to  marine  carriers,  who  are,  see  47  A.  D.  651,  652,  653,  654. 

As  to  obligations  imposed  on  carrier  by  contract,  see  2  L. 
85,  86. 

For  presumption  of  negligence  in  carriage  of  freight,  see 
Kerr's   Cyc.   C.  C.   §2114   and  authorities   there  cited. 

As  to  provision  for  appointment  of  policemen  on  cars  or  boats 
of  railroad  and  steamship  companies,  see  Hen.  G.  L.  p.   1066. 

As  to  powers  and  duties  of  railroad  commissioners,  see  Hen. 
G.  L.  pp.  1109-1112  and  note. 

As  to  quarantine  of  animals  brought  into  state  of  California 
from  infected  districts,   see  Hen.   G.  L.  pp.   1106,   1107. 

As  to  railroad  companies  as  private  carriers,  drawing  special 
cars  or  special  trains,  etc.,  see  30  L.  161,  162. 

As  to  rates  and  lowering  of  for  purpose  of  competing  with 
other  common  carriers,  and  governmental  authority  in  such 
cases,  see  §  20  Art.  XII  State  Constitution,  Hen.  G.  L.  p.  xcvi,  and 
Kerr's  Cyc.  C.  C.  §  2173  and  note. 

As  to  regulation  of  freights  and  fares  on  railroads,  see  Kerr's 
Cyc.  C.  C.  §  484  and  note. 

1132 


Tit.VII,ch.V,art.I.]         COMMON  CARRIERS.  §§  2169, 2170 

As  to  right  of  states  to  regulate  charges  of  carriers,  see  15 
A.  S.   483,  943,  27  A.  S.  567,  568. 

As  to  sleeping-car  companies'  liabilities  as  carriers,  see  21  L. 
291,   292. 

As  to  state  harbor  commissioners,  see  Hen.  G.  L.  pp.  1280-1285. 

As  to  when  liability  as  carrier  ceases,  see  10  L.  417. 

Common  carriers,  who  are  not — Sleeping-car  company. — See 
21  L.   291,   292,  298. 

§  2169.  OBLIGATION  TO  ACCEPT  FREIGHT.  A  common 
carrier  must,  if  able  to  do  so,  accept  and  carry  wliatever  is 
offered  to  him,  at  a  reasonable  time  and  place,  of  a  kind  that 
he  undertakes  or  is  accustomed  to  carry. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

70  C.  169,  178,  59  A.  R.  404,  11  P.  686,  690  (common  carrier  of 
goods  is  not  under  obligation  to  accept  and  carry  all  personal 
property  that  may  be  offered);  81  C.  296,  298,  15  A.  S.  61,  22  P. 
859,  6  L.  336  (duty  of  street-railroad  as  common  carrier  to  accept 
and  carry  passengers  must  have  reasonable  performance). 

As  to  carrier's  right  to  require  payment  of  freightage  upon 
receipt  or  delivery  of  freight,  see  Kerr's  Cyc.  C.  C.  §  2136  and 
note. 

As  to  consignor  being  liable  -for  freightage  in  absence  of 
special  contract  to  contrary,  see  Kerr's  Cyc.  C.  C.  §  2137  and 
note. 

As  to  preferences  by  carriers,  see  Kerr's  Cyc.  C.  C.  §  2170  and 
note. 

As  to  refusal  of  railroad  to  carry  passengers,  see  Kerr's  Cyc. 
C.  C.  §  482  and  note. 

As  to  transportation  of  dangerous  articles  under  special  con- 
tract, see  Kerr's  Cyc.  C.  C.  §  2174  and  note. 

§2170.  COMIION  CARBIEES  NOT  TO  GIVE  PREFER- 
ENCE. A  common  carrier  must  not  give  preference  in  time, 
price,  or  otherwise,  to  one  person  over  another.  Every  com- 
mon carrier  of  passengers  by  railroad,  or  by  vessel  plying 
upon  waters  lying  wholly  within  this  state,  shall  establish 
a  schedule  time  for  the  starting  of  trains  or  vessel  [s]  from 
their  respective  stations  or  wharves,  of  which  public  notice 
shall  be  given,  and  shall,  weather  permitting,  except  in  case 
of  accident  or  detention  caused  by  connecting  lines,  start 
their  said  trains  or  vessel [s]  at  or  within  ten  minutes  after 

1133 


§§2171,2172  CIVIL,  CODE.  [Div.III.Pt.IV. 

the  schedule  time  so  established  and  notice  given,  under  a 
penalty  of  two  hundred  and  fifty  dollars  for  each  neglect  so 
to  do,  to  be  recovered  by  action  before  any  court  of  compe- 
tent jurisdiction,  upon  complaint  filed  by  the  district  attorney 
of  the  tounty  in  the  name  of  the  people,  and  paid  into  the  com- 
mon s-^'^iol  funci  of  the  said  county. 

History:  Enacted  March  21,  1872;  amended  April  2,  1880, 
Code  Amdts.  1880  (C.  C.  pt.),  p.  2;  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414,  held 
unconstitutional,  see  history,   §   4  ante. 

See  Kerr'^s  Cyc.  C.  C.  for  5  pars,  annotation. 

70  C.   169,  178,  59  A.  R.   404,   11  P.  686,   690   (cited). 

As  to  duty  of  railroads  to  adopt  time  schedule  and  conform 
to  same,  see  Kerr's  Cyc.  C.  C.  §  481  and  note  pars.  69-77. 

As  to  effect  of  lowering  rates  by  railroad  companies  for  pur- 
poses of  competition,  see  Kerr's  Cyc.  C.  C.  §  2173  and  note  par.  3. 

As  to  offense  of  overcharging  for  carriage  of  passengers  or 
freight,  see  Kerr's  Cyc.  Pen.  C.  §  525  and  note. 

As  to  rates  of  freights  and  fares,  see  Kerr's  Cyc.  C.  C.  §  489 
and  note. 

§  2171.  WHAT  PREFERENCES  HE  MUST  GIVE.  A  com- 
mon carrier  must  always  give-  a  preference  in  time,  and  may 
give  a  preference  in  price,  to  the  United  States  and  to  this 
state. 

History:     Enacted  March   21,   1872. 

As  to  compensation  of  common  carriers,  reasonableness  of, 
and  the  like,  see  Kerr's  Cyc.  C.  C.  §  2178  and  note. 

As  to  preferences,  see  Kerr's  Cyc.  C.  C.   §  2170  and  note. 

As  to  public  nature  of  coinirion  carriers,  see  Kerr's  Cyc.  C.  C. 
§  2168  and  note. 

§  2172.  STARTING.  A  common  carrier  must  start  at  such 
time  and  place  as  he  announces  to  the  public,  unless  detained 
by  accident  or  the  elements,  or  in  order  to  connect  with  car- 
riers on  other  lines  of  travel. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    249. 

As  to  duty  of  railroad  corporation  to  regulate  time  schedule 
for  transportation  of  persons  and  property,  see  Kerr's  Cyc.  C.  C. 
§  481  and  note. 

1134 


I 


Tit.VII,ch.V,art.I.]  COMPENSATION.  §§  2173, 2174 

As  to  liability  for  delay,  see  Kerr's  Cyc.  C.  C.  §  2196  and  note. 
As  to  obligation  to  perform,   see  Kerr's  Cyc.  C.  C.   §  2170  and 
note. 

§  2173.  COMPENSATION.  A  common  carrier  is  entitled  to 
a  reasonable  compensation  and  no  more,  which  he  may  require 
to  be  paid  in  advance.  If  payment  thereof  is  refused,  he  may 
refuse  to  carry. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  averment  in  complaint  of  discrimination  or  inequality 
not  being  equivalent  to  allegation  of  excessive  charge,  see 
Kerr's  Cyc.  C.  C.  §  2170  and  note  par.  4. 

As  to  jurisdiction  of  railroad  commission  to  hear  and  deter- 
mine complaints  against  transportation  companies,  see  Const. 
1879  art.  XII,  §  22,  Hen.  G.  L.  p.  xcvi. 

As  to  lien  for  freightage,  see  Kerr's  Cyc.  C.  C.  §  2144  and  note. 

As  to  lien  on  luggage,  see  Kerr's  Cyc.  C.  C.  §  2191  and  note. 

As  to  right  of  carrier  to  carry  for  favored  individuals  at 
unreasonably  low  rate  or  even  gratis,  see  Kerr's  Cyc.  C.  C.  §  2170 
note  pars.  2,  3. 

As  to  state  authority  over  railroad  corporations  and  right  to 
regulate  fares  and  freights,  see  Const.  1879,  art.  XII  §  20,  Hen. 
G.  L.  p.  xcvi. 

§  2174.  OBLIGtATIONS  OF  CARRIER  ALTERED  ONLY  BY 
AGREEMENT.  The  obligations  of  a  common  carrier  cannot 
be  limited  by  general  notice  on  his  part,  but  may  be  limited 
by  special  contract. 

History:  Enacted  March  21,  1872;  ainended  March  30,  1874, 
Code    Amdts.    1873-4,    p.    249. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

120  C.  156,  158,  159  (applied  and  construed),  47  P.  874,  52  P. 
302,  40  L.  350;  151  C.  763,  767,  770,  91  P.  603  (construed  with 
§  2175 — rule  of  common  law  as  to  ordinary  negligence  has  been 
abrogated);  2  C.  A.  173,  175,  83  P.  265  (cited  as  to  power  to  limit 
liability). 

As  to  agent's  power  to  bind  owner  by  contract  for  limiting 
liability,  see  7  Am.  R.  &  Corp.  Rep.  308-311. 

As  to  benefits  under  special  contract  inuring  to  connecting 
carrier,  see  7  Am.  R.  &  Corp.  Rep.  323-325. 

As  to  burden  of  proof  upon  contracts  restricting  liability,  see 
7  Am.  R.  &  Corp.  Rep.  327-337. 

1135 


§  2174  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  carrier's  inability  to  exempt  itself  from  liability  for 
negligence,  fraud,  or  wilful  wrong,  see  Kerr's  Cyc.  C.  C.  §  2175 
and  note. 

As  to  carrier's  liability  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2096, 
2100,  2114,  2168  and  notes. 

As  to  carrier's  right  to  limit  his  common-law  liability  for 
loss  not  due  to  negligence,  see  7  Am.  R.  &  Corp.  Rep.  282,  283. 

As  to  cuiiQict  of  laws  regarding  limitation  of  liability,  see  88 
A.  S.  125,  129. 

As  to  consideration  for  agreement  limiting  liability,  see  7  Am. 
R.  &  Corp.  Rep.  311-314. 

As  to  effect  of  change  of  route  or  mode  of  carriage  upon  con- 
tract limiting  liability,  see  7  Am.  R.  &  Corp.  Rep.   337. 
As  to  exemption  from  liability,  in  general,  see  10  L.  417. 
As  to  exceptions  to  common  carrier's  liability,  see  Kerr's  Cyc. 
C.  C.  §  2194  and  note. 

As  to  failure  to  read  bill  of  lading,  assent  of  shipper,  etc., 
see  88  A.  S.  82,  83. 

As  to  general  doctrine  of  limitation  of  liability,  see  32  A.  D. 
497-500. 

As  to  gratuitous  carriage  of  property  and  limitation  of  lia- 
bility thereon,  see  7  Am.  R.  &  Corp.  Rep.  299,  300. 

As  to  interstate  law  and  law  of  place  as  applied  to  limitations 
of  liability,  see  7  Am.  R.  &  Corp.  Rep.   325-327. 

As  to  limitation  of  express  companies'  liability,  see  61  A.  S. 
363. 

As  to  limitation  of  liability  by  advertisements,  see  32  A.  D. 
505. 

As  to  limitation  of  liability  by  contract,  see  10  L.  419. 
As  to  limitation  of  liability  by  express  contract,  see  56  A.  D. 
84;  85  A.  D.  230;  13  A.  S.  783. 

As  to  limitation  of  liability  given  by  printing  on  backs  of 
receipts,  etc.,  see  32  A.  D.  505. 

As  to  limitation  of  liability  of  baggage,  transfer  companies, 
see  34  L.  138,  139. 

As  to  limitation  of  liability  of  carrier  of  messages,  see  Kerr's 
Cyc.  C.  C.   §§  2161  and  2162  and  notes. 

As  to  limitations  of  carrier's  liability  by  acceptance  of  ticket, 
bill  of  lading,  etc.,  as  stated  thereon,  see  Kerr's  Cyc.  C.  C. 
§  2176  and  note. 

As  to  limitations  of  liability  requiring  assent  by  signature, 
see  Kerr's  Cyc.  C.  C.   §  2176  and  note. 

As  to  limiting  liability  as  to  value,  see  61  A.  S.  366-369. 
As    to   limiting   liability   by    notice,    see    32    A.    D.    502-507;    61 
A.  S.  366;  also  32  A.  D.  470;  42  A.  D.  498;  56  A.  D.  84;  7  Am.  R.  & 
Corp.  Rep.  300-302. 

As  to  limiting  liability  over  connecting  lines,  see  Kerr's  Cyc. 
C.  C.  §  2201  and  note,  and  see  61  A.  S.  371;  72  A.  D.  231-247;  10 
L.   418. 

1136 


Tit.VII,ch.V,art.I.]        void  AGREEMENTS.  §  2175 

As  to  live  stock,  carriage  of,  and  contracts  limiting-  liatiility 
therefor,  see  67  A.  D.  216,  217. 

As  to  requirement  that  limitations  for  liability  be  just  and 
reasonable,  see  7  Am.  R.  &  Corp.  Rep.  316;  13  A.  S.  784-787;  46 
A.  S.   778. 

As  to  responsibility  of  carrier,  when  terminates,  etc.,  see  56 
A.  D.  84. 

As  to  restrictions  on  power  to  limit  liability,  see  10  L.  419. 

As  to  stipulations  limiting  time  of  bringing  action,  see  13 
A.  S.  785. 

As  to  right  of  carrier  to  exact  special  contract  from  shipper, 
see  46   A.  S.   777,   780. 

As  to  rule  that  all  limitations  of  liability  are  strictly  con- 
strued against  carrier,  see  7  Am.  R.  &  Corp.  Rep.  316-319. 

As  to  special  provisions  for  carriage  of  money,  etc.,  by  rail- 
road companies,  see  Kerr's  Cyc.  C.  C.   §  2169  and  note. 

Forwarders  are  not  insurers  like  carriers. — See  88  A.  D.  418; 
91  A.  D.  303;  93  A.  D.  106;  99  A.  D.  586. 

§2175.  CERTAIN  AGREEMENTS  VOID.  A  common  car- 
rier cannot  be  exonerated,  by  any  agreement  made  in  antici- 
pation thereof,  from  liability  for  the  gross  negligence,  fraud, 
or  wilful  wrong  of  himself  or  his  servants. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

118  C.  683,  689,  690,  691,  50  P.  847  (construed  and  applied);  120 
C.  156,  158,  47  P.  874,  52  P.  302,  40  L.  350;  131  C.  582,  586,  587. 
589,  63  P.  915  (construed  and  applied);  151  C.  763,  767,  768,  770 
(construed — nothing  is  added  to  restrictive  force  of  common- 
law  rule  and  section  should  not  be  construed  as  restricting  right 
of  contract  to  any  narrower  compass  than  common  law  re- 
stricted it),  777  (cited  in  dis.  op.  to  point  that  the  making  of  a 
contract  exonerating  carrier  from  liability  is  prohibited),  91  P. 
603,   604,   605,   608. 

As  to  carrier's  liability  for  negligence  and  effect  of  special 
contracts  relieving,  or  attempting  to  relieve  therefrom,  see  32 
A.  D.  495-507;  50  A.  D.  666;  62  A.  D.  128-130;  82  A.  D.  290-295,  379; 
88  A.  D.  765;  89  A.  D.  163,  164;  91  A.  D.  788,  789;  92  A.  D.  56,  610; 
93  A.  D.  73,  167;  94  A.  D.  566;  97  A.  D.  181,  182;  9  A.  S.  795;  13 
A.  S.  782-787. 

As  to  competency  of  telegraph  companies  to  stipulate  for 
limitation  of  liability  for  errors  arising  from  any  cause  except 
wilful  misconduct  or  gross  negligence,  see  Kerr's  Cyc.  C.  C. 
§  2162  and  note. 

As  to  contracts  for  exemption  from  liability  for  negligence 
by  stipulations  in  free  pass,  see  1  L.  501. 

1137 


§  2176  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  contracts  for  exemptions  not  excusing  carrier  from 
exercising  reasonable  care,  see  7  Am.  R.  &  Corp.  Rep.  319,  320. 

As  to  contracts  providing  for  exemption  from  liability  for 
negligence,  see  note  1  L.  500. 

As  to  distinction  between  negligence  of  carriers  and  negli- 
gence of  agents  and  servants,  see  7  Am.  R.  «&  Corp.  Rep.  293- 
298. 

As  to  distinction  between  slight  negligence,  ordinary  negli- 
gence, and  gross  negligence  as  to  carriage  of  passengers,  see 
■Kerr's  Cyc.  C.  C.  §  2096  and  note. 

As  to  limitation  of  liability  for  negligence,  generally,  see  7 
Am.  R.  &  Corp.  Rep.  284-293. 

As  to  loss  by  negligence,  doctrine  that  carrier  cannot  limit 
value  of  goods,  see  88  A.  S.  Ill,  112. 

As  to  ordinary  measure  of  damages  for  breach  of  carrier's 
obligation  to  deliver  freight,  see  Kerr's  Cyc.  C.  C.  §  3316  and 
note. 

As  to  New  York  doctrine  permitting  carrier  to  make  special 
contract  to  exonerate  himself  from  effects  of  gross  negligence, 
see  32  A.  D.  500,   501. 

§2176.  MOMFICATIOKS  THEREOF.  A  passenger,  con- 
signor, or  consignee,  by  accepting  a  ticket,  bill  of  lading,  or 
written  contract  for  carriage,  with  a  knowledge  of  its  terms, 
assents  to  the  rate  of  hire,  the  time,  place,  and  manner  of 
delivery  therein  stated;  and  also  to  the  limitation  stated 
therein  upon  the  amount  of  the  carrier's  liability  in  case  prop- 
erty carried  in  packages,  trunks,  or  boxes,  is  lost  or  injured, 
when  the  value  of  such  property  is  not  named;  and  also  to 
the  limitation  stated  therein  to  the  carrier's  liability  for  loss 
or  injury  to  live  animals  carried.  But  his  assent  to  any  other 
modification  of  the  carrier's  obligations  contained  in  such 
instrument  can  be  manifested  only  by  his  signature  to  the 
same. 

History;  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  pp.   249-250. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

66  C.  294,  299  (construed  and  applied),  44  A.  R.  61,  5  P.  478, 
481;  101  C.  187,  195,  35  P.  630  (construed  and  applied);  113  C. 
329,  334,  45  P.  691,  36  L.  648  (construed  and  applied);  118  C. 
683,  689,  691,  50  P.  847  (construed  and  applied);  131  C.  582,  586, 
587,  589,  63  P.  915   (construed  and  applied). 

As   to   connecting   lines   and   carrier's   duty   to    tranship   goods, 

1138 


Tit.VII,ch.V,art.L]   VALUABLE  LETTERS.  §2177 

and  as  to  his  liability  under  special  contract,  see  Kerr's  Cyc.  C. 
C.  §  2201  and  note;  also  §  2174  and  note. 

As  to  general  right  of  any  one  to  waive  advantage  of  law 
intended  solely  for  his  own  benefit,  see  Maxims  of  Jurisprudence, 
post  §  3513. 

As  to  insurer's  non-liability  for  loss  of  freight  because  of 
improper  deviation  from  voyage,  see  Kerr's  Cyc.  C.  C.  §  2697  and 
note. 

As  to  live  stock,  carriage  of,  in  general,  see  4  L.  545;  9  L.  450. 

As  to  notices  printed  or  stamped  on  tickets  or  checks,  in  gen- 
eral, see  32  A.  D.  505,  506. 

As  to  passenger  being  bound  by  terms  and  conditions  of  ticket, 
see  5  L.  819. 

As  to  receipt  and  acceptance  of,  etc.,  as  proof  of  assent  to  its 
terms,  see   7  Am.  R.  &  Corp.   Rep.   304-308. 

As  to  when  notice  is  efficient  without  assent,  see  32  A.  D.  506.' 

§  2177.  LOSS  OF  VALUABLE  LETTERS.  A  common  car- 
rier is  not  responsible  for  loss  or  miscarriage  of  a  letter,  or 
package  having  the  form  of  a  letter,  containing  money  or 
notes,  bills  of  exchange,  or  other  papers  of  value,  unless  he 
be  informed  at  the  time  of  its  receipt  of  the  value  of  its  con- 
tents. 

History:     Enacted  March   30,   1874,  Code  Amdts.   1873-4,  p.   250. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  carriage  of  money,  etc.,  by  railroad  companies,  see 
Kerr's  Cyc.  C.  C.  §  2169  and  note. 

As  to  carriage  of  treasure,  liability  for  loss,  etc.,  see  Kerr's 
Cyc.  C.  C.  §  2200  and  note. 

As  to  shipper  estopped  from  saying  that  value  of  articles  is 
greater  than  that  on  which  compensation  for  carriage  is  based, 
see  Kerr's  Cyc.  C.  C.  §  2176  and  note  par.  IS. 


1139 


§  2180  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE  II. 

COMMON  CARRIERS  OF  PERSONS. 

§  2180.  Obligation   to   carry  luggage    [baggage.] 

§  21S1.  Luggage    deflned.      [Blcj-cle.] 

§  2182.  Liability  for  luggage. 

§  2183.  Luggage,   how  carried  and  delivered. 

§  2184.  Obligation  to  provide  vehicles. 

§  2185.  Seats   for   passengers. 

§  2186.  Regulations  for  conduct  of  business. 

§  2187.  Fare,    when   payable. 

§  2188.  Ejection    of   passengers. 

§  2189.  Passenger  who  has  not  paid  fare. 

§  2190.  Fare   not  payable   after  ejection. 

§  2191.  Carrier's   lien. 

§  2180.    OBLIGATION  TO  CARRY  LUGGAGE  [BAGGAGE]. 

A  common  carrier  of  persons,  unless  his  vehicle  is  fitted  for 
the  reception  of  persons  exclusively,  must  receive  and  carry 
a  reasonable  amount  of  baggage  for  each  passenger  without 
charge,  except  for  an  excess  of  weight  over  one  hundred 
pounds  to  a  passenger;  if  such  carrier  is  a  proprietor  of  a 
stage  line,  he  need  not  receive  and  carry  for  each  passenger 
by  such  stage  line,  without  charge,  more  than  sixty  pounds 
of  baggage. 

History:  Enacted  March  21,  1872;  amended  March  9,  1878, 
Code  Amdts.  1877-8,  p.  87;  by  Code  Commission,  Act  March 
16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414,  held  unconstitutional, 
see  history,  §  4  ante;  amendment  re-enacted  March  21,  1905, 
Stats,  and  Amdts.   1905,  p.   615. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

70    C.    169,    172,    59    A.    R.    404,    11    P.    686,    688    (construed    and 
applied);  85  C.  329,  330,  20  A.  S.  228,  24  P.  610,  9  L.  431  (cited). 
See  note  11  L.  760. 

BAGGAGE    OR   LUGGAGE, 

As  to  baggage,  what  constitutes  liability  of  carrier  therefor, 
etc.,  see  Kerr's  Cyc.  C.  C.  §§  2182,  2183  and  notes. 

As  to  duties  and  obligations  of  carriers  of  persons  in  general, 
see  Kerr's  Cyc.  C.  C.  §  2100  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

1140 


Tit.VII,ch.V,art.II.]  BAGGAGE.  §  2180 

As  to  what  is  and  liability  for. — See  71  A.  D.  159;  8  A.  R. 
302;  99  A.  S.  343. 

Articles  used  for  or  by  child  riding  free  with  parent,  right 
of  father  to  recover  from  carrier  for  loss  of  as  baggage. — See 
7  A.  C.   61. 

Baggageman,  act  of  in  receiving  articles  as  baggage,  how 
far  bound  on  carrier. — See   10  L.  N.  S.   1119. 

Bedding  is  not.— See  84  A.  D.   646;   8  A.  R.  300;   1  W.  &  P.   665. 

Bicycles  as. — See  47  L.  306;  1  W.  &  P.  665. 

Books  are  when.— See  14  A.  R.  716;  115  Eng.  C.  L.  321;  20 
L.  ed.  423;   1  W.  &  P.   665. 

Contributory  negligence — Effect  of  to  defeat  action  for  loss 
or  injury  to. — See  11  L.   762. 

Definition — Of  baggage. — See  51  A.  D.  44;  51  A.  D.  682;  56 
A.  D.  460;  71  A.  D.  156;  8  A.  R.  300;  55  A.  R.  252;  59  A.  R.  404; 
23  A.  S.  126;  58  A.  S.  Ill;  67  A.  S.  933;  3  L.  342;  11  L.  759;  12 
L.  318;  36  L.  781;  41  L.  333;  60  L.  486;  20  L.  ed.  423;  25  L.  ed. 
531;  1  W.  &  P.  663. 

Same — Of  luggage. — See  5  W.  &  P.  4257. 

Same — Of  personal  luggage. — See  23  A.  S.  126:  12  L.  318;  25 
L.  ed.  531;   6  "W.   &  P.   5345. 

Delay  in  delivering,  right  to  recover  expenses  or  damages 
incident  to. — See  7  L.  N.  S.  188. 

Drummer's  samples  carried  as,  liability  of  carrier  for.— See 
6  A.  C.  826,   828;  4  L.  N.  S.  1033. 

Duty  of  sleeping-car  company  as  to  baggage  or  personal 
effects  of  passengers. — See  9  L.  N.  S.  407;  also  note  §  2100,  ante. 

Duty  to  carry. — See  9  A.  C.  199. 

Guns,  etc.,  are  when. — See  1  W.  &  P.   666. 

Hand  baggage — Limitation  of  liability  for  loss  of  baggage 
applicable  to. — See  5  L.  N.  S.  650. 

House  or  furniture  is  not.^See  55  A.  R.  252;  1  W.  &  P.  666. 

How  far  carrier  bound  by  act  of  baggageman  in  receiving 
articles  as  baggage. — See  10  L.  N.  S.  1119. 

Husband's  right  of  action  for  mental  suffering  from  loss  of 
by  intended  bride  causing  postponement  of  wedding. — See  3 
L.   N.   S.   225. 

Implied  exception  in  statute  as  to  free  transportation  of. — 
See  25  L.  569. 

Infant  traveling  with  parent  without  paying  fare,  loss  of 
personal  effects  of,  right  of  parent  to  recover  for  as. — See  1 
L.  N.  S.   353. 

Inn-keeper's  liability  for,  of  guests. — See  2  A.  C.  12,  16;  2  A.  C. 
345,  346;  2  A.  C.  488,  491. 

Jewelry,  etc.,  is  when. — See  45  A.  D.  654;  5  A.  R.  221;  24  A.  R. 
268;  57  A.  R.  227;  20  L.  ed.  423;  1  W.  &  P.  666. 

Liability — For,  after  reaching  destination  of  passenger. — See 
36  L.  781-788, 

1141 


§  2180  CIVIL,  CODE.  [Div.III,Pt.IV. 

Same — For  injury  or  loss  of^ — As  to  generally. — See  7  A.  C. 
57;  9  A.  C.  199;  3  L.  342;  11  L.  759. 

Same — For  money  stolen  by  employee. — See  11  L.  762. 

Same — For,  not  accompanied  by  passenger. — See  55  L.   650. 

Liability — For,  termination  of. — See  3  L.  N.  S.  183. 

Same — Of  carrier  for.— See  10  A.  C.   893. 

Liability — Of  carrier  for  loss  of  drummer's  baggage. — See  4 
L.  N.  S.   1035. 

Sanp,e — Of  passenger  carrier  transporting  mercliandise  en- 
trusted to  it  by  passenger.- — See   14  L.   515. 

Same — Of  sleeping-car  company  for  loss  of  passenger's  prop- 
erty left  by  him  in  berth  while  temporarily  absent  therefrom. — 
See  10  A.  C.  895. 

Limiting  liability  for — As  to,  generally,  see  5  L.  N.  S.  650; 
8  L.  N.  S.   199. 

Same — Application  to  hand  baggage  of  limitation  of  liability 
for  loss  of  baggage. — See  5  L.  N.  S.   650. 

Same — By  provision  in  ticket- — As  to  generally. — See  9  A.  C. 
909. 

Same — Stipulation  exempting  carrier  from  liability  for  pas- 
senger's baggage,  or  limiting  amount  thereof,  does  it  cover 
losses  due  to  negligence. — See  8  L.  N.  S.  199. 

Same — Validity  and  effect  of  stipulation  in  ocean  steamship 
ticket  limiting  liability  for'  passenger's  baggage. — See  9  A.  C. 
913. 

Loss  of,  right  to  recover  expenses  and  damage  incident  to. — 
See  7  L.  N.  S.  188. 

Merchandise  as. — See  24  Am.  L.  Reg.  175,  178,  28  A.  D.  653; 
41  A.  D.  767;  93  A.  D.  140;  43  A.  R.  199;  55  A.  R.  252;  37  L.  ed. 
587;   1  W.  &  P.  667. 

Same — Liability  of  passenger  carrier  transporting  entrusted 
to  it  by  passenger. — See   14  L.   515. 

Same — Responsibility  for  loss  when  carried  as. — See  11  L.  761. 

Money  as. — See  24  A.  D.  129;  32  A.  D.  455;  51  A.  D.  44;  71  A.  D. 
156;  83  A.  D.  143;  5  A.  R.  655;  59  A.  R.  404;  20  L.  ed.  423;  1  W. 
&  P.   667. 

Negligence — Does  stipulation  exempting  carrier  from  liability 
for  passenger's  baggage,  or  limiting  amount  thereof,  cover 
losses  due  to. — See  8  L.  N.  S.   199. 

Notice  to  passenger  of  non-liability. — See   11   L.   762. 

Punitive  damages  for  wanton  failure  to  transport. — See  9 
L.  N.  S.   1218. 

Recovery  by  parent  for  loss  of  personal  effects  of  infant  that 
pays  no  fare. — See  1  L.  N.  S.  353. 

Responsibility  for  loss  of  merchandise  carried  as  baggage. — 
See  11  L.  761. 

Right  of  father  to  recover  from  carrier  for  loss  as  baggage 
of  articles  used  for  or  by  his  child. — See  7  A.  C.  61. 

1142 


Tit.VII,ch.V,art.II.]       LUGGAGE,    DEFINED.  §  2181 

Riglit  to  recover  expenses  or  damage  incident  to  loss  of,  or 
delay  in  delivery. — See  7  L.  N.  S.  188. 

Stipulation  exempting  carrier  from  liability  for  passenger's 
baggage,  or  limiting  amount  thereof,  does  it  cover  loss  due  to 
negligence. — See    8    L.    N.    S.    199. 

Sleeping-car  company,  duty  of  as  to  baggage  or  personal 
effects  of  passengers. — See  9  L.  N.  S.  407;  also  note  §  2100,  ante. 

Street-car  company  as  carriers  of. — See  9  A.  C.  201. 

Termination   of  liability  for. — See  3  L.  N.  S.   183. 

Theatrical  property  as. — See  23  A.  S.  126;  12  L.  318;  1  W.  &  P. 
669. 

Tools  of  trade  as. — See  1  W.  &  P.  669. 

Validity  and  effect  of  stipulation  in  -ocean  steamer  tickets 
limiting  liability  for  passenger's  baggage. — See  9  A.  C.  913. 

Wanton  failure  to  transport,  punitive  damages  for. — See  9 
L.  N.   S.   1218. 

Watch  and   chain  as. — See   8  A.   R.   471;   9   A.  R.   456;   57   A.  R. . 
227;  20  L.  ed.  423;  1  W.  &  P.  669. 

Wearing  apparel. — See  1  A.  R.  527;  5  A.  R.  655;  1  W.  &  P.  669. 

What  constitutes — As  to  generally,  see  6  A.  C.  826,  828;  7 
A.  C.  57,  61. 

§  2181.  LUGGAGE  DEFINED.  [BICYCLE.]  Luggage  may 
consist  of  whatever  the  passenger  takes  with  him  for  his 
personal  use  and  convenience,  according  to  tlie  habits  or 
wants  of  the  particular  class  to  which  he  belongs,  either  with 
reference  to  the  immediate  necessities,  or  to  the  ultimate 
purpose  of  the  journey.  No  crate,  cover,  or  other  protection 
shall  be  required  for  any  bicycle  carried  as  luggage,  but  no 
passenger  shall  be  entitled  to  carry  as  luggage  more  than  one 
bicycle. 

History:  Enacted  March  21,  1872;  amended  February  9,  1897, 
Stats,  and  Amdts.   1897,   p.    4. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

70  C.  169,  173,  59  A.  R.  404,  11  P.  686,  688  (construed  and 
applied);  85  C.  329,  330,  20  A.  S.  228,  24  P.  610,  9  L-.  431  (construed 
and  applied). 

See  note   11  L.   760. 

As  to  baggage  on  railroad  lines,  see  Kerr's  Cyc.  C.  C.  §  479 
note  pars.  1-7. 

As  to  checks  as  prima  facie  evidence  of  delivery  of  baggage, 
see  Kerr's  Cyc.  C.  C.   §  479  note  par.  12. 

As  to  checks  required  to  be  affixed  to  all  baggage  and  lug- 
gage, see  Kerr's  Cyc.  C.  C.  §  479  and  note. 

1143 


§  2182  CIVIL  CODE.  [Div.III.Pt.IV.  f. 

As    to    bag-gag-e    on    lines    of    connecting    carriers,    see    Kerr's  '^ 

Cyc.  C.   C.   §  479   par.    7.  ^ 

"Baggage"   and    "luggage"    signify   same    thing. — See    59    A.   R.  ^ 

404.  ! 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers,  ■; 
see  note  §  2100,  ante. 

§21H2.     LIABILITY    FOR   LUGGAGE.     The    liability    of    a 
carrier  for  luggage  received  by  him  with  a  passenger  is  the 
same  as  that  of  a  common  carrier  of  property. 
History.:     Enacted  March  21,   1872. 

70    C.    169,    173,    59    A.    R.    404,    11    P.    686,    688    (construed    and 
applied). 

As  to   baggage  retained  for  carrier's  benefit,   see  36   L.   784. 

As  to  burden  of  proof  in   case  of  loss  of  baggage,   see  36   L. 
788. 

As    to    carrier's    lien    upon    baggage    for    fare,    etc.,    see    Kerr's 
Cyc.  C.  C.  §  2191  and  note. 

As  to  competency  of  testimony  of  owner  of  trunk  as  to  con- 
tents, see  56  A.  D.  470. 

As   to    duty    of   carrier    when    baggage    remains    uncalled    for, 
See  36  L.   785. 

As  to  effect  of  agreement  to  care  for  baggage,  see  36  L.  785. 

As  to  liability  for  baggage  lost  by  acts  of  God,  see  11  L.  615. 

As   to   liability   of   baggage   transfer   companies   for   baggage, 
see  Kerr's  Cyc.  C.  C.  §  2168  and  note. 

As  to  liability   of  carrier  as  warehouseman   for  baggage,   see 
36  L.  786. 

As  to  liability  of  common  carrier  for  baggage  after  reaching 
destination,  see  36  L.   781. 

As   to  liability   of  carrier   for  baggage   in    custody   of   servant. 
See   36  L.   788. 

As  to  liability  of  common  carrier  of  property,  see  Kerr's  Cyc. 
C.  C.  §§  2114,  2194,  2204  and  notes. 

As  to  liability  of  passenger  carrier  for  baggage,  see  56  A.  D. 
470;  55  A.  D.  481. 

As  to  loss  of  baggage  of  passenger  on   boat,  see  Kerr's  Cyc. 
C.  C.  §  2197  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

As  to  negligence  of  passengers  in  respect  to  baggage,  see  36 
L.  788. 

As  to  sleeping-car  company's  liability  for  baggage,   see   21   L. 
295. 

As   to   when   liability   of   carrier  for   baggage   terminates,    see 
36  L.  782-784. 

1144 


Tit.VII,ch.V,art.II.]    VEHICLES.  PROVIDING.  §§2183-2185 

8  2183.    LUGGAGE,  HOW  CARRIED  A?iD  DELIVERED.    A 

common  carrier  must  deliver  every  passenger's  luggage 
whether  within  the  prescribed  weight  or  not,  immediately 
upon  the  arrival  of  the  passenger  at  his  destination;  and 
unless  the  vehicle  would  be  overcrowded  or  overloaded 
thereby,  must  carry  it  on  the  same  vehicle  by  which  he  car- 
rl  th  passenger  to  whom  it  belonged,  except  that  where 
uggage  is  transported  by  rail,  it  must  be  checked  and  carried 
in  a  regular  baggage  car;  and  whenever  passengers  neglect 
or  refuse  to  have  their  luggage  so  checked  and  transported, 
it  is  carried  at  their  risk. 

History:  Enacted  March  21.  1872;  amended  March  30,  1874 
Code  Amdts.  1873-4,  p.  250. 

70  C  169,  173.  59  A.  R.  404,  11  P.  686,  688  (construed  and 
^^^:^  ZZ  mlSlS^  matters  as  to  carriers  of  passengers. 
-i:t  llT.^t%.^.e,  HahiHty  of  carrier  therefor,  and  the 
like!  see  Kerr's  Cyc.  C.  C.  §i  2181.  2182  and  notes. 

S2184.    0BLIGATI0>   TO  PROVIDE  VEHICLES.     A  com- 
mon carrier  of  persons  must  provide  a  sufficient  number  of 
vehicles  to  accommodate  all  the  passengers  who  can  be  lea- 
sonably  expected  to  require  carriage  at  any  one  time. 
History:     Enacted  March  21.  1872. 
AS  to  many  miscellaneous  matters  as  to  carriers  of  passengers. 
''i:t  LZleZn;  that  carriers  of  P-sons  furnish   safe  and 
adequate  aPPHances,  see  Kerr's  Cyc.  ^JJ^ll^^^^l^^Z,    ^^s- 
As    to    requirement    that    raiiroaa    cuipuio-v  ^     r>     s  iSl 

sengers   sufficient   accommodations,    sec    Kerr's    Cyc.    C.    C.    §  483 

""IsTo'rights   of   passengers   on    overcrowded   cars,   see    Kerr's 
Cyc.   C.   C.   §  2100   and   note. 

s  'MBS  SEATS  FOR  PASSENGERS.  A  common  carrier  of 
pers^ons'must  provide  every  passenger  with  a  seat.  He  niust 
not  overload  his  vehicle  by  receiving  and  carrying  more  pas- 
sengers than  its  rated  capacity  allows. 

Historr:     Enacted  March  21.  1872. 
1145 


§§  2186, 2187  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  duty  to  accept  and  carry  persons  and  freight  offered, 
see  Kerr's  Cyc.  C.  C.   §  2169  and  note. 

As  to  duty  to  furnish  room  inside  passenger  cars,  see  Kerr's 
Cyc.  C.  C.  §  483  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 


§  21^.    REGULATIONS  FOR  CONDUCT  OF  BUSINESS.    A 

common  carrier  of  persons  may  make  rules  for  the  conduct 
of  his  business,  and  may  require  passengers  to  conform  to 
them,  if  they  are  lawful,  public,  uniform  in  their  application, 
and  reasonable. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

78  C.  360,  364,  20  P.  740  (language  of  section  quoted  and  con- 
strued but  section  not  cited);  97  C.  461,  464,  32  P.  530  (con- 
strued and  applied);  141  C.  728,  732,  99  A.  S.  98,  75  P.  310. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

As  to  passenger's  exhibiting  and  surrendering  ticket  when 
requested,  see  5  L.  818. 

As  to  power  of  conductor  to  waive  rule,  see  16  L.  631. 

As  to  reasonable  rules  for  carriage  of  passengers,  see  7  L. 
111. 

As  to  rules  and  regulations  railroad  coinpanies  may  make, 
see  5  L.  817. 

As  to  tender  of  reasonable  fare,  see  Kerr's  Cyc.  C.  C.  §§  2187, 
2188  and  notes. 


§  2187.  FARE,  WHEN  PAYABLE.  A  common  carrier  may 
demand  the  fare  of  passengers,  either  at  starting  or  at  any 
subsequent  time. 

Hi.story:     Enacted  March  21,  1872. 

See  'Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

81  C.  296,  298,  15  A.  S.  61,  22  P.  859,  6  L.  336  (construed  and 
applied);   97  C.   461,   464,   32  P.   530    (cited  and  applied). 

As  to  character  of  ticket  as  receipt  for  passage,  see  ante 
§  2186  and  note,  and  also  5  L.  818. 

As  to  law  requiring  conductors  to  wear  badge  indicating 
authority,  see  Kerr's  Cyc.  C.  C.  S  488  and  note. 

As  to  lost  tickets,  see  5  L.  819. 

1146 


Tit.VII,ch.V,art.II.]  EJECTION.  §§  2188, 2189 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

As  to  offense  of  stealing-  passenger  ticket,  etc.,  see  Kerr's 
Cyc.  Pen.  C.  §§  493,   494  and  notes. 

As  to  penalty  ^r  ov-ercharging,  see  Kerr's*  Pocket  Pen.  C. 
§525. 


§2188.  EJECTION  OF  PASSENGERS.  A  passenger  who 
refuses  to  pay  his  fare  or  to  conform  to  an}^  lawful  regulation 
of  the  carrier,  may  be  ejected  from  the  vehicle  by  the  carrier. 
But  this  must  be  done  with  as  little  violence  as  possible,  and 
at  any  usual  stopping  place  or  near  some  dwelling-house. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  43  pars,  annotation. 

81  C.  296,  298,  299,  15  A.  S.  61,  22  P.  859,  860,  6  L.  336  (con- 
strued and  applied);  97  C.  461,  463,  32  P.  530  (construed  and 
applied);  141  C.  728,  732,  99  A.  S.  98,  75  P.  310  (construed  and 
applied);  145  C.  441,  452,  79  P.  420   (construed  and  applied). 

As  to  duties  and  liability  of  carriers  for  wrongful  expulsion, 
see  Kerr's  Cyc.  C.  C.  §  2100  and  note. 

As  to  ejection  of  custodian  for  non-payment  of  children's 
fare,  see  38  L.  140,  141. 

As  to  expulsion  for  refusal  to  pay  fare,  see  5  L.  820. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

As  to  regulations  of  street  railroads,  see  Kerr's  Cyc.  C.  C. 
§  503  and  note. 

As  to  right  of  carrier  to  eject  passenger  and  his  baggage 
where  fare  is  refused,  or  ticket  is  not  exhibited  or  surrendered, 
see  Kerr's  Cyc.  C.  C.   §  487  and  note. 

§  2189.  PASSENGER  ^VHO  HAS  NOT  PAID  FARE.  A  pas- 
senger upon  a  railroad  train  who  has  not  paid  his  fare  before 
entering  the  train,  if  he  has  been  afforded  an  opportunity  to 
do  so,  must,  upon  demand,  pay  ten  per  cent  in  addition  to  the 
regular  rate. 

History:     Enacted  March  21,   1872. 

As  to  ejecting  passenger  for  non-payment  of  fare,  etc.,  see 
Kerr's  Cyc.  C.  C.  §481  note  pars.  11-16,  25-28;  §488  note  pars. 
3-16. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

1147 


§§2190,2191  CIVIL  CODE.  [Div.III.Pt.IV. 

§2190.  FARE  NOT  PAYABLE  AFTER  EJECTION.  After 
having  ejected  a  passenger,  a  carrier  has  no  right  to  require 
the  payment  of  any  part  of  his  fare. 

History:     Enacted  March  21,   1872. 

As  to  ejecting  passenger  in  general  for  nonpayment  of  fare, 
and  the  like,  see  Kerr's  Cyc.  C.  C.  §  2188. 

As  tv>  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note  §  2100,  ante. 

As  to  passenger's  right  to  re-enter  train  after  ejectment,  see 
Kerr's  Cyc.  C.  C.  §  487  note  par.  18. 

As  to  passenger's  right  to  retain  ticket  after  being  ejected 
from  train,  see  Kerr's  Cyc.  C.  C.  §  487  note  par.  25. 

§2191.  CARRIER'S  LIEN.  A  common  carrier  has  a  lien 
upon  the  luggage  of  a  passenger  for  the  payment  of  such 
fare  as  he  is  entitled  to  from  him.  This  lien  is  regulated  by 
the  title  on  liens. 

History:     Enacted  March  21,   1872. 

As  to  liens  in  general  on  luggage  of  passenger  carried  with 
or  for  him,  see  Kerr's  Cyc.   C.  C.   §§  2872-2913  and  notes. 

As  to  lien  on  merchandise,  etc.,  for  freight,  see  Kerr's  Cyc. 
C.  C.   §  2144  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  passengers, 
see  note   §  2100,  ante. 

As  to  special  lien  on  articles  of  personal  property  for  car- 
riage, etc.,  see  Kerr's  Cyc.  C.  C.  §  3051  and  note. 


i 


1148 


Tit.VII,ch.V,art.III.]         INLAND  CARRIERS.  §  2194 

ARTICLE  III. 

COMMON    CARRIERS    OF    PROPERTY. 

§  2194.  Liability   of    inland    carriei-s    for   loss. 

§  2195.  "When    exemptions    do    not   apply. 

§  2196.  Liability    for   delay. 

§  2197.  Liability    of   marine    carriers. 

§  2198.  Same.      [Acts   of   Congress.] 

§  2199.  Perils  of  sea,  what. 

§  2200.  Consignor  of  valuables  to  declare  their  nature. 

§  2201.  Delivery  of  freight  beyond  usual  route. 

§  2202.  Proof  to  be  given  in  case  of  loss. 

§  2203.  Carrier's  services,  other  than  carriage  and  delivery. 

§  2204.  Non-delivery— Sale,  when. 

§2194.  LIABILITY  OF  INLAND  CARRIERS  FOR  LOSS. 
Unless  the  consignor  accompanies  the  freight  and  retains 
exclusive  control  thereof,  an  inland  common  carrier  of  prop- 
erty is  liable,  from  the  time  that  he  accepts  until  he  relieves 
himself  from  liability  pursuant  to  sections  twenty-one  hundred 
and  eighteen  to  twenty-one  hundred  and  twenty-two,  for  the 
loss  or  injury  thereof  from  any  cause  whatever,  except: 

1.  An  inherent  defect,  vice,  or  weakness,  or  a  spontaneous 
action,  of  the  property  itself: 

2.  The  act  of  a  public  enemy  of  the  United  States,  or  of  this 
state ; 

3.  The  act  of  the  law;  or, 

4.  Any  irresistible  superhuman  cause. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

101  C.  187,  194   (construed  and  applied),  35  P.  630. 

As  to  "act  of  God,"  what  constitutes,  see  Kerr's  Cyc.  C.  C. 
§  1511  note  pars.  2-15;  also  note  11  L.  615. 

As  to  act  of  God  as  excuse  for  delay,  see  Kerr's  Cyc.  C.  C. 
§  1511  note  pars.  2-15;  11  A.  S.  362,  364. 

As  to  burden  of  proof  that  loss  is  within  exemption,  see  88 
A.  S.  121,  125. 

As  to  carriage  of  live  stock,  and  contracts  limiting  liability 
for  loss  or  injury,  see  Kerr's  Cyc.  C.  C.  §§  2170,  2174  and  notes. 

As  to  defenses  in  actions  for  loss  by  carrier,  see  11  L.  615,  616. 

As  to   inevitable  accident,  see  11  L.   616. 

1149 


§  2195  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  liability  for  acts  resulting  from  negligence,  acts  of 
God,  etc.,  see  36  A.  S.  838,  840. 

As  to  liability  for  every  loss  not  occasioned  by  act  of  God,  or 
public  enemies,  see  27  A.  D.  517. 

As  to  liability  for  loss  caused  by  acts  of  God,  see  Kerr's  Cyc. 
C.  C.  §1511  note  pars.  2-15;  11  A.  S.  362,  364. 

As  to  liability  for  loss  or  deterioration  caused  by  delay,  see 
Kerr's  Cyc.  C.  C.  §  2196  and  note;  also  11  A.  S.  360,  361;  88  A.  S. 
104. 

As  to  liability  of  carrier  at  common  law,  see  7  Am.  R.  &  Corp. 
Rep.   281,   282. 

As  to  liability  of  common  carriers  for  losses  not  within 
exceptions  to  contract  or  arising  from  acts  of  God,  public 
enemies,  inherent  defects,  etc.,  in  general,  see  42  A.  D.  497;  75 
A.  D.  497,  498;  57  A.  D.  701. 

As  to  liabilitj'^  of  express  companies  as  carriers,  see  61  A.  S. 
379,    382-385. 

As  to  limitation  of  carrier's  liability  by  special  contract,  see 
Kerr's  Cyc.  C.  C.  §  2174  and  note. 

As  to  limitation  of  liability  by  notice,  see  Kerr's  Cyc.  C.  C. 
§  2174  and  note. 

As  to  loss   of  consignment,   liability  for,   see   61   A.   S.   380. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  regulations  and  rules  governing  railroads  as  common 
carriers,  see  Kerr's  Cyc.  C.  C.  §  461  subd.  11,   §  484  and  notes. 

As  to  right  of  common  carrier  to  limit  liability,  as  insurer  of 
property  intrusted  to  him,  see  32  A.  D.  497-500. 

As  to  riots,  mobs,  etc.,  as  excuse  for  loss,  or  delay  in  deliver5\ 
see  11  A.  S.  365. 

As  to  stoppage  of  freight  in  transitu,  see  Kerr's  Cyc.  C.  C. 
§§  2118,   3076-3080  and  notes. 

As  to  strikes  as  excuse  for  delay,  see  Kerr's  Cyc.  C.  C.  §  2196 
and  note. 

As  to  when  injury  is  result  of  negligence  and  not  of  inevitable 
accident,  see  Kerr's  Cyc.  C.  C.   §  2100  and  note. 

Irresistible  superhuman  cause,  loss  due  to,  see  Kerr's  Cyc. 
C.  C.  §  2194  note  par.  2;  86  A.  D.  297;  97  A.  D.  409. 


§  2195.  WHEN  EXEMPTIOIVS  DO  NOT  APPLY.  A  common 
carrier  is  liable,  even  in  the  cases  excepted  by  the  last  sec- 
tion, if  his  want  of  ordinary  care  exposes  the  property  to  the 
cause  of  the  loss. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted   March    21,    1905,   Stats,   and   Amdts.    1905,  p.    615. 

1150 


! 


Tit.VII,ch.V,ai-t.III.]  MARINE    CARRIER.  §§  2196-2198 

§2196.  LIABILITY  FOR  DELAY.  A  common  carrier  is 
liable  for  delay  only  when  it  is  caused  by  his  want  of  ordinary 
care  and  diligence. 

•  History:      Enacted   March    21,    1872;    amended    March    30,    1874, 
Code   Amdts.    1873-4,   p.   251. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

101  C.   187,   193,   35  P.   630    (applied). 

As  to  delays  caused  by  strikes,  see  Kerr's  Cyc.  C.  C.  §  2194 
and  note. 

As  to  delivery  of  goods  to  connecting  carrier,  or  shipment 
beyond  usual  route,  see  Kerr's  Cyc.  C.  C.  §  2201  and  note. 

As  to  duty  of  carrier  in  choice  of  routes,  see  Kerr's  Cyc.  C. 
C.  §  2100  and  note. 

As  to  liability  for  delay  caused  by  strikes,  riots,  etc.,  see 
Kerr's  Cyc.  C.  C.  §  2194  and  note. 

As  to  liability  of  common  carriers  for  delay,  see  88  A.  S.   104. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§  2197.  LIABILITY  OF  MARIAE  CARRIER.  A  marine  car- 
rier is  liable  in  like  manner  as  an  inland  carrier,  except  for 
loss  or  injury  caused  by  the  perils  of  the  sea  or  fire. 

History:     Enacted  March  21,   1872. 

As  to  cliarter  party,  see  Kerr's  Cyc.  C.  C.  §  1959  and  note. 

As  to  implied  liability  of  marine  carrier,  see  Kerr's  Cyc.  C.  C. 
§  2197,   note. 

As  to  liability  of  inland  carriers  in  general,  see  Kerr's  Cyc. 
C.  C.   §§2096,  2100,   2168,   2194  and   notes. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  perils  of  the  sea,  see  Kerr's  Cyc.  C.  C.  §§  2194,  2199  and 
notes. 

§  219S.  SAME.  [ACTS  OF  CONGRESS.]  The  liability  of  a 
common  carrier  by  sea  is  further  regulated  by  acts  of  Con- 
gress. 

lli.slory:     Enacted  March   21,   1872. 

As  to  acts  of  Cunsress  regulating  liability  of  marine  I'urriiM-s, 
see  Kerr's  Cyc.  C.  C.  §§  1511,   2088  and  notes. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  "The  Harter  Act,"  providing  for  exemptions  for  liability 

1151 


§§  2199, 2200  CIVIL  CODE.  [Div.III,Pt.IV. 

for  damages  on  account  of  marine  loss,  dangers  of  sea,  acts  of 
God,  etc.,  see  act  of  February  13,  1893,  §  3,  27  Stats,  at  L.  445. 
See  4  F.  S.  A.  857  and  note. 

As  to  the  restriction  of  liability  by  a  statute  under  act  of  Con- 
gress relating  to  the  limitation  of  liability  of  marine  carriers, 
see  10  L.  420. 

§2199.    PERILS   OF   SEA,  WHAT.     Perils  of  the  sea  are 

from: 

1.  Storms  and  waves; 

2.  Rocks,  shoals,  and  rapids; 

3.  Other  obstacles,  though  of  human  origin; 

4.  Changes  of  climate; 

5.  The  confinement  necessary  at  sea; 

6.  Animals  peculiar  to  the  sea;   and, 

7.  All  other  dangers  peculiar  to  the  sea. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.   C.  C.  for   5  pars,  annotation. 

76  C.  145,  147,  148,  9  A.  S.  184,  18  P.  155,  156   (construed). 

As  to  acts  of  God,  see  Kerr's  Cyc.  C.  C.  §  1511  note  pars. 
2-15  and  §  2194  and  note. 

As  to  effect  of  particular  stipulations  in  bills  of  lading  quali- 
fying liability  for  injuries  caused  by  "dangers  of  the  sea,"  see 
38   A.   D.    424,   425. 

As  to  loss  resulting  from  deviation  from  route,  see  Kerr's 
Cyc.   C.   C.    §  2104   and   note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  "perils  of  sea,"  see  Kerr's  Cyc.  C.  C.  §  2199,  note  par.  4; 
also  notes   41   A.  D.   281;   9   A.  S.   187;   30  A.   S.   539. 

§2200.  CONSIGNOR  OF  VALUABLES  TO  DECLARE 
THEIR  NATURE.  A  common  carrier  of  gold,  silver,  platina, 
or  precious  stones,  or  of  imitations  thereof,  in  a  manufactured 
or  unmanufactured  state;  of  timepieces  of  any  description;  of 
negotiable  paper  of  other  valuable  writings;  of  pictures,  glass, 
or  chinaware;  of  statuary,  silk,  or  laces;  or  of  plated  ware 
of  any  kind,  is  not  liable  for  more  than  fifty  dollars  upon 
the  loss  or  injury  of  any  one  package  of  such  articles,  unless 
he  has  notice,  upon  his  receipt  thereof,  by  mark  upon  the 
package   or  otherwise,  of  the  nature  of  the  freight;    nor  is 

1152 


II 


Tit.VII,ch.V,art.III.]         DELIVERY,  ROUTE.  §§2201,2202 

such  carrier  liable  upon  any  package  carried  for  more  than 
the  value  of  the  articles  named  in  the  receipt  or  the  bill  of 
lading. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4.   p.    251. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

84  C.  311,  313,  24  P.  284,  285  (construed  and  applied);  118  C. 
683,  689,  50  P.  847   (referred  to  in  construction  of  §  2176. 

As  to  liability  for  loss  of  letters,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  2177  and  note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  stipulations  of  value  as  limiting  liability,  see  Kerr's 
Cyc.   C.  C.   §  2176  and  note  pars.   12-19. 

§2201.  DELIVERY  OF  FREIGHT  BEYOXD  USUAL 
ROUTE.  If  a  common  carrier  accepts  freight  for  a  place 
beyond  his  usual  route,  he  must,  unless  he  stipulates  other- 
wise, deliver  it  at  the  end  of  his  route  in  that  direction  to 
some  other  competent  carrier  carrying  to  the  place  of  address, 
or  connected  with  those  who  thus  carry,  and  his  liability 
ceases  upon  making  such  delivery. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

57  C.  462,  463  (construed  and  applied);  46  P.  668,  669  (con- 
strued and  applied),  but  see  decision  reversing  department 
decision,  101  C.  187,  195  (construed  and  applied),  35  P.  630;  118 
C.  648,  651,  653,  cited  on  page  653  erroneously  as  §  2101  (con- 
strued and  applied),  correctly  cited  in  50  P.  775,  40  L.  78;  3  C.  A. 
106,  108,  84  P.  438   (applied — delivery  to  connecting  carrier). 

As  to  limitation  of  initial  carrier's  liability  to  its  own  lines, 
see  7*Am.  R.  &  Corp.  Rep.  320-323. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  negligence  of  common  carriers  in  general,  see  Kerr's 
Cyc.   C.   C.    §  2114   and   note. 

§2202.     PR(M)F    TO    BE    GIVEX   IN    CASE    OF    LOSS.      If 

freight  addressed  to  a  place  beyond  the  usual  route  of  the  com- 
mon carrier  who  first  received  it  is  lost  or  injured,  he  must 
within  a  reasonable  time  after  demand,  give  satisfactory  proof 
Kerr's    C.    C— 37  1153 


§§  2203,  2204  CIVIL  CODE.  [Div.III.Pt.IV. 

to  the  consignor  that  the  loss  or  injury  did  not  occur  while 
it  was  in  his  charge,  or  he  will  be  himself  liable  therefor. 

History:     Enacted  March  21,   1872. 

As  to  connecting  carriers,  see  Kerr's  Cyc.  C.  C.  §  2201  and 
note. 

As  to  liability  of  carriers  for  loss  of  freight,  see  Kerr's  Cyc, 
C.   C.    §?-2114,   2194  and   notes. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

§  2203.  CARRIER'S  SERVICES,  OTHER  THAN  CARRIAGE 
AND  DELIVERY.  In  respect  to  any  service  rendered  by  a 
common  carrier  about  freight,  other  than  its  carriage  and 
delivery,  his  rights  and  obligations  are  defined  by  the  titles  on 
deposit  and   service. 

History:     Enacted  March  21,   1872. 

As  to  liability  as  warehousemen,  see  Kerr's  Cyc.  C.  C.  §§  2120, 
2121    and    notes. 

As  to  nature  and  creation  of  deposit,  see  Kerr's  Cyc.  C.  C. 
§  1813   et  seq.   and  notes. 

As  to  many  iniscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  obligations  of  depositary,  see  Kerr's  Cyc.  C.  C.  §§  1822 
et  seq.   and   notes. 

As  to  servants,  see  Kerr's  Cyc.  C.  C.  §§  1965,  1969  et  seq., 
§§  1975  et  seq.  and  notes. 

§2204.  NON-DELIVERY— SALE,  WHEN.  If,  from  any 
cause  other  than  want  of  ordinary  care  and  diligence  on  his 
part,  a  common  carrier  is  unable  to  deliver  perishable  prop- 
erty transported  by  him,  and  collect  his  charges  thereon,  he 
may  cause  the  property  to  be  sold  in  open  market  to  satisfy 
his  lien  for  freightage. 

History:     Enacted  March   30,   1874,  Code  Amdts.   1873-4,  p.   251. 

As  to  carrier's  lien  for  freightage,  see  Kerr's  Cyc.  C.  C. 
§  2144    and    note. 

As  to  penalty  for  making  overcharges,  see  Kerr's  Cyc.  Pen. 
C.    §  525    and   note. 

As  to  many  miscellaneous  matters  as  to  carriers  of  property, 
see  note  §  2114,  ante. 

As  to  sale  of  freight  to  satisfy  lien  for  freightage  in  general, 
see   83   A.    D.   632. 

1154 


Tit.VII.ch.V.art.IV.]  telegrams.  §§  2207, 2208 

ARTICLE  IV. 

COMMON   CARRIERS   OF  MESSAGES. 

§  2207.     Order  of  transmission  of  telegraphic  messages. 

§  2208.     Order  in  other  cases. 

§  2209.     Damages  when  message  is  refused  or  postponed. 

§2207.  ORDER  OF  TRANSMISSION  OF  TELEGRAPHIC 
MESSAGES.  A  carrier  of  messages  by  telegraph  must,  if  it  is 
practicable,  transmit  every  such  message  immediately  upon 
its  receipt.  But  if  this  is  not  practicable,  and  several  mes- 
sages accumulate  upon  his  hands,  he  must  transmit  them  in 
the  following  order: 

1.  Messages  from  public  agents  of  the  United  States  or  of 
this  state,  on  public  business; 

2.  Messages  intended  in  good  faith  for  immediate  publica- 
tion in  newspapers,  and  not  for  any  secret  use; 

3.  Messages  giving  information  relating  to  the  sickness  or 
death  of  any  person; 

4.  Other  messages  in  the  order  in  which  they  were  received. 

History:  Enacted  March  21,  1872:  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414, 
held  unconstitutional,  see  history,  §   4  ante. 

As  to  penalty  for  neglect  or  refusal  to  send  messages  or 
unlawful  postponement  thereof,  see  Kerr's  Cyc.  Pen.  C.  §  638 
and   note. 

As  to  various  offenses  for  refusing  or  neglecting  to  send 
telegraphic  messages,  postponement,  etc.,  see  Kerr's  Cyc.  Pen.  C. 
§§  638,  639,  640,  641  and  notes. 

§2208.  ORDER  IN  OTHER  CASES.  A  common  carrier  of 
messages,  otherwise  than  by  telegraph,  must  transmit  mes- 
sages in  the  order  in  which  he  receives  them,  except  mes- 
sages from  agents  of  the  United  States  or  of  this  state,  on 
public  business,  to  which  he  must  always  give  priority.  But 
he  may  fix  upon  certain  times  for  the  simultaneous  transmis- 
sion of  messages  previously  received. 

1155 


§  2209  CIVIL  CODE.  [Div.III.Pt.IV. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  414, 
held  unconstitutional,   see  history,   §   4  ante. 

As  to  liability  of  carrier  of  messages,  see  Kerr's  Cyc.  Pen.  C. 
§§  2161,   2162  and  notes. 

§  220ft.  DAMAGES  WHEN  aiESSAOE  IS  REFUSED  OR 
POSTPONED.  Every  person  whose  message  is  refused  or 
postponed,  contrary  to  the  provisions  of  this  chapter,  is  enti- 
tled to  recover  from  the  carrier  his  actual  damages,  and  fifty 
dollars  in  addition  thereto. 

History:     Enacted  March  21,   1872. 

73  F.  273,  275  (plaintiff  is  entitled  to  nominal  damages  when, 
and  to  penalty — -"this  new  provision,"  said  the  code  commis- 
sioners, "is  needed  to  protect  the  rights  of  parties  who  are 
seriously  annoyed  by  delays  which,  nevertheless,  cannot  be 
shown  to  have  caused  them  pecuniary  damage"). 

As  to  liability  of  carriers  of  messages,  damages  for  delay, 
refusal  or  failure  to  deliver,  etc.,  see  Kerr's  Cyc.  C.  C.  §§  2161, 
2162   and  notes. 


IIDG 


Tit.VIII,ch.I,art.I.]  TRUSTS,  CLASSES.  §  2215 

TITLE  VIII. 
TRUSTS. 

[For   Commissioners'    comment    on    this    title,    see    Kerr's    Cyc. 
C.  C.  uote  to  title,  also  to   §  2220.] 

Chapter  I.    Trusts  in  General,  §§  221.5-2244. 

II.  Trusts  for  the  Benefit  of  Third  Persons,  §§  2250- 

2289. 

CHAPTER  I. 

TRUSTS   IN  GENERAL. 

Article  I.     Nature  and  Creation  of  a  Trust,  §§  2215-2224. 
II.     Obligations  of  Trustees,   §§2228-2239. 

III.  Obligations  of  Third  Persons,  §§  2243,  2244. 

ARTICLE  I. 

NATURE  AND  CREATION  OP  A  TRUST. 

§  2215.  Tiusts   classified. 

§  2216.  Voluntary   trust,    what. 

§  2217.  Involuntary  trust,   what. 

§  221S.  Parties    to    the   contract. 

§  2219.  What  constitutes  one  a  trustee. 

§  2220.  For  what  purpose  a  trust  may  be   created. 

§  2221.  Voluntary  trust,  how  created  as  to  truster. 

§  2222.  How   created  as  to  trustee. 

§  2223.  Involuntary   trustee,    who   is. 

§  2224.  Involuntary    trust   resulting   from    negligence,    etc. 

§2215.     TRUSTS  CLASSIFIED.     A  trust  is  either: 

1.  Voluntary;    or, 

2.  Involuntary. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

58    C.    437,    483    (construed    and    applied    with    oHht    s.ctions); 

1157 


§  2215  CIVIL  CODE.  [Div.III,Pt.IV. 

132  C.  21  26,  63  P.  1071  (construed  and  applied  with  other 
sections);  138  C.  606,  609,  72  P.  46  (instance  of  express  trust  or 
confidence). 

TRUSTS     AND    TRUSTEES. 

As  to  consideration  in  express  trust,  see  Kerr's  Cyc.  C. 
C.   §  852  and  note  pars.   22-28. 

As  to  creation  of  precatory  trusts,  see  Kerr's  Cyc.  C.  C.  §  852 
and  note  pars.  170-244. 

As  to  creation  of  trusts  in  mining  operations  under  govern- 
ment grants,  see  Kerr's  Cyc.  C.  C.   §  852  and  note  pars.  366-386. 

As  to  essential  elements  to  create  express  trusts,  see  Kerr's 
Cyc.  C.  C.  §852  and  note  pars.  14-99;  31  A.  S.  637;  15  L.  470; 
8  W.  &  P.  7121. 

As  to  evidence  to  prove  express  or  voluntary  trust,  see 
Kerr's  Cyc.  C.  C.  §  852  and  note  pars.  137-169. 

As  to  evidence  to  prove  trusts  by  operation  of  law,  or 
involuntary  trusts,  see  Kerr's  Cyc.  C.  C.  §  852  and  note  pars. 
387-411. 

As  to  trusts  by  operation  of  law,  see  Kerr's  Cyc.  C.  C.  §  852 
and  note  pars.  264-365;  also  §  1816  and  note. 

Accounting  of  trustees. — See  8  A.  C.  176. 

Admissions  and  waivers  by  fiduciaries  in  actions,  as  to,  see 
32  L.   671,   690. 

Agents,    trustees,   when   may   act   by. — See   93   A.   S.    615. 

Appointment  of  trustee. — See  "Trustee — Appointment  of," 
this  note. 

Beneficiaries,  when  bound  by  acts  of  trustees  in  contraven- 
tion of  their  trusts. — See  63  A.  S.  467. 

Beneficiary's  knowledge  of  trust  necessary. — See  10  L.  N.  S. 
616. 

Burial,  trusts  for  and  for  keeping  burial  lots,  whether  valid. 
—See  58  A.  R.  596. 

Cestui  que  trusts — As  to. — See  7  A.  C.  178;  7  A.  C;.  551;  8  A. 
C.  917. 

Same — Rights  of  as  to  trust  property  mingled  with  that  of 
insolvent  trustee. — See   7  A.  C.   553. 

Charge  distinguished. — See  8   W.  &  P.   7123. 

Charitable  trusts. — See  note  §  847,  ante. 

Classification  of. — See  100  A.  D.   586;   8  L.  647;   8  W.   &  P.   7121. 

Compensation  of  trustees. — See  17  A.  D.  266. 

Constructive  trust — As  to  generally,  see  2  A.  C.  554;  2  A. 
C.  774;  7  A.  C.  287. 

Same — Arises  when. — See  5  L.   189. 

Same — Arising  from  oral  agreement  to  hold  in  trust  or 
reconvey  lands  conveyed  under  influence  of  confidental  relations. 
—See  2  A.  C.   777. 

Same — Arising  from  renewal  of  lease. — See  7  A.  C.  295. 

1158 


Tit.VIII.ch.I.art.L]  TRUSTS,  TRUSTEES.  §  2215 

Same— Definition  of.— See  7  A.  S.  189;  33  A.  S.  209;  54  A.  S. 
31;  21  L.  33;  28  L.  707;  2  W.  &  P.  1476. 

Same — Direct  and  express  trusts  distinguished. — See  2  W.  & 
P.  1477. 

Same — Intention  to  create  trusts. — See  43  L.  622;  2  W.  &  P. 
1478;    see   "Intention,"  tliis   note. 

Same — Liability  of  heir  or  distributee  as  trustee  ex  maleficio 
for  failure  to  perform  oral  promise  which  prevented  making- 
of  will. — See  2  A.  C.   556. 

Same — Wrongful  acquisition  of  property. — See  48  A.  S.  826; 
2  W.  &  P.  1478. 

Constructive  or  resu"lting  trust — As  to,  generally,  see  1  L.  N. 
S.  312;  4  L.  N.  S.  435;  5  L.  N.  S.  395;  5  D.  N.  S.  1172,  1179,  1193; 
6  L.  N.  S.  381;  7  L.  N.  S.  1094;  8  L.  N.  S.  628;  12  L.  N.  S.  493. 

Conveyance  by  trustee  and  its  effect. — See  64  A.  D.  199. 

Corporation — Duty  of  as  to  transfer  of  stock  held  in  trust. 
—See   15  L.   643. 

Same — Power  to  act  as  trustee. — See  11  L.  715. 

Same — Same — Foreign  corporation. — See  24  L.  291. 

Same — Same — Of  charitable   trust. — See   8  A.   C.    1151. 

Cotrustees,  liability  of  one  for  the  acts  and  defaults  of 
another.— See  42   A.   D.   288. 

Court — Power  of  to  increase  or  diminisli  number  of  trustees 
appointed  by  creator  of  trust. — See  6  A.  C.  598. 

Same — Power  to  dissolve  trust. — See  18  L.  745. 

Creation  of  trusts — As  to  generally,  see  6  A.  C.  188;  1  L.  327; 
11    L.    456;    12    L.    667. 

Same — By  writings  payable  to  or  in  favor  of  "trustee.'" — See 
82  A.  S.  513. 

Same — Effect  upon  trust  of  death  of  donor  without  exercis- 
ing power  of  revocation. — See  6  A.  C.   189. 

Same — Necessity   of   consideration    for. — See    11    L.    457. 

Same — Parol  trusts,  as  to  generally,  see  7  A.  C.  1078. 

Same — Powers  of  revocation. — See  6  A.  C.    188. 

Same — The  trust  estate. — See  10  A.  C.   511. 

Same — Same — Whether  life  tenant  or  remainderman  must 
bear  loss  due  to  depreciation  of  security  caused  by  wearing 
away  of  purchase  premium. — See  10  A.  C.  515. 

Death  of  trustee,  to  whom  property  passes  on. — See   1   L.   334. 

Debt  distinguished. — See   2   W.   &   P.    1885. 

Declaration  of  trust — As  to,  generally,  see  6  A.  C.  188;  1  L. 
327;   11  L.  456:  12  I..  667. 

Deposit — As  a  direct  trust. — See  8  L.   648. 

Same — In    insolvent    bank,   trust  arising   from. — See    34    L.    532. 

Same — Of    money    for    third   person. — 'See    32    L.    373. 

Same — Priority  in  assets  of  insolvent  national  bank  by  reason 
of  trust  character  of  deposit. — See  25  L..  546. 

Deposits  in  savings  banks,  when  create  trusts. — See  31  A.  R. 
453. 

1159 


§  2215  CIVIL  CODE.  [Div.III,Pt.IV. 

Direct  or  active  trust — Wliat  constitutes. — See  11  L.  N.  S. 
331. 

Direct  trust,  deposit  as  a. — See  8  L.  648. 

Discretion  of  trustee,  control  of  by  courts  of  equity. — See  6 
A.    S.    885. 

Dissolution  and  termination  of  trusts,  and  decrees  declaring. 
—See  100  A.  S.  101. 

Donee  of  power  to  appoint,  who  may  be  appointed  trustee  by. 
—See  4  A.  C.   405. 

Duties  and  liabilities  of  trustee.^ — See  "Trustees — Duties  of," 
and  some  "Powers,  duties  and  liabilities  of,"  this  note. 

Enforcing  trusts — Effect  of  executor's  promise  as  to  payment 
of  legacy  upon  trust  relation  with  legatee. — See  9  L.  N.  S.  214. 

Same — Laches  as  a  bar  to  enforcement  of  trust  as  against  one 
who  knowingly  purchased  trust  property  in  violation  of  the 
terms  of  an  express  trust. — See  7  L.  N.  S.  370. 

Same — Removal,  because  of  separable  controversy  of  actions 
relating  to  trusts. — See  5  L.  N.   S.   87. 

Same — Right  of  one  whose  interest  is  merely  contingent,  to 
maintain  suit  to  establish  or  enforce  a  trust. — See  7  L.  N.  S. 
999. 

Equitable  enforcement  of  trust  in  case  of  land,  as  affected 
by  statute  of  frauds. — See  5  L.  N.  S.  112. 

Establishment  and  enforcement  of  voluntary  trusts  in  equity. 
— See  34  A.  S.  194. 

Evidence  contradicting  recital  of  payment  in  the  considera- 
tion clause  of  deeds,  whether  admissible  to  prove  trusts  in 
favor  of  grantors.— See  90  A.  D.  270. 

Ex  maleficio  trustees — As  affected  by  statute  of  frauds. — See 
11  L.  381. 

Same — Devisees,  heirs  and  legatees,  when  hold  as. — See 
106  A.  S.   94. 

Same- — Embracing  devise  or  bequest  within  trust  to  prevent 
fraud  on   testatory. — See   2   L.    662. 

Same — Gift  by  consent  as  affected  by  promise  to  testator  or 
by  secret  trust. — See   20  L.   465. 

Same — Law  of  as  affecting  right  to  revoke  license. — See  49 
L.    497. 

Same — Rights  of  heir  or  distributee  as. — See  2  A.  C.  556. 

Same — When   trust  arises. — See   11   L.    381. 

Express  trust — Effect  of  lapse  of  time  to  extinguish.— See 
1  L.  328. 

Fiduciary  relation  of  trustee  and  beneficiary. — See  16  A.  D. 
616. 

Following  trust — Effect  of  legal  remedy  to  defeat  equit- 
able jurisdiction. — See   6   L.   N.   S.    793. 

Foreign  coi'poration- — ^Power  to  act  as  trustee. — See  24  L.   291. 

Foreign  surety  company,  power  to  act  as  trustee. — See  48  L. 
593. 

1160 


Tit.VIII,ch.I,art.I.]        trusts,  trustees.  §  2215 

"Heirs,"  necessitj'  of  word  in  deed  or  devise  in  trust,  to  pass 
fee  to  trustee.— See  2  L.  N.  S.  172-183. 

Implied  trust.— See  "Constructive  trusts,"  "Resulting  trusts," 
this   note. 

Same — Arising  from  renewal  of  lease. — See  7  A.  C.  295. 

Same — As  arising  between  legal  and  equitable  title. — See  8 
L.   647;  4  W.  &  P.  3437. 

Same — As  express  trust  by  statute. — See  4  W.  &  P.  3436. 

Same — Definition  of. — See  8  L.  647;  4  W.  &  P.  3436. 

Same  Express  trusts  distinguished. — See  4  W.  &  P.  3436. 

Same — To  effectuate  purpose  of  contract  when  its  terms  can- 
not be  given  effect. — See  58  L.   115. 

Insurable  interest  of  husband,  as  trustee,  in  wife's  property. 
— See   66  L.   659. 

Intent,  express  or  implied,  to  create  necessary  to. — See  15  A. 
S.  531;  6  L.  403;  8  W.  &  P.  7122. 

Investments  which  trustees  may  make  without  becoming 
liable  for  loss. — See  40  A.  D.  506. 

Judgments  against  trustees,  conclusiveness  of  upon  bene- 
ficiaries.— See   34   A.   D.    722;    73   A.   S.    164. 

Laches  as  a  bar  to  enforcement  of  a  trust  as  against  one 
who  knowingly  purchased  trust  property  in  violation  of  the 
terms  of  an  express  trust. — See  7  L.  N.  S.  370. 

Lapse  of  time,  effect  of  to  extinguish  express  trust. — See  1  L. 
328. 

Lease  of  trust  property,  power  of  trustee  to  make. — See  2  A. 
C.    787. 

Legal  estate,  when  vests  in  beneficiaries  under  the  statute  of 
uses.^See   78   A.   D.    406. 

Liens  against  trust  estates  in  favor  of  creditors  or  trustees. — 
See  19  A.  S.  67. 

Life  tenant  or  remainderman,  which  must  bear  loss  due  to 
depreciation  of  securities  caused  by  wearing  away  of  purchase 
premiums. — See  10  A.  C.   515. 

Majority  of  trustees,  when  ma5^  act. — See  11  A.  D.  674. 

Married  woman,  power  of  to  act  as  trustee  of  express  trust. — 
See    7    A.    C.    1082. 

Mistake,  fraud,  undue  influenco.  etc.,  as  ground  for  relief  from 
voluntary  trust. — See  19  L.  767. 

Mortgage  of  trust  property,  power  of  trustees,  as  to. — See 
1   A.  C.   942;  9  A.  C.   639,   643;   10  A.  C.   249,   255. 

Negligence  of  servants,  liability  of  trustee  for. — See  63  L.  227. 

Parol,  creation  of  trust  in  land  by. — See  115  A.  S.  774. 

Parol   evidence — To   establish   resulting  trust. — See    10   L.    401. 

Same — To  establish   trust  in  third  person. — See  20  L.   109. 

Parol  trust — As  to  generally,  see  7  A.  C.   1078. 

Same — How    far    within    statute    of    frauds. — See    10    L.    401. 

1161 


§  2215  CIVIL  CODE.  [Div.III.Pt.IV. 

Particular  words  necessary  to  create  trust. — See  1  A.  R.  34;  8 
W.  &  P.  7122. 

Perpetuities,  trusts  are  within  the  rule  against. — See  49  A. 
S.   128. 

Power  distinguished. — See  12  L.  ed.  130;  8  W.  &  P.  7123. 

Power  of  court  to  increase  or  diminish  number  of  trustees 
appointed  by   creator   of   trust. — See   6    A.   C.    598. 

Powers  of  trustee. — See  "Trustees — Powers  of,"  this  note. 

Preca+ory  trust — Creation  of. — See  2  A.  C.  591,  593;  44  A.  D. 
372;   106  A.  S.   499. 

Same — Definition  of. — See  6  W.  &  P.  5493. 

Same — Precatory  words  to  create,  effect  of. — See  33  A.  R. 
286;  6  L.  353;  7  L.  394;  7  L.  519;  13  L.  563;  6  W.  &  P.  5493. 

Precatory  words  to  create  trust,  effect  of. — See  "Precatory 
trusts"   this  note. 

Preference  to  trust  deposit  out  of  funds  of  insolvent  bank. — - 
See   1  L.  N.   S.   252. 

Presumption  as  to  trusts  between  family  relatives. — See  2  L. 
816. 

Principal  of  trust  fund,  power  of  trustees  to  expend. — See 
8  A.  C.  1176. 

Provisions  directing  the  particular  purposes  to  which  property 
conveyed  to  or  for  benefit  of  a  religious  or  charitable  organiza- 
tion shall  be  devoted  as  creating  a  trust. — See  7  L.  N.  S.  1119; 
11   L.   N.   S.    512,   520. 

Purchasers  from  trustees,  as  to  duty  of. — See  4  A.  C.  371. 

Reclaiming  funds  of  deposited  in  bank  which  has  become 
insolvent. — See  86  A.  S.  801. 

Removal  of  trustees,  as  to. — See   6  A.  C.  596. 

Resulting  trusts — Arising  from  purchase  of  lands  by  agent 
in  his  own  name. — See  5  A.  C.   255. 

Same — By  part  payment  as  consideration  for  realty  taken  in 
name  of  another. — See  2  A.  C.  667. 

Same — Definition   of  and  when  created. — See   51   A.   D.   751. 

Same — Establishment  by  parol  evidence. — See  10  L.   401. 

Same — How  created  and  what  suflficient  to  constitute. — See 
2   L.   146. 

Same — Lien  or  resulting  trusts  arising  from  payment  of 
money  for  purpose  of  improving  land. — See  9  A.  C.  249. 

Same — Parol  agreement,  made  with  person  interested  in  land, 
that  promisor  will  buy  the  land  at  judicial  sale  and  hold  if 
for  benefit  of  promisee,  as  implied  trust  enforceable  in  equity. 
— See  5  A.  C.  173. 

Same — Rules  as  to,  generally,  see  2  A.  C.  664;  5  A.  C.  171; 
5  A.  C.  253;  5  A.  C.  491;  6  A.  C.  646;  9  A.  C.  248;  1  L.  N.  S. 
312;  4  L.  N.  S.  435;  5  L.  N.  S.  395;  5  L.  N.  S.  1172,  1179,  1193;  6 
L.  N.  S.  381;  7  L.  N.  S.   1094;  8  L.  N.  S.   628;  12  L.  N.  S.  493. 

Revocation  of  deeds  of,  trustor's  power  of. — See  20  A.  S. 
858. 

1162 


TitVIII.ch.I.art.I.]        trusts,  trustees.  §  2215 

Revocation  of  trust — As  to  power  of. — See  6  A.  C.  188;  15  L. 
75-80. 

Same — Effect  upon  trust  of  death  of  donor  without  exercising 
power    of    revocation. — See    6    A.    C.    189. 

Same — Mistake,  fraud,  undue  influence,  etc.,  as  ground  for 
relief  from  a  voluntary  trust. — See   19   L.   767. 

Right  to  pursue  and  recover  trust  funds. — See  32  A.  S.   125. 

Rights  of  creditors — To  create  trust  to  pay  debts. — See  12  L. 
N.  S.  369. 

Rule  in  Shelley's  case,  applicability  of  to  executory  trusts. — - 
See  2  L.   458. 

Sale  of  trust  property — Duty  of  purchaser  from. — See  4  A.  C. 
371. 

Same — Power  of  trustees  to  make. — See  3  A.  C.  417;  3  A.  C. 
437;  9  A.  C.  287. 

Sales — and  conveyances   by   trustees. — See   10  A.  S.   266. 

Same — Powers  of,  when  vest  in  trustee  by  implication. — See 
87   A.  D.   209. 

Same — Under  powers  in  trust  deeds  to  secure  money. — See 
92   A.   S.   573. 

Savings  bank  trusts. — See  1  A.  C.  900,  901. 

Secret   trusts — For  charity. — See   24   L.   465. 

Same — For  masses. — See  25  L.  361. 

Servants,  torts  or  negligence  of,  liability  of  trustee  for. — See 
63  L.  227. 

Severability  of  trusts  from  perpetuities  and  forbidden  trusts. 
—See  64  A.  S.   634. 

Specifying  use  of  real  estate  in  devise  to  religious  society, 
effect  of  as  creating  a  trust. — See  7  L.  N.  S.  1119;  11  L.  N.  S. 
512,   520. 

Spendthrift  trusts — Conllict  of  laws  as  to  validity  of. — See  2  L. 
N.  S.  4  43. 

Same^Sufficiency  of  instrument  to  create. — See  3  A.  C.  1005, 
1010. 

Same — Validity  and  effect  of. — See  3  A.  C.  586,  588;  2  L.  113; 
11    L.  565;   13  L.  215. 

Spendthrifts — Definition  of. — See  7  W.  &  P.  6609. 

Same — Property  of,  whether  may  be  exempted  from  execution 
and  creditors'  suits. — See  9  A.  S.  405;  24  A.  S.  686. 

Statute  of  frauds — As  affecting  equitable  enforcement  of 
trust  in  land. — See  5  L.  N.  S.  112. 

Statute  of  limitations — Application  of  to  termination  of  trust. 
— See  8  L.  480. 

Same — When  begins  to  run  in  favor  of  trustees. — See  1 
L,.  319. 

Suflficiency  of  declaration  to  establish  voluntary  trust  where 
legal   title  is  retained   by   the  settlor. — See   12   L.  N.  S.   547. 

Suits  for  taxation  of  property  held  in  trust. — See  2  A.  C. 
849,  850. 

1163 


§  2215  CIVIL  CODE.  [Div.III,Pt.IV. 

Taxation  of  trust  property,  place  of. — See  20  L.  151. 

Termination  of  trust— And  presumption  of  conveyance  by  the 
trustee  to  the  beneficiary. — See  58  A.  D.  472. 

Same — Application   of  statute  of  limitations  to. — See   8   L.    480. 

Same — Effect  of  lapse  of  time  to  extinguish  express  trust.— 
See   1   L.   328. 

Same— Power  of  court  to  dissolve. — See  18  L.  745. 

Same — When  statute  of  limitations  begins  to  run  in  favor 
of   trustee. — See    1    K    319. 

Testamentary  trust  for  payment  of  debts,  effect  of  creation 
of.— See   5   L.   N.   S.    355-370. 

Torts  of  servants,  liability  of  trustee  for. — See  63   L.   227. 

Trust — Fund,  right  to  follow. — See   46   A.   S.   608. 

Same — In   partnership   lands. — See   27  L.   468. 

Same — In  proceeds  of  collection  by  insolvent  bank. — See  32  I... 
715. 

Same — In  third  person — Parol  evidence  to  establish. — See  20 
L.  109. 

Same — In   vessel,  admiral  jurisdiction   of. — See   66  L.    235. 

Same — Organization  of  by  use  of  words  "upon  condition"  in 
will  or  conveyance  or  real  property. — ^See  9  L.  N.  S.  758. 

Same — Priority  in  assets  of  insolvent  national  bank  by  reason 
of  trust  character  of  deposit. — See   25  L.  546. 

Trust  estate — As  to  generally,  see  10  A.  C.  511. 

Same — Creation    of   lien    on. — See   7   L.    656. 

Same — Injunction    against    execution    sale    of. — See    30    L.    119. 

Same — Insurable  interest  of  husband,  as  trustee  in  wife's 
property. — See  66  K  659. 

Same — Place  of  taxation  of. — See  20  L.  151. 

Same — Provision  against  alienation  of  interest  of  cestui  que 
trust. — See  2  L.  113. 

Same — Stock  held  in  trust,  duty  of  corporation  as  to  transfer 
of.— See   15  L.   643. 

Same — To  whom  passes  on  trustee's  death. — See  1  L.  334. 

Same — Tracing — Following  trust  moneys  paid  without  notice 
of   trust. — See    2   L.    482. 

Same — Same — Funds  in  hands  of  third  persons,  when  sub- 
ject to  obligations  of  trusts. — See  4  L.  746. 

Same — Same — General  rule  as  to  following  trust  funds. — 
See   7    L.    570. 

Same — Same — Lands  purchased  by  trustee  subject  to  trust. 
— See  2  L.  481. 

Same — Same — Liability  for  taking  deposit  of  trust  funds  in 
payment  of  trustee's   debt. — See   52   L.    790. 

Same — Same — Mingling  of  trust  funds. — See  2  L.  480;  8  L. 
788. 

Same — Same — Property  converted  by  trustee  continues  sub- 
ject to  trust. — See  2  L.  480. 

1164 


Tit.VIII,ch.I,art.I.]        TRUSTS,  trustees.  §  2215 

Same — Where  trustee  sales  are  to  be  made. — See  39  L.  96. 

Same — Whether  life  tenant  or  remainderman  must  bear  loss 
due  to  depreciation  of  securities  caused  by  wearing  away  of 
purchase  premiums.- — See  10   A.   C.   515. 

Trustee  ex  maleficio,  right  of  heir  or  distributee  as,  for 
failure  to  perform  oral  promise  which  prevented  making  of  will. 
— See   2   A.   C.   556;   also   "Ex  maleficio  trustee,"   this  note. 

Trustees — As  to,  generally,  see  16  L.  719;  31  L.  642;  35  L. 
678;   59  L.  385. 

Same — As  to  who  may  be. — See  7  A.  C.  1078;   8  A.  C.   1176. 

Same — Accounting  of. — See  8  A.  C.  1176. 

Same — Appointment  of,  generally,  see  4  A.  C.  404;  6  A.  C.  596. 

Same — Care  demanded  of,  to  sell  real  estate. — See  3  L.  N. 
S.  415. 

Same — Cestui  que  trust,  rights  of. — See  7  A.  C.  551,  553;  7 
A.   C.    1078;    8   A.    C.    917. 

Same— Dealings  with  trust  of  cestui  que  trusts — As  to, 
generally,  see  5  L.   166:   6  L.   369;   9  L.  792;   13  L.   491;   37  L.  613. 

Same — Same — Fiduciary  relations  as  affecting  reliance  on 
fraudulent  statement. — See  37  L.  613. 

Same — Same — Purchase  of  objects  of  trust,  by  trustee— Effect 
of.— See  13  L.  492. 

Same — Same — Same — Relative  from  svich  purchase. — See  9  L. 
792;   13  L.  493. 

Same — Same — Purchase  by  trustee  inures  to  cestui  que 
trust. — See  9  L.  793. 

Same — Same — ^Right  to  profit  by  trust  estate. — See  9  L.  794. 

Same — Same — Right  to  purchase  it  on  sale. — See  5  L.  166; 
6  L.  369;   9  L.  792;   13  L.  491. 

Same — Duties  of. — See  8  A.  C.  1176. 

Same — Effect  of  acknowledgment  of  deed  of  triist  by. — See 
16   L.   719. 

Same — Equitable  control  of  discretion  vested  in.— See  8  L.  N. 
S.  398. 

Same — Ex  maleficio. — See   "Ex  maleficio   trustee,"   this  note. 

Same — Exoneration  of  by  thefts,  robbery,  casualty,  failure  of 
brokers  and  solicitors,  defaults  of  agents,  etc. — See  75  A.  D. 
799. 

Same — Injunctive  relief  affecting  church  trustees. — See  3  L. 
N.   S.    860. 

Same — Power  of — Corporation  to  act  as  of  charitable  trust. 
—See  8  A.  C.  1181. 

Same — Same- — Court  to  change  number  of  designated  in  trust 
instrument. — See  1  L.  N.  S.  802. 

Same — Same — Court  to  increase  or  diminish  number  of 
trustees  appointed  by  creator  of  trust. — See  6  A.  C.  598. 

Same — Same— Married  woman  to  act  as  of  express  trust. — See 
10  A.   C.   782. 

1165 


§  2215  CIVIL  CODE.  [Div.III.PtlV. 

Same — Same — Of  joint  trustees. — See   4  A.   C.   952;   6   A.   C.    596. 

Same — Same — To  convej'  trust  property  without  consent  of 
co-trustees. — See   4   A.    C.   953. 

Same — Same — To  expend  principal  of  trust  fund.- — See  8  A.  C. 
1178. 

Same — Same — To  lease  trust  property. — See  2  A.  C.  787. 

Same — Same — To  sell  trust  property. — See  3  A.  C.  417;  3  A.  C. 
437;  9  A.  C.   289. 

Same— -"^a  me — To  mortgage  trust  estate  for  purpose  of 
making  improvements  so  as  to  render  it  productive. — See  7 
L.  N.  S.   263. 

Same — Same — To  mortgage  trust  property. — See  1  A.  C.  940, 
942;  9  A.  C.  639,  643;  10  A.  C.  249,  255. 

Same — Powers,  duties  and  liabilities  of — Account  of. — See  7 
L.  570;  27  L.  821. 

Same — Same — Contingency  of  claim  against  sureties  on  bond 
of.— See  58  L.  86. 

Same- — Same — Discretion  of. — See  13  L.  212. 

Same — Same- — Enforcement  by. — See  9  L.  279. 

Sanie — Same — Joint  liability  of  trustees. — See  4  L.   529. 

Same — Same — Joint  receipt  by  trustees,  effect  of. — See  4  L. 
529. 

Same — Same — Liability  of,  for  compound  interest. — See  29  L. 
622. 

Same — Same— Same — For  loss  by  bank  failure. — See  14  L.  113. 

Same — Same — Liability  of — Of  partnership  for  fraud  with 
respect  to  trust  funds. — See  51  L.  486. 

Same — Same — Same — For  torts  or  negligence  of  servants. — 
See  63  L.  227-234. 

Same — Same — Liability  of  infant  as. — See  57  L.   688. 

Same — Same — Right  to  set-off  in  bankruptcy  cases,  claims 
held  in  trust. — See  55  L.  46. 

Same — Same — Stated  account  of. — See  27  L.   821. 

Same — Purchasers   from. — See   4   A.   C.    371. 

Same — Removal  of. — See  6  A.  C.  596. 

Same — Right  to  enjoin  an  unlawful  sale  of  church  property 
by. — See  2  L.  N.  S.  828. 

Same — Right  to  have  property  wrongfully  pledged  by  a 
trustee  for  his  individual  benefit  redeemed  by  money  belonging 
to  his  insolvent  estate. — See  6  L.  N.  S.  487. 

Same — Who  are  or  may  be — ^Corporation  as. — See  11  L.  715. 

Same — Same — Executors  and  administrators  as. — See  1  L.  79, 
80;    8  L.   648. 

Same — Same — Foreign  corporation  as. — See  24  L.  291;  48  L. 
593. 

Same — Same — Foreign     surety     company    as. — See     48    L.     593. 

Same — Same — Municipal  corporation  as,  of  a  charity. — See  14 
L.   69;  16  L.   695. 

1166 


i 


i 


Tit.VIII,ch.I,art.I.]        voluntary  trust.  §§  22I6, 2217 

Same — "Who  may  be  appointed  trustee  of  donee  of  power  to 
appoint. — See  4  A.  C.  405. 

Trustee's  sale,  where  to  be  made. — See  33  L.  96. 

Unlawful,    what   combinations    constitute. — See    74    A.    S.    235. 

"Upon  condition,"  creation  of  trust  by  use  of  words,  in  will 
or  conveyance  of  real  property. — See  9  L.  N.  S.  758. 

Use  distinguished. — See  8  W.  &  P.  7123. 

Uses  and  trusts — As  to,  generally,  see  note  §  847,  ante. 

Same — Statutory  regulation  of. — See  4  L.  140. 

Validity  of  trust  to  propagate  a  particular  religious  belief  as  a 
charity. — See  6  L.  N.  S.   320,   321. 

Voluntary  parol  in  personal  property,  how  created. — See  51  A. 
S.  389. 

Voluntary  trusts — Arising  from  the  declaration  of  the 
truster. — See   34  A.  S.   189. 

Same — Mistake,  fraud,  undue  influence,  etc.,  as  a  ground  for 
relief  from. — See  19  L.  767. 

Voting  trusts  of  corporate  stock. — See   15  L.  683. 

Who  may  be  appointed  trustee  by  donee  of  power  to  appoint. 
—See  4  A.  C.  405. 

Words,  particular  necessary  to  create. — See  1  A.  R.  34;  8  W. 
&  P.   7122. 

§2216.  VOLUNTARY  TRUST,  WHAT.  A  voluntary  trust 
is  an  obligation  arising  out  of  a  personal  confidence  reposed 
in,  and  voluntarily  accepted  by,  one  for  the  benefit  of  another. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

85  C.  436,  445,  25  P.  22,  24  (construed  with  other  sections); 
95  C.  63,  74  (applied,  but  erroneously  cited  as  §  2216  C.  C.  P.), 
30  P.  301,  303  (correct  citation):  144  C.  314,  317,  77  P.  942  (cited 
and  construed  with  other  sections;  language  quoted  in  full,  but 
no  credit  given   to  section   of  code). 

See  Kerr's  Cyc.  C.  C.   §  2215  and  note. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  trust  arising  from  undue  influence,  etc.,  see  Kerr's  Cyc. 
C.  C.  §  2224  and  note. 

§2217.  INVOLUNTARY  TRUST,  WHAT.  An  involuntary 
trust  is  one  which  is  created  by  operation  of  law. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  54  pars,  annotation. 
76    C.    469.    471,    9    A.    S.    242.    18    P.    429,    430    (construed    with 
§  2224);  85  C.  436,  445,  25  P.   22,   24    (effect  of  code  as  to   trust  in 

1167 


§§  2218,  2219  CIVIL  CODE.  [Div.III,Pt.IV. 

relation  to  personal  propertj',  created  before  its  adoption);  99 
C.   587,   590,  34   P.   331    (construed  and  applied). 

As  to  constructive  or  resulting  trusts  in  favor  of  party  paying 
purchase  money,  see  Kerr's  Cyc.  C.  C.  §  853  and  note. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  trusts  by  operation  of  law,  see  Kerr's  Cyc.  C.  C.  §  852 
note  pars.   264-411. 

§  2218.  PARTIES  TO  THE  CONTRACT.  The  person  whose 
confidence  creates  a  trust  is  called  the  truster;  the  person 
in  whom  the  confidence  is  reposed  is  called  the  trustee;  and 
the  person  for  whose  benefit  the  trust  is  created  is  called  the 
beneficiary. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

82  C.  351,  374,  16  A.  S.  137,  23  P.  16,  20  (cited);  85  C.  436,  445, 
25  P.  22,  24  (effect  of  code  as  to  trust  in  relation  to  personal 
property,   created  before   its  adoption). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§  2219.  WHAT  CONSTITUTES  ONE  A  TRUSTEE.  Every 
one  who  voluntarily  assumes  a  relation  of  personal  confidence 
with  another  is  deemed  a  trustee,  within  the  meaning  of  this 
chapter,  not  only  as  to  the  person  who  reposes  such  confi- 
dence, but  also  as  to  all  persons  of  whose  affairs  he  thus 
acquires  information  which  was  given  to  such  person  in  the 
like  confidence,  or  over  whose  affairs  he,  by  such  confidence, 
obtains  any  control. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  37  pars,  annotation. 

72  C.  556,  559,  1  A.  S.  84,  14  P.  306  (construed  and  applied 
with  other  sections);  82  C.  351,  373,  16  A.  S.  137,  23  P.  16,  20 
(construed  and  applied  with  other  sections);  85  C.  436,  445,  446, 
25  P.  22,  24  (construed  and  applied  with  other  sections);  120 
C.  322,  323,  49  P.  129,  52  P.  723  (construed  and  aplpied  with 
other  sections);  120  C.  668,  678,  53  P.  304  (construed  and 
applied);  125  C.  227,  230  (construed  and  applied  but  erroneously 
cited  as  §  2290),  57  P.  894,  895  (correct  citation);  125  C.  674,  675, 
683,  58  P.  271  (construed  and  applied);  130  C.  352,  357,  62  P.  555; 
133    C.    489,    493,    65    P.    1044    (construed   and    applied    with    otiier 

1168 


Tit.VIII,ch.I,art.I.]  PURPOSES.  §§  2220, 2221 

sections):  141  C.  56,  57,  61,  74  P.  433  (construed  and  applied); 
142  C.  59,  69,  75  P.  649  (construed  and  applied  with  other 
sections);  49  P.  129,  130  (construed  and  applied);  2  C.  A.  479,  483, 
84  P.  326  (applied  to  fiduciary  relation  in  which  husband  stood 
toward  his  wife). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2220.  FOR  >VHAT  PURPOSE  A  TRUST  MAY  BE  CRE- 
ATED. A  trust  may  be  created  for  any  purpose  for  which  a 
contract  may  lawfully  be  made,  except  as  otherwise  prescribed 
by  the  titles  on  uses  and  trusts  and  on  transfers. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  9   pars,  annotation. 

58  C.  457,  482,  483  (construed  and  applied);  70  C.  449,  458 
(applied  but  erroneously  cited  as  §  2320),  11  P.  659,  661  (correct 
citation);  71  C.  513,  532,  12  P.  570  (construed  and  applied);  85  C. 
436,  446,  25  P.  22,  24  (effect  of  code  as  to  trust  in  relation  to 
personal  'property,  created  before  its  adoption);  108  C.  627, 
656,  49  A.  S.  97,  41  P.  772  (construed  and  applied  with  other 
sections);  123  C.  140,  144,  55  P.  681  (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2221.  VOLTNTARY  TRUST,  HOW  CREATED  AS  TO 
TRUSTER.  Subject  to  the  provisions  of  section  eight  hun- 
dred and  fifty-two,  a  voluntary  trust  is  created,  as  to  the 
truster  and  beneficiary,  by  any  words  or  acts  of  the  truster, 
indicating  with  reasonable  certainty: 

1.  An  intention  on  the  part  of  the  truster  to  create  a  trust; 
and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

HKstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  67  pars,  annotation. 

58  C.  457,  466,  483  (construed  and  applied  with  otlier  sections); 
70  C.  449,  452,  11  P.  659,  661  (construed  and  applied  with  other 
sections);  79  C.  613,  625,  22  P.  50,  53  (construed  and  applied 
with  §2222);  85  C.  436,  446,  25  P.  22,  24  (effect  of  code  as  to 
trust  in  relation  to  personal  property,  created  before  its  adop- 
tion); 95  C.  160,  167,  27  P.  160,  161,  30  P.  196  (construed  and 
applied  with  §2222);  106  C.  651,  655,  40  P.  8  (trust  creating  no 
beneficiary   is   radically  defective):    108  C.   627,   656,   49   A.   S.   97, 

1169 


§  2222  CIVIL  CODE.  [Div.III,Pt.IV. 

41  P.  772  (construed  and  applied  with  otlier  sections);  112 
C.    279,    284,    44    P.    565    (construed   and   applied   with    §852);    122 

C.  19,  25,  54  P.  370  (construed  and  applied);  124  C.  418,  421,  57 
P.  219  (construed  and  applied  with  §§852,  857);  126  C.  189,  191, 
58  P.  543  (construed  and  applied  with  other  sections) ;  132  C. 
21,  27,  63  P.  1071  (what  circumstances  do  not  show  express 
trust);  135  C.  361,  367,  67  P.  333  (construed  and  applied  with 
§2222);  136  C.  92,  96,  68  P.  482  (construed  and  applied  with 
other  sections);  144  C.  314,  318,  77  P.  942  (construed  and 
applied);  40  P.  954  (construed  and  applied  with  §2222);  127  U. 
S.  300,  311,  312,  32  L.  ed.  138,  143  (is  merely  declaratory  of 
pre-existing  law). 

As  to  effect  of  depositing  money  in  bank  in  trust  for  tlTird 
person,  see  32  L.  373. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As   to    voluntary   parol    trust    in    personal    property,    see    51    A. 

D.  756;    51   A.   S.    389. 

As  to  voluntary  trusts  arising  from  declaration  of  the  truster, 
see  34  A.  S.  189. 

As  to  when  beneficiaries  must  be  designated  in  trust,  see  61 
A.   S.   623. 

§  2222.  HOW  CREATED  AS  TO  TRUSTEE.  Subject  to  the 
provisions  of  section  eiglit  hundred  and  fifty  two,  a  voluntary 
trust  is  created,  as  to  the  trustee,  by  any  words  or  acts  of  liis 
indicating,  witli  reasonable  certainty: 

1.  His  acceptance  of  the  trust,  or  his  acknowledgment,  made 
upon  sufficient  consideration,  of  its  existence;  and, 

2.  The  subject,  purpose,  and  beneficiary  of  the  trust. 

History:     Enacted  March  21,   1872. 

See   Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

77  C.  330,  339,  19  P.  513,  516  (construed  and  applied  with 
§2224);  79  C.  613,  625,  22  P.  50,  53  (construed  and  applied  with 
§2224);  85  C.  436,  445,  446,  25  P.  22,  24  (construed  and  applied 
with  other  sections);  95  C.  160,  167,  27  P.  160,  161,  30  P.  196 
(construed  and  applied  with  §2221);  40  P.  954,  955  (construed 
and  applied  with  §2221);  108  C.  627,  656,  49  A.  S.  97,  41  P. 
772  (construed  and  applied  with  other  sections);  122  C.  19, 
25,  54  P.  370  (construed  and  applied);  132  C.  21,  27,  63  P.  1071 
(construed  and  applied  with  §2221);  135  C.  361,  367,  67  P.  333 
(construed  and  applied  with  §2221);  136  C.  153,  155,  68  P. 
579  (construed  and  applied  with  other  sections);  137  C.  634, 
636,  66  P.  369,  70  P.  861  (construed  and  applied);  148  C.  149,  154, 
82  P.  679,  1  L.  N.  S.  312   (express  trust  in  homestead,  in  favor  of 

1170 


Tit.VIII,ch.I,art.I.]       INVOLUNTARY    TRUST.  §§2223,2224 

third  person,  can  be  created  only  how);  149  C.  24,  29,  84  P.  417 
(oral  declarations  are  admissible  to  establish  trust  in  person- 
alty); 152  C.  338,  342,  92  P.  864  (distributee's  mere  acceptance  of 
property  under  decree  giving  it  in  trust  is  acceptance  of 
trust);  3  C.  A.  741,  743,  86  P.  1108  (applied — what  acts  signify 
acceptance  of  trust). 

As  to  effect  of  depositing  money  in  bank  in  trust  for  third 
person,  see  32  L.  373. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  necessity  of  assent  of  trustee,  see  39  A.  D.  187. 

§2223.    INVOLUNTARY    TRUSTEE,    WHO    IS.     One    who 

wrongfully  detains  a  thing  is  an  involuntary  trustee  thereof, 
for  the  benefit  of  the  owner. 

Hi.story:     Enacted  March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

58  C.  115,  121,  122  (construed  and  applied);  85  C.  436.  445.  25 
P.  22,  24  (construed  and  applied  with  other  sections);  107  C. 
373,  377,  40  P.  492  (construed  and  applied  with  §2224);  118  C. 
102,  106,  50  P.  386  (construed  and  applied  with  other  sections); 
148  C.  558,  561,  83  P.  1076  (applied  with  §  2224 — involuntary 
trustee  of  mistaken  deposit  in  bank). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  trustee  commingling  money,  see  Kerr's  Cyc.  C.  C.  §  2236 
and  note. 

As   to   when   a   trust   ex   maleficio  arises,  see   57  A.   S.    203. 

§2224.  INVOLUNTARY  TRUST  RESULTING  FR03I  NEG- 
.LIGE\CE,  ETC.  One  who  gains  a  thing  by  fraud,  accident, 
mistake,  undue  influence,  the  violation  of  a  trust,  or  other 
wrongful  act,  is,  unless  he  has  some  other  and  better  right 
thereto,  an  involuntary  trustee  of  the  thing  gained,  for  the 
benefit  of  the  person  who  would  otherwise  have  had  it. 

History:     Knacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  124  pars,  annotation. 

55  C.  555,  562  (referred  to  with  other  sections  in  dis.  op.); 
58  C.  115,  122,  123  (construed  and  applied  with  other  sections); 
67  C.  237,  7  P.  645  (construed  and  applied);  71  C.  105. 
110.  11  P.  853.  855  (construed  and  applied);  76  C.  469.  471.  9 
A.  S.  242,  18  P.  429,  430  (construed  and  applied  with  §2217); 
77  C.  330,  339,  19  P.  513.  516   (construed  and  applied  with  §  2222); 

1171 


§  2224  CIVIL  CODE.  [Div.III,Pt.IV. 

85  C.  11,  35,  20  A.  S.  197,  9  L.  376,  24  P.  707,  712  (construed 
and  applied);  85  C.  436,  445,  25  P.  22,  24  (construed  and  applied 
with  other  sections);  86  C.  596,  600,  25  P.  132,  133  (construed 
and  applied):  98  C.  86,  93,  32  P.  805  (construed  and  applied); 
103  C.  178,  183,  37  P.  216  (referred  to);  107  C.  373,  377,  40  P.  492 
(construed  and  applied  with  §2223);  112  C.  279,  286,  44  P.  565 
(construed  and  applied);  118  C.  102,  106,  50  P.  386  (construed  and 
applied  with  other  sections);  126  C.  189,  192,  58  P.  543  (con- 
strued find  applied);  131  C.  73.  74,  63  P.  158  (construed  and 
applied);  132  C.  1,  5,  63  P.  1022  (construed  and  applied  with  other 
sections);  133  C.  489,  493,  65  P.  1044  (constructive  trust — deeds 
procured  by  fraud  and  undue  influence);  141  C.  56,  60,  62,  74  P. 
433  (construed  and  applied);  142  C.  59,  69,  75  P.  649  (construed 
and  applied  with  other  sections  in  dis.  op.);  144  C.  305,  312, 
77  P.  954  (referred  to  with  other  sections);  148  C.  149,  153,  82  P. 
679,  1  Li.  N.  S.  312  (construed  and  applied — no  trust  in  home- 
stead when);  148  C.  558,  561,  83  P.  1076  (applied  with  §2223— 
involuntary  trustee  of  mistaken  deposit  in  bank);  150  C.  785, 
788.  90  P.  135  (applied  to  property  gained  by  violation  of 
trust);  2  C.  A.  479,  483,  84  P.  326  (applied  where  husband 
fraudulently  obtained  his  wife's  money  and  applied  it  to 
purchase  of  property  in  dispute);  25  F.  337,  341  (applied — wrong- 
fully obtaining  title  to  land — constructive  trustee);  35  F.  816, 
818    (fraudulent  acquisition  of  title  to   mining  claim). 

As  to  admissibility  of  parol  evidence  in  cases  of  trusts  in 
favor  of  husband  or  wife  from  payment  of  purchase  money, 
see  Kerr's  Cyc.  C.  C.  §  852  note  pars.  326,  329,  358,  365;  §  853  note 
pars.   50-54,   99,  102,  112,  114. 

As  to  application  of  statute  of  frauds,  see  Kerr's  Cyc.  C.  C. 
§  852    note    pars.    264-267. 

As  to  application  of  statute  of  frauds  to  trusts  arising  from 
payment  of  purchase  money,  see  Kerr's  Cyc.  C.  C.  §  853  note 
par.    107. 

As  to  constructive  trusts  arising  through  fraud,  undue 
influence,  etc.,  see  11  L.  381. 

As  to  evidence  and  burden  of  proof  to  establish  resulting, 
constructive,  or  involuntary  trusts,  see  Kerr's  Cyc.  C.  C.  §  852 
note  pars.  395,  411;  §853  note  pars.  81-118. 

As  to  fraud  in  devise  or  bequest  impressed  with  trust,  see  2 
L.   662. 

As  to  involuntary  trusts  as  between  parent  and  child,  see 
Kerr's  Cyc.  C.  C.  §  852  note  pars.  340,  357,  359,  364. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  promise  to  leave  property  by  will,  see  Kerr's  Cyc.  C.  C. 
§  852  note  pars.    337,   340,   341,   357. 

As  to  resulting  trust  from  purchase  by  partner  with  part- 
nership funds,  see  Kerr's  Cyc.  C.  C.  §  853  note  pars.  55-57. 

1172 


i 


Tit.VIII.ch.I.art.II.] 


OBLIGATION. 


§2228 


As  to  resulting  trust  in  favor  of  wife  from  husband's  purchase 
witli  her  funds,  see  Kerr's  Cyc.  C.  C.   §  853  note  pars.  50-54. 

As  to  trusts  arising-  from  mining  claims  and  transactions 
in  government  lands,  see  Kerr's  Cyc.  C.  C.  §  852  note  pars. 
366-386. 

As  to  trust  created  by  purchase  in  own  name  with  funds  of 
another,  see  Kerr's  Cyc.  C.  C.  §  853  and  note. 

As  to  when  resulting  trust  does  not  arise  in  favor  of  party 
paying  purchase  money,  see  Kerr's  Cyc.  C.  C.  §  853  note  pars. 
66-80. 

Principal  and  agent. — As  to  resulting  trvists  from  trans- 
actions between,  see  Kerr's  Cyc.  C.  C.  §  853  note  pars.  58-65. 


ARTICLE  II. 


§  2228, 
§  2229 
§  2230 
§  2231 
§  2232 

S  2233 
§  2234 
§  2235 
§  2236 
§  2237 
§  2238 

S   ooog 


OBLIGATIONS    OF    TRUSTEES. 

Trustee's    obligation    to    good    faitli. 
Trustee  not  to  use  property  for  his  own  profit. 
Certain    transactions    forbidden. 

Trustee's  influence  not  to   be  used  for  his  advantage. 
Trustee  not  to  assume  a  trust  adverse  to  interest  of  bene- 
ficiary. 
To    disclose    adverse    interest. 
Trustee  guilty  of  fraud,   when. 
Presumption  against   trustees. 
Trustee  mingling  trust  property  with   his  own. 
Measure  of  liability   for   breach   of   trust. 
Same.      [For  losses  only,   when.] 
Cotrustees,    how   far   liable   for   each   other. 


§2228.    TRUSTEE'S  OBLIGATION  TO  GOOD  FAITH.     In 

all  matters  connected  with  his  trust,  a  trustee  is  bound  to  act 
in  the  highest  good  faith  toward  his  beneficiary,  and  may  not 
obtain  any  advantage  therein  over  the  latter  by  the  slightest 
misrepresentation,  concealment,  threat,  or  adverse  pressure 
of  any  kind. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.   for   18   pars,  annotation. 

82  C.  351,  374,  16  A.  S.  137,  23  P.  16,  20  (construed  and  applied 
with  other  sections);  86  C.  623,  629,  25  P.  135,  137  (construed 
and  applied);  94  C.  642,  647,  30  P.  4  (construed  and  applied); 
112  C.  53,  61,  44  P.  333,  33  L.  788  (referred  to  with  other  sec- 
tions);   50    P.    1072,    1073    (construed    and    applied);    133    C.    489, 

1173 


§§  2229,  2230  CIVIL  CODE.  [Div.III.Pt.IV. 

493,  65  P.  1044  (referred  to);  136  C.  460,  463,  69  P.  83  (con- 
strued and  applied  with  other  sections);  142  C.  638,  641,  76  P. 
486,  487  (construed  and  applied);  144  C.  603,  606,  78  P.  9  (con- 
strued and  applied);  147  C.  725,  732,  82  P.  384  (construed  and 
applied  with  other  sections — constructive  trust  in  favor  of 
decedent's  estate);  150  C.  785,  787,  90  P.  135  (applied  with  §2229 
to  option  to  purchase  land);  4  C.  A.  438,  442,  88  P.  510  (applied 
to  joint  business  enterprise);  5  C.  A.  228,  232,  90  P.  39,  40  (para- 
mount and  vital   principle   of  all  agencies  is  good   faith). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note   §  2215,  ante. 

§2229.  TRUSTEE  IVOT  TO  USE  PROPERTY  FOR  HIS 
OWN  PROFIT.  A  trustee  may  not  use  or  deal  with  the  trust 
property  for  his  own  profit,  or  for  any  other  purpose  uncon- 
nected with  the  trust,  in  any  manner. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

82  C.  351,  374,  16  A.  S.  137,  23  P.  16,  20  (construed  and  applied 
with  other  sections);  93  C.  17,  30,  28  P.  788,  790  (construed  and 
applied);  97  C.  403,  410,  32  P.  441,  443  (construed  and  applied); 
109  C.  170,  177,  41  P.  865  (construed  and  applied);  112  C;  53,  61, 
44  P.  333,  33  L.  788  (construed  and  applied  with  other  sections); 
120  C.  467,  471,  52  P.  822  (construed  and  applied);  124  C.  175, 
181,  56  P.  887  (construed  and  applied);  130  C.  245,  257,  62  P. 
466,  467,  600  (construed  and  applied  with  other  sections);  131  C. 
656,  659,  63  P.  1011  (construed  and  applied  with  §2230);  133  C. 
634,  639,  85  A.  S.  233,  66  P.  12  (referred  to);  142  C.  638,  641 
(wrongfully  cited  as  §  2239  in  construing  and  applying  provi- 
sions in  §§  2228,  2322),  76  P.  486,  487  (same  error) ;  145  C.  352,  364, 
78  P.  550  (construed  and  applied  with  other  sections);  146  C.  585, 
589,  80  P.  1034  (applied  to  pledge  of  bonds  by  bank  but  secretly 
assigned  for  benefit  of  its  president);  147  C.  725,  732,  82  P.  384 
(construed  and  applied  with  other  sections — constructive  trust 
in  favor  of  decedent's  estate);  150  C.  785,  787,  90  P.  135  (applied 
with  §2228  to  option  to  purchase  land);  97  F.  696,  713  (cited — 
resulting  trust). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note   §  2215,   ante. 

As  to  right  of  cestui  que  trust  to  follow  trust  funds,  see 
Kerr's  Cyc.  C.  C.  §  2236  and  note. 

§  2230.  CERTAIN  TRANSACTIONS  FORBIDDEN.  Neither 
a  trustee  nor  any  of  his  agents  may  take  part  in  any  transac- 
tion concerning  the  trust  in  which  he  or  any  one  for  whom 

1174 


Tit.VIII,ch.I,art.II.]        WHAT  FORBIDDEN.  §  2230 

he  acts  as  agent  has  an  interest,  present  or  contingent,  adverse 
to  that  of  his  beneficiary,  except  as  follows: 

1.  When  the  beneficiarJ^  having  capacity  to  contract,  with 
a  full  knowledge  of  the  motives  of  the  trustee,  and  of  all 
other  facts  concerning  the  transaction  which  might  affect  his 
own  decision,  and  without  the  use  of  any  influence  on  the 
part  of  the  trustee,  permits  him  to  do  so; 

2.  When  the  beneficiary  not  having  capacity  to  contract, 
the  proper  court,  upon  the  like  information  of  the  facts,  grants 
the  like  permission;  or, 

3.  When  some  of  the  beneficiaries  having  capacity  to  con- 
tract, and  some  not  having  it,  the  former  grant  permission 
for  themselves,  and  the  proper  court  for  the  latter,  in  the" 
manner  above  prescribed. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  70  pars,  annotation. 

54  C.  103,  106  (construed  and  applied);  22  P.  485,  488  (agent 
may  purchase  corporate  stock  of  his  principal,  if  he  deals  fairly 
and  honestly);  81  C.  303,  319,  323,  22  P.  665,  670  (construed  and 
applied  with  §2234);  86  C.  623.  629,  25  P.  135,  137  (construed 
and  applied);  98  C.  171,  177,  32  P.  980,  981  (construed  and 
applied);  112  C.  53,  61,  44  P.  333,  33  L.  788  (construed  and 
applied);  113  C.  221,  237,  41  P.  1017,  45  P.  252  (construed  and 
applied  with  other  sections);  121  (2.  282,  285,  287,  53  P.  699  (con- 
strued and  applied);  130  C.  245.  257,  62  P.  466,  600  (construed 
and  applied  witii  other  sections);  130  C.  431,  433,  62  P.  749  (con- 
strued and  applied  with  other  sections);  131  C.  656,  659,  63  P. 
1011  (construed  and  applied  with  other  sections);  66  P.  175,  177 
(construed  and  applied  with  other  sections);  138  C.  81,  95,  70 
P.  1008  (construed  and  applied);  144  C.  603,  606.  78  P.  9  (con- 
strued and  applied);  145  C.  352,  363,  365,  78  P.  550  (construed 
and  applied  with  §2229);  146  C.  407,  410,  80  P.  511  (applies  to 
directors  of  corporation,  but  transaction  between  director  and 
his  corporation  is  not  necessarily  void  when — transaction  is  to 
be  regarded  how);  147  C.  725,  732,  82  P.  384  (construed  and 
applied  with  other  sections — constructive  trust  in  favor  of 
decedent's  estate);  45  F.  518,  527  (this  section  and  §2234  are 
applicable  to  directors  of  corporations  in  their  trust  relations); 
97   F.   696,   713    (cited — resulting   trust). 

As  to  many  miscellaneous  iiintt<'rs  as  to  trusts  ;niil  ti-nstees, 
see   note    §  2215,   ante. 

1175 


§§  2231-2233  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2231.  TRUSTEE'S  INFLUENCE  NOT  TO  BE  USED  FOR 
HIS  ADVANTAGE.  A  trustee  may  not  use  the  influence  which 
his  position  gives  him  to  obtain  any  advantage  from  his  ben- 
eficiary. 

HLstory:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.   C.   for  10   pars,   annotation. 

94  C.  446,  461,  29  P.  957  (construed  and  applied);  103  C.  97, 
101,  3"  P.  189  (construed  and  applied);  113  C.  221,  237,  41  P. 
1017,  45  P.  252  (construed  and  applied  with  other  sections);  138 
C.  81,  95,  70  P.  1008  (construed  and  applied  with  other  sections 
in  dis.  op.);  142  C.  59,  69,  75  P.  649  (construed  and  applied  with 
other  sections);  142  C.  638,  641,  76  P.  486,  487  (construed  and 
applied  with  other  sections). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note    §  2215,   ante. 

§  2232.  TRUSTEE  NOT  TO  ASSUME  A  TRUST  ADVERSE 
TO  INTEREST  OF  BENEFICIARY.  No  trustee,  so  long  as 
he  remains  in  the  trust,  may  undertake  another  trust  adverse 
in  its  nature  to  the  interest  of  his  beneficiary  in  the  subject 
of  tlie  trust,  without  the  consent  of  the  latter. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.   C.   C.  for  3   pars,   annotation. 

113  C.  221,  237,  41  P.  1017,  45  P.  252  (construed  and  applied 
with  other  sections);  121  C.  327,  328,  53  P.  702  (construed  and 
applied  with  §  2234);  66  P.  175,  177  (construed  and  applied  with 
other  sections);  138  C.  81,  95,  70  P.  1008  (construed  and  applied 
with  other  sections);  142  C.  638,  641,  76  P.  48G,  487  (construed 
and   applied   with   other   sections). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note   §  2215,  ante. 

§  2233.  TO  DISCLOSE  ADVERSE  INTEREST.  If  a  trustee 
acquires  any  interest,  or  becomes  charged  with  any  duty, 
adverse  to  the  interest  of  his  beneficiary  in  the  subject  of  the 
trust,  he  must  immediately  inform  the  latter  thereof,  and 
may  be  at  once  removed. 

History:      Enacted  March   21,   1872. 

See   Kerr's  Cyc.  C.   C.  for   3   pars,  annotation. 

55  C.  555,  562  (referred  to  with  other  sections  in  dis.  op.); 
86  C.  623,  629,  25  P.  135,  137    (construed  and  applied  with  other 

1176 


Tit.VITI,ch.T,art.II.]     FRAUD— PRBSUMPTIOUS.        §§  2234,  2235 

sections);  113  C.  221,  237,  41  P.  1017,  45  P.  252  (construed  and 
applied  with  other  sections);  66  P.  175,  177  (construed  and 
applied  with   otlier  sections). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note    §  2215,   ante. 

§2234.     TRUSTEE    GUILTY    OF    FRAUD,    WIIEX.     Every 
violatiou  of  the  provisions  of  the  preceding  sections  of  this 
article  is  a  fraud  against  the  beneficiary  of  a  trust. 
HiMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

52  C.  403,  406  (construed  and  applied);  81  C.  303,  319,  22  P. 
665,  670  (construed  and  applied  with  §2230);  86  C.  623,  629,  25 
P.  135,  137  (construed  and  applied  with  other  sections);  94  C. 
446,  461,  29  P.  957  (construed  and  applied  with  other  sections);- 
97  C.  403,  410,  32  P.  441  (construed  and  applied  with  §2229); 
103  C.  97,  102,  37  P.  189  (construed  and  applied);  113  C.  221, 
231,  237,  41  P.  1017,  45  P.  252  (construed  and  applied  with  other 
sections);  121  C.  327,  328,  53  P.  702  (construed  and  applied  with 
other  sections);  130  C.  431,  433,  62  P.  749  (construed  and  ap- 
plied); 131  C.  73,  79,  63  P.  158  (referred  to  in  dis.  op.);  (C.  Sept. 
10,  1901),  66  P.  175,  177  (construed  and  applied  with  other  sec- 
tions); 138  C.  81,  95,  70  P.  1008  (referred  to  with  other' sections 
in  dis.  op.);  145  C.  352,  363,  78  P.  550  (construed  and  applied); 
146  C.  585,  589,  80  P.  1034  (applied  to  pledge  of  bonds  by  bank 
but  secretly  assigned  for  benefit  of  its  president);  45  F.  518, 
527  (this  section  and  §  2230  are  applicable  to  directors  of  cor- 
porations in  their  trust  relations);  97  F.  696,  713  (cited — result- 
ing trust). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note   §2215,   ante. 

§2235.  PRESUMPTION  AGAINST  TRUSTEES.  All  trans- 
actions l)etween  a  trustee  and  his  beneficiary  during  the 
existence  of  the  trust,  or  while  the  influence  acquired  by  the 
trustee  remains,  by  which  he  obtains  any  advantage  from  his 
beneficiary,  are  presumed  to  be  entered  into  by  the  latter 
without  sufficient  consideration,  and  under  undue  influence. 
UlNtory:     Knacted  March   21,   1S72. 

See   Kerr's  Cyc.  C.  C.  for  IS  pars,  annotation. 

54  C.  439,  440  (cited  by  mistake  for  §2395);  72  C.  556,  559,  1 
A.  S.  84,  14  P.  306  (construed  and  applied);  73  C.  157,  161,  14 
P.    576,   578    (construed  and  applied);   75   C.   525,   529.    7   A.   S.    189. 

1177 


§§  2236,  2237  CIVIL  CODE.  [Div.III,Pt.IV. 

17  P.  689,  691  (construed  and  applied);  82  C.  351,  374,  16  A.  S. 
137,  23  P.  16,  20  (construed  and  applied  witli  other  sections); 
94  C.  446,  461,  29  P.  957  (construed  and  applied  witli  otlier  sec- 
tions); 103  C.  97,  100,  101,  37  P.  189  (construed  and  applied  with 
other  sections);  49  P.  129,  130  (construed  and  applied);  120  C. 
322,  323,  324,  52  P.  723  (construed  and  applied) ;  130  C.  352,  357,  358, 
62  P.  555  (construed  and  applied);  66  P.  175,  177  (construed 
and  applied  with  other  sections);  134  C.  170,  172,  173,  66  P.  231 
(construed  and  applied);  136  C.  460,  463,  69  P.  83  (construed 
and  applied  with  other  sections);  137  C.  176,  183,  69  P.  965 
(referred  to),  137  C.  685,  693,  695,  697,  70  P.  771  (construed); 
142  C.  59,  69,  75  P.  649  (construed  and  applied  with  other  sec- 
tions); 142  C.  638,  641,  76  P.  486,  487  (construed  and  applied 
with  other  sections);  147  C.  495,  508,  82  P.  57  (circumstances 
which,  if  taken  alone,  would  raise  technical  implication  or  pre- 
sumption that  will  was  procured  by  undue  influence) ;  2  C.  A. 
479,  485,  84  P.  326  (applied  to  fraud  by  husband  upon  his  wife). 
As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note    §  2215,   ante. 

§2236.  TRUSTEE  3II>GLI>G  TRUST  PROPERTY  WITH 
HIS  OWN.  A  trustee  who  wilfully  and  unnecessarily  mingles 
the  trust  property  with  his  own,  so  as  to  constitute  himself 
in  appearance  its  absolute  owner,  is  liable  for  its  safety  in 
all  events,  and  for  the  value  of  its  use. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,   1905,  Stats,  and  Amdts.   1905,  p.   615. 

See  Kerr's  Cyc.  C.  C.  for  55  pars,  annotation. 

97  C.  196,  202,  31  P.  937  (construed  and  applied);  120  C.  533, 
536,  537,  65  A.  S.  197,  52  P.  852  (construed  and  applied);  142 
C.  638,  641,  76  P.  486,  487  (construed  and  applied  with  other 
sections). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note    §  2215,   ante. 

As  to  rig-ht  to  follow  trust  funds,  see  32  A.  S.  125:  46  A.  S. 
608;    2   L.   480;    7   L.   570. 

§2237.  MEASURE  OF  LIABILITY  FOR  BREACH  OF 
TRUST.  A  trustee  who  uses  or  disposes  of  the  trust  property, 
contrary  to  section  twenty-two  hundred  and  twenty-nine,  may, 
at  the  option  of  the  beneficiary,  be  required  to  account  for  all 
profits  so  made,  or  to  pay  the  value  of  its  use,  and,  if  he  has 

1178 


Tit.VIII,ch.I,art.II.]     LOSSES— COTRUSTEE.  §§2238,2239 

disposed  thereof,  to  replace  it,  with  its  fruits,  or  to  account 
for  its  proceeds,  with  interest. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  6  pars,  annotation. 

55  C.  555,  563  (referred  to  in  dls.  op.);  98  C.  472,  478,  33  P. 
484  (mineral  land  may  be  selected  as  a  homestead);  120  C.  467, 
471,  52  P.  822  (construed  and  applied  with  §2229);  133  C.  634, 
639,  85  A.  S.  233,  66  P.  12  (referred  to  with  other  sections); 
142  C.  638,  641,  76  P.  486,  487  (construed  and  applied  with  other 
sections);  5  C.  A.  228,  235  (applied  but  erroneously  cited  as 
§  2237  C.  C.  P.),  90  P.  39,  42   (correct  citation). 

As  to  liability  of  trustee  for  compound  interest,  see  Kerr's 
Cyc.   C.  C.   §  2262  and  note. 

As  to  liability  of  trustee  for  non-investment,  see  Kerr's  Cyc. 
C.  C.   §  2262  and  note. 

As  to  liability  of  trustee  for  use  of  property  for  his  own 
benefit,  see  Kerr's  Cyc.  C.  C.  §§  2229,  2230  and  notes. 

As  to  many  iniscellaneous  matters  as  to  trusts  and  trustees, 
see  note   §  2215,  ante. 

§  2238.  SAME.  [FOR  LOSSES  ONLY,  WHEX.]  A  trustee 
who  uses  or  disposes  of  the  trust  property  in  any  manner 
not  authorized  by  the  trust,  but  in  good  faith,  and  with  intent 
to  serve  the  interests  of  the  beneficiary,  is  liable  only  to  make 
good  whatever  is  lost  to  the  beneficiary  by  his  error. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5   pars,  annotation. 

136  C.  432,  445,  89  A.  S.  153,  64  P.  692,  69  P.  77  (construed 
and  applied);  142  C.  638,  641,  76  P.  486,  487  (construed  and 
applied  with   other  sections). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note    §  2215,   ante. 

§2239.  COTRUSTEES,  HOW  FAR  LL4BLE  FOR  EACH 
OTHER.  A  trustee  is  responsible  for  the  wrongful  acts  of  a 
cotrustee  to  which  he  consented,  or  which,  by  his  negligence, 
he  enabled  the  latter  to  commit,  but  for  no  others. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 
87   C.    1,    6,    25    P.    157,    159,    11    L.    264    (construed   and   applied); 
120   C.    467,    471,   52   P.   822    (construed  and  applied);    142   C.    638, 

1179 


§§  2243,  2244  CIVIL  CODE.  [Div.III.Pt.IV. 

641  (erroneously  cited  for  §  2229  in  construing-  and  applying 
provisions  in  §§  2228,  2322),  76  P.   486,   487   (same  error). 

As  to  liability  of  trvistees,  executors,  etc.,  for  acts  and  defaults 
of  their  cotrustees,  see  42  A.  D.  288-293;  11  Paige  Ch.  (N.  Y.) 
299,  5  L,.  ed.  142;  3  Sandf.  Ch.  (N.  Y.)  99,  7  L.  ed.  785;  35  U.  S. 
(10  Pet.)   532,  562,  9  L.  ed.  522. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note    §  2215,   ante. 


ARTICLE  III. 

OBLIGATIONS    OF    THIRD    PERSONS. 

§  2243.     Third    person,    when    involuntary    trustee. 

§  2244.     When   third   person   must  see   to   application   of  trust  prop- 
erty. 

§2243.  THIRD  PEKSOX,  >VHEN  INVOLUNTARY  TRUS- 
TEE. Every  one  to  whom  property  is  transferred  in  violation 
of  a  trust,  holds  the  same  as  an  involuntary  trustee  under 
such  trust,  unless  he  purchased  it  in  good  faitli,  and  for  a 
valuable  consideration. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

55  C.  555,  562  (referred  to  with  other  sections  in  dis.  op.); 
96  C.  298,  307,  31  A.  S.  209,  31  P.  166  (construed  and  applied 
with  §856);  105  C.  60,  64,  38  P.  519  (construed  and  applied); 
58  P.  298,  301  (construed  and  applied);  134  C.  641,  657,  60 
P.  974,  66  P.  982  (construed  and  applied  with  §870);  83  F.  48, 
52  (construed  with  §  869 — corporation  stock,  issued  in  excliange 
for  land,  constitutes  the  corporation  a  purchaser  for  value). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 


§  2244.  WHEN  THIRD  PERSON  MUST  SEE  TO  APPLICA- 
TION OF  TRUST  PROPERTY.  One  who  actually  and  in  good 
faith  transfers  any  money  or  other  property  to  a  trustee,  as 
such,  is  not  bound  to  see  to  the  application  thereof,  and  his 
rights  can  in  no  way  be  prejudiced  by  a  misapplication  thereof 
by  the  trustee.     Otlier  persons  must,  at  their  peril,  see  to  the 

1180 


Tit.VIII.ch.Il,art.I.]      NATURE-CREATION.  §  2250 

proper  application  of  money  or  other  property  paid  or  deliv- 
ered by  them. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.   for  5  pars,  annotation. 

118   C.    102,    106,    50   P.    386    (construed   and   applied    with    otn<-i 

sections).  ,    ^        ♦   „„ 

As  to  many  miscellaneous  matters  as   to   trusts  and   trustees. 

see  note  §  2215,  ante. 

CHAPTER  II. 

TRUSTS  FOR  THE  BENEFIT  OF  THIRD  PERSONS. 

Article   I.  Nature  and  Creation  of  Trust,  §§  2250-22.^4. 

II.  Obligations  of  Trustees,  §§2258-2263. 

III.  Powers  of  Trustees,  §§  2267-2269. 

IV.  Rights  of  Trustees,  §§  2273-2275. 

V.     Termination  of  the  Trust,  §§  2279-2283. 
VI.     Succession    or     Appointment    of     New    Trustees, 
§§  2287-2289. 


ARTICLE  T. 
NATURE  AND  CREATION   OF   THE  TRUST. 
§  2250.     Who  are  trustees  within  the  scope  of  this  chapter. 
§  2251.     Creation    of    trust. 
§  2252.     Trustees    appointed    by    tourt. 
§  2253.     Declaration   of   trust. 
§  2254.     Same.     [Declarations  before  acceptance.] 

§'.>'2:,o.    >vno  .VKE  tuustees  avithin  scope  ov  this 

(^lI.VrTEK.  The  provisions  of  this  chapter  apply  only  to 
express  trusts,  created  for  the  benefit  of  another  than  the 
truster,  and  in  which  the  title  to  the  trust  property  is  vested 
in  the  trustee;  not  including,  however,  those  of  executors, 
administrators,  and  guardians,  as  such. 

History:     ICnactrd  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

137  C.   634,   638,   66   P.   369.   70   P.    861    (construed   an.l   appli-d): 

1181 


§§  2251-2253  CIVIL  CODE.  [Div.III,Pt.IV. 

144  C.  121,  125,  77  P.  825  (executors,  as  such,  are  not  trustees 
of  express  trust);  145  C.  646,  649,  79  P.  358  (special  administra- 
tors are  included  in  exception  of  section);  153  C.  245,  250,  94 
P.  1047   (what  is  implied  in  term   "trust"). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2251.  CREATION  OF  TRUST.  The  mutual  consent  of  a 
truster  aud  trustee  creates  a  trust  of  which  the  beneficiary 
may  take  advantage  at  any  time  prior  to  its  rescission. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

61  C.  333,  334  (construed  and  applied);  91  C.  191,  193,  25  A. 
S.  171,  27  P.  598  (construed  and  applied  witli  other  sections): 
95  C.  160,  168,  27  P.  160,  30  P.  196  (construed  and  applied)';  110 
C.  568,  576,  42  P.  1086  (construed  and  applied);  122  C.  19,  25,  54 
P.   370   (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  right  of  beneficiary  to  afRrm  and  enforce  trust,  see 
notes  4  John.  Ch.  (N.  Y.)  136,  1  L.  ed.  791;  3  John.  Ch.  (N.  Y.) 
229,   1  L.  ed.   602. 

§2252.  TRUSTEES  APPOINTED  BY  COURT.  When  a 
trustee  is  appointed  by  a  court  or  public  officer,  as  such,  such 
court  or  officer  is  the  truster,  within  the  meaning  of  the  last 
section. 

History:     Enacted  March   21,   1872. 

See   Kerr's   Cyc.   C.   C.   for   2   pars,   annotation. 

91  C.  191,  193,  25  A.  S.  171,  27  P.  598,  599  (construed  and 
applied  with  other  sections);  142  C.  15,  16,  100  A.  S.  99,  75 
P.   566    (cited). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2253.     DECLARATION   OF   TRUST.     The   nature,   extent, 
and  object  of  a  trust  are  expressed  in  the  declaration  of  trust. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.   §  2254  and  note.      • 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note   §  2215,  ante. 

1182 


II 


Tit.VIII,ch.II,art.II.]        OBLIGATIONS.  §§  2254-2259 

§2254.      SAME.       [DECLARATIONS     BEFORE     ACCEPT- 

ANTE.]  All  declarations  of  a  truster  to  his  trustees,  in  rela- 
tion to  the  trust,  before  its  acceptance  by  the  trustees,  or  any 
of  them,  are  to  be  deemed  part  of  the  declaration  of  the  trust, 
except  that  when  a  declaration  of  trust  is  made  in  writing, 
all  previous  declarations  by  the  same  truster  are  merged 
therein. 

His^tury:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 
As  to  declaration  of  trusts,  see  1  L.  327;   11   L.  456:   12  L.  667. 
As  to  many  miscellaneous  matters  as   to   trusts  and   trustees, 
see  note   §  2215,  ante. 


ARTICLE  II. 

OBLIGATIONS    OF    TRUSTEES. 

§  2258.  Trustees   must  obey  declaration   of  trust. 

§  2259.  Degree  of  care  and  diligence  in  execution  of  trust. 

§  2260.  Duty  of  trustee  as  to  appointment  of  successor. 

§  2261.  Investment   of   money   by   trustee. 

§  2262.  Interest,   simple  or  compound,   on   omission   to   invest   trust 

moneys. 

§  2263.  Purchase  by   trustee  of  claims   against  trust   fund. 

§2258.     TRUSTEES      MIST     OIJEY     DECLARATION     OF 

TRUST.  A  trustee  must  fulfil  the  purpose  of  the  trust,  as 
declared  at  its  creation,  and  must  follow  all  the  directions  of 
the  truster  given  at  thjit  time,  except  as  modified  by  the  con- 
sent of  all  parties  interested,  in  the  same  manner,  and  to  the 
same  exent,  as  an  employee. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  8  pars,  annotation. 

58  C.  339,  340  (construed  and  applied):  142  C.  l.'>,  1»!,  100  A. 
S.   99,  75   P.   566    (cited). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trust.'-s. 
see  note   §  2215,  ante. 

§2259.  DEGREE  OF  (ARE  AND  DILIGENCE  IN  EXECU- 
TION OF  TRUST.     A  trustee,  whether  he  receives  any  com- 

1183 


§§  2260-2262  CIVIL  CODE.  [Div.III,Pt.IV. 

pensation  or  not,  must  use  at  least  ordinary  care  and  dili- 
gence in  the  execution  of  his  trust. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

50   P.    1072,    1073    (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note -3  2215,  ante. 

As  to  when  trustee  is  charged  with  simple  or  compound 
interest,  see  Kerr's  Cyc.  C.  C.   §  2262  and  note. 

§2260.    DUTY  OF  TRUSTEE   AS  TO  APPOINTMEXT   OF 

SUCCESSOR.  If  a  trustee  procures  or  assents  to  his  discharge 
from  his  office,  before  his  trust  is  fully  executed,  he  must  use 
at  least  ordinary  care  and  diligence  to  secure  the  appointment 
of  a  trustworthy  successor  before  accepting  his  own  final 
discharge. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

Succession — As  to  appointment  of  new  trustee,  see  Kerr's  Cyc. 
C.  C.   §  2287  and  note. 

§  2261.     INVESTMENT  OF  MONEY  BY  TRUSTEE.    A  trus- 
tee must  invest  money  received  by  him  under  the  trust,  as  fast 
as  he  collects  a  sufficient  amount,  in  such  manner  as  to  afford 
reasonable  security  and  interest  for  the   same. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

137  C.  634,  638,  66  P.  369,  70  P.  861  (construed  and  applied 
with    §  2262). 

As  to  amount  of  care  required  in  general  of  trustees  in 
preservation  and  protection  of  trust  property,  see  95  A.  D.   392. 

As  to  investments  which  trustees  may  make  without  being 
liable   for  losses,   see   40   A.   D.    506-518. 

As  to  latitude  allowed  trustees  in  making  investments,  see 
57  A.  R.   111-114. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2262.  INTEREST,  SIMPLE  OR  COMPOUND,  ON  OMIS- 
SION TO  INVEST  TRUST  MONEYS.  If  a  trustee  omits  to 
invest  the  trust  moneys  according  to  the  last  section,  he  must 

1184 


Tit.VIII,ch.II,art.II.]       CLAIM   AGAINST   FUND.  §2263 

pay   simple   interest   thereon,    if   such   omission    is   negligent 
merely,  and  compound  interest  if  it  is  wilful. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  27  pars,  annotation. 

120  C.  467,  471,  52  P.  822  (construed  and  applied  with  §2239); 
124  C.  568,  573,  57  P.  561  (construed  and  applied);  137  C.  634, 
638,  66  P.  369,  70  P.  861  (construed  and  applied  with  other  sec- 
tions). 

As  to  liability  to  trustees  for  compound  interest,  see  29  L. 
622-659. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§  2263.  PURCHASE  BY  TRUSTEE  OF  CLADIS  AGAINST 
TRUST  FUND.  A  trustee  cannot  enforce  any  claim  against 
the  trust  property  which  he  purchases  after  or  in  con- 
templation of  his  appointment  as  trustee;  but  he  may  be 
allowed,  by  any  competent  court,  to  charge  to  the  trust  prop- 
erty what  he  has  in  good  faith  paid  for  the  claim,  upon  dis- 
charging the  same. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cj'c.  C.  C.  for  3  pars,  annotation. 

62  C.  373,  376  (construed);  147  C.  725,  732,  82  P.  384  (con- 
strued and  applied  with  other  sections — constructive  trust  in 
favor  of  decedent's  estate). 

As  to  proliibited  transactions  by  trustee  with  trust  property 
for  his  own  benefit,  see  Kerr's  Cyc.  C.  C.  §  2229  note. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  rights  of  purchaser  for  valuable  consideration  witliout 
notice,  see  Kerr's  Cyc.  C.  C.  §856  note;  also  Perry  on  Trusts, 
§  217. 


err's    C.    C— 38  1185 


§§  2267-2269  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE  III. 

POWERS    OF    TRUSTEES. 

§  2267.     Trustee's  powers  as  agent. 

§  2268.     All   must   act. 

§  2269.     Discretionary  powers. 

§  2267.  TRUSTEE'S  POWEKS  AS  AGENT.  A  trustee  is  a 
general  agent  for  the  trust  property.  His  authority  is  such 
as  is  conferred  upon  him  by  the  declaration  of  trust  and  by 
this  chapter,  and  none  other.  His  acts,  within  the  scope  of 
his  authority,  bind  the  trust  property  to  the  same  extent  as 
the  acts  of  an  agent  bind  his  principal. 

HLstory:     Enacted  March   21,   1872. 

See   Kerr's   Cyc.   C.    C.    for   41    pars,   annotation. 

37  P.  180,  184  (referred  to);  139  C.  593,  594,  73  P.  452  (cited); 
151  C.  606,  612,  91  P.  518  (construed  and  applied — this  section 
refers  to  trust  property  alone). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note   §  2215,  ante. 

§  2268.     ALL  MUST  ACT.    Where  there  are  several  cotrus- 
tees,  all   must  unite  in   any  act  to  bind   the  trust  pi'operty, 
unless  the  declaration  of  trust  otherwise  provides. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  how  far  trustees  are  liable  for  each  otlier,  see  Kerr's 
Cj^c.  C.  C.   §  2239  note. 

As  to  many  miscellaneous  inatters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  survivorship  between  coexecutors  and  right  of  survivor 
to  act,  see  Kerr's  Cyc.  C.  C.  §  22  88  note. 

As  to  when  one  of  several  executors  may  act,  see  Kerr's  Cyc. 
C.   C.   P.    §  1355   note. 

§2269.  DISCEETIOINARY  POWERS.  A  discretionary 
power  conferred  upon  a  trustee  is  presumed  not  to  be  left  to 
his  arbitrary  discretion,  but  may  be  controlled  by  the  proper 

1186 


Tit.VIII,ch.II,art.IV.]        INDEMNIFICATION.  §§  2273, 2274 

court  if  not  reasonably  exercised,  unless  an  absolute  discre- 
tion is  clearly  conferred  by  the  declaration  of  trust. 
History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 
133  C.   645,   648,  66   P.   17,   55   L.    216    (construed  and  applied). 
As   to  discretionary   power   of  trustees,   see    13   L.    212,   213. 
As  to  many  miscellaneous  matters  as  to  trusts  and   trustees, 
sfee  note  §  2215,  ante. 

ARTICLE  IV. 

RIGHTS    OF    TRUSTEES. 

§  2273.     Indemnification    of    trustee. 
I  2274.     Compensation   of  trustee. 
§  2275.     Involuntary  trustee. 

§2273.  IXDEMMFICATIOX  OF  TRUSTEE.  A  trustee  is 
entitled  to  the  repayment,  out  of  the  trust  property,  of  all 
expenses  actually  and  properly  incurred  by  him  in  the  per- 
formance of  his  trust.  He  is  entitled  to  the  repayment  of 
even  unlawful  expenditures  if  they  were  productive  of  actual 
benefit  to  the  estate. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.   for   24  pars,  annotation. 

145  C.  646,  649,  79  P.  358  (not  applicable  to  expenses  incurred 
hy  special  administrator);  149  C.  1,  16,  84  P.  145,  6  L.  N.  S. 
275  (trustees  are  entitled  when,  to  expenses,  including  attor- 
neys'  fees,   in  bringing  action). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2274.  C03irE>'S.4.TIO>  OF  TRUSTEE.  Except  as  pro- 
vided in  section  seventeen  hundred  of  the  Code  of  Civil  Pro- 
cedure, when  a  declaration  of  trust  is  silent  upon  the  subject 
of  compensation  the  trustee  is  entitled  to  the  same  compen- 
sation as  an  executor.  If  it  specifies  the  amount  of  his  com- 
pensation, he  is  entitled  to  the  amount  thus  specified  and  no 
more.  If  it  directs  that  he  shall  be  allowed  a  compensation, 
but  does  not  specify  the   rate  or  amount,  he  is  entitled  to 

1187 


§  2275  CIVIL  CODE.  [Div.III.Pt.IV. 

such  compensation  as  may  be  reasonable  under  the  circum- 
stances. If  there  are  two  or  more  trustees  the  compensation 
shall  be  apportioned  among  the  trustees  according  to  the 
services  rendered  by  them  respectively. 

History;  Enacted  March  21,  1872;  amended  March  19,  1889, 
Stats,  and  Amdts.  1889,  p.  334;  March  10,  1909,  Stats,  and  Amdts. 
1909,  p.   252. 

See  K(i-rr'.s  Cyc.  C.  C.  for   13   pars,  annotation. 

56   C.    628    (construed  and  applied). 

As  to  compensation  for  trustees,  see  21  A.  D.  88;  62  A.  D.  210. 

As  to  compensation  of  trustees,  see  17  A.  D.   266-274. 

As  to  forfeiture  of  right  to  compensation,  see  17  A.  D.  274. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  rules  of  compensation  in  different  states,  see  17  A. 
D.   274. 

As  to  trustee's  right  to  compensation  for  services  and  when 
same  allowed  by  statute  and  by  law,  see  9  Paige  Ch.  (N.  Y.) 
398,  bk.   4  L.  ed.  749. 

As  to  waiver  of  compensation,  see   17  A.  D.  274. 

§2275.  INVOLUNTARY  TRUSTEE.  An  involuntary  trus- 
tee, who  becomes  such  through  his  own  fault,  has  none  of  the 
rights  mentioned  in  this  article. 

History:     Enacted  March   21,   1872. 

As  to  involuntary  trustees,  see  Kerr's  Cyc.  C.  C.  §  2217,  2223, 
2224  and  notes. 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  resulting  trusts  in  favor  of  party  paying  purchase 
money  or  consideration,  see  Kerr's  Cyc.  C.  C.  §  853  and  note. 

Party  to  whom  property  conveyed  as  mere  matter  of  con- 
venience not  entitled  to  compensation  or  to  lien  upon  prem- 
ises.—See   102  C.   224,   225,  36  P.   417. 


1188 


Tit.VIII,ch.II,art.V.]       extinguishment.  §§  2279,  2280 

ARTICLE  V. 

TERMINATION    OF    THE    TRUST. 

§  2279.  Trust,   how  extinguished. 

§  2280.  Not  revocable. 

§  2281.  Trustee's   office,    how   vacated. 

§  2282.  Trustee,   how  discharged. 

§  2283.  Removal  of  trustee  by  court. 

§  2279.  TRUST,  HOW  EXTINGUISHED.  A  trust  is  extin- 
guished by  the  entire  fulfilment  of  its  object,  or  by  such 
object  becoming  impossible  or  unlawful. 

History:     Enacted  March   21,   1S72. 

See    Kerr's   Cyc.   C.    C.   for   36   pars,   annotation. 

70  C.  326,  331,  11  P.  728,  730  (construed  and  applied  with 
other  sections);  73  C.  17,  20,  14  P.  377,  378  (construed  and 
applied  with  §2282);  84  C.  295,  297,  24  P.  171,  172  (construed 
and  applied);  113  C.  129,  142,  45  P.  270,  35  L.  269  (construed 
and  applied  with  other  sections);  124  C.  418,  420,  57  P.  219 
(construed  and  applied   with    other   sections). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see   note   §  2215,  ante. 

§  2280.  NOT  REVOCABLE.  A  trust  cannot  be  revoked  by 
the  truster  after  its  acceptance,  actual  or  presumed,  by  the 
trustee  and  beneficiaries,  except  by  the  consent  of  all  the 
beneficiaries,  unless  the  declaration  of  trust  reserves  a  power 
of  revocation  to  the  truster,  and  in  that  case  the  power  must 
be  strictly  pursued. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.   C.  for   16  pars,   annotation. 

70  C.  449,  453,  11  P.  659,  661  (construed  and  applied);  109 
C.  323,  331,  50  A.  S.  43,  41  P.  1089  (construed  and  applied);  113 
C.  129*,  142,  45  P.  270,  35  L.  269  (construed  and  applied  with 
§2279);  122  C.  19,  26,  54  P.  370  (construed  and  applied);  56  P. 
550,  552  (power  of  revocation  does  not  prevent  vesting  of  estate 
in  trustee);  128  C.  1,  9,  60  P.  471  (construed  and  applied);  60 
P.  475  (applied — what  trust  cannot  be  revoked  by  will  of 
grantor). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

1189 


§§  2281-2283  CIVIL  CODE.  [Div.III.Pt.IV. 

§2281.  TRUSTEE'S  OFFICE,  HOW  VACATED.  The  office 
of  a  trustee  is  vacated: 

1.  By  his  death;  or, 

2.  By  his  discharge. 

History:     Enacted  March   21,   1872. 

See   Kerr's   Cyc.   C.   C.   for    6   pars,   annotation. 
As  to  many  miscellaneoiis  matters  as   to   trusts   and   trustees, 
see  note  §  2215,  ante. 

§  2282.  TRUSTEE,  HOW  DISCHARGED.  A  trustee  can  be 
discharged  from  his  trust  only  as  follows: 

1.  By  the  extinction  of  the  trust; 

2.  By  the  completion  of  his  duties  under  the  trust; 

3.  By  such  means  as  may  be  prescribed  by  the  declaration 
of  trust; 

4.  By  the  consent  of  the  beneficiary,  if  he  have  capacity  to 
contract; 

5.  By  the  judgment  of  a  competent  tribunal,  in  a  direct  pro- 
ceeding for  that  purpose,  that  he  is  of  unsound  mind;  or, 

6.  By  the  superior  court. 

History:  Enacted  March  21,  1872;  amended  February  15, 
1883,   Stats,    and   Amdts.    1883,    p.    3. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

73  C.  17,  20,  14  P.  377,  378  (construed  and  applied  with  §  2279); 
132  C.  523,  542,  84  A.  S.  70,  60  P.  442,  64  P.  1000  (construed  and 
applied). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

As  to  resignation  and  removal  of  trustees,  see  note  11  Paige 
Ch.    (N.   Y.)    5   L.   ed.    148. 

As  to  right  of  trustee  to  devest  himself  of  trust  without  con- 
sent, see  note  11  Paige  Ch.   (N.  Y.)   5  L.  ed.  148. 

§2283.  REMOVAL  OF  TRUSTEE  BY  COURT.  The  supe- 
rior court  may  remove  any  trustee  who  has  violated  or  is  unfit 
to  execute  the  trust,  or  may  accept  the  resignation  of  a  trustee. 

Hi.story:  Enacted  March  21,  1872;  amended  April  6,  1880,  Code 
Amdts.    1880    (C.   C.   pt.),  p.    8. 

1190 


Tit.VIII,ch.II,art.VI.]  VACANCY,  SURVIVORSHIP.  §§  2287-2289 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

103  C.  249,  250,  37  P.  223  (referred  to);  111  C.  628,  635,  44  P. 
225    (construed  and  applied  with   §  2289). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 


ARTICLE  VI. 

SUCCESSION    OR    APPOINTMENT    OF    NEW    TRUSTEES. 

§  2287.     Vacant  trusteeship  filled  by  court. 
§  2288.     Survivorship    between    cotrustees. 
§  2289.     Superior  court  as  trustee. 

§2287.    VACAM    TRUSTEESHIP    FILLED    BY     COl  KT. 

The  superior  court  may  appoint  a  trustee  whenever  there  is 
a  vacancy,  and  the  declaration  of  trust  does  not  provide  a 
practicable  method  of  appointment. 

History:  Enacted  March  21,  1872;  amended  April  6,  1880, 
Code   Amdts.    1880    (C.   C.   pt.),    p.    S. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

70  C  S'e  333  11  P.  728,  731  (construed  and  applied  with 
other  sections);  91  C.  191,  193,  25  A.  S.  171,  27  P.  598,  599  (con- 
strued  and   applied). 

As  to  many  miscellaneous  matters  as  to  trusts  and  trustees, 
see  note  §  2215,  ante. 

§2288.     SURVIVOlJSmr    BETWEEN    (  (n  RUSTEES.      On 

the  death,  renunciation,  or  discharge  of  one  of  several  cotrus- 
tees the  trust  survives  to  the  others. 

HiMtury:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

70  C.  326,  333,  11  P.  728.  731  (construed  and  applied  with 
other   sections);    46    P.    463,   465    (construed   and    api^lA-^d). 

As  to  many  miscellaneous  matters  as  to  trustst^o  -d  trustees, 
see   n<ote   §  2215,  ante. 

§2289.  SlI'ERIOR  (  OIRT  AS  TRUSTEE.  When  a  trust 
exists  without  any  appointed  trustee,  or  where  all  the  trus- 
tees renounce,  die.  or  are  discharged,  the  superior  court  of 
the  county  where  the  trust  property,  or  some  portion  thereof. 

1191 


§  2289  CIVIL  CODE.  [Div.III.Pt.IV. 

is  situated,  must  appoint  another  trustee,  and  direct  the  exe- 
cution of  the  trust.  The  court  may,  in  its  discretion,  appoint 
the  original  number,  or  any  less  number  of  trustees. 

History:  Enacted  March  21,  1S72;  amended  April  6,  1880, 
Code  Amdts.   1880    (C.  C.  pt.),  p.   8. 

See  Kerr's  Cyc.   C.  C.   for  17   pars,  annotation. 

70  C.  0-26,  333,  11  P.  728,  731  (construed  and  applied  with  other 
sections);  101  C.  135,  149,  35  P.  549  (construed  and  applied); 
111  C.  628,  636,  44  P.  225  (construed  and  applied  with  §2283); 
46  P.  463,  465  (construed  and  applied);  115  C.  247,  251,  47  P. 
108  (construed  and  applied);  123  C.  348,  352,  55  P.  1003,  1004 
(construed  and  applied);  133  C.  645,  649,  66  P.  17,  55  L.  216 
(construed  and  applied);  149  C.  214,' 216,  217,  85  P.  310  (execu- 
tion of  trust  cannot  be  directed  unless  there  is  an  existing- 
trust  to   be   executed). 

As  to  many  miscellaneous  matters  as  to  trusts  and  triistees, 
see  note  §  2215,  ante. 


1192 


i 

i         Tit.IX,ch.I,art.T.]  AGENCY.  §2295 

TITLE  IX. 

AGENCY. 

[For  Commissioners'  comment  on  this  title,  see  Kerr's  Cyc. 
C.    C] 

Chapter  I.     Agency  in  General,  §§2295-2356. 
II.     Particular  Agencies,  §§  2362-2389. 

CHAPTER  I. 

AGENCY  IN  GENERAL. 

Article  I.     Defintion  of  Agency,  §§  2295-2300. 
II.     Authority  of  Agents,  §§  2304-2326. 

III.  Mutual  Obligations  of  Principals  and  Third  Per- 
sons,   §§  2330-2339. 

IV.  Obligations  of  Agents  to  Third   Persons,   §§  2342- 
2345. 

V.     Delegation  of  Agency,  §§  2349-2351. 
VI.     Termination  of  Agency,  §§  2355,  2356. 

ARTICLE  I. 

DEFINITION  OF  AGENCY. 

§  2295.  Agency,  what. 

§  2296.  Who  may  appoint,  and  Avho  may  be  an  agent. 

§  2297.  Agents,    general    or    special. 

§  2298.  Agency,  actual  or  ostensible. 

§  2299.  Actual    agency. 

§  2300.  Ostensible  agency. 

§  2295.  AGENCY,  AVHAT.  An  agent  is  one  who  represents 
another,  called  the  principal,  in  dealings  with  third  persons. 
Such  representation  is  called  agency. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.   for  45   pars,  annotation. 
66  C,   459.   461,   6   P.   91    (quoted):    75   C.    124,    128,    16   P.    705,   707 

1193 


§  2295  CIVIL  CODE.  [Div.III,Pt.IV. 

(applied);  82  C.  77,  81,  22  P.  979,  980  (cited);  123  C.  299,  302, 
55  P.  992  (cited);  131  C.  321,  325,  63  P.  479  (cited);  140  C.  624, 
630,  74  P.  162,  163  (cited);  1  C.  A.  349,  355,  82  P.  265  (cited); 
4  C.  A.  347,  350,  87  P.  1105  (construed  with  §  2009 — relation  of 
master  and  servant  and  not  that  of  principal  and  agent). 

AGENCY — GENERALLY. 

As  to  evidence  of  belief  that  person  vi^as  agent,  see  Kerr's 
Cyc.  C.  C.   §  2317  and  note  pars.  3,  4. 

As  tc  evidence  of  husband's  agency  for  wife,  see  Kerr's 
Cyc.  C.  C.   §  158  and  note  pars.   117-119. 

As  to  inability  of  agent  to  define  scope  of  agency,  see  Kerr's 
Cyc.  C.  C.  §  2322  subd.  2  and  note. 

As  to  necessity  for  authorization  in  writing,  see  Kerr's  Cyc. 
C.   C.   §  2309  and  note. 

Actions — -By  principals  on  obligations  taken  in  names  of 
agents. — See    12   A.   D.    709. 

Same — For  tort,  imputation  of  knowledge  of  agent  to  prin- 
cipal   when. — See   3   A.   C.    832. 

Admissions  and  declarations  of  agents,  when  evidence  against 
principal. — See   53   A.    D.    773. 

Adverse  parties,  when  same  agent  may  represent. — See  46 
A.  R.  37. 

Affidavit  by  agent,  as  to  sufficiency  of. — See  7  A.  C.  47,  49. 

Agency — And  contract  of  sale  distinguished. — See  Kerr's  Cyc. 
C.  C.  §  1721  and  note  pars.  20,  21. 

Same — Existing  between  persons  jointly  liable.^See  65  A. 
S.    683. 

Same — ^Of   clearance-house   members.^ — See   25   L.    830. 

Same — To  make  sales,  whether  includes  authority  to  receive 
payment  and  create  liabilities.— See  47  A.  R.  518. 

Agent's  fraud — Effect  of  in  making  proof  of  loss  under  fire 
insurance  policy. — See   9  L.   N.  S.   485. 

Same — Purchase  of  property  which  agent  personally  has  an 
option  or  contract  to  purchase. — See   11   L.  N.   S.   122. 

Authority  of  agent — As  to  generally,  see  1  A.  C.  672;  1  A. 
C.  718;  3  A.  C.  62;  7  A.  C.  1035;  8  A.  C.  377;  9  A.  C.  1193;  10 
A.   C.    420. 

Same— As  to  what  he  may  accept  in  payment. — See   2  L.   492. 

Same — Admissibility  of  book  accounts  to  prove. — See  52  L.  714. 

Same — Effect  of  limitation  of  agent's  authority  to  waive  con- 
ditions in   insurance  policy. — See  9  A.   C.   380. 

Same — ^Effect  of  provision  in  power  of  attorney  declaring  that 
it  shall  not  be  revoked  by  death. — See  6  L.  N.  S.  855. 

Same — General  and  special  agents  of. — See  2  L.   808. 

Same- — General   rules   respecting. — See   16   A.   S.    493. 

Same — Implied  powers  under  power  of  attorney  to  transact 
business. — See    4    L.    N.    S.    843. 

1194 


Tit.IX,ch.I,art.I.]         AGENCY,  GENERALLY.  §  2295 

Same — Implied,  to  contract  for  medical,  surgical,  or  other 
attendance  or  supplies  for  sick  or  injured  persons. — See  3  A. 
C.    570. 

Same — Implied  to  do  what  is  necessary  and  usual  in  ordinary 
course  of  business. — See  2  L.  808. 

Same — Implied  to  warrant  genuineness  upon  sale  of  nego- 
tiable paper. — See  36  L.   95. 

Same — In  absence  of  express  instructions,  to  receive  pay- 
ment of  debt  by  check  or  draft. — See  9  A.  C.  1198. 

Same — Necessity  of  notice  to  revoke  power  of  attorney. — 
See   1   L.  N.   S.   577. 

Same — Necessity  of  writings  to  make  binding  commi.ssion  to 
purchase  personal   property. — See   11   L.    650. 

Same — Notice    of    limitation    of. — See    1    L.    192. 

Same — Power  to  sell  real  estate,  does  it  include  power  to 
give   option.— See    10   L.   N.   S.    867. 

Same — Principal  estopped  to  deny. — See  2  L.  808;   2  L.   824. 

Same — Private  restrictions  on,  special  instruction.s  as  to. — 
See    2   L.    823. 

Same — Ratification. — See  "Ratification  of  act  of  agent,"  this 
note. 

Same — Right  of  agent  to  locate  mining  claim. — See  7  L.  N. 
S.    817. 

Same — Secret   instructions. — See   10   L.    355. 

Same — Shipping  goods  to  enter  into  contract,  limiting  liabil- 
ity of  carrier. — See   1   A.  C.    676. 

Same — SufRciency  of  signature  by,  to  memorandum  of  sale 
of  goods  required  by  statute  of  frauds. — See  4  A.  C.  893. 

Same — To  employ  medical  services  for  employee  or  third 
person. — See    20   L.    695. 

Same — To  indorse  paper. — See  27  L.  401. 

Same — To  sell,  as  including  power  to  barter  or  exchange. — 
See   10  A.   C.   421;   10  L.  N.   S.   1118. 

Same — To  use  property  of  principal  for  payment  of  his  own 
debt. — See   14   L.   234. 

Chauffeur,  liability  of  owner  of  automobile  for  acts  of  his. — 
See    10   A.   C.    732. 

Collecting  bank  as  agent  of  payee  or  holder. — See  2  L.   699. 

Cognate  sections. — See  Kerr's  Cyc.  C.  C,  §  2019-2022  and  note.s. 

Contract  of,  as  to. — See  2  A.  C.  884;   6  A.  C.   53;   8  A.  C.   1024. 

Contracts  executed  in  the  name  of  agents  only,  when  do  not 
bind    them    personally. — See    57   A.    R.    536. 

Corporation — Distinction  between  servants  and  agents  of. — 
See   2   L.    192. 

Same — Power  of  president  and  vice-president  of  to  employ 
agents. — See   14   L.   358. 

Criminal  act  of  agent,  power  to  ratify. — See  5  A.  S.  618. 

Death — Effect  of  on  contract  of  agency. — See  23  L.  709, 

1195 


§  2295  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Of  principal,  agent's  acts  after,  validity  of.— See  39 
A.   D.    81. 

Delivery  to  carrier  on  shipment  to  principal. — See  22  L.  420. 

Disregard  of  principal's  orders,  when  justified  by  unexpected 
emergencies. — See   6   A.   S.   37. 

Distinction  between  servants  and  agents  of  corporation. — See 
2   L.    192. 

Effect  of  death   on   contract  of  agency. — See   23   L.   709. 

Effect  of  invalid  provision  for  an  exclusive  agency  upon 
right  to  recover  for  goods  purchased  under  the  contract. — See 
6   L.  N.   S.    547. 

Effect  of  transfer  by  agent,  without  indorsement,  of  worth- 
less check  or  note  of  third  person. — See  10  L.  N.  S.   550. 

Extent  of  authority  conferred  upon  traveling  salesmen,  gen- 
erally, see  18  L.  663;  see  also  "Traveling  salesmen,"  this  note. 

Factor— Who  is. — See  Kerr's  Cyc.  C.  C.  §  2026  and  note;  3 
W.  &  P.   2640. 

How  far  pledge  effectual  when  pledgor's  agent  is  made  depos- 
itory.— See    25   L.    577. 

Husband — And  wife,  partnership  between. — See  note  §  2395, 
post. 

Same — As  agent  of  wife. — See   7  L.   643. 

Same — Insurable  interest,  as  agent,  in  wife's  property. — See 
66  L.   658. 

Implied  warranty  of  genuineness  upon  sale  of  negotiable 
paper  by  agent. — See  36  L.   95. 

Impostor  assuming  to  act  as  agent  of  payee,  who  must  bear 
loss  when  bill  or  check  is  issued  to. — See  50  L.  80. 

Imputed  notice  to  principal — As  notice  to  agent. — See  1  L. 
217;  1  L.  563;  2  L.  734;  10  L.  705;  also  notes,  §  18,  19  ante. 

Same — Effect  of  notice  to  purchaser's  agent  of  vendor's  in- 
tent to  defraud  creditors. — See  32  L.  62. 

Same — Effect   of  notice   to   subagent. — See   21   L.    384. 

Insurable  interest  of  husband  as  agent  of  wife,  in  wife's 
property. — See   66  L.   650. 

Interpleader  between  principal  and  agent. — See  10  L.  N.  S. 
757. 

Liability  for  taking  deposit  of  agent,  fiduciary,  or  other 
representative  to  pay  his  own  debt. — See  52  L.   790. 

Liability  of  agent — As  to  generally. — See  "Personal  liability  of 
agent,"   this  note. 

Same — Executing  contract  in  name  of  principal  without 
authority. — See  3  A.  C.   219. 

Same — For  principal  and  a  third  person  respectively  for 
money  or  property  received  in  course  of  his  agency. — See  2 
L.   N.    S.    657. 

Same — In  case  license  duty  is  not  paid  by  principal. — See  12 
L.  N,  S.   946. 

1196 


Tit.IX,ch.I,art.I.]      agency,  generally.  §2295 

Same — Of  telegraph  company  to  undisclosed  principal  of 
sender. — See    4   L.   N.    S.    678. 

Same — To  third  persons,  generally,  see  3  A.  C.   217. 

Liability  of  principal — As  to,  generally,  see  1  L.  219;  2  L. 
810;    10    L.    355. 

Same — Admissibility  of  extrinsic  evidence  to  show  whether 
principal   or  agent  liable. — See   20   L.   705. 

Same — Contract   with   agent   as   contract   with    principal. — See 

1  L.    507. 

Same — Criminal  and  penal  liability  for  acts  of  agent. — See  41 
L.  650. 

Same — Effect  of  participation  by  creditor's  agent  in  debtor's 
fraudulent  intent,   as  against  other  creditors. — See   31   L.   642. 

Same — Election  to  proceed  against  principal  or  agent. — See  2 
L.    312. 

Same — For  fraudulent  acts   of  agent. — See    1    L.    144. 

Same — For  misconduct   of   agent. — See   55   A.    D.    317. 

Same — For  unauthorized  acts  of  agent. — See  22  A.  S.  189; 
88   A.   S.    779. 

Same— Of  one  as  undisclosed  principal  on  commercial  paper. 
— See  9  L.  830. 

Same — Of  undisclosed  principal  on  contract  under  seal. — See 
3  A.  C.  980. 

Same — To    third    persons,    as    to    generally,    see    1    A.    C.    718; 

2  A.  C.   99;   3  A.  C.   978:   3  A.  C.  1143;   8  A.  C.   324:   8  A.  C.   1024; 
10   A.   C.   92. 

Same — When  credit  is  given  to  agents. — See  2  L.   749. 

Notice  to  principal  as  notice  to  agent. — See  24  A.  S.  228. 

Ostensible  agency. — See  Kerr's  Cyc.  C.  C.  §§  2300,  2317,  and 
notes. 

Personal  liability  of  agent — As  to  generally,  see  "Liability 
of  agent,"  this  note. 

Same — On   bills  and  notes. — See  22  A.   R.   179. 

Same — On  contract  executed  without  authority. — See  50  A. 
D.   793. 

Same — On  sealed  and  unsealed  contracts. — See  26  A.  D.  524. 

Same — To  third  persons. — See  54  A.  R.  233;  22  A.  S.  508. 

Persons  signing  a  writing,  when  cannot  show  he  signed  as 
agent  only. — See  2   A.   R.   332. 

Persons  sued  by  undisclosed  principal  on  contract  made  with 
agent,  right  to  set  off  claim  against  agent. — See   8  A.  C.   554. 

Power  of  agent  to  borrow  money. — See  29  A.  S.  93. 

Power  of  president  and  vice-president  of  corporation  as  to 
employment   of  agents. — See   14   L.    358. 

Power  of  attorney — Construction,  whether  limited  to  property 
then  owned  by  the  principal. — See  35  A.  S.   593. 

Same — Effect  of  provision  in  that  it  shall  not  be  revoked  by 
death.— See  6  L.  N.  S.  855. 

1197 


§  2295  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Given  to  two  or  more  construction  of. — See  22  A. 
S.    726. 

Same — Revocation  of. — See  110  A.  S.  854. 

Same — To  sell  real  property,  does  it  include  power  to  give 
option.— See  10  L.  N.  S.   867. 

Presumption — As  to  acts  done  within  scope  of  authority. — See 
Kerr's   Cyc.   C.   C.    §  2319   and   note   par.   52. 

Same — Of  continuance  of  agency. — See  1  L.  N.  S.   891. 

Public,  agents  executing  negotiable  notes,  when  personally 
liable   upon. — See  37   A.   R.   142. 

Purchases  by  agents  at  sales  made  by  themselves. — See  80 
A.  S.  555. 

Ratification  of  act  of  agent — By  receiving  and  retaining 
benefits  of  transaction. — See  2  L.  809. 

Same — Effect  of,  generally. — See  5  A.  S.  109;  7  L.  405. 

Same — Effect  of  silence. — See   2  L.   809. 

Same — General  rule  as  to. — See  13  L.  219. 

Same — Of  an  assignment  by  an  unauthorized  agent,  effect  of 
on  pending  action. — See  61  A.  ,D.   88. 

Same- — Of  unauthorized  execution  of  written  instrument,  what 
amounts  to. — See  27  A.  D.   343. 

Same — Of  what  contracts  not  possible. — See   59  A.  S.   638. 

Same — Operates  retroactive.^ — See  2  L.  810. 

Same — Power  of  principal  to,  unauthorized  contract  of  agent 
so  as  to  raise  cause  of  action  in  his  own  favor. — See  4  L.  N.  S. 
431. 

Same — What  will  constitute  an  implied  ratification  of  an 
unauthorized  loan  effected  by  an  agent. — See  6  L.  N.  S.  311. 

Real  estate  broker,  revocation  of  authority  of. — See  2  A.  C. 
884. 

Real  party  in  interest  by  whom  action  may  be  brouglit,  which 
is.— See  64  L.  612. 

Rescission  by  principal  because  of  the  adverse  interest  of  the 
agent. — See  7  A.  S.  279. 

Revocation  of  powers  of  attorney,  how  may  be  accomplislied. 
—See  47  A.  D.  343. 

Righ^  to  withdraw  order  given  agent  before  acceptance  by 
principal. — See  10  L.  N.  S.  1138. 

Rights  and  liabilities  of  principal — As  to,  see  "Rights  of  prin- 
cipal,"   this   note. 

Same — Action  against  agent  as  bar  to  one  against  principal 
undisclosed  when  first  action  began. — See  6  L.  N.  S.  729. 

Same — Liability  of  eleemosynary  institution  maintained  by 
state  or  municipality,  for  personal  tort  of  agent  or  servant. — 
See  4  L.  N.  S.   269. 

Same^ — Principal  as  bona  fide  holder  of  bill  or  note  passing 
through  agent's  hands. — See  5  L.  N.  S.  628. 

Same — Statute    of    frauds    relating    to    sale    of    real    property, 

1198 


Tit.IX,cll.I,art.I.]       AGENCY,   GENERALITY.  §  2295 

may  it  be  satisfied  by  a  memorandum  whicli  discloses  that  one 
of  the  parties  acted  for  an  undisclosed  principal. — See  8  L.  N. 
S.  733. 

Rights  as  between,  and  liis  principal. — See  8  A.  C.  569,  570. 

Rights,  duties  and  liabilities  of  agent — As  to,  generally,  see 
1  L.  319;  2  L.  812;  3  L.  397;  5  L.  531;  8  L.  72;  9  L.  830;  12  L.  346; 
IS  L.  456;  20  L.  258;  28  L,.  433;  31  L.  831;  50  L.  644;  51  L.  146;  66 
L.  658;   70  L.  383. 

Same — Conflict  of  interests — Purchase  by  agent  inures  to 
benefit  of  principal. — See  9  L.   796. 

Same — Same — Right  of  agent  to  act  in  double  capacity. — See 
12  L.  395. 

Same — Same — Right  of  agent  to  purcliase  subject  to  agency. 
—See  4  L.   219;   12  L.   396. 

Same — Same — Right  of  agent  to  relocate  mining  claim  for  his 
own  benefit. — See  50  L.  186. 

Rights  of  agent — As  to  third  persons. — See  6  A.  C.  554. 

Same — Of  action  on  contract  in  own  name  for  principal. — See 
1  L.  N.  S.  303. 

Same — Of  undisclosed  principal  to  sue  on  contract  made  in 
his  own  naine. — See  6  A.  C.  556. 

Same — To  deny  title  of  principal  to  monej's  or  property  re- 
ceived as  agent. — See  8  A.  C.  570. 

Same — To  recover  money  erroneously  paid  to  third  person. — 
See   4  L.  N.  S.   3  63. 

Riglits  of  principal — As  to,  see  "Rights  and  liabilities  of 
principal,"  this  note. 

Same — As  to  third  persons. — See  8  A.  C.  552,  554. 

Same — Right  of  person  sued  by  undisclosed  principal  on  con- 
tract made  with  agent  to  set  off  claim  against  agent. — See  8 
A.  C.  554. 

Secret  adverse  interest  or  employment  of  agent. — See  42  A. 
R.   387. 

Servant,  definition  of. — See  Kerr's  Cyc.  C.  C.  §  2009  and  note; 
7   W.   &  P.  6422. 

Signature  of  agent,  whether  must  appear  in  addition  to  that 
of  his  principal. — See  52  A.  D.  775. 

Situs  of  securities  for  taxation  when  held  by  agent  residing 
in  different  state  from  principal. — See  16  L.  731. 

Statute  of  frauds — As  affecting  legal  remedy  for  breacli  of 
contract  to  purchase  land  for  and  in  the  name  of  another. — 
See  5  L.  N.  S.  123. 

Same — As  affecting  right  to  equitable  relief  against  one  who 
has  purchased  land  in  his  own  name  in  violation  of  his  agree- 
ment to  purchase  it  for  and  in  the  name  of  the  complainant. — 
See  3  L.  N.  S.  112. 

Same — May  it  bo  satisfied  by  a  memorandum  disclosing  that 
one  of  the  parties  acts  for  an  undisclosed  party. — See  S  L.  N.  S. 
733. 

1199 


§  2296  CIVIL  CODE.  [Div,III,Pt.IV. 

Subagents — And  their  relation  to  the  principal  and  to  the 
agent  appointing  them. — See   50  A.  S.   110. 

Same — Responsibilities  of. — See  Kerr's  Cyc.  C.  C.  §  2022  and 
note. 

Termination  of  agency — As  to  generally,  see  2  A.  C.  884. 

Same — Revocation  of  authority  of  real  estate  broker. — See  2 
A.  C.  886. 

Tort  by  insane  agent  as  act  of  God.- — See  4  A.  C.  135. 

Traveling  salesman — Authority  conferred  upon — Generally, 
see  18  L.   f63:  18  L.  667. 

Same — Same — To  collect  payment. — See  18  L.  663. 

Same — Authority  of — To  accept  payment  in  nothing  else  than 
money. — See  18  L.  66. 

Same — Same — To  pledge  principal's  claim  for  traveling  ex- 
penses.— See  18  L.  667. 

Same — Same — -To  sell  samples. — See   18  L.   667. 

Same — Effect  of  possession  of  goods.— See  18  L.   666. 

Undisclosed  principal — Effect  of  retention  by  principal  of 
benefit  of  loan  procured  by  agent  without  authority. — See  3 
A.  C.   1145. 

Same — For  act  of  agent  in  instituting  malicious  prosecution 
or  causing  false  arrest  or  imprisoninent. — See  1  A.  C.  723. 

Same— Owner  of  automobile,  liability  of  for  acts  of  his 
chauffeur  or  agent. — See  10  A.  C.  732. 

Same — Right  of  action  against  as  judgment  against  agent. — 
See  8  A.  C.  1026. 

Same — Suits  by  on  contracts  made  with  their  agents. — See 
55  A.  S.  916. 

Who  must  bear  loss  when  check  or  bill  issued  to  impostor 
assuming  to  act  as  agent  of  payee.- — See  50  L.  80. 


§2296.    WHO   MAT   APPOINT,   AND   WHO   MAY   BE    AN 

AGENT.     Any   person  having   capacity   to   contract  may   ap- 
point an  agent,  and  any  person  may  be  an  agent. 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

82  C.   77,   81,   22  P.   979,   980    (referred  to). 

As  to  fiduciary  capacity  of  agent,  see  Kerr's  Cyc.  C.  C.  §  2322 
and  note  pars.  9-16. 

As    to    many   miscellaneous    matters   as    to    agency    generally, 
see  note  §  2295,  ante. 

As   to   power   of   insane   person    to   appoint   agent,    see    Kerr's 
Cyc.  C.  C.  §  1557  and  note. 

Husband  and  wife  as  agents  for  each  other. — See  Kerr's  Cyc. 
C.  C.  §  158  and  note  pars.  111-128. 

1200 


Tit.lX,ch.I,art.I.]        general,  special.  §§  2297, 2298 

Minor  disabled  to  delegate  power. — See  Kerr's  Cyc.  C.  C.  §  33 
and  note. 

Termination  of  agency  by  insanity  of  parties,  see  Kerr's  Cyc. 
C.  C.  §§  2355,  2356  and  notes. 

§  2297.  AGENTS,  GENEEAL  OR  SPECIAL.  An  agent  for 
a  particular  act  or  transaction  is  called  a  special  agent. 
All  others  are  general  agents. 

History:     Enacted  Marcli   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

82  C.  1,  4,  22  P.  925,  926  (cited);  82  C.  77,  81,  22  P.  979,  980 
(referred  to);  123  C.  299,  302,  55  P.  992  (referred  to);  124  C.  682, 
685,  57  P.  574  (cited);  131  C.  321,  325,  63  P.  479   (cited). 

As  to  implied  and  necessary  powers  of  agents,  see  Kerr's  Cyc. 
C.  C.  §  2319  and  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Acts  of  agent  bind  principal,  when. — See  24  A.  D.  65,  66;  81 
A.  D.   777,  778. 

Attorneys  in  fact. — See  Kerr's  Cyc.  C.  C.  §  2295  and  note  par.  6. 

General  and   special  agents  distinguished. — See   2  L.   808. 

Ostensible  authority. — See  Kerr's  Cyc.  C.  C.  §  2317  and  note. 

Question  of  fact  as  to  agency. — See  Kerr's  Cyc.  C.  C.  §  2295 
and  note  pars.  41,  42. 

§  2298.  AGENCY,  ACTUAL  OR  OSTENSIBLE.  An  agency 
is  either  actual   or  ostensible. 

Hi.»ttory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

82  C.   77,   81,   22  P.   979,  980    (referred  to). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Duty  of  stranger  dealing  with  agent  to  ascertain  extent  of 
agency. — See  Kerr's  Cyc.  C.  C.  §  2334  and  note. 

Husband  and  wife  as  agents  for  each  other. — See  Kerr's  Cyc. 
C.  C.  §  158  and  note  pars.  111-128. 

Implied  or  ostensible  ratification. — See  Kerr's  Cyc.  C.  C.  §  2310 
and  note. 

Instruction  as  to  scope  of  agency. — See  Kerr's  Cyc.  C.  C.  §  2322 
and  note. 

Liability  of  principal  for  acts  done  under  ostensible  authority. 
— See  Kerr's  Cyc.  C.  C.  §  2334  and  note. 

Ostensible  agency. — See  Kerr's  Cyc.  C.  C.  §  2317  and  note. 

Presumption  arising  from  delegation  of  ostensible  authority. 
— See  Kerr's  Cyc.  C.  C.  P.  §  1962  subd.  3  and  note. 

1201 


§§  2299,  2300  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2299.  ACTUAL  AGENCY.  An  agency  is  actual  when  the 
agent  is  really  employed  by  the  principal. 

History:     Enacted  March   21,  1S72. 

82  C.  77,  81,  22  P.  979,  980  (referred  to);  139  C.  593,  594,  73  P. 
452  (referred  to). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Cognate  section. — See  Kerr's  Cyc.  C.  C.  §  2316  and  note. 

§2300.  OSTENSIBLE  AGENCY.  An  agency  is  ostensible 
when  the  principal  intentionally,  or  by  want  of  ordinary  care, 
causes  a  third  person  to  believe  another  to  be  his  agent 
who  is  not  really  employed  by  him. 

HLstory:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

82  C.  77,  81,  22  P.  979,  980  (cited);  89  C.  632,  634,  27  P.  67,  68 
(applied);  113  C.  673,  679,  45  P.  804  (cited);  117  C.  417,  421,  49  P. 
559  (applied);  124  C.  225,  227,  56  P.  1029  (cited);  130  C.  268,  269, 
62  P.  511  (applied);  137  C.  95,  100,  69  P.  836,  1013  (cited);  70  P. 
81,  82  (applied);  139  C.  593,  594,  73  P.  452  (referred  to);  143  C. 
501,  504,  77  P.  405  (cited);  144  C.  339,  350,  77  P.  929  (applied- 
ostensible  agents  of  railroad  company);  147  C.  166,  170,  81  P. 
402  (cited);  4  C.  A.  354,  355,  88  P.  282  (applied— ratification  of 
agency). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Cognate  section. — See  Kerr's  Cyc.  C.  C.  §  2317  and  note,  where 
question  of  ostensible  authority  is  fully  treated. 

Duty  of  stranger  dealing  with  agent  to  ascertain  extent  of 
agency. — See  Kerr's  Cyc.  C.  C.  §  2334  and  note. 

Husband  and  wife  as  agents  for  each  other.— See  Kerr's  Cyc. 
C.  C.  §  158  and  note  pars.  111-128. 

Implied  and  necessary  powers  of  agent. — See  Kerr's  Cyc.  C.  C. 
§  2319  and  note. 

Implied  or  ostensible  ratification. — See  Kerr's  Cyc.  C.  C.  §  2310 
and  note  par.  23. 

Instruction  as  to  scope  of  agency. — See  Kerr's  Cyc.  C.  C. 
§  2322  and  note  par.   5. 

Liability  of  principal  for  acts  done  under  ostensible  authority. 
— See  Kerr's  Cyc.  C.  C.  §  2334  and  note. 

Maxim  applicable  to  ostensible  agency. — See  Kerr's  Cyc.  C.  C. 
§  2317   and  note  par.  29. 

Presumption  arising  from  delegation  of  ostensible  authority. 
— See  Kerr's  Cyc.  C.  C.  P.  §  1962  subd.  3  and  note. 

1202 


I 


Tit.IX,cli.I,art.II.]  AUTHORITY.  §  2304 


ARTICLE    II. 

AUTHORITY   OF   AGENTS. 

§  2304.  Wliat  authority  may  be  conferred. 

§  2305.  Agent  may  perform  acts  required  of  principal  by  code. 

§  2306.  Agent  cannot  have  authority  to  defraud  principal. 

§  2307.  Creation   of  agency. 

§  2308.  Consideration    unnecessary. 

§  2309.  Form    of    authority. 

§  2310.  Ratification    of   agent's  act. 

§  2311.  Ratification   of  part  of  a  transaction. 

§  2312.  When  ratification  void. 

§  2313.  Ratification   not   to   work    injury   to   third   persons. 

§  2314.  Rescission   of   ratification. 

§  2315.  Measure  of  agent's  authority. 

§2316.  Actual   authority,   wliat. 

§  -'SIT.  Ostensible   authority,   what. 

§2318.  Agent's     authority     as     to     persons     having     notice     of 
restrictions  upon   it. 

§  2319.  Agent's   necessary   authority. 

§  2320  Agent's  power  to  disobey  instructions. 

§  2321.  Authority   to   be   construed   by    its   specific,   rather   than 
by  its  general   terms. 

§  '>32''  Exceptions   to   general    authority. 

§  2323.  What  included  in  authority  to  sell  personal  property. 

§  2324  What  included  in  authority  to  sell  real  property. 

§  2325.  Authority  of  general  agent  to  receive  price  of  property. 

§  2326.  Authority  of  special  agent  to  receive  price. 

§2304.     WHAT      AUTHORITY      MAY      HE      (OMEKHED. 

\n  agent  niav  be  authorized  to  do  any  acts  which  his  prin- 
cipal might  do,  except  those  to  which  the  latter  is  bound 
to  give  his  personal  attention. 

IliNtory:     Enacted  Marcli   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

74  C.  586,  589,  16  P.  493.  495    (construed  and  applied):   1  C.  A. 
349,  355,  82  P.   265   (cited). 

As    to    many   miscellaneous    matters    as    to    agency    generaiij , 

see  note   §  2295,  ante. 

Certificate  of  partnership  may  be  signed  and  filed  by  agent.— 
See  Kerr's  Cyc.  C.  C.  §  2305  and  note:  also  §§  2349-2351  and  notes. 

1203 


§§  2305-2307  CIVIL  CODE.  [Div.III.Pt.IV. 

§2305.  AGENT  MAY  PERFOBM  ACTS  REQUIRED  OF 
PRIIVCIPAL  BY  CODE.  Every  act  which,  according  to  this 
code,  may  be  done  by  or  to  any  person,  may  be  done  by  or 
to  the  agent  of  such  person  for  that  purpose,  unless  a  con- 
trary intention  clearly  appears. 

History:     Enacted  March   21,  1872. 

See  'Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
74  C.   586,   589,   16   P.   493,  495    (applied). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

§2306.  AGENT  CANNOT  HAVE  AUTHORITY  TO  DE- 
FRAUD PRINCIPAL.  An  agent  can  never  have  authority, 
either  actual  or  ostensible,  to  do  an  act  which  is,  and  is 
known  or  suspected  by  the  person  with  whom  he  deals,  to 
be  a  fraud  upon  the  principal. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

87  C.  256,  262  (erroneously  cited  as  §2306  C.  C.  P.),  23  A.  S. 
243   (same  error),  25  P.  407,  408   (correct  citation). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Fiduciary  relation  between  principal  and  agent. — See  Kerr's 
Cyc.  C.  C.  §  2322  and  note. 

§2307.  CREATION  OF  AGENCY.  An  agency  may  be 
created,  and  an  authority  may  be  conferred,  by  a  precedent 
authorization  or  a  subsequent  ratification. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

89  C.  237,  243,  26  P.  902,  904  (cited);  119  C.  646,  650,  51  P.  1083 
(cited);  124  C.  682,  685,  57  P.  574  (cited);  130  C.  431,  434,  62  P. 
749  (cited);  132  C.  95,  98,  64  P.  122  (applied);  141  C.  308,  311,  99 
A.  S.  75,  74  P.  851   (cited);   143  C.  501,  504,  77  P.  405   (cited). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Ratification  of  agent's  acts. — See  Kerr's  Cyc.  C.  C.  §§  2310- 
2314  and  notes. 

Maxims  applicable  to  ostensible  agency. — See  Kerr's  Cyc.  C.  C. 
§  2317  and  note. 

1204 


Tit.IX,ch.I,art.II.]  CONSIDERATION.  §§  2308-2310 

Presumption  arising  from  delegation  of  ostensible  authority. 
—See  Kerr's  Cyc.  C.  C.  P.  §  1962  subd.  3  and  note. 

Retroactive  effect  of  ratification.— See  Kerr's  Cyc.  C.  C.  §  2310 
and  note  par.   41. 

§2308.    CONSIDERATION  UNNECESSARY.     A  considera- 
tion is  not  necessary  to  make  an  authority,  whether   prece- 
dent or  subsequent,  binding  upon  the  principal. 
History:     Enacted  March   21,  1872. 

§2309.  FORM  OF  AUTHORITY.  An  oral  authorization  is 
sufficient  for  any  purpose,  except  that  an  authority  to  enter 
into  a  contract  required  by  law  to  be  in  writing  can  only 
be  given  by  an  Instrument  in  writing. 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

78  C  629  632  21  P.  373,  374  (cited);  81  C.  540,  541,  21  P.  533, 
22  P.  750  (applied);  94  C.  546,  549,  29  P.  1105  (applied);  37  P. 
646,  647  (cited);  113  C.  221.  227.  229.  41  P.  1017.  45  P.  252 
(applied);  141  C.  308,  311,  99  A.  S.  75,  74  P.  851  (applied);  14. 
C.  399,  403,  76  P.  53  (applied);  143  C.  363,  366,  77  P.  71  (authority 
to  exchange  land  must  be  in  writing);  4  C.  A.  553,  555.  88  P. 
596  (contract  for  exchange  without  written  authority,  or  written 
ratification  of  exchange  is  not  binding);  J  C.  A.  81,  83,  93  P. 
89"  893  (construed  and  applied  with  §  2310— agreement  to  cancel 
lease— acceptance  and  retention  of  benefits  is  no  ratification). 

As  to  extent  of  authority,  see  Kerr's  Cyc  C.  C.  §  2319  and 
note  pars.  63-73. 

As   to    many    miscellaneous    matters    as    to    agency    generally, 

see  note  §  2295,  ante.  .  . 

As  to  necessity  for  lease  for  more  than  year  to  be  in  writing, 
see  Kerr's  Cyc.  C.  C.  §  1624  and  note. 

Contracts  required  by  law  to  be  in  writing.— See  Kerr  s  Cyc. 
C.   C.    §  1624   and   note. 

Evidence    of   agency.— See    Kerr's   Cyc.    C.    C.    §  2295    and    note 

pars.   11-34. 

Power  of  attorney  to  execute  mortgage— Requisition  of.— bee 

Kerr's  Cyc.  C.  C.  §  2933  and  note. 

§  2310.  RATIFICATION  OF  AGENT'S  A(  T.  A  ratification 
can  be  made  only  in  the  manner  that  would  have  been  neces- 
sary to  confer  an  original  authority  for  the  act  ratified,  or 

1205 


§  2311  CIVIL  CODE.  [Div.III,Pt.TV. 

where   an   oral   authorization   would   suffice,   by   accepting  or 
retaining  the  benefit  of  the  act,  with  notice  thereof. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  49  pars,  annotation. 

63  C.  129,  142,  49  A.  R.  83  (cited  in  dis.  op.);  82  C.  1,  6,  22  P. 
925,  927  (referred  to  as  inapplicable);  94  C.  546,  549,  29  P.  1105 
(applied):  106  C.  594,  600,  39  P.  946  (cited);  109  C.  29,  40,  41  P. 
1024  (applied);  113  C.  221,  227,  230,  231,  41  P.  1017,  45  P.  252 
(cited);  114  C.  458,  461,  46  P.  295  (cited);  119  C.  646,  650,  51  P. 
1083  (applied);  127  C.  261,  271,  59  P.  563  (construed);  130  C.  411, 
416,  62  P.  611  (applied);  130  C.  431,  434,  62  P.  749  (cited);  141  C. 
308,  311,  99  A.  S.  75,  74  P.  851  (cited);  142  C.  399,  403,  76  P.  53 
(applied);  143  C.  363,  366,  77  P.  71  (cited — ratification);  2  C.  A. 
393,  398,  84  P.  324  (quoted — what  constitutes  ratification  of 
appointment  of  mining  superintendent);  4  C.  A.  553,  555,  88  P. 
596  (authority  to  enter  into  contract  for  exchange  of  lands- 
how  to  be  ratified);  5  C.  A.  388,  391,  90  P.  485  (what  is  no  rati- 
fication of  agent's  act);  7  C.  A.  81,  83,  93  P.  892,  893  (construed 
and  applied  with  §  2309 — agreement  to  cancel  lease — acceptance 
and  retention  of  benefits  is  no  ratification). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Agent's  authority  to  ratify  another  agent's  act. — See  Kerr's 
Cyc.  C.  C.  §  2319  and  note  par.  58. 

Effect  of  subsequent  ratification. — See  Kerr's  Cyc.  C.  C.  §  2307 
and  note  pars.   4,  5. 

Notice  of  principq,rs  election  to  enforce  contract  made  with 
agent.— See  55  A.  S.  920,  921. 

Part  of  transaction — Ratification  of. — See  Kerr's  Cyc.  C.  C. 
§  2311   and  note. 

Ratification  of  acts  of  agent. — See  2  L.  809,  810. 

Rescission  of  ratification. — See  Kerr's  Cyc.  C.  C.  §  2314  and 
note. 

Stockholders'  consent  to  act  of  directors. — See  Kerr's  Cyc. 
C.   C.    §  2307   and   note   par.    8. 

Void  ratification. — See  Kerr's  Cyc.  C.  C.   §  2312  and  note. 

Voluntary  acceptance  of  benefit  of  transaction — Effect  of. — 
See  Kerr's  Cyc.  C.  C.  §1589  and  note;  §2319  and  note  par.  26; 
17  A.  S.  407. 


§2311.    BATIFI€ATION  OF  PART  OF  A  TRANSACTION. 

Ratification  of  part  of  an  Indivisible  transaction  is  a  ratifica- 
tion of  the  whole. 

History:     Enacted  March   21,  1872. 
1206 


I 


Tit.IX,ch.I,art.II.]  RATIFICATION.  §§  2312-2314 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation  ,,     .1    p 

IT?  C  2''1  231  (dis.  op.),  236  (opinion  in  department),  41  f. 
1017  45*  P." 252  (cited);  144  C.  104,  112,  77  P.  828  (applied  to  act 
of  attorney  in  fact  in  accepting  release  and  giving  new  mort- 
gage); 2  C.  A.  393,  399,  84  P.  324   (not  applicable  under  peculiar 

^^2  to    many    miscellaneous    matters    as    to    agency    generally, 
see  note  §  2295,  ante. 

§'>312.  ^VHEX  RATIFICATION  YOID.  A  ratification  is 
not  "valid  unless,  at  the  time  of  ratifying  the  act  done,  the 
principal  has  power  to  confer  authority  for  such  an  act. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

63  C  129  142,  49  A.  R.  83  (cited  in  dis.  op.);  106  C.  594,  600. 
39  P.  946   (referred  to);  107  C.  37.  41.  39  P.  1066  (applied).  _ 

As    to    many    miscellaneous    matters    as    to    agency    generally , 

see  note  §2295,  ante.  ra    a    «fi-is  fi44 

Contracts  which  cannot  be  ratified.— See  59  A.  S.  638-644. 
Criminal   act   of   agent— Power   of   principal    to    ratify.— See    o 

A.  S.   618-621. 

§2313.  RATIFICATION  NOT  TO  WORK  INJURY  TO 
THIRD  PERSONS.  No  unauthorized  act  can  be  made  valid, 
retroactively,  to  the  prejudice  of  third  persons,  without  their 

consent. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation 

88  C  277  281,  26  P.  105,  106  (applied);  106  C.  594.  600.  39  P. 
946  (cited);  107  C.  37,  41,  39  P.  1066  (applied). 

As  to  many  miscellaneous  matters  as  to  agency  generallj , 
see  note  §  2295.  ante. 

§2314.  RESCISSION  OF  RATIFICATION.  A  ratification 
may  be  rescinded  when  made  without  such  consent  as  is 
required  in  a  contract,  or  with  an  imperfect  knowledge  of 
the  material  facts  of  the  transaction  ratified,  but  not  other- 
wise. 

History:     Enacted  March   21,  18  <  2. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation 

fi^  r  129  142  49  A.  R.  83  (cited  in  dis.  op.);  113  C.  — l,  -^^J. 
038     41   Pi017    (Cited   in   department);   146   C.   91,    99,    79   P.   850 

1207 


§§  2315-2317  CIVIL  CODE.  [Div.III.Pt.IV. 

(exchange  of  lands,  right  to  rescind  ratification,  as  well  as 
original  transaction,  after  discovering  falsity  of  facts  relied 
upon). 

As  to  essentials  of  ratification,  see  Kerr's  Cyc.  C.  C.  §  2310 
and  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Essentials  of  ratification  being  wanting,  it  is  of  no  effect 
and  may  be  repudiated.— See  16  C.   591,  623-626. 


§2315.  MEASURE  OF  AGENT'S  AUTHORITY.  An  agent 
has  such  authority  as  the  principal,  actually  or  ostensibly, 
confers  upon  him. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

66  C.  61,  64,  4  P.  952  (referred  to);  68  C.  156,  162,  8  P.  824 
(applied);  77  C.  449,  453,  19  P.  820,  822   (cited). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Implied  and  necessary  authority. — See  Kerr's  Cyc.  C.  C.  §  2319 
and  note. 

Ostensible  authority. — See  Kerr's  Cyc.  C.  C.  §  2317  and  note. 

§2316.  ACTUAL  AUTHORITY,  WHAT.  Actual  authority 
is  such  as  a  principal  intentionally  confers  upon  the  agent, 
or  intentionally,  or  by  want  of  ordinary  care,  allows  the 
agent  to  believe  himself  to  possess. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

66  C.  61,  64,  4  P.  952  (referred  to);  141  C.  699,  705,  75  P.  329 
(cited);  147  C.  166,  170,  81  P.  402  (cited);  3  C.  A.  554,  559,  86  P. 
610   (applied). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Cognate  section. — See  Kerr's  Cyc.  C.  C.  §  2299  and  note. 

Implied  and  necessary  autliority  of  agent. — See  Kerr's  Cyc. 
C.  C.  §  2319  and  note. 

Ostensible  authority. — See  Kerr's  Cyc.  C.  C.  §  2317  and  note. 

§2317.  OSTENSIBLE  AUTHORITY,  WHAT.  Ostensible 
authority   is   such   as   a   principal,   intentionally   or   by   want 

1208 


Tit.IX,ch.I,art.II.]       AUTHORITY,   NOTICE.  §  2318 

of  ordinary  care,  causes  or  allows  a  third  persons  to  believe 
the  agent  to  possess. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

66  C  61  64,  4  P.  952  (referred  to);  66  C.  459,  461,  6  P.  91 
(construed);  82  C.  1,  5.  22  P.  925,  927  (referred  to  as  inap- 
plicable); 87  C.  526,  528,  25  P.  758  (cited);  95  C.  1,  14,  29  A.  S. 
85  30  P.  96  (cited);  108  C.  227,  230,  41  P.  298  (cited);  113  C.  119, 
123  45  P.  259  (referred  to);  137  C.  95,  100,  69  P.  836,  1013  (cited); 
14l'c  699  705  75  P.  329  (cited);  143  C.  501,  504,  77  P.  405  (cited); 
147  C.  166',  170',  81  P.  402  (cited);  4  C.  A.  354,  355,  88  P.  282  (cited 
— ratification  of  agency). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Cognate  section.— See   Kerr's  Cyc.   C.   C.   §  2300  and   note. 

Creation  of  agency.— See  Kerr's  Cyc.  C.  C.  §  2307  and  note. 

Duty  of  stranger  dealing  with  agent  to  ascertain  extent  of 
agency.— See  Kerr's  Cyc.  C.  C.   §  2334  and  note. 

Evidence  of  agency.— See  Kerr's  Cyc.  C.  C.  §  2295  and  note 
pars.    11-34.  ^       ^ 

Implied  and  necessary  authority  of  agent. — See  Kerr  s  Cyc. 
C.  C.   §  2319  and  note. 

Instruction  as  to  scope  of  agency. — See  Kerr's  Cyc.  C.  C. 
§  2322  and  note  par.   5. 

Liability  of  principal  for  acts  done  under  ostensible  authority. 
—See  Kerr's  Cyc.  C.  C.  §  2334  and  note. 

Maxims  applicable  to  ostensible  agency. — See  Kerr's  Cyc.  C. 
C.  §§  3515,  3515,  3543  and  notes. 

Presumption  arising  from  delegation  of  ostensible  authority. 
—See  Kerr's  Cyc.  C.  C.  P.  §  1962  subd.  3  and  note. 

Principal  estopped  to  deny  authority   of  agent. — See   2  L.   808, 

809,  824. 

Principal's  liability  for  agent's  unauthorized  act  within  scope 
of  authority.— See  22  A.  S.  189,  190. 

Ratification  of  agent's  acts.— See  Kerr's  Cyc.  C.  C.  §  2310  and 
note. 

Special  and  general  agents. — See  Kerr's  Cyc.  C.  C.  §  2297  and 
note;  also  §2300  and  note  par.  3. 

§2318.  A«E>rS  AITIKHUTY  AS  T()  TEKSONS  H W- 
I>G  NOTICE  OF  KESTKU  TIO>S  ll'ON  IT.  Every  a^ent  has 
actually  such  authority  as  is  defined  by  this  title,  unless 
specially  deprived  thereof  by  his  principal,  and  has  even  then 
such    authority   ostensibly,    except    as    to    persons    who    have 

1209 


§  2319  CIVIL  CODE.  [Div.III.Pt.IV. 

actual    or    constructive   notice    of   the    restriction     upon     his 
authority. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

114  C.  396,  399,  46  P.  290  (cited);  137  C.  95,  100,  69  P.  836,  1013 
(referred  to). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Letter  showing  agency. — See  Kerr's  Cyc.  C.  C.  §  2317  and  note 
par.   26. 

Notice   of  agent's  authority.- — See   26   A.   S.   828. 

Private  restrictions  on  agent's  authority  not  to  affect  third 
persons. — See  2  L.  823,  824. 

Silence  of  agent  as  to  limitations  on  authority. — See  Kerr's 
Cyc.  C.  C.   §  2322  and  note  par.   8. 

Special  and  general  agents. — See  Kerr's  Cyc.  C.  C.  §  2297  and 
note. 


§2319.  AGENT'S  NECESSARY  AUTHORITY.  An  agent 
has   authority : 

1.  To  do  everything  necessary  or  proper  and  usual,  in  the 
ordinary  course  of  business,  for  effecting  the  purpose  of  his 
agency;    and, 

2.  To  make  a  representation  respecting  any  matter  of  fact, 
not  including  the  terms  of  his  authority,  but  upon  which  his 
right  to  use  his  authority  depends,  and  the  truth  of  which 
cannot  be  determined  by  the  use  of  reasonable  diligence  on 
the  part  of  the  person  to  whom  the  representation  is  made. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  81  pars,  annotation. 

55  C.  421,  424,  36  A.  R.  43  (applied);  61  C.  338,  341  (construed 
and  applied);  68  C.  156,  162,  8  P.  824  (applied);  75  C.  159,  162, 
7  A.  S.  138,  16  P.  762,  763  (applied);  87  C.  526,  529,  25  P.  758,  759 
(construed);  95  C.  1,  12,  29  A.  S.  85,  30  P.  96,  98  (construed);  130 
C.  100,  104,  62  P.  267  (applied);  137  C.  95,  100,  69  P.  836,  1013 
(cited);  3  C.  A.  371,  379,  85  P.  657  (declarations  of  person  claim- 
ing to  be  agent  are  insufficient  to  establish  agency  or  terms  of 
his  authority). 

As  to  fraudulent  representations  as  to  quantity  of  land  sold, 
see  Kerr's  Cyc.  C.  C.   §  2324  and  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

1210 


Tit.IX,ch.I,art.II.]     POWER— instructions.  §  2320 

As  to  ostensible  authority  to  give  receipt  for  money,  see 
Kerr's  Cyc.  C.  C.  §  3217  and  note  pars.  41,  42. 

As  to  ratification,  see  Kerr's  Cyc.  C.  C.  §  2310  and  note. 

As  to  termination  of  agency,  see  Kerr's  Cyc.  C.  C.  §§  2355, 
2356  and  notes. 

Admissions  of  agents  as  evidence  against  principal. — See  53 
A.  D.   773-778. 

Approval  of  principal  re<iuirod. — See  Kerr's  Cyc.  C.  C.  §  231 S 
note  par.  2. 

Auctioneer's  authority. — See  Kerr's  Cyc.  C.  C.  §§  2362,  2363  and 
notes. 

Authority   of  agent. — See   2   L.   808. 

Authority  of  agent  as  to  amount  of  loan. — See  Kerr's  Cyc. 
C.  C.  §  2317  and  note  par.  30. 

AuJ:iiority  of  agent  making. — See  Kerr's  Cyc.  C.  C.  §§  2323- 
2326  and  notes. 

Authority  of  agent  or  representative  to  employ  medical 
services  for  employee  or  other  third  person. — See  20  L.  695-698. 

Delegation  of  authority. — See  Kerr's  Cyc.  C.  C.  §§  2349-2351 
and  notes. 

Disobedience  by  agent  of  positive  directions. — See  Kerr's 
Cyc.  C.  C.  §  2317  and  note  par.  10. 

Evidence  of  agency. — See  Kerr's  Cyc.  C.  C.  §  2295  and  note 
pars.  11-34. 

Extent  of  authority  conferred  upon  traveling  salesman. — 
See  18  L.   663-667. 

Factor's  autliority. — See  Kerr's  Cyc.  C.  C.  §§  2368-2369  and 
notes. 

For  illustrations  of  powers  of  foremen,  managers,  and  super- 
intendents, see  Kerr's  Cyc.  C.  C.  §  2319,  note  pars.  45,  51,  53,  57, 
72,    73. 

Limitation  of  power  of  attorney  to  propt-rty  then  owned  ^hy 
principal. — See  25  A.  S.  593-595. 

Matters  in  which  principal  is  jointly  interested  witli  otliers. — 
S»-e  Kerr's  Cyc.  C.  C.  §  2297  and  note  par.  8. 

Measure  of  agent's  autliority. — See  Kerr's  Cyc.  C.  C.  §2315 
and  note. 

Ostensible  authority  of  agents. — See  Kerr's  Cyc.  C.  C.  §S  2300, 
2317  and  notes. 

Sales  of  real  estate — Authority  of  agents. — See  13  A.  S.  112. 

Special  and  general  agents. — See  Kerr's  Cyc.  C.  C.  §  2297  and 
note. 

Validity  of  deed  under  power  of  attorney. — See  81  A.  I>.  776- 
778. 


§2320.     A  (JEM'S   rOWFK  TO   1)IS(H{EV   INSTHK  THINS. 

Au  ageut  has  power  to  disobey   instructions  in  dealing  with 

1211 


§§  2321, 2322  CIVIL  CODE.  [Div.III.Pt.IV. 

the  subject  of  the  agency,  in  cases  where  it  is  clearly  for 
the  interest  of  his  principal  that  he  should  do  so,  and  there 
is  not  time  to  communicate  with  the  principal. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

70  C.  449,  453  (erroneously  cited  for  §2220),  11  P.  659,  661 
(correct  citation). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Agent,  when  may  disregard  orders,  owing  to  unexpected 
emergency. — See  6  A.  S.  37,  38;  also  1  Encyc.  L.  1061,  1062,  where 
illustrations  of  rule  are  given,  and  limitations  thereon  stated. 

§2321.  AUTHORITY  TO  BE  CONSTRUED  BY  ITS  SPE- 
CIFIC,  RATHER  THAN  BY  ITS  GENERAL  TERMS.  When 
an  authority  is  given  partly  in  general  and  partly  in  specific 
terms,  the  general  authority  gives  no  higher  powers  than 
those  specifically  mentioned. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  authority  of  agent  to  sign  notes  for  trading  corpora- 
tion, see  69  F.  912. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Common  law  declared,  doctrine  being  elementary. — See  5  C 
463,   464;   7   C.   171,  174,  68  A.  D.   235;   8  C.   227,  232. 

§2322.    EXCEPTIONS    TO    GENERAL    AUTHORITY.     An 

authority  expressed  in  general  terms,  however  broad,  does 
not  authorize  an  agent: 

1.  To  act  in  his  own  name,  unless  it  is  the  usual  course 
of  business  to  do  so; 

2.  To  define  the  scope  of  his  agency;  or, 

3.  To  do  any  act  which  a  trustee  is  forbidden  to  do  by 
article  two,  chapter  one,  of  the  last  title. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

81  C.  303,  319,  22  P.  665,  670  (applied);  84  C.  311,  314,  24  P. 
284,  285  (cited);  92  C.  108,  112,  28  P.  57,  58  (cited);  121  C.  327, 
328,  53  P.  702   (referred  to);  123  C.  379,  383,  55  P.  1064   (referred 

1212 


Tit.IX,ch.I,art.II.]     authority  to  sell.  §§  2323,  2324 

to);  142  C.  638,  641,  76  P.  486,  487  (applied);  145  C.  352,  363,  104 
A.  S.  42,  78  P.  550  (this  section  makes  §§  2230,  2234  apply  to 
agent  of  corporation). 

As  to  fraud  of  agent  in  procuring  ratification  of  unauthorized 
act,  see  Kerr's  Cyc.  C.  C.  §  2310  and  note  pars.  20,  21. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  obligations  of  trustees,  see  Kerr's  Cyc.  C.  C.  §§  2228- 
2239  and  notes. 

Declarations  of  agent  as  evidence  of  agency. — See  Kerr's  Cyc. 
C.  C.  §  2295  and  note  pars.  21-24. 

Fiduciary  relations  between  principal  and  agent. — See  30  A.  S. 
785,  786. 

Instrument  binds  principal,  when. — See  Kerr's  Cyc.  C.  C.  §  2337 
and  note. 

Responsibility  of  agents  to  third  persons. — See  Kerr's  Cyc. 
C.  C.   §  2343  and  note. 

§2323.  WHAT  INCLUDED  IN  AUTHOBITY  TO  SELL 
PERSONAL  PROPERTY.  An  authority  to  sell  personal  prop- 
erty includes  authority  to  warrant  the  title  of  the  principal,  and 
the  quality  and  quantity  of  the  property. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

5  C.  A.   388,   390,   90  P.   485    (cited). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Auctioneer's  authority  from  seller. — See  Kerr's  Cyc.  C.  C. 
§  2362  and  note. 

Fraudulent  representations  as  to  quantity  of  land  sold. — See 
Kerr's  Cyc.  C.  C.  §  2324  and  note  par.  2. 

§2324.  WHAT  INCLUDED  IN  AUTHORITY  TO  SELL 
REAL  PROPERTY.  An  authority  to  sell  and  convey  real 
property  includes  authority  to  give  the  usual  covenants  of 
warranty. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Auctioneer's  autliority  from  seller. — See  Kerr's  Cyc.  C.  C. 
§  2362  and  note. 

Mortgage  of  property. — See  Kerr's  Cyc.  C.  C.  §  2319  and  note 
par.  40. 

1213 


§§2325,2326  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2325.  AUTHORITY  OF  GENERAL  AGENT  TO  RECEIVE 
PRICE  OF  PROPERTY.  A  general  agent  to  sell,  who  is 
intrusted  by  the  principal  with  the  possession  of  the  thing 
sold,  has  authority  to  receive  the  price. 

History:     Enacted  March   21,  1872.- 

See  Kerr's  Cyc.  C.   C.   for  4  pars,  annotation. 

125  e.   613,   614,  58  P.   153    (construed). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Collecting  agents — Duties  of. — See  Kerr's  Cyc.  C.  C.  §  2021  and 
note. 

Payment. — See  Kerr's  Cyc.  C.  C.   §  2319,  note  par.  44. 

§2326.    AUTHORITY  OF  SPECIAL  AGENT  TO  RECEIVE 
PRICE.     A  special  agent  to  sell  has  authority  to  receive  the 
price  on  delivery  of  the  thing  sold,  but  not  afterwards. 
Hi.story:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

Commissioners'  note  cites  9  A.  D.   415. 


1214 


Tit.IX.ch.I.art.IIL]  obligations.  §  2330 


ARTICLE  III. 

MUTUAL    OBLIGATIONS    OF    PRINCIPALS    AND    THIRD 

PERSONS. 

§  2330.  Principal,  how  afEected  by  acts  of  agent  within  the 
scope  of  his  autliority. 

§  2331.  Principal,  when  bound  by  incomplete  execution  of 
authority. 

§  2332.     Notice  to  agent,  when   notice  to  principal. 

§  2333.  Obligation  of  principal  when  agent  exceeds  his  author- 
ity. 

§  2334.     For  acts  done  under  a  merely  ostensible  aiithority. 

§  2335.     When   exclusive  credit  is  given  to  agent. 

§  2336.  Rights  of  person  who  deals  with  agent  without  knowl- 
edge of  agency. 

§  2337.     Instrument  intended  to  bind  principal  does  bind  him. 

§  2338.  Principal's  responsibility  for  agent's  negligence  or  omis- 
sion. 

§  2339.  Principal's  responsibility  for  wrongs  wilfully  commit- 
ted by  the  agent. 


§2330.  PRINCIPAL,  HOW  AFFECTED  BY  ACTS  OF 
A«E>T    WITHIN   THE    SCOPE    OF   HIS   AUTHORITY.     An 

agent  represents  his  principal  for  all  purposes  within  the 
scope  of  his  actual  or  ostensible  authority,  and  all  the  rights 
and  liabilities  which  would  accrue  to  the  agent  from  transac- 
tions within  such  limit,  if  they  had  been  entered  into  on  his 
own  account,  accrue  to  the  principal. 

Hi.s<«n-y:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  46  pars,  annotation. 

117  C.  417,  422,  49  P.  559  (construed  with  §2334);  118  C.  315, 
321,  62  A.  S.  238,  50  P.  373  (applied);  131  C.  6.  7,  63  P.  61 
(applied);  139  C.  593,  594.  73  P.  452  (referred  to);  141  C.  699, 
705,  75  P.   329    (applied). 

As  to  acts  agent  is  forbidden  to  do,  see  Kerr's  Cyc.  C.  C. 
§  2322  subd.  3. 

As  to  disregard  of  principal's  orders,  wlien  justified  by  unex- 
pected emergencies,  see   6  A.  S.   37. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,  ante. 

1215 


§§  2331-2334  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  rescission  of  transaction  by  principal  because  of  the 
adverse  interest  of  the  agent,  see  7  A.  S.  279. 

As  to  secret  adverse  interest  in  employment  of  agent,  see  42 
A.  R.  387. 

§2331.  PRINCIPAL,  WHEN  BOUND  BY  INCOMPLETE 
EXECUTION  OF  AUTHORITY.  A  principal  is  bound  by  an 
incomplete  execution  of  an  authority,  when  it  is  consistent 
with  the  whole  purpose  and  scope  thereof,  but  not  otherwise. 

History:     Enacted  March   21,  1872. 

§2332.  NOTICE  TO  AGENT,  WHEN  NOTICE  TO  PRIN- 
CIPAL. As  against  a  principal,  both  principal  and  agent  are 
deemed  to  have  notice  of  whatever  either  has  notice  of,  and 
ought,  in  good  faith  and  the  exercise  of  ordinary  care  and 
diligence,  to  communicate  to  the  other. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

103  C.   624,   629,  37  P.   638;    141  C.   699,  705,   75  P.   329    (applied). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  notice  to  principal  being  notice  to  agent,  see  24  A.  S. 
228. 

Notice  to  one  of  two  or  more  joint  agents  is  notice  to  all. — 
See  102  C.  93,  100,  41  A.  S.  172,  36  P.  374,  24  L.  197. 

§2333.  OBLIGATION  OF  PRINCIPAL  WHEN  AGENT 
EXCEEDS  HIS  AUTHORITY.  When  an  agent  exceeds  his 
authority,  his  principal  is  bound  by  his  authorized  acts  so 
far  only  as  they  can  be  plainly  separated  from  those  which 
are  unauthorized. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.   C.  C.  for  4  pars,   annotation. 

As  to  liability  of  principal  for  unauthorized  acts  of  agent, 
see   22   A.   S.   189,   88   A.   S.    779. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

§  2334.  FOR  ACTS  DONE  UNDER  A  MERELY  OSTENSI- 
BLE AUTHORITY.    A  principal  is  bound  by  acts  of  his  agent, 

1216 


Tit.IX,ch.I,art.III.]    EXCLUSIVE  credit.  §§2335,2336 

under  a  merely  ostensible  authority,  to  those  persons  only 
who  have  in  good  faith,  and  without  want  of  ordinary  care, 
incurred  a  liability  or  parted  with  value,  upon  the  faith 
thereof. 

Historv:  Enacted  March  21.  1872;  amended  by  Code  Com- 
mission, "acI  March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  415, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  616. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

33  P  441  442  (authority  established  by  ostensible  ratifica- 
tion is"  an  ostensible  authority  in  sense  of  this  section);  117 
C  417  422  49  P.  559  (construed);  130  C.  268,  269,  62  P.  511  (re- 
ferred to) ;'  143  C.  501,  504,  77  P.  405  (applied  with  other  sections 
effect   of   indorsement   by   ostensible  agent). 

As    to    many    miscellaneous    matters    as    to    agency    generally. 

see  note  §  2295,  ante. 

As  to  what  is  ostensible  authority,  see  Kerr's  Cyc.  C.  C.  §  2317 

and   note. 

§2335.  WHEN  EXCLUSIVE  CREDIT  IS  GIVEN  TO 
AGENT.  If  exclusive  credit  is  given  to  an  agent  by  the  per- 
son dealing  with  him,  his  principal  is  exonerated  by  payment 
or  other  satisfaction  made  by  him  to  his  agent  in  good  faith, 
before  receiving  notice  of  the  creditor's  election  to  hold  him 

responsible. 

Historj-:     Enacted  March  21.  1872. 

See  Kerr's  Cyc.  C.  C.  §  2336  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

§233(5.  RIGHTS  OF  TEHSON  WHO  DEALS  WITH  AGENT 
WITHOUT  KNOWLEDGE  OF  AGEN(  Y.  One  who  deals  with 
an  agent  without  knowing  or  having  reason  to  believe  that 
the  agent  acts  as  such  in  the  transaction,  may  set  off  against 
any  claim  of  the  principal  arising  out  of  the  same,  all  claims 
which  he  might  have  set  off  against  the  agent  before  notice 

of  the  agency. 

HiNtory:     Knacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.   C.   for  4  pars,  annotation. 
1    C.    A.    349,    354,    82    P.    265    (applied — effect    of    purchase    by 
agent   without   disclosing  his   principal). 
Kerr's    C.    C— 39  1217 


§§2337,2338  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  liability  of  bank  or  other  depositary  or  of  drawee  for 
taking  deposit  of  agent,  fiduciary,  or  other  representative  to 
pay  his  own  debt,  see  52  L.  790. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  undisclosed  principal's  liability  on  agent's  contracts, 
see  2  L.   811. 

Same — When  credit  is  given  to  agent. — See  2  L.  749. 

§2337.  INSTRUMENT  INTENDED  TO  BIND  PRINCIPAL 
DOES  BIND  HIM.  An  instrument  within  the  scope  of  his 
authority  by  which  an  agent  intends  to  bind  his  principal, 
does  bind  him  if  such  intent  is  plainly  inferable  from  the 
instrument  itself. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for   3   pars,  annotation. 
As    to    many   miscellaneous    matters   as    to    agency    generally, 
see  note  §  2295,  ante. 

§2338.    PRINCIPAL'S  RESPONSIBILITY    FOR    AGENT'S 

NEGLIGENCE  OR  OMISSION.  Unless  required  by  or  under 
the  authority  of  law  to  employ  that  particular  agent,  a  prin- 
cipal is  responsible  to  third  persons  for  the  negligence  of 
his  agent  in  the  transaction  of  the  business  of  the  agency, 
including  wrongful  acts  committed  by  such  agent  in  and  as 
a  part  of  the  transaction  of  such  business,  and  for  his  wil- 
ful omission  to  fulfil  the  obligations  of  the  principal. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for   28  pars,  annotation. 

52  C.  280,  289  (applied);  118  C.  315,  321,  62  A.  S.  238,  50  P. 
373  (applied);  119  C.  646,  650,  51  P.  1083  (applied);  138  C.  475, 
476  (construed),  478  (construed),  71  P.  516;  6  C.  A.  533,  537, 
92  P.  648  (principal  is  bound  by  acts  of  agent  in  transacting 
business  of  agency,  though  such  acts  are  wrongful);  103  F. 
841,  843  (applied — liability  of  telegraph  company  for  money 
paid  out  by  plaintiff  upon  fraudulent  telegraphic  order  sent 
over  defendant's  wires  by  employee  of  defendant). 

As  to  agent's  responsibility  to  third  persons,  see  Kerr's  Cyc. 
C.   C.    §  2343   and  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

1218 


I 


Tit.IX,ch.I,art.III.]  WRONGS  BY  AGENT.  §  2339 

§2339.  PRINCIPAL'S  RESPONSIBILITY  FOR  WRONGS 
WILFULLY  COMMITTED  BY  THE  AGENT.  A  principal  is 
responsible  for  no  other  wrongs  committed  by  his  agent  than 
those  mentioned  in  the  last  section,  unless  he  has  author- 
ized or  ratified  them,  even  though  they  are  committed  while 
the  agent  is  engaged  in  his  service. 

History:     Enacted  March   21,   1872. 

119   C.    646,   650,   51   P.   1083    (applied). 

As  to  criminal  and  penal  liability  for  act  of  agent,  see  41  L. 

650. 

As  to  fraudulent  or  illegal  acts  of  agent,  see  1  L.  145. 

As  to  liability  of  principal  for  misconduct  of  agent,  see  55  A. 
D.   317;  also  Kerr's  Cyc.  C.  C.   §2338  and  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see   note   §  2295,   ante. 


1219 


§§  2342,  2343  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE   IV. 

OBLIGATIONS   OF   AGENTS   TO   THIRD   PERSONS. 

§  2342.      Warranty   of  authority. 

§  2343.      Agent's    responsibility    to    third   persons. 

§  2344.      Obligation     of    agent    to     surrender    property     to     third 

person. 
§  2345.      Agent    not    having    capacity    to    contract. 

§  2342.  WARRANTY  OF  AUTHORITY.  One  who  assumes 
to  act  as  an  agent  thereby  warrants,  to  all  who  deal  with 
him  in  that  capacity,  that  he  lias  the  authority  which  he 
assumes. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see    note    §  2295,    ante. 

As  to  measure  of  damages  for  breach  of  agent's  warrant 
of  authority,   see   post   §  3318. 

As  to  personal  liability  of  agent  on  contract  executed  with- 
out authority,  see  50  A.  D.  793. 

As  to  when  contracts  executed  in  name  of  agents  only  do 
not  bind  them  personally,   see   57  A.   R.    536. 

§  2343.    AGENT'S  RESPONSIBILITY  TO  THIRD  PERSONS. 

One  who  assumes  to  act  as  an  agent  is  responsible  to  third 
persons  as  a  principal  for  his  acts  in  the  course  of  his  agency, 
in  any  of  the  following  cases,  and  in  no  others: 

1.  When,  with  his  consent,  credit  is  given  to  him  person- 
ally in  a  transaction; 

2.  When  he  enters  into  a  written  contract  in  the  name  of 
his  principal,  without  believing,  in  good  faith,  that  he  has 
authority  to  do  so;  or, 

3.  When  his  acts  are  wrongful  in  their  nature. 

HLstory:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.   C.   for   15   pars,   annotation. 

151  C.  723,  729,  91  P.  616  (where  acts  of  agent  are  lawful,  and 
within  scope  of  his  authority,  principal  only,  and  not  agent, 
is    bound    by    them). 

1220 


Tit.IX,ch.I,art.IV.]       obligation  OF  AGENT.        §§2344,2345 

As  to  agent's  responsibility  in  contracts  signed  by  liini,  see 
3  L.   397;   12  L.   346. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see   note   §  2295,   ante. 

As  to  personal  liability  of  agent  on  bills  and  notes,  see  22  A. 
R.   179. 

As  to  personal  liability  of  agent  on  sealed  and  unsealed  con- 
tracts,  see   26   A.   D.    524. 

As  to  liability  of  agent  to  third  person  for  negligence  or 
nonfeasance,  see  28  L.  433. 

As  to  personal  liability  of  agents  to  third  persons,  see  54  A. 
R.   233;   22  A.  S.  726. 

As  to  personal   liability  of  shipmaster,   see  post  §  2382. 

As  to  recovery  of  money  in  agent's  hands  for  another  use, 
see   5  L.   531. 

§  2344.  OBLIGATION  OF  AGEXT  TO  SI  KKENDER 
PKOPEltTY  TO  THIKI)  PERSON.  If  an  agent  receives  any- 
thing lor  the  benefit  of  his  principal,  to  the  possession  of 
which  another  person  is  entitled,  he  must,  on  demand,  sur- 
render it  to  such  person,  or  so  much  of  it  as  he  has  under 
his  control  at  the  time  of  demand,  on  being  indemnified  for 
any  advance  which  he  has  made  to  his  principal,  in  good 
faith,  on  account  of  the  same;  and  is  responsible  therefor, 
if,  after  notice  from  the  owner,  he  delivers  it  to  his  prin- 
cipal. 

Ili.s4or.v:     Enacted  March   21,   1872. 

As  to  deposit,  see  Kerr's  Cyc.  C.  C.   §§  1822,   1825,   1826. 
As    to    many    miscellaneous    matters    as    to    agency    generally, 
see   note   §  2295,   ante. 

§2345.     AGENT  NOT  HAVING  (  ATAl  ITY  TO  (  (►NTKA*  T. 

The   provisions  of  this  article  are   subject  to   the   provisions 
of  part  one,  division  first,  of  this  code. 

Ili.Hlor.v:      Enacted   March    21.    1S72. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see   note   §  2295,    ante. 

As  to  minors  and   incapacitated  persons,   see  ante   §§  25.   42. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.    §  2345.   note. 

For  note  on  mutual  relations  of  principal  and  agent,  see 
Kerr's   Cyc.   C.   C.    §  2330    note. 

1221 


§§  2349, 2350  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE   V. 

DELEGATION    OF    AGENCY. 

§  2349.      Agent's    delegation    of    his    powers. 

§  2350.     Agent's   unauthorized   employment   of   subagent. 

§  2351.     Subagent  rightfully  appointed  represents  principal. 

§2349.    AGENT'S   DELEGATION   OF    HIS   POWERS.     An 

agent,  unless  specially  forbidden  by  his  principal  to  do  so, 
can  delegate  his  powers  to  another  person  in  any  of  the  fol- 
lowing cases,  and  in  no  others: 

1.  When  the  act  to  be  done  is  purely  mechanical; 

2.  When  it  is  such  as  the  agent  cannot  himself,  and  the 
subagent  can  lawfully  perf6rm; 

3.  When  it  is  the  usage  of  the  place  to  delegate  such 
powers;   or, 

4.  When  such  delegation  is  specially  authorized  by  the 
principal. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

92  C.  108,  113,  28  P.  57,  58  (applied);  102  C.  320,  322,  36  P. 
649  (cited);  110  C.  247,  251,  42  P.  809  (construed);  124  C.  682, 
684  (applied),  685  (construed),  686  (construed),  687  (construed), 
57  P.   574. 

As  to  agent's  necessary  authority,  see  Kerr's  Cyc.  C.  C.  §  2319 
and  note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,   ante. 

§2350.    AGENT'S     UNAUTHORIZED     EMPLOYMENT    OF 

SUBAGENT.  If  an  agent  employs  a  subagent  witliout  author- 
ity, the  former  is  a  principal  and  the  latter  his  agent,  and 
the  principal  of  the  former  has  no  connection  with  the 
latter. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
As    to    many   miscellaneous    matters   as    to    agency    generally, 
see  note   §  2295,  ante. 

As  to  responsibility  of  subagent  to  principal,  see  ante  §  2022. 

1222 


Tit.IX,ch.I,art.V.]  SUBAGENT,  POWER  OF.  §  2351 

§  2351.  SUBAGENT  RIGHTFULLY  APPOIXTED  REPRE- 
SENTS  PRINCIPAL.  A  subagent,  lawfully  appointed,  repre- 
sents the  principal  in  like  manner  with  the  original  agent; 
and  the  original  agent  is  not  responsible  to  third  persons 
for  the  acts  of  the  subagent. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,  ante. 

As  to  subagents  and  their  relation  to  principal  and  to  agent 
appointing  them,   see   50   A.   S.    110. 

Subagent,  lawfully  appointed,  is  liable  for  his  acts  to  the 
principal  only,  and  not  to  ageat  who  appointed  him. — 50  C. 
108,   111. 


1223 


§§  2355,  2356  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE   VI. 

TERMINATION   OF    AGENCY. 

§  2355.      Termination    of   agency. 

§  2356.     Same.     [Wliere  coupled  with  an  interest.] 

§2355.  TERMINATION  OF  AGENCY.  An  agency  is  ter- 
minated, as  to  every  person  liaving  notice  tliereof,  by: 

1.  Tlae  expiration  of  its  term; 

2.  The   extinction   of   its   subject; 

3.  Tlie  death  of  the  agent; 

4.  His  renunciation  of  the  agency;    or, 

5.  The  incapacity  of  the  agency   [agent]  to  act  as  such. 

History:     Enacted  March   21,   1872. 

See  'Kerr's  Cyc.  C.   C  for  4  pars,  annotation. 

69  C.  226,  230,  10  P.  502,  505  (cited);  121  C.  327,  328,  53  P. 
702    (applied). 

As  to  duty  of  gratuitous  employee,  see  ante   §  1975. 
As    to    many    miscellaneous    matters    as    to    agency    generally, 
see   note   §  2295,   ante. 

§2356.  SAME.  [WHERE  COUPLED  WITH  AN  INTER- 
EST.] Unless  the  power  of  an  agent  is  coupled  with  an 
interest  in  the  subject  of  tlie  agency,  it  is  terminated,  as  to 
every  person  having  notice  thereof,  by: 

1.  Its  revocation  by  the  principal; 

2.  His  death;    or, 

3.  His  incapacity  to   contract. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

70  C.  254,  258  (applied),  260  (construed),  11  P.  706,  707,  708: 
75  C.  364,  368,  17  P.  427,  428  (cited);  25  P.  131,  132  (right  to 
revoke  authority  of  agent  to  procure  purchaser  of  land);  89  C. 
251,  255,  26  P.  906,  907  (construed);  92  C.  143,  144,  28  P.  219 
(applied);   131   C.   321,  325,   63  P.   479    (applied). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see   note   §  2295,   ante. 

As  to  validity  of  agent's  acts  after  death  of  principal,  see 
39   A.   D.   81. 

1224 


Tit.IX.ch.II,art.I.]  AUCTIONEERS.  §  2362 


CHAPTER  II. 

PARTICULAR  AGENCIES. 
Article  I.     Auctioneers,  §§  2362,  2363. 
II.     Factors,  §§  2367-2369. 

III.  Shipmasters  and  pilots,  §§  2373-238.5. 

IV.  Ships'  managers,  §§  2388,  2389. 

ARTICLE    I. 

AUCTIONEERS. 

§  2362.     Auctioneer's   authority  from   the   seller. 
§  2363.     Auctioneer's   authority    from    the   bidder. 

§2362.  AUCTIONEER'S  AUTHORITY  FROM  THE 
SELLER.  An  auctioneer,  in  the  absence  of  special  author- 
ization or  usage  to  the  contrary,  has  authoritj-  from  the 
seller,   only   as  follows: 

1.  To  sell  by  public  auction  to  the  highest  bidder; 

2.  To  sell  for  cash  only,  except  such  articles  as  are  usually 
sold  on  credit  at  auction; 

3.  To  warrant,  in  like  manner  with  other  agents  to  sell, 
according  to  section  twenty-three  hundred  and  twenty-three; 

4.  To  prescribe  reasonable  rules  and  terms  of  sale; 

5.  To  deliver  the  thing  sold,  upon  payment  of  the  price; 

6.  To  collect  the  price;  and, 

7.  To  do  whatever  else  is  necessary,  or  proper  and  usual, 
in  the  ordinary  course  of  business,  for  effecting  these  pur- 
poses. 

History:     P^nactod  March   21,   1S72. 
See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

AUCTIONS   AND   AL  CTIONEEIIS. 

As  to  auctioneers,  see  further  Kerr's  Cyc.  Pol.  C.  §§  32S4  et 
seq.    and    notes. 

As  to  custom  and  usage,  see-  Kerr's  Cyc.  C.  C.  §§  2295.  2297, 
2319  and  notes. 

1225 


§  2363  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  agents  generally,  see 
note   §  2295,   ante. 

As  to  memorandum  of  sale  by,  see  13  A.  D.  398-400. 

Auctioneers — Delegation  of  municipal  power  as  to  license  of. — 
See    20   L.    724. 

Same — Right  of  conducting  sale  to  make  bids. — See  20  L.  503. 

Same — Right  to  withdraw  property  from  sale  after  it  has 
been   offered.— See   57   L.   784. 

Auction  in  street,  as  a  nuisance,  subject  to  city  control. — See 
37   L.   678. 

Competition,  agreement  by  auctioneers  to  stifle. — See  2  A.  D. 
138. 

Delegation  of  municipal  power  as  to  license  of  auctioneers. — 
See  20  L.   724. 

Implied  exception  in  statute  as  to  auctions. — See  25  L.   569. 

Preventing  or  checking  bids,  effect  of  upon  the  validity  of 
sales  at  auction.— See   20  L.   545-553. 

Rights  of  purchaser  at  auction  sale. — See  9  L.  558. 

Sales  at  auctions  by  auctioneer,  and  their  effect. — See  96 
A.    D.    264. 

§2363.  AUCTIONEER'S  AUTHORITY  FROM  THE  BID- 
DER. An  auctioneer  has  authority  from  a  bidder  at  the 
auction,  as  well  as  from  the  seller,  to  bind  both  by  a  memo- 
randum of  the  contract,  as  prescribed  in  the  title  on  sale. 

History:     Enacted  March   21,   1872. 

As  to  auctioneer's  authority  generally,  see  Kerr's  Cyc.  C.  C. 
P.   §§  3284-3374   and   notes. 

As  to  entry  by  auctioneer,  see  Kerr's  Cyc.  C.  C.  §  1798,  also 
13    A.    D.    398-400. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 


1226 


^         Tit.IX,ch.II,art.II.]        FACTORS,  authority.         §§  2367-2369 

ARTICLE   II. 

FACTORS. 

§  2367.     Factor,  what. 

§  2368.     Actual   authority   of  factor. 

§  2369.      Ostensible  authority. 

§  2367.  FACTOR,  ^VHAT.  A  factor  is  an  agent,  as  defined 
by  section  two  thousand  and  twenty-six. 

History:     Enacted  March   21,   1872. 

As  to  commission  of  real  estate  broker,  see  Kerr's  Cyc.  C.  C. 
§  2330   and   note. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see   note   §  2295,   ante. 

As  to  produce  forwarded  to  commission  merchant  to  be 
shipped  to  foreign  country,  see  Kerr's  Cyc.  C.  C.   §  2367,  note. 

§2368.  ACTUAL  AITHOIUTY  OF  FACTOR.  In  addition 
to  the  authority  of  agents  in  general,  a  factor  has  actual 
authority  from  his  principal,  unless  specially  restricted: 

1.  To  insure  property  consigned  to  him  uninsured; 

2.  To  sell,  on  credit,  anything  intrusted  to  him  for  sale, 
except  such  things  as  it  is  contrary  to  usage  to  sell  on 
credit;  but  not  to  pledge,  mortgage,  or  barter  the  same;  and, 

3.  To  delegate  his  authority  to  his  partner  or  servant,  but 
not  to  any  person  in  an  independent  employment. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

55  C.  421,  424,  36  A.  D.  43  (cited);  61  C.  405  (cited  in  dis. 
op.  erroneously  as  §2358);  66  C.  459,  461,  6  P.  61  (applied);  3 
C.  A.  198,  201,  203  (subd.  2  applied  with  §2991 — omission  of 
word  "no"  in  opinion  makes  wrong  statement  of  law,  but  cor- 
rect statement  is  given  in   84  P.   778,  780). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,   ante. 

§2369.  OSTENSIBLE  AUTHORITY.  A  factor  has  osten- 
sible authority  to  deal  with  the  property  of  his  principal  as 

1227 


§§  2373,  2374  CIVIL  CODE.  [Div.III.Pt.IV. 

his  own,  in  transactions  with  persons  not  having  notice  of 
the  actual  ownership. 

Hi.«ttopy:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.  for  3  pars,   annotation. 

52  C.  586,  589  (applied);  55  C.  421,  424,  36  A.  R.  43  (applied); 
61  C.  405,  420  (applied);  66  C.  459,  460  (applied),  461  (ostensible 
authority  construed),   6   P.   91. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,   ante. 


ARTICLE   III. 

SHIPMASTERS   AND    PILOTS. 

§  2373.  Authority  of  sliipmaster  on  belialf  of  sliip-owner. 

§  2374.  Authority    to    borrow. 

§2375.  Authority  on  behalf  of  owners  of  cargo. 

§  2376.  Power   to   make    contracts. 

§  2377.  Power    to    hypothecate. 

§  2378.  Master's   power  to   sell   ship. 

§  2379.  Master's  power  to   sell   cargo. 

§  2380.  Authority  to  ransom  sliip. 

§  2381.  Abandonment  terminates   master's  power. 

§  2382.  Personal   liability  for  contracts  concerning  the   ship. 

§  2383.  Liability  for  acts  of  persons  employed  upon  the  ship. 

§  2384.  Responsibility   for   negligence   of  pilot. 

§  2385.  Sliip-owner's   liability   for   cargo    sold,   etc. 

§2373.  AUTHOEITY  OF  SHIPMASTER  ON  BEHALF  OF 
SHIP-OIVNER.  The  master  of  a  ship  is  a  general  agent  for 
its  owner  in  all  matters  concerning  the  same. 

History:     Enacted  March   21,   1872. 

As  to  duties  of  ship's  master,  see  Kerr's_  Cyc.  C.  C.  §§  2034- 
2044  and  notes. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,  ante. 


§  2374.  AUTHORITY  TO  BORROW.  The  master  of  a  ship 
has  authority  to  borrow  money  on  the  credit  of  its  owner, 
if  it  is  necessary  to  enable  him  to  complete  the  voyage,  and 

1228 


Tit.IX.ch.II.art.III.]  POWER  OF.  §§  2375-2377 

if  neither  the  owner  nor  his  proper  agent  for  such  matters 
can  be  consulted  without  injurious  delay. 

History:     Enacted  March   21,   1872. 

§2375.  AUTHOKITY  ON  BEHALF  OF  OWNERS  OF 
CAKGO.  The  master  of  a  ship,  during  a  voyage,  is  a  general 
agent  for  each  of  the  owners  of  the  cargo,  and  has  author- 
ity to  do  whatever  they  might  do  for  the  preservation  of 
their  respective  interests,  but  he  cannot  sell  or  hypothecate 
the  cargo,  except  in  the  cases  mentioned  in  this  article. 

Hi-story:  Enacted  March  21,  1872;  amended  March  30,  1874. 
Code    Amdts.    1873-4,    p.    251. 

As  to  general  average  and  jettison,  see  Kerr's  Cyc.  C.  C. 
§§  2148-2154  and  notes. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,  ante. 

§2376.  POWER  TO  MAKE  COMRACTS.  The  master  of 
a  ship  may  procui-e  all  its  necessary  repairs  and  supplies, 
may  engage  cargo  and  passengers  for  carriage,  and,  in  a 
foreign  port,  may  enter  into  a  charter  party;  and  his  con- 
tracts for  these  purposes  bind  the  owner  to  the  full  amount 
of  the  value  of  the  ship  and  freightage. 

HlNtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
As    to    many    miscellaneous    matters   as    to    agency    generally, 
see   note   §  2295,   ante. 

§2377.  POWER  TO  lIVP(nTIECATE.  The  master  of  a 
ship  may  hypothecate  the  ship,  freightage,  and  cargo,  and 
sell  part  of  the  cargo,  in  the  cases  presrcibed  by  the  chapters 
on  bottomry  and  respondentia,  and  in  no  others,  except  that 
the  master  may  also  sell  the  cargo,  or  any  part  of  it,  short 
of  the  port  of  destination,  if  found  to  be  of  such  perishable 
nature,  or  in  such  damaged  condition  that  if  left  on  board 
or  reshlpped  it  would  be  entirely  lost,  or  would  seriously 
endanger  the  interests  of  its  owners. 

History:  Enacted  March  21.  1872:  amended  March  30,  1874. 
Code   Amdts.    1873-4,    p.    252. 

1229 


§§  2378-2380  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,   ante. 

As  to  power  of  master  to  hypothecate  ship,  see  Kerr's  Cyc. 
C.  C.  §§  2320,  3017  and  note. 

§  2378.  MASTER'S  POWER  TO  SELL  SHIP.  When  a  ship, 
whether  foreign  or  domestic,  is  seriously  injured,  or  the 
voyage  is  otherwise  broken  up,  beyond  the  possibility  of  pur- 
suing it,  the  master,  in  case  of  necessity,  may  sell  the  ship 
without  instructions  from  the  owners,  unless  by  the  earliest 
use  of  ordinarj'  means  of  communication  he  can  inform  the 
owners,   and  await  their  instructions. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
As    to    many    miscellaneous    matters    as    to    agency    generally, 
see  note   §  2295,  ante. 

§  2379.  MASTER'S  POW  ER  TO  SELL  CARGO.  The  mas- 
ter of  a  ship  may  sell  the  cargo,  if  the  voyage  is  broken 
up  beyond  the  possibility  of  pursuing  it,  and  no  other  ship 
can  be  obtained  to  carry  it  to  its  destination,  and  the  sale 
is  otherwise   absolutely   necessary. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  sale  when  voyage  broken,  see  Kerr's  Cyc.  C.  C.  §  2707 
and   note. 

§2380.  AUTHORITY  TO  RAXSOM  SHIP.  The  master  of 
a  ship,  in  case  of  its  capture,  may  engage  to  pay  a  ransom 
for  it,  in  money  or  in  part  of  the  cargo,  and  his  engage- 
ment will  bind  the  ship,  freightage,  and  cargo. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2   pars,  annotation. 

As  to  expenses  of  detention  being  general  average,  see  Kerr's 
Cyc.  C.  C.  §  2385  note  par.   2. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,  ante. 

1230 


Tit.IX.ch.II.art.IIL]       ABANDONMENT.  §§  2381-2384 

§  2381.  ABANDONMENT  TERMINATES  MASTER'S  POWER. 

The  power  of  a  master  of  a  ship  to  bind  its  owner,  or  the 
owners  of  the  cargo,  ceases  upon  the  abandonment  of  the 
ship  and  freightage  to  insurers. 

History:     Enacted  March   21,   1872. 

§2382.  PERSONAL  LIABILITY  FOR  CONTRACTS  CON- 
CERNING  THE  SHIP.  Unless  otherwise  expressly  agreed,  or 
unless  the  contracting  parties  give  exclusive  credit  to  the 
owner,  the  master  of  a  ship  is  personally  liable  upon  his 
contracts  relative  thereto,  even  when  the  owner  is  also  liable. 

Hiistory:     Enacted  Marcli   21,   1872. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  personal  liability  of  master  for  contracts  made  by  him 
concerning  the  vessel,   see   Kerr's   Cyc.   C.   C.   §  2343   and   note. 

§  2383.  LIABILITY  FOR  ACTS  OF  PERSONS  EMPLOYED 
UPON  THE  SHIP.  The  master  of  a  ship  is  liable  to  third 
persons  for  the  acts  or  negligence  of  persons  employed  in 
its  navigation,  whether  appointed  by  him  or  not,  to  the 
same  extent  as  the  owner  of  the  ship. 

History:     Enacted  March   21,   1872. 

See    Kerr's   Cyc.   C.    C.   for    4   pars,   annotation. 
As    to    many    miscellaneous    matters   as    to    agency    generally, 
see  note  §  2295,  ante. 

§  2384.     RESPONSIBILITY  FOR  NEGLIGENCE  OF  PILOT. 

The  owner  or  master  of  a  ship  is  not  responsible  for  the 
negligence  of  a  pilot  whom  he  is  bound  by  law  to  employ; 
but  if  he  is  allowed  an  option  between  pilots,  some  of  whom 
are  competent,  or  is  required  only  to  pay  compensation  to  a 
pilot,  whether  he  employs  him  or  not,  he  is  so  responsible 
to  third  persons. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note   §  2295,   ante. 

As  to  responsibility  for  pilots,  see  Kerr's  Cyc.  C.  C.  §§  2338, 
2383  and  notes. 

1231 


§§  2385-2389  CIVIL  CODE.  [Div.III,Pt.IV. 

§2385.   Ship-owner's  liability  for  cargo  sold, 

ETC.  The  owner  of  a  ship  is  bound  to  pay  to  the  owner  of 
her  cargo  the  market  value  at  the  time  of  arrival  of  the 
ship  at  the  port  of  her  destination,  of  that  portion  of  her 
cargo  which  has  been  sold  to  enable  the  master  to  pay  the 
necessary  repairs  and  supplies  of  the  ship. 

History:     Enacted  March  30,   1874,  Code  Amdts.   1873-4,   p.   252. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  ransom  being  a  general  average,  see  Kerr's  Cyc.  C.  C. 
§  2380   note  par.   2. 


ARTICLE   IV. 

SHIPS'    MANAGERS. 

§  2388.     What  powers  manager  has. 
§  2389.     What  powers   he   has   not. 

§  2388.  WHAT  POWERS  MANAGER  HAS.  A  ship's  man- 
ager has  power  to  make  contracts  requisite  for  the  perform- 
ance of  his  duties  as  such;  to  enter  into  charter  parties,  or 
make  contracts  for  carriage;  and  to  settle  for  freightage 
and  adjust  averages. 

History:     Enacted  March   21,  1872. 

61  C.  405,  429   (erroneously  cited  for  §  2368). 

As  to  many  miscellaneous  matters  as  to  agency  generally, 
see  note  §  2295,  ante. 

As  to  powers  of  ship's  manager,  see  Kerr's  Cyc.  C.  C.  §§  2020- 
2072  and  notes. 

§2389.  WHAT  POWERS  HE  HAS  NOT.  Without  special 
authority  a  ship's  manager  cannot  borrow  money  or  give  up 
the  lien  for  freightage,  or  purchase  a  cargo,  or  bind  the 
owners  of  the  ship  to  an  insurance. 

History:     Enacted  March   21,   1872. 


1232 


Tit.X,ch.I,art.I.] 


PARTNERSHIP. 


§  2395 


TITLE  X. 

PARTNERSHIP. 

Chapter  I.  Partnership  in  General,  §§2395-2418. 

II.  General    Partnership,     §§  2424-2472. 

III.  Special   Partnership,    §§  2424-2472. 

IV.  Mining  Partnership,  §§  2511-2520. 

CHAPTER    I. 

PARTNERSHIP   IN  GENERAL. 

Article    I.  What  Constitutes  a  Partnership,  §§  2395-2397. 

II.  Partnership  Property,  §§  2401-2406. 

III.  Mutual  Obligations  of  Partners,  §§  2410-2413. 

IV.  Renunciation  of  Partnership,  §§  2417,  2418. 


ARTICLE  I. 

WHAT    CONSTITUTES   A    PARTNERSHIP. 

§  2395.     Partnership,  what. 

§  2396.     Ship-owners. 

§  2397.     Formation   of   partnership. 

§2395.     P.VKTNEKSHIl*.  >VHAT.     Partnership  is  the  asso- 
ciation of  two  or  more  persons,  for  the  purpose  of  carrying 
on  business  together,  and  dividing  its  profits  between  them. 
History:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  73  pars,  annotation. 

.'54  C.  439.  440  (construed  and  applied  but  erroneously  cited 
as  8  2235);  75  C.  566,  569.  17  P.  702,  703  (construed  and  applied): 
81  C.  14,  15.  22  P.  264,  265  (construed  and  applied):  31  P.  1122, 
1123  (what  agreement  and  acts  of  parties  under  it,  evince 
partnership);  101.  C.  500,  507,  35  P.  1051  (construed  and  ap- 
plied): 104  C.  302.  304,  37  P.  1048.  38  P.  109  (construed  and  ap- 
plied): 122  C.  3,  12,  54  P.  372  (construed  as  not  applying:):  128 
C    1"'0    126    60  P.   689    (cited,  construed  and  applied):   134   C.   338, 

1233 


§  2395  CIVIL  CODE.  [Div.III,Pt.IV. 

340,    66   P.   309    fconstrued  and  applied);    31   P.    1122,    1123    (con- 
strued   and    applied). 

PARTNERSHIP — GENERALLY. 

As   to  actions   brought  against  an  association   by   its   common 
name. — See   Kerr's  Cyc.   C.   C.   P.   §  388   and   note. 

As  to  agreement  for  interest  in  profits  for   services,   not  con- 
stituting partnership,  see  58  A.  R.  101;  83  A.  D.  104,  105. 

As  to  agreement  of  minors  for  formation  of  partnership,  see 
18    A.    E.    601,    605, 

As    to    alteration    and    dissolution    of    special    partnership,    see 
Kerr's  Cyc.  C.  C.   §  2507  and  note. 

As   to  associated  carriers   when   liable  as   partners,   see   72   A. 
D.    238,    240. 

As  to  books  of  account  as  evidence   of  partnership   to   prove 
partnership   affairs,   see   52   L.    833-848. 

As  to  burden  of  proof  in  establishing  partner^iip,   see   22   A. 
S.    762. 

As  to  co-operative  business  associations,  see  Kerr's  Cyc.  C.  C. 
§  653b  and  note. 

As   to   crop-sharing   contracts,    whether  constituting   partner- 
ship,  see   37   A.   R.   609-612;    58  A.   R.   101-108. 

As   to   declarations   by   one  partner   to   show   partnership  and 
as   to   declarations   generally,  see   20   L.   595,    597;    22   A.   S.    762. 

As  to  declarations  made  in  actions  as  to  partnership,   see  20 
L.  599. 

As  to  declarations  of  partners  after  proof  of  partnership,  see 
Kerr's  Cyc.  C.  C.  P.  §  1870  subd.  5  and  note. 

As  to  dormant  partners,  see  56  A.  D.  148;  20  L.  597,  598. 

Same — Necessity  of  joining  as  parties  to  action. — See  1  L.  N. 
S.  312. 

As    to    evidence    of    general    reputation    to    prove    partnership, 
see   48   A.   D.   481;    38   A.   R.    568. 

As  to  evidence  to  prove  partnership,  see  38  A.  D.  482;  22  A.  S. 
761.   762;  13  L.  370. 

As  to   existence   of  partnership,   when  a   question   of  law,  see 
43  A.  S.   229-232. 

As    to   formation    of   special   partnership,    see    post    §  2477    and 
note. 

As    to    general    partners    in    special    partnership,    liability    of, 
etc.,  see  Kerr's  Cyc.  C.  C.  §  2500  and  note. 

As  to  joint  interest  in  property  essential  to  partnership  rela- 
tion, see  75  A.  D.  192. 

As  to  liability  of  partnership  to  employee  for  negligence,  see 
Kerr's  Cyc.  C.  C.   §§  1969,   1971  and  notes. 

As  to   married  women,   power   of   to   become   partners,    see    31 
A.  S.  932-936;   34  A.  S.  339,  340. 

As  to  non-trading  partnership,  see  48  A.  S.  441. 

1234 


i       Tit.X,ch.I,art.I.]  partnership.  §2395 

As  to  parol  partnerships  for  dealing  in  lands,  validity  of, 
etc.,  see  16  L.  745-750. 

As  to  participation  in  losses,  profits,  etc.,  generally,  when  not 
necessary  to  partnership  agreement,  see  30  A.  D.  608;  31  A.  D. 
382;  43  A.  D.  436;  75  A.  D.  191;  93  A.  D.  63;  37  A.  R.  609-612; 
48  A.  R.  256;  56  A.  R.  101-108. 

As  to  partnership   interest,  see  17  L.   554. 

As  to  partnership  liability  of  stockholders  in  cases  of  defect- 
ive or  illegal  incorporation,  see  17  L.  549,  550. 

As  to  partnership  property  in  real  estate,  see  27  L.  486,  496. 

As  to  partnerships  in  real  estate  as  related  to  operation  of 
statute  of  frauds,  see  27  L.    477-480. 

As  to  powers,  rights,  and  duties  of  special  partners,  see  Kerr's 
Cyc.  C.  C.  §  2489  and  note. 

As  to  unincorporated  society  being  partnership  at  common 
law,  see   59  A.  D.  711. 

As  to  real  estate  as  partnership  property,  see  Kerr's  Cyc.  C. 
C.  §  2406  and  note;  and  13  A.  D.  648;  65  A.  D.  300;  98  A.  D.  198.     " 

As  to  religious,  social,  and  benevolent  corporations,  see  Kerr's 
Cyc.  C.  C.   §  593  and  note. 

As  to  reputation  as  evidence  of  partnership,  see  22  A.  S. 
761.  762. 

As  to  statute  of  frauds  in  general,  see  Kerr's  Cyc.  C.  C.  §  1624 
and  note. 

As  to  stockholders  in  corporations,  when  liable  as  partners, 
see   3   A.   S.    849,  850. 

As  to  voluntary  associations,  nature  of,  etc.,  see  7  A.  S.  162- 
170. 

As  to  what  constitutes  partnership,   see   4   L.    440;   5   L.    590. 

As  to  w^hen  partnership  is  formed  for  purchase  and  sale  of 
real  estate,  see  13  A.  D.  646-648;  54  A.  R.  792-800;  60  A.  R.  379, 
380;  48  A.  S.  62-74;  27  L.  481,  482. 

As  to  who  are  liable  as  partners,  see  Kerr's  Cyc.  C.  C.  §§  2444, 
2445   and   notes. 

Accommodation  papers,  power  of  one  partner  to  bind  tlie  firm 
by. — See   31   A.  S.   754. 

Accounting  by  surviving  partner. — See  7  L.   481. 

Actions — Defenses  in  action  for  debt  assumed  on  dissolution 
of  partnership. — See  9  L.  N.  S.   111. 

Same — Must  be  brought  by  partner  or  partnership  as  real 
party  in  interest  when. — See  64  L.  612. 

Same — Removal  of,  because  of  separalile  controversy. — See  5 
L.  N.  S.   87.   98. 

Same — Right  of  one  partner  of  dissolving  firm  to  maintain 
action  at  law  against  another  for  fraud  practiced  upon  disso- 
lution  with  respect  to  assets. — See  6  L.  N.  S.  263. 

Same — Right  to  arrest  a  partner  in  civil  action  or  proceed- 
ing.—See  4  L.  N.  S.  130. 

1235 


§  2395  CIVIL  CODE.  [Div.III,Pt.IV. 

Action  at  law  between  partners — As  to  g-enerally,  see  1  A.  C. 
834;  6  A.  C.  107;  7  A.  C.  1140;  8  A.  C.  78;  8  A.  C.  766;  12  A.  D.  649. 

Same — Appointment  of  receiver  in. — See  10  A.  C.  692. 

Same — Arrest  of  partner. — See   6  A.  C.   107. 

Same — Same — Right  of  partner  to  arrest  of  co-partner  in  civil 
action  arising  out  of  partnership  transaction. — See   6  A.  C.   109. 

Same — On  preliminary  partnership  agreement. — See  1  A.  C. 
835. 

Same — Party   to. — See   8   A.   C.    78. 

Same  —Right  of,  after  dissolution  and  accounting,  as  to  single 
unadjusted  items. — See  8  A.  C.  768. 

Actions  at  law  between  partners  and  third  persons — Judgment 
— As   to   generally,   see    8   A.    C.    314. 

Same — Same — Against  partner  or  partnership  obligation  as 
bar  to  suit  against  co-partner. — See  8  A.  C.  315. 

Same — Parties — As  to  generally,  see  8  A.  C.  367. 

Same — Same — Necessity  of  joining  nominal  partner  as  party 
plaintiff. — See  8  A.  C.  369. 

Adjudication  of  bankruptcy  of  partners,  effect  of  to  subject 
the  separate  estates  of  the  partners  to  administration  of  bank- 
ruptcy.—See   5    L.   N.    S.    654. 

Admissibility  of  entries  in  partner's  account  books  by  absent 
or  deceased  partner. — See  52  L.  561. 

After  death  of  one  of  the  partners. — See  56  A.  D.  517;  79  A. 
S.  709. 

Agreement  to  share  profits — Effect  of  to  create  a  partner- 
ship.— See   18  L.  N.   S.   963. 

Same- — ^Interest  in  profits  for  service,  does  not  constitute  a 
partnership. — See  58  A.  R.   101;   83   A.   D.   104,   105. 

Same — When  do  not  create. — See  30  A.  S.  828. 

Application  of  assets  to  liabilities — As  to  generally,  see  3  A. 
C.    148. 

Same — Application  of  firm  property  to  payment  of  individual 
debt  by  partner  without  consent  of  others. — See  3  A.  C.   151. 

Application  of  partner's  deposit  on  firm  debt. — See  23  L.  11. 

Application  of  partnership  assets,  with  the  consent  of  all  the 
partners,  to  the  payment  of  an  individual  debt  of  a  partner  as 
a  voidable  preference  to  the  bankruptcy  act. — See  17  L.  N.  S. 
1040. 

Arrest  of  partner  in  suit  as  to  partnership  affairs. — See  6  A. 
C.   107,   109. 

As  an  artificial  person. — See  6  W.  &  P.  5193. 

As  an   association. — See   40   A.   R.    465;   6   W.    &   P.    5193. 

As  determined  by  intent  of  parties. — See  6  W.   &  P.   5194. 

Assignment  for  benefit  of  creditor — As  to,  generally,  see  57 
A.  D.  505;  48  A.  R.  359;  58  A.  S.  90;  2  L.  328;   6  L.  569";   10  L.  521. 

Same — Executed  by  one  partner  only. — See  48  A.  R.  359. 

Same — Power  of  one  partner  to  make. — See  28  L.  97. 

1236 


I 


Tit.X,ch.I,art.I.]  PARTNERSHIP.  §  2395 

Assumption  of  firm  debts. — See  25  L.  274. 

Attachment — Formation  of  and  transfer  of  property  to  part- 
nership as   ground  for. — See  30   L.    487. 

Same — Of  individual  property  of  one  partner  for  fraud  of 
another  partner. — See   25  L.   645. 

Same — Right  of  partnership  creditors  to  question  validity  of. — 
See  35  L.   769. 

Same — Transfers  and  witlidrawals  by  partners,  as  grounds 
for. — See   30   L.   486. 

Bank,  insolvent — Criminal  liability  for  receiving  deposit  in. — 
See   31   L.   125. 

Bond  required  of  surviving  partner. — See   7  L.   794. 

By  estoppel  or  holding  out. — See  10  A.  C.  132,  135. 

By  parol  to  deal  in  land. — See  16  L.  745. 

Commercial  paper  executed  by  partner  in  non-trading  firm. — 
See    11   L.    238. 

Community  of  interest  in  property. — See  53  A.  D.  513:  63  L. 
260:  6  W.  &  P.  5193. 

Compensation  of  partners  for  services — As  to  riglit  to,  see 
5  A.  C.  659,  664:  6  L.  72;  9  L.  424:  17  L.  N.  S.  385-416. 

Same — Waiver  of. — See  17  L.  N.  S.  416. 

Constitutionality  of  statute  authorizing  personal  judgment 
against  joint  debtors  upon  personal  service  upon  one  or  more. — 
See    50    L.    595. 

Continuance  of  business — By  surviving  partner. — See  5  L.  410: 
7   L.    788. 

Same — For  benefit  of  heirs  of  deceased  partner. — See  56  A.  D. 
517:  79  A.  S.  709. 

Same — Under  provisions  of  will. — See  7  L.  789. 

Contract  of — As  to. — See  3  A.  C.   148:   4  A.  C.  465. 

Same — Partnership  agreement  for  purchase  and  sale  of  lands 
as  within  the  statute  of  frauds. — See  7  A.  C.   1142. 

Same — ^Validity  of  partnorsliip  between  husband  and  wife. — 
See   4   A.   C.    868. 

Contribution  between  partners. — See  1  L.  313. 

Corporators,  liabilities  as  partners  when. — See  11  L.  515:  17 
L.   549. 

Creditors  of,  rights  and  remedies  of. — See  43  A.  S.  364. 

Criminal  liability  of  partnership  for  receiving  deposit  in  in- 
solvent liank. — See  31  Ij.   125. 

Criminal  responsibility  for  sale  of  intoxicating  liquors  by 
partner. — See   16  L.  N.  S.   786. 

Croppers,   whether  occupy   relation   of. — See   37   A.   R.   609. 

Death  of  one  member,  effect  of. — See  77  A.  D.  114:  86  A.  D.  600. 

Debt  of  partner,  levy  on  partnership  for. — See  4  L.  481. 

Deceased  partner — Carrying  on,  by  representative  of. — See  86 
A.  D.  600:  79  A.  S.  709. 

Same — Contingency    of    partner's    claim    for    contribution    as 

1237 


§  2395  CIVIL  CODE.  [Div.III,Pt.IV. 

affecting-  presentation  of  claim  against  deceased  partner's  estate. 
— See   58  L.   89. 

Same — Rights  of  administrator  of. — See  7  L.  792. 

Same — Riglits  of  estate  of  law  partner  in  compensation  for 
business  unfinished  at  time  of  his  death. — See  66  L.  821. 

Same — Rights  of  deceased  partner's  widow  in,  general  doctrine 
as  to,  see  27  L.  340-353. 

Deceased  partner's  widow's  rights  in,  general  doctrine  as  to, 
see   27  L.   340-353. 

Declaration  of  another  to  show. — See  20  L.  595. 

Deed  conveying  realty  to  partnership  in  firm  name,  effect  of. 
—See   4  A.  C.    604. 

Defective  or  illegal  incorporation,  partners'  liability  of  stock- 
holders.— See  17  L.  549. 

Definition  of. — See  10  A.  C.  132;  16  A.  R.  192;  25  A.  R.  607; 
57  A.  R.  552;  16  A.  S.  572;  30  A.  S.  97;  33  A.  S.  97;  34  A.  S. 
334;  60  A.  S.  842;  97  A.  S.  335;  2  L.  343;  3  L.  430;  11  L.  149; 
18  L.  515;  22  L.  276;  36  L.  282;  41  L.  362;  53  L.  904;  61  L.  756; 
16  L.  ed.  249;  36  L.  ed.  835;  18  L.  N.  S.  967;  6  W.  &  P.  5191. 

Demand  on  firm  for  payment  of  note. — See  36  L.  704. 

Discharge  of  partnership  liability  in  individual  bankruptcy 
proceedings. — See  69  L.  771. 

Dissolution  of — And  accounting,  right  of  action  at  law  be- 
tween partners,  as  to  single  unadjusted  items. — See  8  A.  C.  768. 

Same— By  a  decree.— See  4  A.  C.  459;  10  A.  C.  692;  98  A.  D.  260. 

Same — Causes  sufficient  for. — See  69  A.   S.   410. 

Same — Exemption  of  partnership  debts  on — As  to  generally, 
see  9  L.  N.  S.  49-118. 

Same — Same — Defenses  in  action  for. — See  9  L.  N.  S.  111. 

Same — How  affected — By  death  of  partner. — See  10  A.  C.   956. 

Same — Same — By  decree  of  court. — See  4  A.  C.  459;  10  A.  C. 
692;    98    A.    D.    260. 

Same — Same — Same — Fraud  in  formation  of  partnership  as 
ground  for  dissolution  of. — See  10  A.  C.  695. 

Same — Same — Same — Misconduct  of  parties  as  ground  for  dis- 
solution.— See  4  A.  C.  460. 

Same — Same — By  operation  of  law. — See  4  A.  C.  601;  10  A. 
C.    955. 

Same — Same — El¥ect  of  death  of  partner  on  judgment  in  favor 
of  partnership. — See   10  A.   C.   956. 

Same — Liability  under  continuing  guarantee  running  to,  for 
goods  sold  for  credits  extended  after  a  change  in  the  firm. — 
See   14  L.  N.   S.    1231. 

Same — Necessity  of  actual  notice  of  retirement  o£  member  of 
firm  to  relieve  retiring  member  from  liability  or  obligation  re- 
newed after  his  retirement. — See  4  L.  N.  S.  800. 

Same — Notice  of,  when  required  and  what  sufficient. — See  26 
A.   D.    290. 

1238 


Tit.X,ch.I,art.I.]  partnership.  §  2395 

Same — Powers,  rights,  remedies,  and  liabilities  of  partners 
after.— See   40   A.   S.   561. 

Same — Power  to  revive  firm  debts  after. — See  15  L.  656. 

Same — Right  to  compensation. — See  5  A.  C.  659,  664;  6  L.  72; 
9  L.  424;   17  L.  N.  S.   385-416. 

Same — -Rights  and  liabilities  as  to  estate  of  decedent. — See 
5    A.    C.    659. 

Same — Rights  in   respect  to  good-will   on. — See   3  L.   770. 

Same — Rights  of  one  partner  to  maintain  action  at  law  against 
another  for  fraud  practiced  in,  with  respect  to  assets. — See  6 
L.  N.   S.   263. 

Same — Rights,  powers  and  liabilities  after  dissolution — 
Liquidating  partners. — See  5  A.  C.  845. 

Same — Same — Surviving  partner. — See  4  A.  C.  177;  4  A.  C. 
465;  5  A.  C.  659;  6  A.  C.  33. 

Same — Same — Same — Liability  of  surviving  partner  for  inter- 
est on  share  of  deceased  partner. — See  4  A.  C.  180. 

Same — Same — Same — Power  of  surviving  partner  to  sell  or 
mortgage  firm  assets. — See  4  A.  C.  472. 

Same — Specific  performance  of  contract  to  give  security  to 
one  partner  against  liabilities  of  firm.— See  6  L.  N.  S.  591. 

Does  the  fact  that  a  name  is  signed  to  a  bill  or  note  below 
the  signature  of  another  obligor  is  that  of  a  partnership  raise 
a  presumption  that  it  is  a  surety  only. — See  10  L.  N.  S.  426. 

Dormant  or  special  partners — As  to  generally,  see  56  A.  D. 
148,   20  L.   597,  598. 

Same — Necessity  of  joining  as  parties  to  action. — See  1  L.  312. 

Dormant  partners,  who  are  and  their  powers  and  liabilities. — 
See  56  A.  D.  147, 

Duties  of  surviving  partner. — See  7  L.  790. 

Same — When  he  is  also  executor  of  deceased  partner. — See  7 
L.   793. 

Engaging  in  unlawful  business,  liability  of. — See  51  L.  495. 

Entries  in  account  books  by  absent  or  deceased  partner, 
admissibility  of  in  evidence. — See  52  L.  561. 

Equality  of  contribution. — See  6  W.  &  P.  5194. 

Equitable  rule  as  to  partnership  assets. — See  7  L.   791. 

Evidence  of — As  to  generally,  see  4  A.  C.  601;  4  A.  C.  814, 
817;   10  A.  C.   132. 

Same — Admissibility  of  entries  in  partner's  account  books 
by  absent  or  deceased  partner. — See   52   L.   561. 

Executed  agreement  essential  to. — See  6  W.  &  P.   5194. 

Execution  sale  of  property  of,  injunction  against. — See  30  L. 
105. 

Exemption — By  partnership  of  individual  debts  of  partners — 
General  rule  as  to,  see  29  L.   681-694. 

Same — From  execution  which  may  be  claimed  from  property 
of.— See  27  A.  R.  246;  1  A.  S.   593. 

1239 


§  2395  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Of  debts  on  dissolution  of  partnersliip. — See  9  L.  N.  S. 
49-118. 

Existence  of,  what  agreements  establish. — See  43  A.  S.   229. 

False  imprisonment  by  act  of  co-partner,  liability  of  partner 
to  action  for. — See  3  L.  N.  S.  221. 

Firm   debt — Assumption   of. — 'See   25   L.    274. 

Firm  name,   statutes  as  to  continuing. — See   15  L.   466. 

For  definite  period,  power  of  one  partner  to  dissolve. — See  77 
A.    S.    319. 

For  illegal  purposes,  accounting  between  members  of,  when 
compellable. — See  99  A.  S.  326. 

For  what  business,  and  how  proved. — See  13  L.  370. 

Formal  requisites  of  agreement. — See  6  W.  &  P.  5195. 

Formation  of  and  transfer  of  property  to,  as  ground  of  attach- 
ment.— See  30  L.   487. 

Garnishment  of  uncertain  amount  due  from  one  partner  to 
the  other.— See  59  L.  377. 

General  assignment,  right  of  surviving  partner  to  make. — 
See   6   L.   570. 

General  reputation  to  prove  existence  of  partnership — See  4 
A.   C.    718. 

Good-will — Name  as  part  of. — See  15  L.  462. 

Same — Of  a  partnership  and  the  means  of  making  it  product- 
ive on  the  death  of  a  member  or  the  dissolution  of  the  firm. — 
See   96  A.  S.   610. 

Same — Right  of  partners  after  sale  and  purchase  of. — See  3 
L.    770. 

Guaranty  running  to  firm,  liability  for  goods  sold  or  credits 
extended  after  a  change  in  the  firm. — See  14  L.  N.  S.  1231. 

How  proved.— See  13  L.  370. 

Husband  and  wife — Right  to  form. — See  9  L.  593;  16  L.  526. 

Same- — Validity  of  partnership  between. — See   4  A.  C.   868. 

Individual  debt — Application  by  one  partner  without  the  con- 
sent of  the  others  of  firm  property  to  payment  of. — See  3  A. 
C.  151. 

Same — Note  for,  what  necessary  to  recovery  upon. — See  39  A. 
R.    293. 

Same — Of  member  of,  right  of  partnership,  as  against  firm 
creditors,  to  sell  or  mortgage  firm  property,  to  discharge  or 
secure.— See  1  L.  N.  S.  650;  2  L.  N.  S.  256. 

Infant  as  partner — As  to  generally,  see  18  A.  S.   601. 

Same — Agreement  of  to  form  partnership. — See  18  A.  S.  601, 
605. 

Same — Required  to   do  equity.^See   1  L.   863. 

Injunction — Against  execution  sale  of  property  of. — See  30  L. 
105. 

Same — Against  judgments  by  confession  against  partner. — See 
30    L.    240. 

1240 


Ji 


Tit.X,ch.I,art.I.]  PARTNERSHIP.  §  2395 

In   real   property.-See    13    A.    D.    646;    27   A.   R.    270:    54    A.    R. 

792;    48   A.   S.    62. 

Interest— In    partnership's    accounting,    allowance    of.— See    9 

■game— When  partner  may  be  charged  with.— See  45  A.  D-  518- 

Intoxicating    liquors,    criminal    responsibility    for    sale    of    by 

partner.— See  16  L.  N.  S.  786.  .      ,.      o.«    M 

Joint   and   several   liability    of   partnership    for    torts.— See    51 

"^■/oint  stock  company-As  a.-See  4  A.  C.  865;  6  W.  &  P.  5195. 

Same— Distinguished  from.— See  4  W.  &  P.   3816. 

Judgment— Against  joint  debtors  upon  personal  service^  upon 
one    or    more,    constitutionality    of    statute   auth-orizmg.— See    50 

L     595 
■game- Against   on   service   of  process   on   one  member   only.— 

See  44  A.  D.  570.  c        ri  t 

Same— Aagainst  partners,  who  may  have  set  aside.— See  54  L.. 

'^Same— Same— Injunction    against    entered    on    confession.— See 

30  L.    240.  ^.  .      . 

Same— By  confessions  against  partners,  injunction   against.— 

See  30  L.   240. 

Land— By  parol  to  deal  in.— See  16  L.  745. 

Same— Partnership  agreement  for  purchase  and  sale  of,  as 
within  the  statute   of  frauds.— See  7   A.   C.   1142. 

game — To  speculate  in. — See  8  L.  657. 

game— Whether  may  become  partnership  property  without  a 
writing.— See  98  A.  D.  197;  27  A.  R.  270. 

Law  partnership— Deceased  partner,  rights  of  estate  of  in 
compensation    for    business    unfinished    at    time    of    his    death.— 

See  66  L.   821.  ^  ,  j,^^ 

Levy  on  assets  of  under  a  writ  against  one  partner  onl>.— See 

57  A.  S.   436.  ^  ^  c!   „    .c 

Levy    on    partnership    property    for    debt    of    partner.— bee    ^6 

Liability— Of  corporators  as  partners.— See  11  L.  515;  17  L.  549. 
Same— Of  one  held  out  as  a  partner.— See  22  A.  S.  757. 
Same— Of   one  partner  for  the  tortious  acts   of  another.— See 

R7    A     S     32 

Same— Of  partner— As  to  third  persons— Nature  and  termina- 
tion of.— See  1  A.  C.  724;  8  A.  C.  78;  9  A.  C.  507. 

Same— Same— Criminal  liability  for  receiving  deposit  in  in- 
solvent  bank.— See   31    L.    125.  ,     a     n 

Same— Same— For    future    acts— As    to    generally,    see    4    A.    C. 

865;  9  A.  C.  240.  .  *       c .« 

Same— Same-For    libel    published    wilh-.ut    his    consent.-See 

26  L.  779. 

Same— Same— Joint  and  several.— See  51  L.  49d. 

1241 


§  2395  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Same — Relation  of  retiring  partner  as  sureties  upon 
dissolution  of  partnership. — See  1  A.  C.  725. 

Same — Same — Sufficiency  of  notice  of  dissolution  to  former 
patrons  of  partnership. — See  9  A.  C.  243. 

Same — Same — To  action  for  false  imprisonment  for  act  of 
co-partner.— See  3  L.  N.  S.  221. 

Same — Of  partnership  for  torts — As  to,  generally,  see  51  L. 
463-494. 

Same — Same — Engaging  in   unlawful  business. — See  51  L.  495. 

Limited  partnerships — Exist  only  under  warrant  of  statute. — 
See    2   L.    43. 

Same — Formation  of. — See  8  L.  712. 

Same — Liability  of  members  of. — See  3  L.  503. 

Same — Removal  of  cause  by. — See  5  L.   503. 

Loss  of  profits  as  elements  of  damages  for  breach  of  contract 
relating    to. — See    53    L.    81. 

Married  woman,  whether  may  be  a  partner. — See  31  A.  S.  934; 
34   A.   S.    339,   340. 

Mining  claim,  right  of  partner  to  locate. — See  7  L.  N.  S.  817. 

Misapplication  of  property  by  partner  to  the  payment  of  his 
personal   debt. — See  7  A.  S.  377. 

Misappropriation  of  property  of  by  one  of  the  partners. — See 
8  A.   D.   297. 

Misconduct,  forfeiture  of  right  to  compensation  by. — See  17 
L.    N.    S.    415. 

Name  as  part  of  good-will. — See  15  L.   462. 

Name  of  the  partnership.— See  10  A.  C.  810. 

Same — "What  is  fictitious  partnership  name. — See  10  A.  C.  812. 

Non-resident  partners,  bound  by  judgment  when. — See  1  L. 
312. 

Non-trading  firm — Commercial  paper  executed  by  partner  in. 
—See  11  L.  238. 

Note  or  other  commercial  paper — Of  individual  partner  as  pay- 
ment of  firm  debt,  which  he  had  not  previously  assumed. — 
See  15  L.  1019. 

Same — Power  of  one  partner  to  bind  firm  by,  under  seal. — 
See  17  L.  N.  S.  969. 

Same — Signed  by  the  name  of  a  partnership  below  another 
signature,  does  it  raise  the  presuniption  that  it  is  a  surety  only. 
—See   10   L.   N.   S.    426. 

Notice  of  dissolution  of  partnership,  sufficiency  of  to  former 
patrons. — See   9   A.   C.    243. 

Notice  of  retirement  of  member  of  firm,  necessity  of  actual, 
to  relieve  retiring  member  from  liability  on  obligation  renewed 
after  his  retirement. — See  4  L.  N.  S.  800. 

Participation  in  profits — For  services,  not  constuting  a  part- 
nership.— See  58  A.  R.  101;  83  A.  D.  104,  105. 

Same — In  order  to  collect  debts,  effect  of. — See  18  L.  N.  S. 
1062. 

1242 


I 


Tit.X,ch.I,art.I.]  PARTNERSHIP.  §  2395 

Same — When  does  and  when  does  not  create. — See  49  A.  R. 
255;    58  A.   R.   99. 

Parties   to   an   action    on   a   partnership   agreement. — See   8    A. 

C.  78. 

Partner — Or  partnership  as  tlie  real  party  in  interest  by 
whom  action  must  be  brought. — See  64  L.  612. 

Same — Right  of  after  sale  and  purchase  of  good-will. — See 
3    L.    770. 

Same — Right  of  as  affected  by  sale  of  trade-mark. — See  1  L. 
N.    S.    722. 

Same — Right  of  to  locate  mining  claim. — See  7  L.  N.  S.  817. 

Partners'  note  for  firm  debt,  effect  of  upon  the  firm  liability. — 
See   1  A.  D.  3. 

Partnership  assets,  equitable  rule  as  to. — See  7  L.  791. 

Partnership  books  of  account — As  evidence. — See  52  L.  833. 

Same — Entries  made  by  absent  or  deceased  partners,  admis- 
sibility  of. — See   52   L.    561. 

Partnership  debts — Agreement  to  assume,  right  of  action  by 
third  persons  on. — See  25  L.  274. 

Same — Property  of  to  be  applied  to  payment  of. — See  6  L. 
740. 

Partnership  earnings  of  ship,  admiralty  jurisdiction. — See  66 
L.    235. 

Partnersbip  liability  of  stockholders  in  case  of  defect  or 
illegal  incorporation. — See  17  L.  549. 

Partnership  real  estate — Power  of  one  partner  to  assign  for 
benefit  of  creditors. — See  28  L.  97. 

Same — Right  to  purchase  one  partner's  interest  in  real  prop- 
erty, belonging  to  partnership  without  consent  of  other  part- 
ners.—See  18  L.  N.  S.   1180. 

Same — Validity  of  deed  to. — See   1    L.   N.   S.   157. 

Same — Validity  of  parol  to  deal  in  real  property. — See  4  L. 
N.  S.   427. 

Same — What  constitutes  partnership  to  deal  in. — See  5  L.  N. 
S.  503. 

Partnership  to  deal  in  real  estate — What  constitutes. — See  5 
L.  N.   S.   503. 

Same — Validity  of  parol. — See  4  L.  N.  S.  427. 

Person  as  to  whom  ostensible  partner  is  estopped  to  deny 
partnership  relation. — See   10  A.  C.   135. 

Power  of  one  partner — To  assign  partnership  real  estate  for 
benefit  of  creditors. — See  28  L.  97. 

Same — To    authorize   an    appearance    for   the    firm. — See    13    A. 

D.  726. 

Same — To  bind  firm  by  promissory  note  or  bill  of  exchange 
under  seal. — See   17  L.  N.  S.  969. 

Same — To  limit  the  authority  of  another. — See  88  A.  S.  322. 
Same — To  obtain  loan  on  credit  of  the  firm. — See  48  A.  S.  438. 

1243 


§  2395  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — To  sell  all  the  goods  of  the  firm. — See  30  A.  D.  290. 

Power  of  partners  to  bind  each  other. — See  4  L.  241. 

Preference — As  between  partnership  creditors  of  the  individ- 
ual partners. — See   35  A.   R.   306. 

Same — Given  by  to  one  creditor  to  the  exclusion  of  all  others. 
—See  30  A.  R.   533. 

Same — Of  firm  creditor  by  a  partner  out  of  his  own  property 
as  an  act  of  bankruptcy  by  the  firm. — See  16  L.  N.  S.   656. 

Preliminary  partnership  agreement,  action  between  partners 
on. — See   1   A.   C.    S35. 

Priority  of  firm  creditors  as  against  levy  for  individual 
debtor. — See   46  L.    494. 

Proof  of  by  general   reputation. — See   38   A.   D.   481. 

Property  of — As  to  generally,  see  4  A.  C.  601;  9  A.  C.  229. 

Same — Effect  of  deed  conveying  realty  to  partnership  in  firm 
name. — See   4  A.  C.   604. 

Same— Situs  of  interest  of  deceased  partner  in  partnership 
for  purposes  of  taxation. — See   9   A.  C.   692. 

Same — To  be  applied  to  partnership  debts. — See   6  L.   740. 

Purchase  by  one  of  the  partners  of  property  of  at  a  forced 
sale. — See   39  A.  R.  461. 

Qualification  and  limits  of  the  profit  sharing  rule. — See  18  L. 
N.    S.    1009. 

Real  estate  considered  as  partnership  property  when — Gen- 
eral  doctrine  as   to,    see   27   L.    449-496. 

Realty  held  by,  deceased  partner's  interest  in. — See  27  A. 
D.    454. 

Receiver  for — Appointment  on  in  suits  relative  to  the  part- 
nership.— See    10   A.   C.    692. 

Same — When  should  be  appointed. — See  72  A.  S.   80. 

Relation  of  retiring  party  as  surety  upon  dissolution  of  part- 
nership.— See  1   A.  C.   625. 

Removal  of  action,  because  of  separable  controversy,  in 
action  relating  to  partnership. — See  5  L.  N.  S.   89,   98. 

Right  and  position  of  creditors,  purchasers,  and  other  third 
partners  in  partnership  property,  as  to,  generally,  see  28  L. 
161-174. 

Right  of  partner  to  locate  mining  claim. — See  7  L.  N.  S.  817. 

Right  of  partners  after  sale  and  purchase  of  good-will. — See 
3   L.    770. 

Right   of    partners    to    buy    from   and    sell    to    each    other. — See 

3  L.   770. 

Right  of  partnership  creditors  to  question  validity  of  attach- 
ment.— See    35    L.    769. 

Right  of  wife  to  sue  firm  to  which  husband  belongs. — See  6 
L.    507. 

Right    to    arrest    partner    in    civil    action    or    proceeding. — See 

4  L.   N.   S.    130. 

1244 


Tit.X,ch.I,art.I.]  PARTNERSHIP.  §  2395 

Right  to  purchase  one  partner's  interest  in  real  property 
without  consent  of  the  other  partners. — See   18  L.  N.  S.   1180. 

Rights  and  liabilities  as  between  partners — As  to,  generalb', 
see  1  L.  313;  1  L.  863;  3  L.  770;  6  L.  72;  9  L.  424,  425;  11  L.  589; 
18  L.   482;  27  L>.  820;   53  L.   81. 

Same — Right  of  subrogation  of  partner  to  pay  his  firm  debts. 
— See    54    L.    614-621. 

Rights  and  liabilities  of  partners  in  sale  of  liquors — As  to 
generally,  see  8  A.  C.   275:   10  A.  C.  910. 

Same — Liability  of  partner  for  illegal  sale  of  liquor  by  co- 
partner.— See  8  A.  C.   276. 

Same — Riglits  of  partners  under  liquor  license. — See  10  A. 
C.    910. 

Rights  and  powers  of  surviving  partner. — See  6  L.  5G9;  7  L. 
481;    7   L.    788. 

Rights  and  preferences   of  creditors  of. — See   6  L.   740. 

Rights  and  remedies  of  surviving  partner. — See  7  L.   792. 

Rights  of  action  by  third  person  on  agreement  to  assume 
partnership    debts. — See    25    L.    274. 

Rights  of  administrator  of  deceased  partner. — See  7  L.  792. 

Riglits  of  estate  of  law  partner  in  compensation  for  business 
unfinished  at  time  of  his  death. — See  66  L.  821. 

Rights  of  partner  as  affected  by  sale  of  trade-mark. — See  1 
L.   N.    S.    722. 

Rights  of  partners  inter  se  in  partnership  property,  as  to 
generally,   see   28  L.   86-109. 

Rights  of  partnership,  as  against  firm  creditors,  to  sell  or 
mortgage  firm  property,  to  discharge  or  secure  individual  debt 
of   one  of  its  members. — See   2   K   N.   S.    256. 

Rights  of  surviving  partner  to  make  general  assignment. — 
See   6  L.   570. 

Separate  property  of  partners,  liability  of  for  partnership 
debts. — See  18  A.  D.  280. 

Set-off  in  bankruptcy  cases. — See   55  L.   41,   69. 

Share   of  illegal   profits,    liability. — See    11   L.    589. 

Ship,  partnership  earnings  of  admiralty  jurisdiction. — See  66 
L.    235. 

Situs  of  interest  of  deceased  partner  in  partnership  for  pur- 
poses of  taxation. — See  9  A.  C.   692. 

Special  partners,  necessity  of  joining  as  parties  to  action. — 
See    1    L.    312. 

Specific  performance  of  contract  to  give  security  to  one  part- 
ner against   liabilities   of   firm. — See   6   L.   N.   S.    590. 

Statement  of  accounts   between   partners. — See  27  L.   820. 

Statute  of  frauds,  partnership  agreements  for  purchase  and 
sale  of   land  as   being  witliin. — See   7   A.   C.    1142. 

Statutes  as  to  continuing  firm  name. — See  15  L.  466. 

Stockliolders,  partnership  liability  of  in  case  of  defective 
or   illegal   incorporation. — See   17   L.    549. 

1245 


§  2396  CIVIL  CODE.  [Div.III.Pt.IV. 

Subrogation,  right  of  partner  who  pays  firm  debts  to. — See 
54  L.    614-621. 

Sufficiency  of  notice  of  dissolution  to  former  patrons  of  part- 
nership.— See    9   A.   C.    243. 

Surviving  partner — Accounting  by. — See  7  L.   481. 

Same — Bond  required  of. — See  7  L.  794. 

Same — Continuance  of  business   by. — See  5  L.  410;   7   L.   788. 

Same — Duties  of. — See  7  L.  790. 

Same — Position  and  power  of  as  to  partnership  property. — 
See  28  L..  129-137. 

Same — Powers  and   duties   of. — See   65    A.    D.    295. 

Same — Rights  and  powers  of. — See  6  L.  569;  7  L.  481;  7  L.  788. 

Same — Rights  and  remedies  of. — See  7  L.   792. 

Same — Right  to  make  a  general  assignment. — See  6  L.   570. 

Surviving  partner's  right  to  compensation. — See  112  A.  S.  843. 

Taxation,  situs  of  interest  of  deceased  partner  in  partnership 
for  purposes  of. — See  9   A.  C.   692. 

Trade-mark,  riglits  of  partners  as  affected  by  sale  of. — See 
1   L.   N.  S.   722. 

Transfer  by  one  partner  of  his  interest  in  insured  property 
to  other  members  of  the  firm,  effect  of  as  a  prohibited  change 
or  alienation. — See   18  L.   482. 

Transfers  and  withdrawals  by  partners,  as  ground  of  attach- 
ment.— See  30  L.   486. 

Use  of  property  of  to  discharge  obligation  of  one  partner. — 
See  1  L.  N.  S.  650;  2  L.  N.  S.  256. 

Waiver   of   compensation. — See    17   L.    416. 

Warranty  as  inducement  to  co-partner  to  enter  into  a  con- 
tract as  a  promise  to  indemnify. — See  15  L.  N.  S.  1151. 

What  constitutes.— See  115  A.  S.  400;  8  L.  657;  18  L.  N.  S. 
967-1103. 

What  is  a   fictitious  name. — See  10  A.  C.   812. 

When  associations  held  to  be  partnerships. — See  3  L.  430. 

Who  may  have  judgment  against  partner  set  aside. — See  54 
L.   763. 

Wife — Power  of  to  enter  into  partnership  contract. — See  2 
L.    343. 

Same — Right  of  to  sue  firm  to  which  husband  belongs. — See 
6  L.   507. 

§2396.  SHIP-OWNERS.  Part  owners  of  a  ship  do  not, 
by  simply  using  it  in  a  joint  enterprise,  become  partners 
as  to  the  ship. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.   C.  for   5   pars,  annotation. 
75  C.  566,  568,  569,  17  P.  702,  703   (applied,  cited,  construed). 

1246 


Tit.X,ch.I,art.I.]  foundation  of.  §  2397 

As  to  actions  for  accounting  in  general,  see  Kerr's  Cyc.  C. 
C.    §  2412   and    note. 

As  to  liabilities  of  part  owners  of  vessels,  see  88  A.  D.  364-368. 

As  to  liability  of  ship-owners,  see  13  A.  D.  320. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  partnership  between  co-owners  of  vessels,  see  90  A. 
S.   361-365. 

§2397.     FORMATION  OF  PARTNERSHIP.     A  partnership 
can  be  formed  onlj^  by  the  consent  of  all  the  parties  thereto, 
and  therefore  no  new  partner  can  be  admitted  into  a  part- 
nership without  the  consent  of  every  existing  member  thereof. 
History:     Enacted  March   21,   1872. 

See  'Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

As  to  assumption  of  firm  debt  by  incoming  partner,  see  25 
L.    274,    275. 

As  to  lands  owned  by  partner  prior  to  partnership  and  posi- 
tion of  incoming  partner,  see  27  L.   485,  486. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  power  of  partner  in  mining  partnership  to  convey  inter- 
est without  dissolving  partnership,  see  Kerr's  Cyc.  C.  C.  §  2516 
and   note. 

As  to  right  of  action  upon  indebtedness  assumed  by  incom- 
ing partner,   see   25  L.   274. 


1247 


§§  2401,  2402  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE    II. 

PARTNERSHIP    PROPERTY. 

§  2401.  Partnership    property,    what. 

§  2402.  Partner's    interest   in   partnership    property. 

§  2403.  Partner's   sliare   in   profits  and  losses. 

§  2404.  vVlicn    division   of   losses   implied. 

§  2405.  Partner   may    require   application    of   partnership    prop- 
erty to   payment   of  debts. 

§  2406.  What  property  is  partnership  property  by  presumption. 

§2401.  PARTNERSHIP  PROPERTY,  WHAT.  The  prop- 
erty of  a  partnership  consists  of  all  that  is  contributed  to 
the  common  stock  at  the  formation  of  the  partnership,  and 
all  that  is  subsequently  acquired  thereby. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.  for  22   pars,   annotation. 

104  C.  302,  305,  37  P.  1048,  38  P.  109   (construed  and  applied). 

As  to  exemptions  of  property  from  execution,  see  1  A.  S. 
593-595. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  moneys  loaned  by  partner  to  co-partner  not  being 
partnership  transaction,  see  Kerr's  Cyc.  C.  C.  §  2412  and  note. 

As  to  partnership  interests,  interests  in  common,  etc.,  see 
Kerr's  Cyc.  C.  C.   §  682  and  note. 

As  to  pledge  of  partnership  securities,  see  Kerr's  Cyc.  C.  C. 
§§  2986,    2987. 

As  to  property  claimed  as  homestead,  see  70  A.  S.   114,  115. 

As  to  rights  of  purchaser  of  real  property  owned  by  part- 
nership, but  standing  in  name  of  one  partner,  as  against 
equities  of  surviving  partner,  see  Kerr's  Cyc.  C.  C.  §  2450  and 
note. 

As  to  trust  funds  of  partnership,  see  32  A.  S.  129,  130,  67  A. 
S.    44-46. 

§2402.  PARTNER'S  INTEREST  IN  PARTNERSHIP 
PROPERTY.  The  interest  of  each  member  of  a  partnership 
extends  to  every  portion  of  its  property. 

History:     Enacted  March  21,   1872. 
1248 


Tit.X,ch.I,art.II.]         PROFITS  and  loss.  §§  2403, 2404 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

104  C.  302,  305,  37  P.  1048,  38  P.  109  (construed  and  applied 
with  other  sections);  123  C.  482,  487,  56  P.  251;  147  C.  546,  549, 
82   P.    196    (cited). 

As  to  interest  of  each  member  of  partnership,  liability,  etc., 
see  57  A.  S.   436-444. 

As  to  lien  of  mining  partner  extending  to  partnership  prop- 
erty and  existing  in  favor  of  all  partners,  whether  in  actual 
possession  or  not,  see  Kerr's  Cyc.  C.  C.  §  2514  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  property  qualifications  of  juror,  see  Kerr's  Cyc.  C.  C. 
P.    §  205    and    note. 


§2403.    PARTNER'S  SHARE  IX  PROFITS  A>D  LOSSES. 

In  the  absence  of  any  agreement  on  the  subject  the  shares 
of  partners  in  the  profit  or  loss  of  the  business  are  equal, 
and  the  share  of  each  in  the  partnership  property  is  the 
value  of  ^  his  original  contribution,  increased  or  diminished 
by  his  share  of  profit  or  loss. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

56  C.  446,  450  (construed  and  applied);  104  C.  302,  305,  37  P. 
1048,  38  P.  109   (construed  and  applied  with  other  sections). 

As  to  actions  for  accounting  between  partners  and  as  to 
duty  to  account,  see  Kerr's  Cyc.  C.  C.  §  2412  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  profits  and  losses  in  mining  partnerships,  see  Kerr's 
Cyc.  C.  C.   §  2513  and  note. 

As  to  profit  made  after  dissolution,  see  40  A.  S.   571. 


§2404.  WHEN  DIVISION  OF  LOSSES  IMPLIED.  An 
agreement  to  divide  tlie  ])rofits  of  a  business  implies  an 
agreement  for  a  corresponding  division  of  its  losses,  unless 
it  is  otherwise  expressly   stipulated. 

History:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

81  C.  14,  15,  22  P.  264,  265   (construed  and  applied);   89  C.  526, 
534,   26   P.    1087,    1089    (construed   and  applied);    122   C.    3,    12.    54 
P.   372    (construed  as  not  applying). 
Kerr's    C.    C. — 40  1249 


§§  2405, 2406  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  lease  of  land  providing  for  sharing-  of  profits  not  creat- 
ing partnersliip,  see  Kerr's  Cyc.  C.  C.  §  2395  and  note  par.  25. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2405.  PARTNER  MAY  REQUIRE  APPLICATION^  OF 
PARTNERSHIP  PROPERTY  TO  PAYMENT  OF  DEBTS. 

Each  member  of  a  partnership  may  require  its  property  to 
be  app3-'°i  to  the  discharge  of  its  debts,  and  has  a  lien  upon 
the   shares  of  the  other  partners   for   this   purpose,   and  for 
the  payment  of  the  general  balance  if  any  due  to  him. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

58  C.  449,  456  (construed  and  applied);  48  P.  222  (construed 
and  applied). 

As  to  attachment  of  partnership  property  by  creditors  of 
individual  partners,  see  43  A.  S.  371,  372;  57  A.  S.  442. 

As  to  contribution   between   partners,   see   1   L.    312,    313. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  preference  in  favor  of  partnership  creditors,  see  43  A.  S. 
371;  58  A.  S.  91,  92. 

As  to  preference  of  partnership  creditors  over  individual 
creditors,  see   28  L.   165-169. 

As  to  real  property  of  partnership,  right  of  creditor  to  pur- 
sue remedies  against,  see  43  A.  S.  377-380. 

As  to  rights  of  judgment  creditors  against  partnership  prop- 
erty, see  28  L.   170-172. 

As  to  separate  property  of  partner,  proceedings  against,  etc., 
see  43  A.  S.  365,  368. 

As  to  subrogation  against  copartner  by  partner  who  pays  a 
firm  debt,  see  54  L.  614-622. 

§2406.  WHAT  PROPERTY  IS  PARTNERSHIP  PROP- 
ERTY BY  PRESUMPTION.  Property,  whether  real  or  per- 
sonal, acquired  with  partnership  funds,  is-  presumed  to  be 
partnership  property. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415, 
held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 
As   to   many  miscellaneous   matters  as   to   partnership   gener- 
ally, see  note  §  2395,  ante. 

1250 


Tit.X,ch.I,art.III.]    mutual  obligations.  §  2410 

As  to  parol  agreement  to  deal  In  real  estate,  see  48  A.  S.  65. 

As  to  partnership  real  estate,  rights  of  partners  inter  se 
therein,  etc.,  see  28  L.  86-108. 

As  to  real  estate  acquired  bj'  partners  before  commencement 
of  partnership,   see  48  A.  S.  68. 

As  to  real  estate,  application  thereof  to  partnership  debts, 
etc.,  see  ante  §  2405  and  note  par.  13,  and  98  A.  D.  198;  27  A.  R. 
270;  54  A.  R.  798;  48  A.  S.  67-75. 

As  to  resulting  trust  arising  in  favor  of  partnership  where 
real  estate  is  purchased  with  partnership  funds,  see  Kerr's 
Cyc.  C.  C.  §  853  and  note  par.  55. 


ARTICLE  III. 

MUTUAL    OBLIGATION    OF    PARTNERS. 

§  2410.  Partners  trustees  for  each   other. 

§  2411.  Good  faith  to  be  observed  between  them. 

§  2412.  Mutual   liability   of  partners  to  account. 

§r2413.  No  compensation  for  services  to  firm. 

§  2410.    PARTNERS  TRUSTEES  FOR  EACH  OTHER.   The 

relations  of  partners  are  confidential.  They  are  trustees 
for  each  other  within  the  meaning  of  chapter  one  of  the  title 
on  trusts,  and  their  obligations  as  such  trustees  are  defined 
by  that  chapter. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

48  P.  1086,  1087   (construed  and  applied  with  §2411). 

As  to  confidential  relations  and  trusts  in  general,  see  Kerr's 
Cyc.  C.  C.  §§  2215,  2224  and  notes. 

As  to  confidential  relations  of  partners,  see  ante  §  2219  and 
note  post  §  2411  and  note;  also  100  A.  D.  636;  39  A.  R.  461,  463. 

As  to  involuntary  trustee  of  property  transferred  in  viola- 
tion of  trust,  see  Kerr's  Cyc.  C.  C.  §  2243  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  partner  availing  himself  of  confidential  relation  witli 
copartner  in  purcliasing  real  property,  see  Kerr's  Cyc.  C.  C. 
§  2223  and  note  par.   17,  §  2406  and  note  pars.  2-7. 

As  to  resulting  trust,  when  arises  in  favor  of  partners,  see 
Kerr's  Cyc.  C.  C.  §  2224  and  note  pars.  95-97. 

As  to  trust,  when  not  created  as  between  partners  by  deed 
absolute,  see  Kerr's  Cyc.  C.  C.  §  2224,  par.  106. 

As  to  trustee's  duty  not  to  use  trust  property  for  individual 
profit,  see  Kerr's  Cyc.  C.  C.  §  2229  and  note. 

1251 


§§2411,2412  CIVIL  CODE.  [Div.III,Pt.IV. 

§2411.  GOOD  FAITH  TO  BE  OBSERVED  BETWEEN 
THEM.  In  all  proceedings  connected  with  the  formation, 
conduct,  dissolution,  and  liquidation  of  a  partnership,  every 
partner  is  bound  to  act  in  the  highest  good  faith  toward  his 
copartners.  He  may  not  obtain  any  advantage  over  them  in 
the  partnership  affairs  by  the  slightest  misrepresentation, 
concealment,  threat,  or  adverse  pressure  of  any  kind. 
Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

48  P.  1086,  1087  (construed  and  applied);  122  C.  456,  460,  55 
P.  246  (construed  and  applied);  136  C.  460,  463,  69  P.  83  (con- 
strued and  applied);  4  C.  A.  438,  442,  88  P.  510  (partners  will  not 
be  allowed  to  obtain  any  advantage  over  each  other  by  mis- 
representation or  concealment). 

As  to  contracts  between  partners  in  anticipation  of  dissolu- 
tion of  partnership,  agreeing-  that  none  of  them  will  carry  on 
similar  business  within  specified  place,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  1675  and  note. 

As  to  contracts  of  partners  with  copartner  in  restraint  of 
carrying  on  similar  business,  see  Kerr's  Cyc.  C.  C.  §  1674  and 
note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2412.  MUTUAL  LIABILITY  OF  PARTNERS  TO  AC- 
COUNT. Each  member  of  a  partnership  must  account  to  it 
for  everything  that  he  receives  on  account  thereof,  and  is 
entitled  to  reimbursement  therefrom  for  everything  that  he 
properly  expends  for  the  benefit  thereof,  and  to  be  indemni- 
fied thereby  for  all  losses  and  risks  which  he  necessarily 
incurs  on  its  behalf. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

78  C.   225,   231,   20  P.   547,   550    (construed  and  applied). 

As  to  accounting  following  dissolution  of  partnership,  see 
Kerr's  Cyc.  C.  C.  §  2450  and  note. 

As  to  allowance  or  disallowance  of  interest  in  partnersliip 
accounting,  see  9  L.  425. 

As  to  duty  and  obligations  of  trustees  in  general,  see  Kerr's 
Cyc.  C.  C.  §§  2228-2239  and  notes. 

As   to   duty   of  partner   to  act   in   highest   good   faith   towards 

1252 


Tit.X,ch.I,art.III.]  COMPENSATION.  §  2413 

copartner,  and  as  to  continuance  of  this  duty  until  jli^BSolution 
and  liquidation  of  partnership  affairs,  see  Kerr  s  Cyc.  C.  C. 
S  2411  and  note  par.  4. 

As  to  general  partner  as  agent  for  partnership,  authority  of, 
etc     see  Kerr's  Cyc.  C.  C.   §  2429  and  note. 

As  to  inability  of  surviving  partner  to  collect  from  general 
astets  Of  partne^r-s  estate  debt  due  by  decedent  to  Partne-liip. 
without  first  ascertaining  partnership  assets,  see  Kerr  s  Cj  c. 
C    C    P.  §  1585  and  note.  . 

As  to  many  miscellaneous  matters  as  to  partnership,  gener- 
ally, see  note  §  2395,  ante. 

As   to   mining   partnerships   in   general,   see   Kerr  s   Cj  c.    C.   C. 

§5  2511  et  seq.  and  notes.  ^   -^     ^f  ^nrt 

As  to  right  of  partner  to  make  investments  outside  of  pait- 
nership  affairs,  see  Kerr's  Cyc.  C.  C.  §  2411  and  note. 

Ts  to  right  of  representatives  of  deceased  partner  to  compel 
executor  of  last  surviving  partner  to  account  upon  dissolution 
of  partnership,  by  reason  of  death  of  partner,  see  Kerr's  Cyc. 
C.  C.  §  2450  and  note. 

As  to  share  of  profits   illegally  acquired,  generally,   see  11  L. 

As  to  statements  of  account  between  partners,  see  27  L.  820. 
As  to   statute  of  limitations   in   suits  for  accounting  between 
partners,  see  40  A.  S.  574-576.  r-    r-    P 

As  to  venue  for  action  for  accounting,  see  Kerr  s  Cyc.  C.  C.  f. 

§  395  and  note. 

§2413.    m   COMPENSATION   FOR   SERVICES   TO   FIRM. 

A  partner  is  not  entitled  to  any  compensation  for  services 
rendered  by  him  to  the  partnership. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11   pars,  annotation. 

fs  C  466,  4n.  58  A.  R.  17.  9  P.  731,  734  (construed  and 
applied);  135  C.  561,  564,  67  P.  1054  (construed  and  applied). 

AS  to  compensation  for  services  to  firm,  when  partner  entitled 
to,  etc.,  see  6  L.  72;  9  L.  424,  425. 

ks   to    compensation    of   surviving   partner,    generally,    see    40 

^'as   to   many   miscellaneous   matters   as   to   partnership    gener- 
ally, see  note  §  2395,  ante. 


1253 


§§  2417,  2418  CIVIL.  CODE.  [Div.III.Pt.IV. 

ARTICLE  IV. 

RENUNCIATION    OF    PARTNERSHIP. 

§  2417.     Renunciation  of  future  profits  exonerates  from  liability. 
§  2418.      Effect  of  renunciation. 

§2417.  RENUNCIATION  OF  FUTURE  PROFITS  EXON- 
ERATES  FROM  LIABILITY.  A  partner  may  exonerate  him- 
self from  all  future  liability  to  a  third  person,  on  account 
of  the  partnership,  by  renouncing,  in  good  faith,  all  partici- 
pation in  its  future  profits,  and  giving  notice  to  such  third 
person,  and  to  his  own  copartners,  that  he  has  made  such 
renunciation,  and  that,  so  far  as  may  be  in  his  power,  he 
dissolves  the  partnership  and  does  not  intend  to  be  liable  on 
account  thereof  for  the  future. 

History:     Enacted  March  21,  1872. 

As  to  judgment  of  dissolution,  and  when  general  partner 
entitled  to,  see  Kerr's  Cyc.  C.  C.  §  2452  and  note. 

As  to  liability  of  general  partner,  how  long  continues,  see 
Kerr's  Cyc.  C.  C.  §  2453  and  note. 

As  to  liquidation  of  general  partnership,  see  Kerr's  Cyc.  C.  C. 
§§  2458-2462  and  notes. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  notice  of  termination  of  liability,  see  Kerr's  Cyc.  C.  C. 
§  2453  and  note. 

As  to  partial  dissolution  of  partnership,  see  Kerr's  Cyc.  C.  C. 
§  2451  and  note. 

As  to  partnership,  duration  of,  see  Kerr's  Cyc.  C.  C.  §  2449  and 
note. 

As  to  total  dissolution  of  partnership,  see  Kerr's  .Cyc.  C.  C. 
§  2450  and  note. 

§2418.  EFFECT  OF  RENUNCIATION.  After  a  partner 
has  given  notice  of  his  renunciation  of  the  partnership,  he 
cannot  claim  any  of  its  subsequent  profits,  and  his  copart- 
ners may  proceed  to  dissolve  the  partnership. 

History:     Enacted  March  21,  1872. 

As  to  dissolution  of  partnership,  notice  of,  etc.,  see  Kerr's 
Cyc.  C.  C.  §  2453  and  note. 

1254 


Tit.X,cll.II,art.I.]  GENERAL.  §  2424 

As   to  many   miscellaneous  matters   as   to   partnership    gener- 
lly,  see  note  §  2395,  ante. 
As   to   notice   of  renunciat 

C.  C.  §§  2417,  2453  and  notes. 


nllv    see  note  ?  2395,  ante.  ,      _ 

1;   to   notice  of  renunciation,   effect   of.   etc..   see   Kerr's  Cyc. 


CHAPTER   II. 

GENERAL  PARTNERSHIP. 

Article  I.  What  is  a  General  Partnership,  §  2424. 

II.  Powers  and  Authority  of  Partners,  §§  2428-2431. 

III.  Mutual  Obligations  of  Partners,  §§  2435-2438. 

IV.  Liability  of  Partners,  §§  2442-2445. 

V.     Termination  of  Partnership,  §§  2449-2454. 
VI. .  Liquidation,  §§  2458-2462. 
VII.  *  Of  the  Use  of  Fictitious  Names,  §§  2466-2472. 

ARTICLE  I. 
WHAT  IS  A  GENERAL  PARTNERSHIP. 
§  2424.     General   partnership,  what. 

§2424.  GENERAL  PARTNERSHIP,  WHAT.  Every  part- 
nership that  is  not  formed  in  accordance  with  the  law  con- 
cerning special  or  mining  partnerships,  and  every  special 
partnership,  so  far  only  as  the  general  partners  are  con- 
cerned, is  a  general  partnership. 

HiMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

74  C.   418,  419,  16  P.   196. 

As  to  certificates  designating  names  of  partners,  etc.,  see 
Kerr's  Cyc.  C.  C.   |§  2466-2471  and  notes.  ,«-..    K.^rr's 

As  to  general  partners,  powers  and  authority  of.  see  Ktrr  s 
Cyc.  C.  C.  §S  2428-2431  and  notes.  ,     n  ..    n   r    ii  "44'^ 

As  to  liability  of  general  partners,  see  Kerr  s  C>c.  C.  C.  S§  -"-. 

24  45  and  notes.  T.-„^,..a 

As  to  limitations  of  authority  of  general   partner,  sec  Kerr  s 

Cvc    C.  C.  §  2430  and  note. 

As  to  liquidation  of  general  partnership  following  dissolution, 
see  K.^rr's  Cyc.  C.  C.  §§  2458-2462  and  notes. 

1255 


§2424  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  mining  partnership,  see  Kerr's  Cyc.  C.  C.  §§  2511,  2520 
and  notes. 

As  to  mutual  obligations  of  general  partners,  see  Kerr's  Cyc. 
C.  C.  §§  2435-2438  and  notes. 

As  to  special  matters,  liability  of,  see  Kerr's  Cyc.  C.  C.  §§  2500- 
2503  and  notes. 

As  to  special  partners,  rights,  powers,  and  duties  of,  etc.,  see 
Kerr's  Cyc.  C.  C.  §§  2489-2496  and  notes. 

As  to  special  partnership,  admission  of  new  members  therein, 
etc.,  see  Kerr's  Cyc.  C.  C.  §  2508  and  note. 

As  to  special  partnership,  dissolution  of,  etc.,  see  Kerr's  Cyc. 
C.  C.  §  2509  and  note. 

As  to  special  partnership,  formation  of,  etc.,  see  Kerr's  Cyc. 
C.  C.  §§  2477-2485  and  notes. 

As  to  special  partnership,  when  becomes  general  partnership, 
see  Kerr's  Cyc.  C.  C.  §  2507  and  note. 

As  to  termination  or  dissolution  of  general  partnership,  in 
whole  or  in  part,  see  Kerr's  Cyc.  C.  C.  §§  2449-2454  and  notes. 

As  to  word  "limited,"  use  of,  etc.,  in  partnership  name,  see 
Kerr's  Cyc.  C.  C.  §  2510  and  note. 


1256 


TitX.ch.II.art.II.]    POWER  OF  majority.  §§  2428,  2429 

ARTICLE   II. 

POWERS  AND  AUTHORITY  OF  PARTNERS. 

§  2428.  Power   of  majority   of  partners. 

§  2429.  Authority   of   individual   partner. 

§  2430.  What  authority  partner  has  not. 

§  2431.  Partner's  acts  in   bad  faith,  when  ineffectual. 

§2428.  POWER  OF  MAJOKITY  OF  PARTNERS.  Unless 
otherwise  expressly  stipulated,  the  decision  of  the  majority 
of  the  members  of  a  general  partnership  binds  it  in  the  con- 
duct of  its^  business. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

78  C.  225,  229,  20  P.  547,  549   (construed  and  applied). 

As  to  authority  and  powers  of  partner  in  liquidation,  see 
Kerr's  Cyc.  C.  C.  §§  2461,  2462  and  notes. 

As  to  authority  of  any  general  partner  to  bind  copartnership, 
see  Kerr's  Cyc.  C.  C.  §  2429  and  note. 

As  to  implied  authority  of  partner  to  incur  debt,  see  48  A.  S. 
438. 

As  to  limitations  upon  authority  of  general  partner  to  act  for 
partnership,  see  Kerr's  Cyc.  C.  C.  §  2430  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership,  gener- 
ally, see  note  §  2395,  ante. 

As  to  mining  partnership,  rule  as  to  conduct  of  business,  see 
Kerr's  Cyc.  C.  C.  §  2520  and  note. 

As  to  notes  signed  by  partners  in  their  individual  names,  see 
87  A.  D.  535. 

As  to  partner  signing  note  of  surety,  see  45  A.  D.  302. 

As  to  power  of  one  partner  to  bind  firm,  see  12  A.  S.  304,  305. 

As  to  power  of  one  partner  to  restrict  authority  of  copartner, 
see  88  A.  S.  322-324. 

§  2429.  AUTHORITY  OF  INDIVIDUAL  PARTNER.  Every 
general  partner  is  agent  for  the  partnership  in  the  transac- 
tion of  its  business,  and  has  authority  to  do  whatever  is 
necessary  to  carry  on  such  business  in  the  ordinary  manner, 
and  for  this  purpose  may  bind  his  copartners  by  an  agree- 
ment  in   writing. 

History:     Enacted  March   21,  1872. 
1257 


§  2430  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

65  C.  559,  560  (applied);  4  P.  567;  71  C.  498,  502,  12  P.  505,  507  (con- 
strued and  applied) ;  89  C.  526,  534,  26  P.  1087,  1089  (construed  and 
applied);  3  C.  A.  493,  495,  86  P.  618  (partner  is  agent  of  his 
copartner,  as  to  all  partnership  transactions). 

As  to  authority  of  individual  partner  to  dispose  of  firm  prop- 
erty in  g-eneral,  see  7  A.  S.  377,  379;  88  A.  S.  323. 

As  +0  authority  of  partner  to  execute  note  for  partnership 
indebtedness,  see  48  A.  S.  441. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  revoking  act  of  partner,  see  88  A.  S.  323,  324. 


§2430.    WHAT    AUTHORITY    PARTNER    HAS    NOT.     A 

partner,  as  such,  has  not  authority  to  do  any  of  the  follow- 
ing acts,  unless  his  copartners  have  wholly  abandoned  the 
business  to  him,  or  are  incapable  of  acting: 

1.  To  make  an  assignment  of  the  partnership  property  or 
any  portion  thereof  to  a  creditor,  or  to  a  third  person  in 
trust  for  the  benefit  of  a  creditor  or  of  all  creditors; 

2.  To  dispose  of  the  good  will  of  the  business; 

3.  To  dispose  of  the  whole  of  the  partnership  property 
at  once,   unless   it  consists   entirely   of  merchandise; 

4.  To  do  any  act  which  would  make  it  impossible  to  carry 
on  the  ordinary  business  of  the  partnership; 

5.  To  confess  a  judgment; 

6.  To  submit  a  partnership  claim  to  arbitration; 

7.  To  do  any  other  act  not  within  the  scope  of  the  pre- 
ceding section. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

4  P.  446,  447  (construed  and  applied);  65  C.  559,  560,  4  P.  567 
(construed  and  applied);  71  C.  498,  502,  12  P.  505,  507  (construed 
and  applied);  80  C.  320,  321,  22  P.  194  (construed  and  applied); 
81  C.  14,  17,  22  P.  264,  265  (cited,  construed,  and  applied);  90  C. 
84,  87  (applied);  27  P.  58,  59;  124  C.  429,  432  (applied);  71  A.  S. 
94,   57  P.   468,   46  L.   142. 

As  to  assignment  by  partnership  for  benefit  of  creditors,  see 
50  A.  S.  90-92. 

As  to  general  partner  as  agent  for  partnership,  see  Kerr's 
Cyc.  C.  C.  §  2429  and  note. 

1258 


Tit.X,ch.II,art.II.]       ACTS  IN  BAD  FAITH.  §  2431 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  sale  of  good-will  of  business  and  warranty  that  vendor 
will  not  endeavor  to  draw  off  any  of  customers,  see  Kerr's  Cyc. 
C.  C.  §  1776  and  note. 

§2431.  PARTNER'S  ACTS  IN  BAD  FAITH,  WHEN  IN- 
EFFECTUAL.  A  partner  is  not  bound  by  any  act  of  a  co- 
partner, in  bad  faith  toward  him,  though  within  the  scope 
of  the  partner's  powers,  except  in  favor  of  persons  who  have 
in  good  faith  parted  with  value  in  reliance  upon  such  act. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

131  C.  6,  7,  63  P.  61  (construed  and  applied);  3  C.  A.  493,  495, 
86  P.  618  (applied  to  breach  of  confidential  relation  and  fraud 
in  purchase  of  mine,  by  analogy,  though  parties  were  not 
partners). 

As  to  acts  of  agents  in  general  and  liability  of  principal  there- 
for, see  Kerr's  Cyc.  C.  C.  §  2330  and  note. 

As  to  good  faith  of  partner  towards  copartners,  see  Kerr's 
Cyc.  C.  C.  §  2411  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  note  made  by  partner  in  firm  name  for  private  use 
being  good  in  hands  of  innocent  holder,  see  Kerr's  Cyc.  C.  C. 
§  2429  and  note  par.  9. 


1259 


§§  2435, 2436  CIVIL,  CODE.  [Div.III.Pt.IV. 

ARTICLE  III. 
MUTUAL    OBLIGATIONS    OF    PARTNERS. 

§  2435.  Profits  of  individual  partner. 

§  2436.  In  what  business  partner  may  not  engage. 

S  ?  '37.  In   what  he   may   engage. 

§  2438.  Must  account  to  firm  for  profits. 

§  2435.  PROFITS  OF  INDIVIDUAL  PARTNER.  All  profits 
made  by  a  general  partner,  in  the  course  of  any  business 
usually  carried  on  by  the  partnership,  belong  to  the  firm. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

109  C.  130,  132,  41  P.  859  (construed  and  applied  with  other 
sections). 

As  to  confidential  relations  between  partners,  see  Kerr's  Cyc. 
C.  C.   §  2410  and  note. 

As  to  duty  of  general  partner  to  account  for  all  profits  made 
in  course  of  adverse  business,  see  Kerr's  Cyc.  C.  C.  §  2438  and 
note. 

As  to  duty  of  partner  to  act  in  highest  good  faith  toward 
copartners,  see  Kerr's  Cyc.  C.  C.  §  2411  and  note. 

As  to  duty  of  partners  to  account  for  all  profits  of  partner- 
ship business,  see  Kerr's  Cyc.  C.  C.  §  S412  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2436.  IN  WHAT  BUSINESS  PARTNER  MAT  NOT  EN- 
GAGE, A  general  partner,  who  agrees  to  give  his  personal 
attention  to  the  business  of  the  partnership,  may"  not  engage 
in  any  business  which  gives  him  an  interest  adverse  to  that 
of  the  partnership,  or  which  prevents  him  from  giving  to 
such  business  all  the  attention  which  would  be  advantageous 
to  it. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

109  C.  130,  132,  41  P.  859  (construed  and  applied  with  other 
sections). 

As  to  confidential  relations  of  partners,  see  Kerr's  Cyc.  C.  C. 
§  2410  and  note. 

1260 


Tit.X,ch.II,art.III.]      accounting  to  firm.  §§  2437,  2438 

As  to  duty  of  partner  to  exercise  highest  good  faith  towards 
copartners,  see  Kerr's  Cyc.  C.  C.   §  2411  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2137.  IN  WHAT  HE  MAY  ENGAGE.  A  partner  may 
engage  in  any  separate  business,  except  as  otherwise  pro- 
vided by  the  last  two  sections. 

History:     Enacted  March   21,   1872. 

109  C.  130,  132,  41  P.  859  (construed  and  applied  with  other 
sections).   » 

As  to  duty  of  general  partner  not  to  engage  in  business 
adverse  to  partnership,  see  Kerr's  Cyc.  C.  C.  §  2436  and  note 
par.  2. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  obligation  of  general  partner  to  account  for  profits  of 
adverse   business,  see  Kerr's  Cyc.  C.   C.   §  2438  and  note. 

§2438.    MUST    ACCOUNT    TO    FIRM    FOR    PROFITS.      A 

general  partner  transacting  business  contrary  to  the  provi- 
sions of  this  article  may  be  required  by  any  copartner  to 
account  to  the  partnership  for  the  profits  of  such  business. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

109  C.  130,  132,  41  P.  859  (construed  and  applied  with  other 
sections). 

As  to  accounting  to  partnership  for  all  receipts  and  disburse- 
ments in  partnership  business,  see  Kerr's  Cyc.  C.  C.  §  2412  and 
note. 

As  to  liability  of  partner  to  account  for  profits  of  adverse 
business,  see  Kerr's  Cyc.  C.  C.  §§  2412,  2436  and  notes. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 


1261 


§2442  CIVIL  CODE.  [Div.IILPt.IV. 

ARTICLE  IV. 

LIABILITY    OF    PARTNERS. 

§2442.  Liability  of  partners  to  third  persons. 

§  2443.  Liability  for  each  other's  acts  as  agents. 

§  2444.  Liability  of  one  held  out  as  partner. 

§  2445.  No  one  liable  as  partner  unless  held  out  as  such. 

§  2442.   LIABILITY  OF  PARTNERS  TO  THIRD  PERSONS. 

Every  general  partner  is  liable  to  third  persons  for  all  the 
obligations  of  the  partnership,  jointly  with  his  copartners. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

63  C.  157,  158  (construed  and  applied);  69  C.  616,  618,  620,  11 
P.  456,  458  (construed  and  applied);  89  C.  367,  370.  26  P.  970,  971 
(construed  and  applied);  89  C.  526,  534,  26  P.  1087,  1089  (con- 
strued and  applied). 

As  to  actions  against  parties  to  joint  contract  or  upon  joint 
liabilitj%  see  Kerr's  Cyc.  C.  C.  P.  §  382  and  note. 

As  to  actions  at  option  of  plaintiff  against  persons  jointly 
liable  upon  obligations,  see  Kerr's  Cyc.  C.  C.  P.  §  338  and  note. 

As  to  application  by  bank  of  individual  partners'  deposit  on 
Arm  debt,  see  23  L.  111. 

As  to  assignment  of  lien  for  materials,  etc.,  furnished  by 
partnership,  see  Kerr's  Cyc.  C.  C.  P.  §  1183  and  note. 

As  to  assumption  of  firm  debts  by  incoming  partner,  see 
Kerr's  Cyc.  C.  C.   §  2397  and  note. 

As  to  assumption  by  partnership  of  individual  debts  of  part- 
ners, see  29  L.  681-694. 

As  to  attachment  of  individual  property  of  one  partner  for 
fraud  of  his  copartner,  see  25  L.  645. 

As  to  bankruptcy  of  partnership,  see  §  5  (e  and  h)  of  Bank- 
ruptcy Act  of  1899,  30  Stats,  at  L.  547,  548,  U.  S.  Comp.  Stats. 
1901,  p.  3424,  1  F.  S.  A.  550,  551  and  note. 

As  to  conduct  of  business  of  mining  partnership  by  decision 
of  members  owning  majority  of  shares  or  interest,  see  Kerr's 
Cyc.  C.  C.  §  2520  and  note. 

As  to  defenses  of  maker  of  partnership  paper,  see  46  L.  771. 

As  to  demurrers  for  defect  of  parties  -plaintiff,  see  Kerr's 
Cyc.  C.  C.  P.  §  430  subd.  4  and  note. 

As  to  execution  by  creditors,  see  43  A.  S.  371,  372;  57  A.  S. 
440,  441. 

1262 


» 


Tit.X.ch.II.art.IV.]        liability  for  acts.  §  2443 

As  to  injunction  against  execution  sale  of  partnership  prop- 
erty, see  30  L.   98,  105,   106. 

As  to  liability  of  firm  for  fraud  of  one  partner,  see   67   A.  S. 

46-49. 

As  to  liability  of  partners  as  makers  or  indorsers  of  promis- 
sory notes,  see  36  L.  703,  704. 

As  to  liability  of  partnership  for  torts,  see  15  L.  463-496. 

As  to  liens  claimed  by  partnerships  for  materials,  etc.,  see 
Kerr's  Cyc.  C.  C.  P.  §  1183  and  note. 

As  to  lien  of  each  member  of  mining  partnership  for  debts 
due  creditors  and  for  moneys  advanced  by  him  for  use  of  part- 
nership, see  Kerr's  Cyc.  C.  C.  §  2514  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As    to    partnership    assignment    for    benefit    of    creditors,    see 

As  to' payment  of  individual  debt  with  partnership  property, 
see  7  A.  S.  377-380. 

As  to  proceedings  against  joint  debtors  in  general,  see  Kerr's 
Cyc.  C.  C.  P.  §§  989,  994  and  notes. 

As  to  release  of  one  of  two  or  more  joint  debtors  not  ex- 
tinguishing obligation  of  others,  unless  mere  guarantors,  etc., 
see  Kerr's  Cyc.  C.  C.  §  1543  and  note. 

As  to  rights  of  creditors,  purchasers,  and  other  third  parties 
in  partnership  real  estate,  see  28  L.  161-175. 

As  to  rule  that  several  persons  contracting  together  with  same 
party  for  one  and  same  act  shall  be  regarded  as  jointly  and  not 
individually  or  separately  liable  in  absence  of  agreement  to  the 
contrary,  see  Kerr's  Cyc.  C.  C.  §§  1430,  1431  and  notes. 

§2443.    LIABILITY     FOR     EACH     OTHER'S     ACTS     AS 

AGrENTS.     The  liability  of  general  partners  for  each  other's 
acts  is  defined  by  the  title  on  agency. 

History:     Enacted  March  21,  1872 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

89  C.  526,  534,  26  P.  1087,  1089  (construed  and  applied);  114 
C.  396,  399,  46  P.  290  (construed  and  applied);  131  C.  6,  7,  63  P.  61 
(construed  and  applied). 

As  to  acts  of  partner  and  liability  of  copartners  therefor 
within  scope  of  actual  or  ostensible  authority,  see  Kerr's  Cyc. 
C    C.  §§  2330,  2431  and  notes. 

As  to  agency  in  general,  authority  of  agents,  etc.,  see  Kerr  s 
Cyc.  C.  C.  §§  2304-2326  and  notes. 

As  to  application  of  rules  of  liability  of  partner  for  particular 
crimes  and  offenses  of  copartner,  see  41  L.  652-661. 

1263 


§  2444  CIVIL,  CODE.  [Div.III,Pt.IV. 

As  to  evidence,  presumption,  and  burden  of  proof  relating  to 
liability  of  partner,  etc.,  see  41  L.  672-676. 

As  to  general  partner  as  agent  for  partnership,  etc.,  see  Kerr's 
Cyc.  C.  C.  P.  §  2429  and  note. 

As  to  general  partner,  limitation  of  authority  of,  see  Kerr's 
Cyc.  C.  C.  P.  §  2430  and  note. 

As  to  general  rules  relating  to  partner's  liability  for  acts  of 
copartner,  see  41  L.  650,  651. 

As  to  Ti.^bility  of  partner  for  libelous  publication  by  copartner, 
see  26  L.  781. 

As  to  liability  of  partnership  for  commercial  paper  executed 
by  non-trading  partner,  see  11  L.  238. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  partner's  liability  for  selling  liquor  to  minors  through 
copartner,  agents,  or  servants,  see  41  L.  666-668. 

As  to  partner's  liability  for  selling  liquor  without  license 
through  copartner  or  agent  or  servant,  see  41  L.  664,  666. 

As  to  partner's  liability  for  violation  of  liquor  laws  by  copart- 
ner, see  41  L.  661-676. 

As  to  restrictions  upon  agents,  authority  and  effect  of  notice 
thereof,  see  Kerr's  Cyc.  C.  C.  §  2318  and  note. 

As  to  tortious  acts  of  partner,  liability  for,  etc.,  see  37  A.  D. 
327;  89  A.  D.  415;  35  A.  D.  616;  82  A.  D.  395;  98  A.  D.  136. 


§2M4.    LIABILITY   OF  ONE  HELD  OUT  AS  PARTNER. 

Any  one  permitting  himself  to  be  represented  as  a  partner, 
general  or  special,  is  liable,  as  such,  to  third  persons  to 
whom  such  representation  is  communicated,  and  who,  on  the 
faith  thereof,  give  credit  to  the  partnership. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

122  C.  609,  613,  614,  55  P.  425,  426   (construed  as  not  applying); 
35  P.  309   (cited). 

As  to  estoppel  to   deny  that  one  is  partner,  see   22  A.  S.   757, 
758. 

As  to  holding  out  as  partner  and  estoppel  to  deny  partnership 
relation,  see  20  L.  598,  599. 

As   to  many   miscellaneous   matters  as   to   partnership    gener- 
ally, see  note  §  2395,  ante. 

As  to  ostensible  agency  in  general,  see  Kerr's  Cyc.  C.  C.  §  2300 
and  note. 

As  to  ostensible  authority  of  agent,  see  Kerr's  Cyc.  C.  C.  §  2317 
and  note. 

1264 


Tit.X,ch.II,art.IV.]         WHO  LIABLE  AS.  §  2445 

§2445.  NO  OXE  LIABLE  AS  PARTNER  UNLESS  HELD 
OUT  AS  SUCH.  No  one  is  liable  as  a  partner  who  is  not 
such  in  fact,  except  as  provided  in  the  last  section. 

History:     Enacted  March   21,   1872. 

122  C.  609,  613,  614,  55  P.  425,  426  (construed  and  applied  with 
other  sections). 

As  to  liability  of  general  partner  to  tliird  persons,  see  Kerr's 
Cyc.  C.  C.  §  2442  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  partnership,  definition  of,  contracts  creating,  etc.,  see 
Kerr's  Cyc.  C.  C.  §  2395  and  note. 


1265 


§§  2449, 2450  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE  V 

TERMINATION  OF  PARTNERSHIP. 

§  2449.  Duration   of  partnership. 

§  2450.  Total   dissolution    of  partnership. 

§  2451.  Partial   dissolution. 

§  2452.  Partner   entitled  to   dissolution. 

§  2453.  Notice   of   termination. 

§  2454.  Notice  by  change  of  name. 

§2449.  DURATION  OF  PARTNERSHIP.  If  no  term  is 
prescribed  by  agreement  for  its  duration,  a  general  partner- 
ship continues  until  dissolved  by  a  partner  or  by  operation 
of  law. 

History:     Enacted  March   21,   1872. 

As  to  dissolution  in  part  of  general  partnership,  see  Kerr's 
Cyc.  C.  C.  §  2451  and  note. 

As  to  dissolution  of  general  partnership,  see  Kerr's  Cyc.  C.  C. 
§  2450  and  note. 

As  to  dissolution  of  special  partnership,  see  Kerr's  Cyc.  C.  C. 
§§  2507-2510  and  notes. 

As  to  judgment  of  dissolution,  when  general  partner  entitled 
to,  see  Kerr's  Cyc.  C.  C.  §  2452  and  note. 

As  to  liquidation  of  partnership  after  dissolution,  see  Kerr's 
Cyc.  C.  C.  §§  2458-2462  and  notes. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  mining  partnership  not  dissolved  by  conveyance  of 
interest  of  partner,  see  Kerr's  Cyc.  C.  C.  §  2516  and  note. 

As  to  notice  of  dissolution,  effect  of,  etc.,  see  Kerr's  Cyc.  C.  C. 
§  2453  and  note. 

§2450.    TOTAL    DISSOLUTION    OF    PARTNERSHIP.     A 

general  partnership  is  dissolved  as  to  all  the  partners: 

1.  By  lapse  of  the  time  prescribed  by  agreement  for  its 
duration ; 

2.  By  the  expressed  will  of  any  partner,  if  there  is  no  such 
agreement; 

3.  By  the  death  of  a  partner; 

4.  By  the  transfer  to  a  person,  not  a  partner,  of  the  inter- 
est of  any  partner  in  the  partnership  property; 

1266 


Tit.X,ch.II,art.V.]      total  dissolution.  §2450 

5.  By  war,  or  the  prohibition  of  commercial  intercourse 
between  the  country  in  which  one  partner  resides  and  that  in 
which  another  resides;   or, 

6.  By  a  judgment  of  dissolution. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act 'March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415, 
held   unconstitutional,    see    history,   §    4   ante. 

See  Kerr's  Cyc.  C.  C.  for  40  pars,  annotation. 

89  C.  547,  550,  26  P.  1095  (construed  and  applied);  104  C.  302, 
305,  37  P.  1048,  38  P.  109   (construed  and  applied). 

As  to  agreement  of  retiring  partner  to  refrain  from  carrying 
on  similar  business  in  limited  territory  being  valid,  see  Kerr's 
Cyc.  C.  C.  §  1675  and  note. 

As  to  authority  of  surviving  partner  to  continue  possession  of 
property,  etc.,  after  death  of  copartner,  see  Kerr's  Cyc.  C.  C.  P. 
§  1585  and  note. 

As  to  authority  of  surviving  partner  to  settle  affairs  of  part- 
nership, see  Kerr's  Cyc.  C.  C.  P.  §  1585  and  note. 

As  to  compensation  of  partner  for  services  after  death  of 
copartner,  see  Kerr's  Cyc.  C.  C.  §  2413  and  note. 

As  to  continuance  of  partnership  after  death  of  member,  see 
79  A.  S.   710-716. 

As  to  dissolution  of  partnership  by  death,  rights  of  surviving 
partner,  etc.,  see  7  L.  788-794;  28  L.  129-137. 

As  to  dissolution  of  partnership  for  definite  period  described 
in  agreement,  see  77  A.  S.  319-321. 

As  to  dissolution  of  partnerships  in  general,  see  69  A.  S.  410- 
435;   40  A.  S.   571. 

As  to  inventory  and  appraisement  of  partnership  interests,  see 
Kerr's  Cyc.  C.  C.  P.  §§  1443,  1585  and  notes. 

As  to  judgment  of  dissolution,  see  Kerr's  Cyc.  C.  C.  §  2452  and 
note. 

As  to  lien  of  mining  partner  on  partnership  property  continu- 
ing after  dissolution  of  partnership,  see  Kerr's  Cyc.  C.  C  §  2514 
and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  mining  partnerships,  dissolution  of,  see  Kerr's  Cyc.  C.  C. 
§  2516  and  note. 

As  to  partial  dissolution  of  general  partnership,  see  Kerr's 
Cyc.  C.  C.   §  2451  and  note. 

As  to  partnership  after  death,  see  79  A.  S.  709-716. 

As  to  all  partnerships  being  subject  to  dissolution,  see  77 
A.  S.  319. 

As  to  powers  and  authority  of  partners  after  dissolution  of 
general  partnership,  see  Kerr's  Cyc.  C.  C.  §§  2458-2462  and  notes. 

1267 


§§  2451,  2452  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  receivers  of  partnership,  see  71  A.  S.  376. 

As  to  receiverships  in  general,  see  Kerr's  Cyc.  C.  C  P.  §§  564- 
569  and  notes. 

As  to  sale  of  good-will  of  business  of  partnership,  see  Kerr's 
Cyc.  C.  C.  §  1776  and  note. 

As  to  subrogation  of  partner  against  copartner  upon  paying 
firm  debt  after  dissolution,  see  Kerr's  Cyc.  C.  C.  §  2405  and  note. 

As  to  transfer  of  interest  in  mining  partnership,  effect  of,  see 
Kerr's  Cyc.  C.  C.  §  2516  and  note. 

§2451.  PARTIAL  DISSOLUTION.  A  general  partnership 
may  be  dissolved,  as  to  himself  only,  by  the  expressed  will 
of  any  partner,  notwithstanding  his  agreement  for  its  con- 
tinuance, subject  however  to  liability  to  his  copartners  for 
any  damage  caused  to  them  thereby,  unless  the  circumstances 
are  such  as  entitle  him  to  a  judgment  of  dissolution. 

Hi-story:     Enacted  March   21,   1872. 

As  to  circumstances  entitling  partner  to  judgment  of  disso- 
lution, see  Kerr's  Cyc.  C.  C.  §  2452  and  note. 

As  to  liability  of  partners,  copartners  in  general,  see  Kerr's 
Cyc.  C.  C.  §  2443  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2452.    PARTNER    ENTITLED     TO     DISSOLUTION.      A 

general  partner  is  entitled  to  a  judgment  of  dissolution: 

1.  When  he,  or  another  partner,  becomes  legally  incapable 
of  contracting; 

2.  "When  another  partner  fails  to  perform  his  duties  under 
the  agreement  of  partnership,  or  is  guilty  of  serious  mis- 
conduct; or, 

3.  When  the  business  of  the  partnership  can  be  carried 
on  only  at  a  permanent  loss. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

As  to  incapacity  of  persons  to  contract,  see  Kerr's  Cyc.  C.  C. 
§§  39,  40  and  notes. 

As  to  intervention  in  action  for  dissolution,  see  Kerr's  Cyc. 
C.  C.  P.  §  387  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership,  gener- 
ally, see  note  §  2395,  ante. 

As  to  receivers,  appointment  of  powers,  etc.,  in  general,  see 
Kerr's  Cyc.  C.  C.  P.  §§  564-568  and  notes. 

1268 


Tit.X,ch.II,art.V.]  TERMINATION.  §§  2453. 2454 

8^453  NOTICE  OF  TERMINATION.  The  liability  of  a 
general  partner  for  the  acts  of  his  copartners  continues,  even 
after  a  dissolution  of  the  copartnership,  in  favor  of  persons 
who  have  had  dealings  with  and  given  credit  to  the  partner- 
ship during  its  existence,  until  they  have  had  personalnotice 
of  the  dissolution;  and  in  favor  of  other  persons  until  such 
dissolution  has  been  advertised  in  a  newspaper  published  m 
every  county  where  the  partnership,  at  the  time  of  its  dis- 
solution, had  a  place  of  business,  if  a  newspaper  is  there 
published,  to  the  extent  in  either  case  to  which  «uch  persons 
part  with  value  in  good  faith,  and  in  the  belief  that  such 
partner  is  still  a  member  of  the  firm. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 
110  r^    QSft    ■?«?    -^SS    44  P.  727  (construed  and  applied). 
AS  S      ablHty   of  '/eLral  partner   for  acts   o,   copartners.    >n 
,  T^„,.,.'=  cvo    r    C    F    ^  2443  and  note. 

'TJt  nr.mr/^f  pai-tneS   w.Le   no   notice   of   dissolution    is 

^'iT'trmlny^'mlscllianeous   matters   as   to   partnership    gener- 

^^^sTi^'e'^^^S^ion,  see  84  A.  D.  354;  40  A.  S.  573. 

S9454.  NOTICE  BY  CHANGE  OF  NAME.  A  change  of 
the  partnership  name,  which  plainly  indicates  the  withdmwal 
•  of  a  partner,  is  sufficient  notice  of  the  fact  of  such  ^Mth- 
drawal  to  all  persons  to  whom  it  is  ^^^^^^^^^'^f  ^^'  ,^?'  ^ 
change  in  the  name,  which  does  not  contain  such  an  indica- 
tion, is  not  notice  of  the  withdrawal  of  any  partner. 

History:     Enacted  March   21,  1872. 
AS  to  Change  of  partnership,  see  Kerr's  Cyc.  C.  C.  P.  §  2453  and 
"I's  to  many  miscellaneous  matters  as   to   partnership    gener- 

ally,  see  note  §  2395,  ante.  t^^.._'c  Ovc    C    C.  P. 

As  to  notice  of  change  of  partnership,  see  Kerr  s  Cyc.  C.  c.  f 

§  2453  and  note  pars.  3-5. 


1269 


§§2458,2459  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE   VI. 

LIQUIDATION. 

§  2458.  Powers  of  partners  after  dissolution. 

§  2459.  Who  may  act  in  liquidation. 

§  2460.  Who  may  not  act  in   liquidation. 

,5  2461.  Powers  of  partners  in  liquidation. 

§  2462.  What  partner  may  do  in  liquidation. 

§2458.    POWERS  OF  PARTIVERS  AFTER  DISSOLUTION. 

After  the  dissolution  of  a  pai'tnership,  the  powers  and  author- 
ity of  the  partners  are  such  only  as  are  prescribed  by  this 
article. 

History:     Enacted  March   21,   1872. 

89  C.  547,  551,  26  P.  1095,  1097  (construed  and  applied  with 
other  sections). 

As  to  dissolution  of  partnership,  see  Kerr's  Cyc.  C.  C.  §§  2449- 
2454  and  notes. 

As  to  extent  of  powers  of  surviving  partner  on  dissolution  of 
copartnership  by  death  of  copartner  to  retain  employee  of 
copartnership,  see  Kerr's  Cyc.  C.  C.  §  2462  and  note  par.   2. 

As  to  many  miscellaneous  matters  as  to  partnership,  gener- 
ally, see  note  §  2395,  ante. 

As  to  powers  of  partner  after  dissolution,  generally,  see  15  L. 
656-660. 

As  to  powers  of  partner  in  liquidation,  see  40  A.  S.  571,  572. 

As  to  right  of  surviving  partner  to  settle  affairs  of  partner- 
ship, see  Kerr's  Cyc.  C.  C.  §  2450  and  note. 

§2459.  WHO  MAY  ACT  IN  LIQUIDATION.  Any  member 
of  a  general  partnership  may  act  in  liquidation  of  its  affairs, 
except  as  provided  by  the  next  section. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

74  C.  418,  420,  16  P.  196  (construed  and  applied);  81  C.  14,  18, 
22  P.  264,  266  (construed  and  applied);  89  C.  547,  551,  26  P.  1095 
(construed  and  applied  with  other  sections). 

As  to  many  miscellaneous  matters  as  to  partnership,  gener- 
ally, see  note  §  2395,  ante. 

As  to  powers  of  surviving  partner  in  general,  see  Kerr's  Cyc. 
C.  C.  §  2150  and  note. 

1270 


Tit.X.ch.II.aft.VL]       LIQUIDATION,  POWERS.  §§  2460,  2461 

As  to  powers  and  authority  of  general  partner  in  liquidation, 
see  Kerr's  Cyc.  C.  C.  §§  2461,  2462  and  notes. 

As  to  powers  of  surviving  partner  on  dissolution  of  copartner- 
ship by  death  of  copartner  to  retain  employee  of  copartnership, 
see  Kerr's  Cyc.  C.  C.   §  2462  and  note  pars.  2-6. 

§2460.    ^VHO  MAI    NOT  ACT  IN  LIQUIDATION.     If  the 

liquidation  of  a  partnership  is  committed,  by  consent  of  all 
the  partners,  to  one  or  more  of  them,  the  others  have  no 
right  to  act  therein;  but  their  acts  are  valid  in  favor  of 
persons  parting  with  value,  in  good  faith,  upon  credit  thereof. 
History:     Enacted  March   21,   1872. 

74  C.  418,  420,  16  P.  196  (construed  and  applied  with  other  sec- 
tions); 89  C.  547,  551,  26  P.  1095  (construed  and  applied  with 
other  sections). 

As  to  many  iniscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  power  of  either  partner  to  act  in  liquidation  where 
affairs  are  not  committed  to  one  partner  by  consent,  see  Kerr's 
Cyc.  C.  C.  §  2459  and  note. 

As  to  powers  of  general  partner  acting  in  liquidation  gener- 
ally, see  Kerr's  Cyc  C.  C.  §§  2461,  2462  and  notes. 

§2461.    POWERS  OF  PARTNERS  IN  LIQUIDATION.      A 

partner  authorized  to  act  in  liquidation  may  collect,  com- 
promise, or  release  any  debts  due  to  the  partnership,  pay  or 
compromise  any  claims  against  it,  and  dispose  of  the  part- 
nership property. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  415, 
held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

74  C.  418,  420,  16  P.  196,  197  (construed  and  applied);  81  C. 
14,  18,  22  P.  264,  266  (construed  and  applied);  84  C.  89,  92,  94.  23 
P.  1112,  1113,  1114  (construed  and  applied);  89  C.  547,  551,  26  P. 
1095   (construed  and  applied). 

As  to  extent  of  powers  of  surviving  partner  on  dissolution  of 
copartnership  by  death  of  copartner  to  retain  employee  of 
copartnership,  see  Kerr's  Cyc.  C.  C.  §  2462  and  note  pars.  2-5. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  right  of  surviving  partner  to  continue  in  possession  of 
partnership  and  to  settle  its  business,  etc.,  see  Kerr's  Cyc.  C.  C. 
P.  §  1585  and  note. 

1271 


§  2462  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2462.     >VHAT  PARTNER  MAY  DO  IN  LIQUIDATION.    A 

partner  authorized  to  act  in  liquidation,  may  indorse,  in  the 
name  of  the  firm,  promissory  notes,  or  other  obligations  held 
by  the  partnership,  for  the  purpose  of  collecting  the  same, 
but  he  cannot  create  any  new  obligation  in  its  name,  or 
revive  a  debt  against  the  firm,  by  an  acknowledgment,  when 
an  action  thereon  is  barred  under  the  provisions  of  the  Code 
of  Civil  Procedure. 

History:      Enacted   March    21,    1872;    amended    March    30,    1874, 
Code   Amdts.    1873-4,   p.    252. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As   to   many  miscellaneous  matters  as   to   partnership   gener- 
ally, see  note  §  2395,  ante. 


1272 


Tit.X,ch.II,art.VII.]     fictitious  name.  §  2466 

ARTICLE   VII. 

OF    THE    USE    OF    FICTITIOUS    NAMES. 

§  2466.  Fictitious  names,  duties  of  those  using. 

§  2467.  Style  of  foreign  partnership. 

§  2468.  Certificates,   execution,  filing,   etc. 

§  2469.  Change  of  membership,  filing  new  certificate. 

§  2470.  Register  of  firms  to  be  kept  by  county  clerk. 

§  2471.  Certified    copies    of    register,    and    proof    of    publication, 

to  be  evidence. 

§  2472.  Formation   of   special    partnership. 

§  2466.    FICTITIOUS  NAMES,  DUTIES  OF  THOSE  USIXG. 

Except  as  otherwise  provided  in  the  next  section,  every  partr 
nership  transacting  business  in  this  state  under  a  fictitious 
name,  or  a  designation  not  showing  the  names  of  the  persons 
interested  as  partners  in  such  business,  must  file  with  the 
clerk  of  the  county  in  which  its  principal  place  of  business 
is  situated,  a  certificate,  stating  the  names  in  full  of  all  the 
members  of  such  partnership  and  their  places  of  residence, 
and  publish  the  same  once  a  week  for  four  successive  weeks, 
in  a  newspaper  published  in  the  county,  if  there  be  one,  and 
if  there  be  none  in  such  county,  then  in  a  newspaper  pub- 
lished in  an  adjoining  county. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    253. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

56  C.  159,  161  (construed  and  applied):  56  C.  262,  263.  264 
(referred  to);  64  C.  73,  74,  28  P.  61  (construed  and  applied);  67 
C.  26,  6  P.  875,  876,  (cited  in  connection  with  §§  989-994  C.  C.  P.): 
6  P.  688  (construed  and  applied);  67  C.  635.  636,  8  P.  444  (con- 
strued and  applied);  70  C.  194,  195,  196,  11  P.  565  (construed  and 
applied);  70  C.  398,  399,  11  P.  745  (construed  and  applied);  74  C. 
151,  153,  156,  13  P.  313,  314,  15  P.  451  (construed  and  applied); 
74  C.  586,  588,  16  P.  493,  495  (construed  and  applied);  81  C.  280, 
283,  22  P.  856  (referred  to);  82  C.  577,  584,  23  P.  198.  200  (re- 
ferring to  construction  in  56  C.  262);  85  C.  142,  143.  24  P.  659 
(construed  and  applied);  88  C.  600,  601,  26  P.  596.  597  (construed 
and  applied);  88  C.  644.  647,  26  P.  596  (construed  and  applied); 
89  C.  101,  106,  26  P.  639,  640  (construed  and  applied);  92  C.  221, 
226,  28  P.  935,  936    (construed  and  applied);  93  C.   126,   28  P.  811 

1273 


§§  2467, 2468  CIVIL  CODE.  [Div.III.Pt.IV. 

(referred  to);  101  C.  89,  90,  35  P.  431,  432  (construed  and  ap- 
plied); 118  C.  11,  17,  50  P.  23  (construed  and  applied);  123  C. 
185,  186,  55  P.  783  (construed  and  applied);  135  C.  621,  622,  623, 
67  P.  1037  (construed  and  applied);  6  C.  A.  369,  373,  92  P.  322 
(construed  with  §  2468 — what  constitutes  sufficient  publication — 
§  2466  does  not  require  any  acknowledgment  to  complete  certifi- 
cate);   6  C.  A.   547,  92  P.   651    (referred  to). 

As  to  construction  of  this  section  in  reference  to  special  pro- 
ceedings, see  Kerr's  Cyc.  C.  C.  §  2468  and  note  par.  2. 

As  to  effect  of  this  section  in  action  to  amend  judgment,  see 
Kerr's  Cyc.  C.  C.  P.  §§  989,  994  and  notes. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2467.  STYLE  OF  FOBEION  PARTNERSHIP.  A  com- 
mercial or  banking  partnership,  established  and  transacting 
business  in  a  place  without  the  United  States,  may,  without 
filing  the  certificate  or  making  the  publication  prescribed  in 
the  last  section,  use  in  this  state  the  partnership  name  used 
by  it  there,  although  it  be  fictitious,  or  do[es]  not  show  the 
names  of  the  persons  interested  as  partners  in  such  business. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    253. 

67  C.  635,  636,  8  P.  444  (construed  and  applied  with  §§  2466, 
2468). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  nonsuit  for  failure  to  file  certificate,  see  Kerr's  Cyc. 
C.   C.   §  2466  and  note  par.  21. 

§  2468.     CERTIFICATES,  EXECUTION,  FILING,  ETC.   The 

certificate  filed  with  the  clerk,  as  provided  in  section  twenty- 
four  hundred  and  sixty-six,  must  be  signed  by  the  partners, 
and  acknowledged  before  some  officer  authorized  to  take  the 
acknowledgment  of  conveyances  of  real  property.  Where  the 
partnership  is  hereafter  formed,  the  certificate  must  be  filed, 
and  the  publication  designated  in  that  section  must  be  made 
within  one  month  after  the  formation  of  the  partnership,  or 
within  one  month  from  the  time  designated  in  the  agreement 
of  its  members  for  the  commencement  of  the  partnership; 
where  the  partnership  has  been  heretofore  formed,  the  certifi- 
cate   must    be    filed,    and    the    publication    made    within    six 

1274 


Tit.X,ch.II,art.VII.]        CERTIFICATES,  ETC.  §  2468 

months  after  the  passage  of  this  act.  Persons  doing  business 
as  partners  contrarj'  to  the  provisions  of  this  article,  shall 
not  maintain  any  action  upon  or  on  account  of  any  contracts 
made  or  transactions  had  in  their  partnership  name,  in  any 
court  of  this  state,  until  they  have  first  filed  the  certificate 
and  made  the  publication  herein  required. 

Hi.story:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  pp.  253-4;  amended  by  Code  Commission, 
Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  416,  held  uncon- 
stitutional,  see   history,    §    4   ante. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

56  C.  159,  161,  162  (construed  and  applied);  56  C.  262,  264 
(referred  to);  61  C.  155,  156  (construed  and  applied);  64  C.  73, 
74,  28  P.  61  (construed  and  applied);  67  C.  26,  6  P.  875,  87.6 
(cited  in  connection  with  §§989  to  994  C.  C.  P.);  67  C.  126,  7  P. 
445  (construed  and  applied);  6  P.  688  (construed  and  applied); 
67  C.  635,  636,  8  P.  444  (construed  and  applied);  70  C.  398,  399, 
11  P.  745  (construed  and  applied);  74  C.  151,  154,  13  P.  313,  314, 
15  P.  451  (construed  and  applied);  74  C.  586,  588,  16  P.  493,  495 
(construed  and  applied);  77  C.  69,  72,  18  P.  886,  888  (referred  to 
as  analogous  to  similar  provision  made  with  reference  to  cor- 
porations in  §299  C.  C);  81  C.  280,  283,  22  P.  856,  857  (referred 
to);  89  C.  101,  106,  26  P.  639,  640  (construed  and  applied);  93 
C.  126,  28  P.  811  (referred  to);  101  C.  89,  90,  35  P.  431,  432  (con- 
strued and  applied);  111  C.  133,  138,  43  P.  525  (referred  to  in 
construing  analogous  §  299  C.  C.  requiring  corporations  to  file 
copy  of  articles  of  incorporation,  etc.);  118  C.  11,  17,  50  P.  23 
(construed  and  applied);  123  C.  185,  186,  55  P.  783  (construed 
and  applied);  135  C.  621,  622,  623,  67  P.  1037  (construed  and 
applied);  6  C.  A.  369,  373,  92  P.  322  (construed  with  §2466 — 
statute  is  fully  met  by  what  publication — acknowledgment); 
6  C.  A.  547,  92  P.  651   (referred  to). 

As  to  effect  of  this  section  in  action  to  amend  judgment,  see 
Kerr's  Cyc.  C.  C.  P.   §§  989,  994  and  notes. 

As  to  failure  to  file  certificate  and  effect  thereof  in  abating 
action,  see  Kerr's  Cyc.  C.  C.  §  2466  and  note  par.  21. 

As  to  failure  to  file  certificate  being  matter  of  defense  and 
waiver  thereof  when  not  specially  set  up  as  defense,  see  Kerr's 
Cyc.  C.  C.   §  2466  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  when  court  should  instruct  jury  that  plaintiff  cannot 
recover  until  provisions  of  publishing  certificate  are  complied 
with,  upon  issue  raised  by  pleadings,  see  Kerr's  Cyc.  C.  C. 
§  2466  and  note. 

1275 


§§  2469-2471  CIVIL  CODE.  [Div.III,Pt.IV. 

§2469.  CHANGE  OF  MEMBERSHIP,  FILING  NEW  CER- 
TIFICATE.  On  every  change  in  the  members  of  a  partner- 
ship transacting  business  in  this  state  under  a  fictitious 
name,  or  a  designation  which  does  not  show  the  names  of 
the  persons  interested  as  partners  in  its  business,  except  in 
the  cases  mentioned  in  section  twenty-four  hundred  and 
sixty-seven,  a  new  certificate  must  be  filed  with  the  county 
clerk,  and  a  new  publication  made  as  required  by  this  article 
on  the  formation  of  such  partnership. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.    254. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

93  C.  172,  178,  28  P.  814,  815   (construed  and  applied). 

As  to  certificate  designating  names  of  persons  interested  in 
partnership  transacting  business  under  fictitious  name,  see 
Kerr's  Cyc.  C.  C.   §  2466  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§  2470.  REGISTER  OF  FIRMS  TO  BE  KEPT  BY  COUNTY 
CLERK.  Every  county  clerk  must  keep  a  register  of  the 
names  of  firms  and  persons  mentioned  in  the  certificates  filed 
with  him,  pursuant  to  this  article,  entering  in  alphabetical 
order  the  name  of  every  such  partnership,  and  of  each  part- 
ner therein. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.   1873-4,   p.   254. 

93  C.   172,  178,  28  P.   814,   815    (construed  and  applied). 

As  to  certificate  designating  names  of  persons  interested  in 
partnership  transacting  business  under  fictitious  name,  see 
Kerr's  Cyc.  C.  C.  §  2466  and  note. 

As  to  certified  copy  of  certificate  provided  for  in  §  2469,  ante, 
being  competent  evidence  in  actions  by  and  against  firm,  see 
Kerr's  Cyc.  C.  C.  §  2469,  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§  2471.  CERTIFIED  COPIES  OF  REGISTER,  AND  PROOF 
OF  PUBLICATION,  TO  BE  EVIDENCE.  Copies  of  the  entries 
of  a  county  clerk,  as  herein  directed,  when  certified  by  him, 

1276 


Tit.X,ch.II,art.VII.]     SPECIAL,  FORMING.  §  2472 

and    affidavits   of   publication,    as   herein    directed,    made   by 
the   printer,    publisher,    or   chief   clerk   of   a   newspaper,   are 
presumptive  evidence  of  the  facts  therein  stated. 
History:     Enacted  March  21,   1S72. 

93  C.  172,  178,  28  P.  814,  815   (construed  and  applied). 

As  to  certificate  designating  names  of  persons  interested  in 
partnership  transacting  business  under  fictitious  name,  see 
Kerr's  Cyc.  C.  C.  §  2466  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2472.       FORMATION      OF      SPECIAL      PARTNERSHIP. 

Every  co-partnership,  other  than  those  mentioned  in  section 
twenty-four  hundred  and  sixty-seven  of  this  code,  domiciled 
without  this  state,  and  having  no  regular  place  of  business  • 
within  this  state,  must,  within  forty  days  from  the  time  it  com- 
mences to  do  business  therein,  file  in  the  office  of  the  secretary 
of  state  a  designation  of  some  person  residing  within  the 
state  upon  whom  process  issued  by  authority  of  or  under  any 
law  of  this  state,  may  be  served.  A  copy  of  such  designation, 
duly  certified  by  the  secretary  of  state,  is  sufficient  evidence 
of  such  appointment.  Such  process  may  be  served  on  the 
person  so  designated,  or,  in  the  event  that  no  such  person  is 
designated,  then  on  the  secretary  of  state,  and  the  service 
is  a  valid  service  on  such  co-partnership. 

History:      Enacted   March    21,    1872;    amended    April    22.    1909, 
Stats,  and  Amdts.   1909,   p.   1065. 


1277 


§  2477  CIVIL  CODE.  [Div.lIT.Pt.lV. 

CHAPTER  III. 

SPECIAL   PARTNERSHIP. 

Article    I.     Formation  of  Partnerships,  §§  2477-2485. 

II.     Powers,     Rights,     and     Duties    of    the    Partners, 
S§  2489-2496. 

III.  Liability  of  Partners,   §§  2500-2503. 

IV.  Alteration   and  Dissolution,  §§  2507-2510. 

ARTICLE  I. 

FORMATION    OF   PARTNERSHIP. 

§  2477.  Formation  of  special   partnership. 

§  2478.  Of    what   to    consist. 

§  2479.  Certified  statement. 

§  2480.  Acknowledged  and  recorded.     False  statement. 

§  2481.  Affidavit   as    to    sums    contributed. 

§  2482.  No  partnership  until   compliance. 

§  2483.  Certificate   to   be  published. 

§  2484.  Affidavit   of   publication   filed. 

§  2485.  Renewal    of   special   partnership. 

§2477.     FORMATION     OF     SPECIAL    PARTNERSHIP.     A 

special  partnership  may  be  formed  by  two  or  more  persons, 
in  the  manner  and  with  the  effect  prescribed  in  this  chap- 
ter, for  the  transaction  of  any  business  except  banking  or 
insurance. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

74   C.    418,   419,   16   P.    196    (construed  and  applied);   128   C.    120, 
128,  60  P.  689   (construed  and  applied  with  other  sections). 

As  to  formation  of  special  partnership,  see  2  L.   43;  8  L.   712. 

As   to   many  miscellaneous  matters  as   to   partnership   gener- 
ally, see  note  §  2395,  ante. 

As   to   meaning   of   term    "limited   partnership,"    see    19    Encyc. 
L.   336. 

As  to  what  constitutes  a  special  partnership,  see  Kerr's  Cyc. 
C.  C.  §  2478,  note. 

1278 


'      Tit.X,ch.III,art.I.]     statement— false.  §§2478-2480 

§2478.    OF   WHAT   TO   CONSIST.     A   special   partnership 
may  consist  of  one  or  more  persons  called  general  partners, 
and  one  or  more  persons  called  special   partners. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

128  C.  120,  128,  60  P.  689  (construed  and  applied  with  other 
sections). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2479.  CERTIFIED  STATEMENT.  Persons  desirous  of 
forming  a  special  partnership  must  severally  sign  a  certifi- 
cate, stating: 

1.  The  name  under  which  the  partnership  is  to  be  con- 
ducted; 

2.  The  general  nature  of  the  business  intended  to  be  trans- 
acted ; 

3.  The  names  of  all  the  partners,  and  their  residences,  spec- 
ifying which  are  general  and  which  are  special  partners; 

4.  The  amount  of  capital  which  each  special  partner  has 
contributed  to  the  common  stock; 

5.  The  periods  at  which  such  partnership  will  begin  and 
end. 

Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

128  C.  120,  128,  60  P.  689  (special  partnership  Is  not  disclosed 
when). 

As  to  conditions  precedent,  see  ante  §§  707,  1436. 

As  to  effect  of  non-compliance  with  statute  requirements, 
see  19  Encyc.  L.  339. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2480.  ACKNOAVI-EDfiED  AND  RECOKDED.  FALSE 
STATEMENT.  Certificates  under  the  last  section  must  be 
acknowledged  by  all  the  partners,  before  some  officer  author- 
ized to  take  acknowledgment  of  deeds,  one  to  be  filed  in  the 
clerk's  office,  and  the  other  recorded  in  the  ofiice  of  the 
recorder  of  the  county  in  which  the  principal  place  of  busi- 
ness of  the  partnership  is  situated,  in  a  book  to  be  kept  for 

1279 


§§  2481, 2482  CIVIL  CODE.  [Div.III.Pt.IV. 

that  purpose,  open  to  public  inspection;  and  if  the  partner- 
ship has  places  of  bu&iness  situated  in  different  counties,  a 
copy  of  the  certificate,  certified  by  the  recorder  in  whose 
office  it  is  recorded,  must  be  filed  in  the  clerk's  office,  and 
recorded  in  like  manner  in  the  office  of  the  recorder  in  every 
such  county.  If  any  false  statement  is  made  in  any  such 
certificate,  all  the  persons  interested  in  the  partnership  are 
liable,  as  general  partners,  for  all  the  engagements  thereof. 

HLstory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

128  C.  120,  128,  60  P.  689  (special  partnership  is  not  disclosed 
when). 

As  to  check  not  being  payment  under  statutory  requirements, 
see  54  A.  R.   781,  782. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  what  is  not  cash  under  special  partnership,  see  25  A. 
R.  161,   162. 

§2481.    AFFIDAVIT   AS   TO    SUMS   CONTRIBUTED.     An 

affidavit  of  each  of  the  partners,  stating  that  the  sums  speci- 
fied in  the  certificate  of  the  partnership  as  having  been  con- 
tributed by  each  of  the  special  partners,  have  been  actually 
and  in  good  faith  paid,  in  the  lawful  money  of  the  United 
States,  must  be  filed  in  the  same  office  with  the  original  cer- 
tificate. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

128  C.  120,  128,  60  P.  689  (special  partnership  is  not  disclosed 
when). 

As  to  many  miscellaneous  inatters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2482.     NO    PARTNERSHIP    UNTIL    COMPLIANCE.      No 

special  partnership  is  formed  until  the  provisions  of  the  last 
five  sections  are  complied  with. 

Hi.story:     Enacted  March   21,  1872. 

128  C.  120,  128,  60  P.  689  (special  partnership  is  not  disclosed 
when). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

1280 


Tit.X.ch.III.art.L]  CERTIFICATE.  §§  2483-2485 

§2483.  CERTIFK  ATE  TO  BE  PUBLISHED.  The  certifi- 
cate mentioned  in  this  article,  or  a  statement  of  its  substance, 
must  be  published  in  a  newspaper  printed  in  the  county 
where  the  original  certificate  is  filed,  and  if  no  newspaper  is 
there  printed,  then  in  a  newspaper  in  the  state  nearest 
thereto.  Such  publication  must  be  made  once  a  week  for 
four  successive  weeks,  beginning  within  one  week  from  the 
time  of  filing  the  certificate.  In  case  such  publication  is  not  so 
made,  the  partnership  must  be  deemed  general. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

128  C.  120,  128,  60  P.  689  (special  partnership  is  not  disclosed 
when). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2484.  AFFIDAYIT  OF  PUBLICATION  FILED.  An  affi- 
davit of  the  making  of  the  publication  mentioned  in  the  pre- 
ceding section,  made  by  the  printer,  publisher,  or  chief  clerk 
of  the  newsaper  in  which  such  publication  is  made,  may  be 
filed  with  the  county  recorder  with  whom  the  original  certifi- 
cate was  filed,  and  is  presumptive  evidence  of  the  facts 
therein  stated. 

Hi-stury:     Enacted  March   21,   1872. 

128  C.  120,  128,  60  P.  689  (special  partnership  is  not  disclosed 
when). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2485.  RENEWAL  OF  SPECIAL  PARTNERSHIP.  Every 
renewal  or  continuance  of  a  special  partnership  must  be  cer- 
tified, recorded,  verified,  and  published  in  the  same  manner 
as  upon  its  original  formation. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

128  C.  120,  128,  60  P.  689  (construed  and  applied  with  other 
sections). 

As  to  many  misci-llaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

Kerr's    C.    C— 41  1281 


§§  2489-2491  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE   II. 

POWERS,  RIGHTS,  AND  DUTIES  OF  THE  PARTNERS. 

§  2489.  Who    to    do    business. 

§  2490.  Special   partners   may   advise. 

§  2491.  May  loan  money.     Insolvency. 

§  2492.  General  partners  may  sue  and  be  sued. 

§  2493.  Withdrawal   of  capital. 

§  2494.  Interest  and  profits. 

§  2495.  Result  of  withdrawing-  capital. 

§  2496.  Preferential   transfer  void. 

§2489.  WHO  TO  DO  BtlSINESS.  The  general  partners 
only  have  authority  to  transact  the  business  of  a  special 
partnership. 

Hi.sfory:  Enacted  March  21,  1872,  founded  upon  §  lO,  Act 
March  4,  1870,  Stats.  1869-70,  p.  124;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  816, 
held  unconstitutional,  see  history,  §  4  ante. 

§2490.  SPECIAL  PARTNERS  MAY  ADVISE.  A  special 
partner  may  at  all  times  investigate  the  partnership  affairs, 
and  advise  his  partners,  or  their  agents,  as  to  their  manage- 
ment. 

History:  Enacted  March  21,  1872,  founded  upon  §  11,  Act 
March  4,  1870,  Stats.   1869-70,  p.   124. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

As  to  powers  of  special  partners,  see  56  A.  D.  149. 

§2491.  MAY  LOAN  MONEY.  INSOLVENCY.  A  special 
partner  may  lend  money  to  the  partnership,  or  advance  money 
for  it,  and  take  from  it  security  therefor,  and  as  to  such  loans 
or  advances  has  the  same  rights  as  any  other  creditor;  but 
in  case  of  the  insolvency  of  the  partnership,  all  other  claims 
which  he  may  have  against  it  must  be  postponed  until  all 
other   creditors  are   satisfied. 

1282 


Tit.X.ch.III.art.II.]    WITHDRAWING   CAPITAL.       §§  2492-2495 

Hi$«tory:      Enacted    March    21,    1872,    founded    upon    §    12,    Act 
March   4,   1870,  Stats.   1869-70,   p.    124. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§  2492.  GE>EKAL  PARTNERS  MAY  SUE  AND  BE  SUED. 

In  all  matters  relating  to  a  special  partnership,  its  general 
partners  may  sue  and  be  sued  alone,  in  the  same  manner  as 
if  there  were  no  special  partners. 

History:  Enacted  March  21,  1872,  founded  upon  §  13,  Act 
Marcli    4,'  1870,   Stats.   1869-70,   p.    124. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
As   to   many   miscellaneous   matters   as   to   partnersliip   gener- 
ally, see  note  §  2395,  ante. 

§  2493.  WITHDRA^VAL  OF  CAPITAL.  No  special  partner, 
under  any  pretense,  may  withdraw  any  part  of  the  capital 
invested  by  him  in  the  partnership,  during  its  continuance. 

History:  Enacted  March  21,  1872,  founded  upon  §  14,  Act 
March   4,  1870,  Stats.   1869-70,  p.   124. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
As   to   many   miscellaneous   matters   as   to   partnership   gener- 
ally, see  note  §  2395,  ante. 

§2494.  INTEREST  AND  PROFITS.  A  special  partner  may 
receive  such  lawful  interest  and  such  proportion  of  profits 
as  may  be  agreed  upon,  if  not  paid  out  of  the  capital  invested 
in  the  partnership  by  him,  or  by  some  other  special  partner, 
and  is  not  bound  to  refund  the  same  to  meet  subsequent 
losses. 

History:  Enacted  March  21,  1872,  founded  upon  §  15,  Act 
March    4,   1870,  Stats.    1869-70,   p.    124. 

§2495.  RESULT  OF  ^VITHDRAWINCS  (  APITAL.  If  a  spe- 
cial partner  withdraws  capital  from  the  firm,  contrary  to  the 
provisions  of  this  article,  he  thereby  becomes  a  general 
partner. 

History:  Enacted  March  21.  1872,  founded  upon  §  16,  Act 
March   4.   1870.  Stats.   1869-70,  p.  124. 

1283 


§  2496  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2496.  PREFERENTIAL  TRANSFER  VOID.  Every  trans- 
fer of  the  property  of  a  special  partnership,  or  of  a  partner 
therein,  made  after  or  in  contemplation  of  the  insolvency 
of  such  partnership  or  partner,  with  intent  to  give  a  prefer- 
ence to  any  creditor  of  such  partnership  or  partner  over 
any  other  creditor  of  such  partnership,  is  void  against  the 
creditors  thereof;  and  every  judgment  confessed,  lien  cre- 
ated, or  security  given,  in  like  manner  and  with  the  like 
intent,  is  in  like  manner  void. 

History:  Enacted  March  21,  1872,  founded  upon  §  17,  Act 
March   4,   1870,  Stats.    1869-70,  p.   124. 

S^e  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

As  to  assignment  by  limited  partnership  for  benefit  of  credi- 
tors, and  validity  thereof,  see  note  9  Paige  Oh.  (N.  T.)  577,  3 
L.  ed.  1109. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 


1284 


Tit.X,ch.III,art.III.]  liability.  §§2500,2501 

ARTICLE  III. 

LIABILITY    OP    PARTNERS. 

§  2500.  Liability    of   partners. 

§  2501.  Of  special   partners. 

§  2502.  Liability  for  unintentional  act. 

§  2503.  Who  may   question   existence   of  special  partnership. 

§2500.  LIABILITY  OF  PARTNERS.  The  general  part- 
ners in  a  special  partnership  are  liable  to  the  same  extent 
as  partners  in  a  general  partnership. 

Hi.Mtory:  Enacted  March  21,  1872,  founded  upon  §  IS,  Act 
March    4,   1870,   Stats.    1869-70,   p.    124. 

As  to  liability  of  members  of  special  partnership,  see  3  L. 
503. 

As  to  liability  of  third  party  contributing  money  for  partner, 
see  25  A.  R.  162. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2501.  OF  SPECIAL  PARTNERS.  The  coutriliution  of  a 
special  partner  to  the  capital  of  the  firm,  and  the  increase 
thereof,  is  liable  for  its  debts,  but  he  is  not  otlierwise  liable 
therefor,  except  as  follows: 

1.  If  he  has  wilfully  made  or  permitted  a  false  or  materially 
defective  statement  in  the  certificate  of -the  partnership,  the 
affidavit  filed  therewith,  or  the  published  announcement 
thereof,  he  is  liable,  as  a  general  partner,  to  all  creditors  of 
the  firm; 

2.  If  he  has  wilfully  interfered  with  the  business  of  the 
firm,  except  as  permitted  in  article  two  of  this  chapter,  he  is 
liable  in  like  manner;  or, 

3.  If  he  has  wilfully  joined  in  or  assented  to  an  act  con- 
trary to  any  of  the  provisions  of  article  two  of  this  chapter, 
he  is  liable  in  like  manner. 

History:  Enacted  March  21,  1872,  founded  upon  §  19,  Act 
March    4,    1870,    Stats.    1869-70,   p.    124. 

1285 


§§  2502, 2503  CIVIL  CODE.  [Div.III.Pt.TV. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  many  miscellaneous  inatters  as  to  partnership  gener- 
ally, see  note   §  2395,  ante. 

§  2502.  LIABILITY  FOR  UNINTENTIONAL  ACT.  When  a 
special  partner  has  unintentionally  done  any  of  the  acts 
mentioned  in  the  last  section,  he  is  liable,  as  a  general  part- 
ner, to  any  creditor  of  the  firm  who  has  been  actually  misled 
thereby  to  his  prejudice. 

History:  Enacted  March  21,  1872,  founded  upon  §  20,  Act 
March   4,   1870,  Stats.    1869-70,   p.   125. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§  2503.  WHO  MAY  QUESTION  EXISTENCE  OF  SPECIAL 
PARTNERSHIP.  One  who,  upon  making  a  contract  with  a 
partnership,  accepts  from  or  gives  to  it  a  written  memorandum 
of  the  contract,  stating  that  the  partnership  is  special,  and 
giving  the  names  of  the  special  partners,  cannot  afterwards 
charge  the  persons  thus  named  as  general  partners  upon 
that  contract,  by  reason  of  an  error  or  defect  in  the  proceed- 
ings of  the  creation  of  the  special  partnership,  prior  to  the 
acceptance  of  the  memorandum,  if  an  effort  has  been  made 
by  the  partners,  in  good  faith,  to  form  a  special  partnership 
in  the  manner  required  by  article  one  of  this  chapter. 

History:  Enacted  March  21,  1872,  founded  upon  §  21,  Act 
March   4.,   1870,   Stats.   1869-70,   p.   125. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc 
C.  C.  §  2503,  note. 


1286 


Tit.X,ch.III,art.IV.]  WHEN  SPECIAL.  §§  2507,  2508 

ARTICLE  IV. 

ALTERATION  AND  DISSOLUTION. 

§  2507.  When    special   partnership    becomes   general. 

§  2508.  How  new  special  partners  may  be  admitted. 

§  2509.  Dissolution   of  special  partnership.     Notice. 

§  2510.  The  name  of  a  special  partner  not  used,  unless. 

§  2507.  WHEN  SPECIAL  PARTNERSHIP  BEfOMES  GEN- 
ERAL.  A  special  partnership  becomes  general  if,  witliin 
ten  days  after  any  partner  withdraws  from  it,  or  any  new 
partner  is  received  into  it,  or  a  change  is  made  in  the  nature 
of  its  business  or  in  its  name,  a  certificate  of  such  fact,  duly 
verified  and  signed  by  one  or  more  of  the  partners,  is  not 
filed  with  the  county  clerk  and  recorder  with  whom  the 
original  certificate  of  the  partnership  was  filed,  and  notice 
thereof  published  as  is  provided  in  article  one  of  this  chapter 
for  the  publication  of  the  certificate. 

History:  Enacted  March  21,  1872,  founded  upon  §  22,  Act 
March   4,   1870,  Stats.   1869-70,  p.   125. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2508.  HOW  NEW  SPECIAL  PARTNERS  MAY  BE  AD- 
MITTED. New  special  partners  may  be  admitted  into  a  spe- 
cial partnership  upon  a  certificate,  stating  the  names,  resi- 
dences, and  contributions  to  the  common  stock  of  each  of 
such  partners,  signed  by  each  of  them,  and  by  the  general 
partners,  verified,  acknowledged,  or  proved,  according  to  the 
provisions  of  article  one  of  this  chapter,  and  filed  with  the 
county  clerk  and  recordei-  with  whom  the  original  certificate 
of  the  partnership  was  filed. 

History:  Enacted  March  21,  1872,  founded  upon  §  23,  Act 
March   4,   1870,  Stats.    1869-70,   p.    125. 

1287 


§§  2509, 2510  CIVIL  CODE.  [Div.III.Pt.IV 

§2509.  DISSOLUTION  OF  SPECIAL  PARTNERSHIP. 
NOTICE.  A  special  partnership  is  subject  to  dissolution  in 
the  same  manner  as  a  general  partnership,  except  that  no 
dissolution,  by  the  act  of  the  partners,  is  complete  until  a 
notice  thereof  has  been  filed  and  recorded  in  the  office  of  the 
county  clerk  and  recorder  with  whom  the  original  certificate 
was  renorded,  and  published  once  in  each  week,  for  four  suc- 
cessive weeks,  in  a  newspaper  printed  in  each  county  where 
the  partnership  has  a  place  of  business. 

History:  Enacted  March  21,  1872,  founded  upon  §  24,  Act 
March    4,    1870,   Stats.    1869-70,   p.    125. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

§2510.  THE  NAME  OF  A  SPECIAL  PARTNER  NOT 
USED,  UNLESS.  The  name  of  a  special  partner  must  not  be 
used  in  the  firm  name  of  partnership,  unless  it  be  accompa- 
nied with  the  word  "limited." 

History:  Enacted  March  21,  1872,  founded  on  §  25,  Act  March 
4,    1870,    Stats.    1869-70,   p.    125. 


1288 


Tit.X.ch.IV.]  MINING  PARTNERSHIP.  §  2511 

CHAPTER  IV. 
MINING  PARTNERSHIPS. 

§  2511.  Wlien   a  milling  partnership  exists. 

§  2512.  Express  ag-reenient  not  necessary  to  constitute. 

§  2513.  Profits  and  losses,  how  sliared. 

§  2514.  Lien  of  partners. 

§  2515.  Mine.      Partnership   property. 

§  2516.  Partnership  not  dissolved  by  sale  of  interest. 

§  2517.  Purchaser  takes,  subject  to  liens,  unless,  etc. 

§  2518.  Takes  with  notice  of  lien,  wlien. 

§  2519.  Contract  in  writing,   when  binding. 

§2520.  Owners  of  majority  of. shares  govern. 

§2511.    WHEN   A  MINING}    PARTNERSHIP    EXISTS.     A 

mining  partnership  exists  when  two  or  more  persons  who 
own  or  acquire  a  mining  claim  for  the  purpose  of  working  it 
and  extracting  the  mineral  therefrom  actually  engage  in 
working  the  same. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  35  pars,  annotation. 

81  C.  14,  16,  22  P.  264,  265  (referred  to);  89  C.  367,  372,  26  P. 
970,  971  (construed  and  applied  with  §2512);  107  C.  504,  510,  40 
P.  802  (construed  and  applied);  121  C.  213,  215,  53  P.  557  (con- 
strued and  applied);  127  C.  520,  521,  59  P.  937,  938  (construed 
and  applied  with  §2512);  128  C.  120,  127,  60  P.  689  (construed 
and  applied). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
ally, see  note  §  2395,  ante. 

MINING  PARTNERSHIPS. 

As  to  generally,  see  83  A.  D.  104;  8  A.  S.  488;  22  Encyc.  L.  63, 
226. 

As  to  application  of  provisions  of  §  2453  of  C.  C.  to  mining 
partnerships,  see  Kerr's  Cyc.  C.  C.  §  2453  and  note. 

As  to  mining  partnerships,  see  note  83  A.  D.   104-110. 

Accounting. — See    22    Encyc.    L,    230. 

Acquiring  adverse   interest. — See   22   Encyc.   L.    229. 

Contracts  between  partners. — See  22  Encyc.  L.  227. 

Defmition  of. — See  S3  A.  D.  96;  28  A.  S.  475;  26  L.  ed.  266;  22 
Encyc.  L.  226;  5  W.  &  P.  4521. 

Differ  from  ordinary  partnerships. — See  Martin's  Mining  Law 
§  392. 

1289 


§  2511  CIVIL  CODE.  [Div.III.Pt.IV. 

Dissolution  and  winding  up. — See  22  Encyc.  L..  232. 

Distinction  between  mining  and  ordinary  partnerships. — See 
4  A.   C.   267;   27  Encyc.  L.   227. 

Distinguished — From  co-ownership. — See   22  Encyc.  L.   228. 

Same — From  ordinary  partnerships. — See  4  A.  C.  267;  22 
Encyc.    L.    227. 

Evidence    of. — See    22    Encyc.   L.    228. 

Governed  by  many  of  the  rules  relating  to  ordinary  part- 
nerships but  differs  therefrom  in  many  important  particulars. — 
See  S3  A.  D.  96;  26  L.  ed.  266;  29  L.  ed.  126;  32  L..  ed.  764;  5 
W.  &  P.  4521. 

Grub-stake  contracts — As  to,  generally,  see  Martin's  Mining 
Law   §§377-390;    22   Encyc.  L.   232. 

In  order  to  dissolve  by  a  decree  in  equity  to  sell  the-  part- 
nership property,  bill  must  allege  what. — See  4  A.  C.  265. 

Liability  of  partner  on  'firm  obligations. — See  22  Encyc.  L. 
231. 

Majority  interests  control,  in  dispute  as  to  management. — See 
4  A.   C.   265. 

Member — May  deal  with  partnership  for  his  own  benefit. — 
See   Martin's  Mining  Law   §  393. 

Same — May  sell  interest  without  knowledge  or  consent  of 
co-owners. — See    4    A.    C.    265. 

Nature  of. — See  Martin's  Mining  Law  §391;   22  Encyc.  L.   226. 

One  partner  may  convey  interest  without  dissolving  part- 
nership.— See    4    A.    C.    265. 

Particular  powers   of. — See   22   Encyc.   L.   230. 

Partition   of. — See   22   Encyc.   L.    230. 

Partner's   lien. — See   22    Encyc.   L.    230. 

Partners  may  locate  inining  claim. — See   7  L.  N.   S.    817. 

Partnership   property. — See   22   Encyc.   L.    232. 

Power   of  majority. — See   22   Encyc.   L.    229. 

Power  of  manager. — See  22  Encyc.  L.   230. 

Powers  of  members  limited. — See  Martin's  Mining  Law   §  396. 

Power  of  partners   to  bind  fii'm. — See   22   Encyc.   L.    230. 

Priority  between  firm  and  separate  creditors. — See  22  Encyc. 
L.    230. 

Profit    sharing. — See    22    Encyc.    L.    227. 

Prospecting  or  grub-stake  contracts. — See  Martin's  Mining 
Law    §§377-390;    22    Encyc.    L.    232. 

Relation    of   trust  and   confidence. — See    22    Encyc.   L.    229. 

Relations  of  the  partners. — See  28  A.  S.  488. 

Retiring  partner,  rights  and  liabilities  of. — See  22  Encyc.  L. 
231. 

Rights  and  liabilities — As  to  third  persons,  see  22  Encyc.  L. 
230. 

Same — Inter   se. — See   22   Encyc.   L.    229. 

Same — Of   retiring   partner. — See    22   Encyc.   L.    231. 

1290 


Tit.X.ch.IV.]  RELATION   ARISES  HOW.  §§  2512-2514 

Stranger  may  be  admitted  witliout  dissolving. — See  Martin's 
Mining   Law    §  394. 

Tenants  in  common  of  mine  as  partners. — See  22  Enoyc.  L. 
227. 

Wliat  constitutes  a. — See  83  A.  D.  96;  26  A.  g.  475;  26  L.  ed.- 
266;   22  Encyc.  L.   226;   5  W.  &  P.  4521. 

When   exists. — See  Martin's  Mining  Law   §  395. 

Wlien  there  is  a  dispute  as  to  the  management,  those  who 
have  the  majority  interest   control. — See   4   A.   C.   265. 

§2512.  EXPRESS  AGREEMENT  NOT  NECESSARY  TO 
CONSTITUTE.  An  express  agreement  to  become  partners 
or  to  share  the  profits  and  losses  of  mining  is  not  necessary 
to  the  formation  or  existence  of  a  mining  partnership.  The 
relation  arises  from  the  ownership  of  shares  or  interests  in 
the  mine  and  working  the  same  for  the  purpose  of  extracting 
the  minerals  therefrom. 

History:     Enacted  Marcli    21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

89  C.  367,  372,  26  P.  970,  971  (construed  and  applied  with 
§2511);  107  C.  504,  511,  40  P.  802  (construed  and  applied);  127 
C.   520,   521,  59  P.  937,  938    (construed  and  applied  with  §  2511). 

As  to  many  miscellaneous  matters  as  to  partnership  gener- 
erally,  see  note   §  2395,  ante. 

As  to  ownership  of  shares  or  interests  in  mine  as  necessary 
element  of  mining  partnership,  see  Kerr's  Cyc.  C.  C.  §  2511 
and    note    par.    10. 

§251.S.  PROFITS  AM)  LOSSES,  HOW  SHARED.  A  mem- 
ber of  a  mining  partnership  shares  in  the  profits  and  losses 
thereof  in  the  proportion  which  the  interest  or  share  he 
owns  in  the  mine  bears  to  the  whole  partnership  capital  or 
whole  number  of  shares. 

HlHtory:     Enacted  March   21,  1872. 

See    Kerr's   Cyc.   C.   C.   for    2   pars,   annotation* 
89   C.   367.   371,   26   P.   970,   971    (construed). 

As  to  many  miscellaneous  matters  as  to  partnorf-Iiip  gen- 
erally,   see    note    §  2395,    ante. 

§2514.  LIEN  OF  PARTNERS.  Each  member  of  a  mining 
partnership  has  a  lien  on  the  partnership  property  for  the 

1291 


§§  2515-2517  CIVIL  CODE.  [Div.III,Pt.IV. 

debts  due  the  creditors  thereof,  and  for  money  advanced  by 
him  for  its  use.     This  lien  exists  notwithstanding  there  is  an 
agreement  among  the  partners  that  it  must  not. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

66  C.  577,  578,  6  P.  689,  690  (construed  and  applied);  89  C. 
367,  371...  26  P.  970,  971  (construed  and  applied  with  §2520); 
144   C.    771,   773,    78   P.    239    (cited). 

As  to  joint  liability  of  mining  partner  for  all  obligations 
of  copartnership,  see  Kerr's  Cyc.  C.  C.  §  2442  and  note  par.   6. 

As  to  many  miscellaneous  matters  as  to  partnership  gen- 
erally, see  note  §  2395,  ante. 

§  2515.  MINE.  PARTNERSHIP  PROPERTY.  The  mining 
ground  owned  and  worked  by  partners  in  mining,  whether 
purchased  witli  partnership  funds  or  not,  is  partnership 
property. 

History:     Enacted  March   21,  1872. 

See   Kerr's  Cyc.   C.   C.  for  3   pars,  annotation. 
As    to    many    miscellaneous    matters    as    to    partnership    gen- 
erally,   see    note    §  2395,    ante. 

§2516.  PARTNERSHIP  NOT  DISSOLVED  BY  SALE  OF 
INTEREST.  One  of  the  partners  in  a  mining  partnership  may 
convey  his  interest  in  the  mine  and  business  without  dissolv- 
ing the  partnership.  The  purchaser,  from  the  date  of  his 
purchase,  becomes  a  member  of  the  partnership. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.   C.   for   8   pars,    annotation. 

As  to  duty  of  partners  to  exercise  towards  copartners  high- 
est good  faith,  see  Kerr's  Cyc.  C.  C.   §  2411  and  note. 

As  to  many  miscellaneous  matters  as  to  partnership  gen- 
erally,  see   note   §  2395,   ante. 

§2517.  PURCHASER  TAKES,  SUBJECT  TO  LIENS,  UN- 
LESS, ETC.  A  purchaser  of  an  interest  in  the  mining  ground 
of  a  mining  partnership  takes  it  subject  to  the  liens  exist- 
ing in  favor  of  the  partners  for  debts  due  all  creditors 
thereof,  or  advances  made  for  the  benefit  of  the  partnership, 

1292 


Tit.X.ch.IV.]  TAKING  WITH  NOTICE.  §§  2518-2520 

unless  he  purchased  in  good  faith,  for  a  valuable  considera- 
tion, without  notice  of  such  lien. 

History:     Enacted  March  21,  1872. 

§  2518.  TAKES  AVITH  NOTICE  OF  LIEN,  AVHEX.  A  pur- 
chaser of  the  interest  of  a  partner  in  a  mine  when  the 
partnership  is  engaged  in  working  it,  takes  with  notice  of  all 
liens  resulting  from  the  relation  of  the  partners  to  each 
other  and  to  the  creditors  of  the  partnership. 
History:     Enacted  March  21.  1872. 

See   Kerr's   Cyc.   C.    C.   for   2   pars,   annotation. 
As    to    many    miscellaneous    matters    as    to    partnership    gen- 
erally,   see    note    §  2395,    ante. 

§2519.    CONTRACT  IN  WRITING,  WHEN  BINDING.     No 

member  of  a  mining  partnership  or  other  agent  or  manager 

thereof  can,  by  a  contract  in   writing,  bind  the  pa,rtnership, 

except  by  express  authority  derived  from  the  members  thereof. 

History:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.  C.  for   8  pars,  annotation. 
As    to    many    miscellaneous    matters    as    to    partnership    gen- 
erally,  see   note   §  2395,    ante. 

§2520.    OWNERS  OF   MAJORITY   OF   SHARES  GOVERN. 

The  decision  of  the  members  owning  a  majority  of  the  shares 
or  interests  in  a  mining  partnership  binds  it  in  the  conduct 
of  its  business. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
89  C.  367,  371,  26  P.  970,  971    (construed  and  applied). 
As    to    many    miscellaneous    matters    as    to    partnership    gen- 
erally,   see    note    §  2395,    ante. 


1293 


§2527 


CIVIL  CODE. 


[Div.III,Pt.IV. 


TITLE  XI. 

INSURANCE. 

Chapter  I.  Insurance  in  General,  §§  2527-2649. 

II.  Marine  Insurance,  §§  2655-2746, 

ITT.  Fire  Insurance,  §§  2752-2757. 

IV.  Life  and  Health  Insurance,  §§  2762-2766. 


CHAPTER  I. 

INSURANCE  IN  GENERAL. 

Article  I.  Definition  of  Insurance,  §  2527. 

II.  What  May  be  Insured,  §§  2531-2534. 

III.  Parties  to  the  Contract,  §§  2538-2542. 

IV.  Insurable  Interest,  §§  2546-2558. 

V.  Concealment  and  Representation,  §§  2561-2583. 

VI.  The  Policy,  §§  2586-2599. 

VII.  Warranties,  §§  2603-2612. 

VIII.  Premiums,  §§  2616-2622. 

IX.  Loss,  §  2626-2629. 

X.  Notice  of  Loss,  §§  2633-2637. 

XI.  Double  Insurance,  §§  2641,  2642. 

XII.  Reinsurance,  §§  2646-2649. 


ARTICLE  I. 

DEFINITION  OF  INSURANCE. 

§  2527.     Insurance,   what. 

§  2527.  IIVSCRANCE,  .WHAT.  Insurance  is  a  contract 
whereby  one  undertakes  to  indemnify  another  against  loss, 
damage,  or  liability,  arising  from  an  unknown  or  contingent 
event. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

107   C.   327,   330,  48  A.   S.   140,   40   P.   431,  28  L.   692    (cited);   125 

1294 


II 


Tit.XI,ch.I,art.I.]      INSURANCE.   GENERALLY.  §2527 

C.  609,  611,  58  P.  177  (cited  in  connection  with  §  2528,  which 
is  not  in  code);  2  C.  A.  624,  629,  84  P.  271  (beneficiary  certifi- 
cate of  fraternal  association  is  contract  of  insurance — rule  of 
interpretation). 

INSURANCE — GENERALLY. 

As  to  many  miscellaneous  matters  of  insurance,  see  note 
§  414,    ante. 

As  to  marine  insurance,  see   note  §  2655,  post. 

As  to  reinsurance,  see  Kerr's  Cyc.  C.  C.  §  2646  and  note;  also 
note    §  2646,    post. 

Accident,   death,   evidence  of  cause  of. — See   50  A.  S.   441. 

Accident  insurance — Restrictions  as  to  occupation  and  em- 
ployment in  policy  of. — See  9  L.  685;  see  "Accident  Policy,"  this 
note. 

Accident  policy — As  to  what  constitutes  an  accident  within — 
Contact  with  poisonous  substances  as  an. — See  9  L.  687. 

Same — Same — Definitions  and  general  rules. — See  30  L.   206.    . 

Same — Same — Disease  as  an. — See  30  L.  209. 

Same — Same — Drowning  as  an. — See  30  L.  211. 

Same — Contact  with  poisonous  substances  as  an  accident. — 
See   9   L.    687. 

Same — Contributory  negligence  as  a  defense  in  suit  on  policy. 
— See   13  L.   266. 

Same — Death  while  committing  a  public  offense. — See  9  L. 
686. 

Same — Death  while  traveling. — See  9  L.   686. 

Same — Death  while  violating  rules  of  insurance  company. — 
See    9   L.    686. 

Same — Drowning  as  an  accident. — See  30  L.  211. 

Same — Effect  of  conditions  in,  tliat  insured  use  due  dili- 
gence for  his  personal  safety  and  protection. — See  3  L.   443. 

Same — Same — Burden  of  proving  breach  of  condition. — See  13 
L.    263. 

Same — Exterior  and  visible  marks  and  signs. — See  9  L.  687; 
13    L.    264. 

Same — External,  violent  and  accidental  means. — See  9  L. 
371;    13    L.    274. 

Same — Intentional    injuries. — See    13   L.    265. 

Same — Proximate  cause  of  death   under. — See   17  L.  753. 

Same — Restrictions  as  to  occupation  and  employment  in  pol- 
icy  of. — See    9    L.    685. 

Same — Voluntary    exposure — To    danger. — See    9    L.    687. 

Same — Same — To  unnecessary   risk. — See   13  L.   265. 

Accidental  means,  wliat  is  injury  or  death  by. — See  54  A.  R. 
302;    8   A.   S.    763. 

Actions  on  contract  or  policy — As  to.  generally,  see  4  A.  C. 
1045;  5  A.  C.  402;  7  A.  C.  809;   10  A.  C.  821. 

1295 


§2527  CIVIL  CODE.  ^  [Div.III.Pt.IV. 

Same — Admissibility  of  books  of  account  to  prove  amount 
and  value  of  insured  goods. — See  52  L.  721. 

Same — Constitutionality  of  statutes  providing  damages  or 
penalty  for  refusal  or  failure  of  insurance  company  to  pay 
losses. — See  5  A.  C.  405. 

Same — Contractual  limitation  of  time — Estoppel  to  plead  de- 
fense  of  limitation. — See   63   L.    204. 

Same — Same — First  and  last  days  of  computation  of  time. — 
See  49  L.  208. 

Same—  Bame — Law   governing. — See   63  L.    868. 

Same— Same — Validity  of. — See  1  L.  847;  3  L.  344;  8  L.  48.  . 

Same — Same — When   begins   to   run. — See   47   L.    697-711. 

Same — Defense  of  ultra  vires  by  insurance  company  in. — 
See   4   A.   C.    1046. 

Same — Effect  of  admission  to  change  burden  of  proof  and 
right  to  open  enclosed  action. — See  61  L.  537. 

Same — Effect  of  provision  that  deficiency  in  assessment  may 
be  paid  from  reserve  or  emergency  fund. — See   10  L.  N.   S.   264. 

Same — First  and  last  days  in  computation  of  time  is  on 
policy. — See   15   L.   N.   S.   688. 

Same — Mortgagee  to  bring  in  name  of  insured. — See  3  L.  525. 

Same — On  policy — As  bar  to  action  to  reform  it. — See  12  L. 
N-.    S.    907. 

Same — Same — Of   reinsurance. — See    10    L.    424. 

Same — Remedy  of  beneficiary  upon  repudiation  of  contract 
by  insurer. — See  14  L.  N.  S.  1110. 

Same — Removal,  because  of  separable  controversy,  of  actions 
relating  to  insurance  and  recovery  of  fire  losses  paid  by  in- 
surer.— See  5  L.  N.  S.   88. 

Same — Right  of  beneficiary  to  sue  insurer  for  breach  of  con- 
tract other  than  failure  to  pay  indemnity. — See  4  L.  N.  S.  870. 

Same — Right  of  non-complying  foreign  insurance  company 
to  enforce  domestic  contract. — See  9  A.  C.  338. 

Same — Rule  of  pleadings  in,  on  certificates  of  benefit  asso- 
ciation.— See     2    L.     788. 

Same — Submission  to  arbitration  as  condition  precedent  to. — 
See   8   A.   C.    171. 

Same— Third  party's  right   of. — See   25   L.   274. 

Same — Transitory   character   of. — See    63   L.    863. 

Same — Validity  of  requirement  by  mutual  benefit  associa- 
tions that  remedies  within  the  order  must  be  exhausted  before 
resort  to  the  civil   courts. — See   8  L.  N.  S.   916. 

Same — Who  is  real  party  in  interest. — See  64  L.  615. 

Adjustments  of,  when  may  be  opened. — See  35  A.  R.  775. 

Adopted  children,  rights  of  under  insurance  policy. — See  17 
L.    438. 

Against  fire — Change  of  title,  sale  by  one  partner  to  an- 
other, whether  amounts  to. — See  49  A.  R.  22;  52  A.  R,  442. 

1296 


i      Tit.XI,ch.I,art.I.]     INSURANCE,  generally.  §2527 

Same — Prohibited  risks,  conditions  against,  when  broken. — 
See  33  A.  R.  781. 

Same — Subsequent  insurance,  when  avoids. — See  20  A.  R.   319. 

Same — Warranties,  answers  concerning  watchmen,  when 
deemed   to   be. — See   33   A.   R.    832. 

Same — When  remains  in  force  after  removal  of  property. — 
See    33    A.    R.    147. 

Agency,  stipulations  that  persons  procuring  policies  must  be 
deemed  agents  of  the  assured. — See  53  A.  R.   201. 

Agent  of  insurance  company — Assignability  of  rights  to  com- 
missions or  renewal   premiums. — See   18  L.  N.  S.   193. 

Same — Bad  faith  of  insured  as  affecting  estoppel  of  insurer 
to  set  up  falsity  of  answers  in  application,  cause  of  agent's 
knowledge  of  such  falsity. — See   14  L.  N.  S.   239. 

Same — Commission  of, — allowance  of  to  applicant  as  payment 
of   premium. — See    8   L.   N.   S.    884. 

Same — Effect  of  general  notification    by,  on  arrival   of  policy, 
when  the   company   has  substituted  another  form   of  policy  for. 
that  applied  for. — See   12   L.   N.   S.   421. 

Same — Effect  of  insertion  by,  in  the  application  of  false 
answers  to  questions  correctly  answered  by  the  insured. — See 
4    L.    N.    S.    607. 

Same — Effect  of  knowledge  of,  acting  in  two  capacities. — See 
3  L.  N.  S.   444. 

Same — Effect  of  mistake  in  designating  location  of  prop- 
erty.—See    2    L.   N.    S.    548. 

Same — Employment  of  clerk  by. — See   10  L.   609. 

Same — ^^Knowledge  of  agent  imputed  to  insurer. — Sec  1  L. 
217. 

Same — Knowledge  of  fraud  of  insurer's,  as  an  estoppel  of  the 
company. — Sec   5  L.   646;   16  L.   33. 

Same — Liability  of  agent  to  insurance  company  for  losses  oc- 
casioned  by   disobedience   of   instructions. — See   8   L.    702. 

Same — Notice   to   as    notice    to   principal. — See    1    L.    563. 

Same — Same — To   subagent,  effect   of. — See   21  L.   342. 

Same — Power  of — Of  insurance  to  bind  company  by  insuring 
property  in  which  he  is  interested  personally  or  as  agont,  the 
company  having  no  notice  of  such  interest. — See  9  L.  N.  S. 
1084. 

Same — Same — To  liind  company. — See  1  L.  482;  8  L.  72;  11  L. 
341. 

Same — Responsibility  for  acts  of. — See  7  L.   217. 

Same — Waiver   by. — See    1   L.   217. 

Same — When  insurance  agent  is  the  agent  of  the  insured. — 
See  20  L.   277. 

Alienation,  recovery  by  insurer  retaining  a  lien  or  insurable 
interest  after. — See   59   A.   D.    304. 

Application  as  part  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2605 
and    note    pars.    2,    3. 

1297 


§  2527  CIVIL  CODE.  [Div.III.Pt.IV. 

Application,  misrepresentation  or  misstatement  in,  law  gov- 
erning-, effect  of. — See  7  L.  217;   8  L.   70;  10  L.  666;  63  L.  864. 

Application  or  insurance  policy  as  governing  in  case  of  va- 
riance.— See   11   A.   C.   708. 

Apportionment  of  loss,  what  constitutes  double  insurance 
for    purposes    of. — See    15    L.    127. 

Arbitration — Action    on   award. — See    10    L.    560. 

Same — Agreements  to  submit  disputes  respecting  to. — See  2 
A.    S.    565. 

Same — Breach  of  agreement  to  submit  to,  as  a  defense  to 
action    on   policy. — See    10   L.    559. 

Same — Condition  precedent  to  action  on  insurance  policy 
when. — See   15   L.  N.   S.    1055-1077. 

Same — Effect  of  failure   of. — See   4  L.   N.   S.   288. 

Same — Provision  for,    waiver. — See   10   L.    558. 

Same — Revocation   of   submission   to. — See   10   L.    560. 

Same — Submission  to — As  a  condition  precedent  to  suit  on 
insurance  contract  containing  a  stipulation  for  arbitration-  — 
See    8    A.    C.    171. 

Same — Same — As  condition  precedent  to  action. — See  10  L. 
558. 

Same — Same — As  waiver  of  notice  of  loss. — See  10  L.   560. 

Same — Same — As   waiver   of   proof   of  loss. — See   10   L.    560. 

Same — Waiver  of  provision  for  submission  to. — See  10  L.  558. 

Arson  with  respect  to  insured  property. — See  Pen.  C.  §  548 
and  note. 

Assessments — Failure  to  pay  between  day  of  accident  and 
time   of  death,   effect  of. — See   26   L.   112. 

Same — Forfeiture  for  nonpayment  of. — See  9  L.  189;  see 
"Forfeiture,"    this    note. 

Same — Liability  of  member  of  benefit  society  to  action  for. — 
See    23   L.    435. 

Same — Remedy  for  refusal  to  levy. — See  1  L.  246;  2  L.  786;  8 
L.    115. 

Assessment  company — Right  to  change  from  assessment  to 
level    policies. — See    1    L.    N.    S.    623. 

Same — Right  to  change  to  level  premium. — See  4  A.  C.  361. 

Assignability — As   security  for   debt. — See   9   L.    662. 

Same — Necessity  that  assignee  have  an  insurable  interest 
in   life. — See    9   L.    661. 

Same — Of    endowment. — See    9    L.    661. 

Same — Of  life  insurance  policy. — See  9  L.   660. 

Same — Of  policy  taken  out  by  wife  on  husband's  life. — See  9 
L.    663;    10    L.    259. 

Same — Transferees  of  policy  as  members  of  mutual  fire  in- 
surance   company. — See    32   L.    482. 

Assignment  of,  when  valid  and  what  constitutes. — See  56  A. 
D.    747. 

1298 


Tit.XI.ch.I.art.L]     insurance,  generally.  §  2527 

Attaching  application  to  policy,  wliat  a  sufficient. — See  18  L. 
N.    S.    1190. 

Authority  of  insurance  agency — As  to,  generally,  see  2  A. 
C.    97. 

Same — Effect  of  limitation  on  agent's  authority  to  waive  con- 
ditions  in   insurance  policy. — See   2   A.   C.   112;    9   A.   C.   380. 

Same — Right  of  insurance  agent  to  commission  on  renewal 
premiums  after  termination   of  agency. — See    7   A.   C.    1169. 

Bankrupt,  life  insurance  as  assets  of. — See  50  L.   33. 

Bankruptcy  or  insolvency  proceedings  or  assignment  for 
benefit  of  creditors,  effect  of  on  fire  insurance. — See  15  L.  N.  S. 
827. 

Bawdy-house  or  furniture,  insurance  thereon. — See  18  L.  N. 
S.    214. 

Beneficiary — Change  of — As  to  generally,  see  5  L.  95;  15  L. 
350;    63   L.    862. 

Same — Same — By    will. — See    4   L.   N.   S.    939. 

Same — Effect  of  becoming  self-supporting  on  mutual  benefit 
certificate. — See   7  L.   N.   S.   393. 

Same — Power  of  insured  to  destroy  rights  of — In  case  of 
benefit   societies. — See    49   L.    749. 

Same — Same — In  case  of  regular  life  policy. — See   49  L.   737. 

Same — Right  to  change  as  affected  by  consideration  from 
beneficiary   originally   named. — See   12  L.   N.   S.    1206. 

Same — Statute  permitting  cliange  of  as  affecting  riglits  of 
under  policy  previously  issued.— See  8  L.  N.  S.  923. 

Same — Who  may  be  considered  as  "dependent"  within  re- 
strictions as  to,  of  mutual  benefit  associations. — See  2  L.  N.  S. 
653. 

Benefit  association — Certificate  in — As  to  generally,  see  2  L. 
788;  5  L.  98;   8  L.  113;   12  L.   210. 

Same — Same — Construction  of. — See  8  L.  113. 

Same — Conflict  between  by-laws  and  certificate. — See  47  L. 
681. 

Same — Distinction  of  certificate  in,  and  life  policy. — See  5  L. 
98;    12    L.    210. 

Same — Is   it  an   insurance  company. — See   38  L.   33-54. 

Same — Liability  of  member  to  action  for  assessment. — See 
23    L.    435. 

Same — Power  of  insured  to  destroy  rights  of  beneficiary. — 
See    49    L.    749. 

Same — Powers   of   members   of. — See    2    L.    163. 

Same — Previous  rejection  by,  as  declination  or  refusal  of 
insurance  within  meaning  of  application  for  life  insurance. — 
See   4   L.   N.    S.    247. 

Same — Rights  of  members  of  as  affected  by  by-laws. — See  5 
L,   96. 

Same — Rules  of  pleading  in  action  on  certificate  of. — See 
2  L.  788. 

1299 


§  2527  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Who  are  members  of  "family"  within  contract  of. — 
See    3    L.    N.    S.    334. 

Same — Who  may  be  considered  as  "dependent"  within  restric- 
tions as  to  beneficiaries. — See  2  L.  N.  S.   653. 

Benefit  certificates — Effect  of  adoption  of  by-laws  by  frater- 
nal insurance  order  upon  those  already  issued. — See  1  L.  N.  S. 
1065. 

Benefit  insurance — Forfeiture  of  certificate  of  by  default  of 
subordinate  lodge.- — See  50  L.  Ill;  see  "Benefit  association," 
this   note. 

Benefits  issued  by  company  as  evidence  of  meaning  of  con- 
tract.— See   5   L.    808. 

Betrothed  wife — Right  to  insure  life  of  promised  husband. — 
See    53    L.    825. 

Same — Validity  of  life  insurance  for  benefit  of. — See  19  L. 
187. 

Bicycles,   of. — See   47   L.   307. 

Bond  for  title,  effect  of  to  defeat  unconditional  and  sole 
owner. — See  5  L.  N.  S.   512. 

Books  of  account,  admissibility  to  prove  amount  and  value 
of    insured    goods. — See    52    L.    721. 

Breach,  by  tenant  or  mortgagee,  effect  of  on  policy. — See  12 
L.   N.    S.    84;    18   L.   N.   S.    197. 

Burden  of  proving  breach  of  condition  under  accident  policy. 
—See    13    L.    263. 

By-laws — Conflict  between,  and  certificate  or  policy  of  a 
mutual   benefit  society  or  insurance  company. — See  47  L.   681. 

Same — ^Effect  of  adoption  of  by  fraternal  insurance  order 
upon   benefit  certificates  already   issued. — See   1  L.  N.   S.   1065. 

Same— Of  benefit  society — Conflict  between,  and  certificate 
or    policy. — See    47    L.    681. 

Same — Same — Rights  of  members  as  affected  by. — See  5  L.  96. 

Same — Reasonableness  of  new,  as  implied  condition  of  con- 
sent  to   change   of.- — See    8   L.   N.    S.    521. 

Same — Retroactive  effect  of,  of  mutual  insurance  company 
changing  period  during  which  policy  may  be  contested  for 
suicide. — See    12    L.   N.    S.    504. 

Same — Rights  of  members  of  benefit  society  as  affected  by. — 
See    5    L.    96. 

Cancelation  of  policy,  authority  of  as  to  respecting. — See  10 
L.    144. 

Carrier,  subrogation  of  to  rights  against  insurer. — See  3  L. 
426. 

Cause  of  loss  or  death — Admissibility  of  findings  of  coroner 
to   show  cause  of  death. — See   68  L.   288. 

Same — By   explosion. — See   "Explosion,"   this   note. 

Same — By   lightning. — See    26   L.    267. 

Same — By   suicide. — See   "Suicide,"   this   note. 

1300 


Tit.XI.ch.I.art.l.]      INSURANCE,   GENERALLY.  §  2527 

Same — By  voluntary  exposure  to  unnecessary  danger. — See 
40    L.    432. 

Same — Death  by  medical  treatment. — See  3  L.   486. 

Same — Death  caused  l>y  crime. — See  6  L.   495;   9  L.  685. 

Same — Death  while  under  influence  of  liquor. — See  3  L.  486. 

Same — Death  while  violating-  law. — See  3  L.  486;  13  L.  838. 

Same — Restrictions  as  to  occupation  and  employment  in  pol- 
icy  of    insurance. — See    9   L.    685. 

Same — Under  accident  polic5-. — See  "Accident  policy,"  this 
note. 

Certificate  in  benefit  association — As  to,  generally,  see  8  L. 
113, 

Same — Distinction  between,  and  life  policy. — See  5  L.  98;  12 
L.   210. 

Same — Rules  of  pleading  in   action   on. — See   2   L.   788. 

Certificate  of  magistrate,  necessity  for,  and  waiver  of. — See 
23    A.    S.     258. 

Change    of   beneficiary. — See    "Beneficiary."    this    note. 

Change   of   risk — Condition   as   to. — See   4   L.    538. 

Change  of  title  or  interest — Effect  of  on  insurance,  gener- 
ally, see  4  L.   539,  541;   9  L.   627;   11  L.   293. 

Same — Transfer  by  one  partner  of  his  interest  to  other  mem- 
bers of  firm  as  a  prohibited  change  or  alienation  of  interest. — 
See  18  L.  482. 

Commissioner  of  insurance. — See  Pol.  C.   §§  594-643  and  notes. 

Concealment  or  misrepresentations,  when  avoid. — See  35  A. 
R.    629. 

Conditions  of  contract  or  policy — As  to  keeping  and  producing 
books  and  papers — Keeping  books  and  vouchers — See  51  L.  699. 

Same — Same — Keeping  books  or  vouchers  in  a  safe  or  safe 
place. — See   51   L.    709. 

Same — Same — Producing   liooks  and   papers. — See   51   L.    702. 

Same — Against  ceasing  to  operate  mill  or  machinery. — See 
8   L.    81. 

Same — Against  change   of   risk. — See   4   L.   538. 

Same — Against   increase  of  risk. — See   10  L.   359. 

Same — Against  incumbrance — Generally,  see  1  L.  218;  4  L. 
538. 

Same — Same — Effect  of  upon  renewal,  substitution,  or  altera- 
tion  of   incumbrance   upon    Insured  property. — See   20   L.    400. 

Same — Same — What   constitutes   a   breach    of. — See    8   L.    73. 

Same — Against  keeping  petroleum  or  other  inflammable  fluids, 
when   violated. — See  37  A.   R.   650. 

Same — Against   other   insurance. — See    4   L.    848;    49    L.    208. 

Same — Against  vacancy  and  non-occupancy. — See  8  L.  79;  9 
L.    81,    82. 

Same — Breach   of,   burden    of  proof  as   to. — See   13   I>.    263. 

Same — Inception    of   policy. — See    13   L.    N.    S.    826-870. 

1301 


§  2527  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Requiring  payment  before  delivery  of  policy,  waiver 
of. — See    57    A.    R.    514. 

Same — Taking-  effect,  effect  of  stipulations  as  to. — See  17 
L.    N.    S.    1144-1156. 

Same — That  books  and  inventories  be  kept  in  a  safe,  what 
books,  etc.,  necessary  to  comply  with  the  requirements  of  the 
iron-safe  clause. — See   15  L.  N.  S.  471. 

Same — Waiver  of  conditions  or  defense  based  on. — See  1  L. 
222;    1   L.   563;    8  L>.   74. 

Cor^i'^t  of  laws,  as  to  in  construction  of  contract  of  insur- 
ance.— See    63   L.    856. 

Consciousness  of  dangers,  effect  of  on  provision  as  to  vol- 
untary  exposure  to  unnecessary  danger. — See   40  L.    434. 

Consent  of  person  whose  life  is  insured  as  a  condition  prece- 
dent.— See    56   L.    586. 

Constitutionality  of  statutes  providing  damages  or  penalty 
for  refusal  or  failure  of  insura^nce  company  to  pay  losses. — 
See   5   A.   C.   405. 

Construction  of  contract — As  to,  generally,  see  5  L.  799,  808; 
7  L.   217;   11  L.  340;   13  L.  263. 

Same — Certificate  of   benefit  society,   of. — See   8   L.    113. 

Same — Same — Distinction  between  and  life  policy. — See  5  L. 
98;   12  L.   210. 

Same — Conflict  between  by-laws  and  certificate,  or  policy  of 
mutual  benefit  society  or  insurance  company. — See   47  L.   681. 

Same — Conflict  of  laws  as  to. — See   63   L.    856. 

Same — Effect  of  rider  on  slips  attached  to  insurance  poli- 
cies.— See    30    L.    636. 

Same — First  and  last  days  in  computing  time  as  to  life  of 
policy. — See   49  L.   208. 

Same — Nature  of  risk  under  insurance  against  loss  by  light- 
ning.— See    26   L.    267. 

Same — Pamphlets  issued  by  company  as  evidence  of  mean- 
ing.— See    5   K    808. 

Same — Of  reinsurance. — See   10  L.    423. 

Same — Rights  of  members  of  benefit  society  as  affected  by  by- 
laws.— See    5    L.    96. 

Same — Strict,  of  clause  operating  by  way  of  forfeiture. — 
See   4  L.   538. 

Same — When  contract  entire  and  when  severable. — See  8  L. 
834. 

Constructive  total  loss  of  insured  buildings — As  to,  gener- 
ally,   see    56    L.    784-792. 

Contract  or  policy  of — As  to,  generally,  see  2  A.  C.  17;  2  A. 
C.  99;  9  A.  C.   916;   24  L.  296;   63  L.  833-867. 

Same — Actions    on. — See    "Actions    on    contract   of,"    this   note. 

Same — Cancelation   and  forfeiture   of,   as  to,  generally,   see   7 

1302 


Tit.XI,ch.I,art.I.]      INSURANCE,   GENERALLY.  §2527 

L.  N.  S.   1163;   10  L.  N.  S.   198;   12  L. -N.  S.   881;    13  L.  N.   S.   805; 
13  L.  N.  S.  889;   17  L.  N.  S.   246;   18  L.  N.  S.   902;   18  L.  N.  S.   1219. 

Same — Conditions — Against  incumbrances. — See  1  L.  18;  4  L. 
538;    8   L.   73;    20   L.    400. 

Same — Same — As  to  keeping  and  producing  books  and  pa- 
pers.—See    51    L.    699. 

Same — Same — Location  of  movable  property. — See  26  L.   267. 

Same — Same — Other  insurance. — See  4  L.  848;  10  L.  359;  11 
L.    299;    49   L.    208. 

Same — Same— Title  and  change  of  interest. — See  4  L.  539;  9 
L.  627;  11  L.  293;   18  L.  481,  482;  38  L.  562-565. 

Same — Same — Title  and  increase  of  risk — As  to  generally, 
see  1  L.  222;  1  L.  563;  4  L.  538;  8  L.  74,  79,  81;  13  L.  263. 

Same — Construction  of — As  to  generally,  see  "Construction," 
this   note. 

Same — Damage  or  penalty  for  refusal  or  failure  of  insurance 
company  to  pay  loss,  constitutionality  of  statutes  providing. — 
See   5  A.   C.   405. 

Same — Divisibility  of  insurance  companies. — See  2  A.  C.  22; 
11  A.  C.   805. 

Same — Effect  of  general  notification  by  agent  of  arrival  of 
policy,  when  the  company  has  substituted  another  form  of 
policy  for  that  applied  for. — See  12  L.  N.  S.  421. 

Same — Effect  of  rejection  of  portion  of  application. — See  5 
L.    N.    S.    739. 

Same — Entire  when   and  when   severable. — See  8  L.   834. 

Same — Forfeiture  and  suspension — As  to  generally,  see  1  L. 
256;  2  L.  118;  4  L.  538;  5  L.  806;  9  L.  189;  9  L.  317;  14  L.  283; 
26  L.  112;  49  L.  208;  50  L.  111. 

Same — Same — Paid  up  and  nonforfeiting  policy  of  life  in- 
surance.— See   15   L.    449. 

Same — Incontestability,  provision   as  to,  see   47   L.   247-261. 

Same — Insurance  on  bawdy-house  or  furniture  therein. — See 
18   L.   N.    S.    214. 

Same — Liability  on,  issued  by  domestic  corporation  upon  the 
life  of  a  non-resident  to  local  transfer  tax. — See  10  L.  N.  S. 
1089. 

Same — On  life  of  minor. — See  57  L.  496. 

Same — Paid-up  insurance,  surrender  value,  extended  insur- 
ance.— See  8  L.  N.  S.   193;   13  L.  N.  S.   1046;   16  L.  N.  S.   316. 

Same — Parol  assignment  of  insurance  policy,  validity  of. — 
See    5    A.    C.    410. 

Same — Premiums  and  assessments — As  to  generally,  see  1  L. 
146;  2  L.  786;  8  L.  115;  14  L.  283;  20  L.  407;   23  L.  435;  57  L.  69. 

Same— Same — Notice,  as  to.— See  2  L.  118;  5  L.  806;  49  L. 
208;    63   L.   862. 

Same — Reformation  of. — See  2  L.  64;  3  L.  189:  5  L.  712;  6  L. 
210;   6  L.   838;   2  L.  N.  S.   548;   11  L.  N.  S.   357;   12  L.  N.  S.   907. 

1303 


§  2527  CIVIL  CODE.  [DiV.III.Pt.IV. 

Same — Same — Action  on,  as  bar  to. — See  12  L.  N.  S.  907. 

Same — Representations  and  warranties — As  to  generally,  see 
1  L.  564;  7  L.  217;  8  L.  70;  10  L.  666;  13  L.  263;  39  L.  265;  63  L. 
864. 

Same — Same — False  representation  as  to  previous  application 
for  insurance.— See  55  L.   122-138. 

Same — Same— Innocent  misrepresentation  as  to  help,  effect 
of. — See    53   L.    193. 

Same — Requisite  of  a  present  oral  contract  of  insurance. — 
See   5  I-.,  N.  S.  407. 

Same — Termination  of — As  to  generally,  see  8  L.  719;  10  L. 
144;    30    L.    69. 

Same — Same — Effect  of  expulsion  from  society. — See  25  L. 
149. 

Same — Validity  of  fire  insurance  on  property  illegally  used. — 
See    40    L.    845. 

Same — Validity  of,  in  violation  of  statute. — See  12  L.  N.  S. 
612. 

Same — Validity  of  life  insurance  to  secure  debt  of  insurer. — 
See    53    L.    462. 

Same — Validity  of  oral. — See  6  A.  C.   624;   22  L.   768-772. 

Same — Validity  of  statute  providing  shall  not  be  avoided  for 
immaterial    false   warranty. — See    7    A.   C.    1107. 

Same— Waiver  of  conditions  by  insurer's  failure  to  inquire 
into  existing  facts. — See    9   A.   C.    994. 

Same — When  complete. — See  69  A.  S.  143. 

Same — ^When   is  consummated. — See  9  A.  C.   220. 

Contract  to  convey,  as  breach  of  condition  in  insurance  pol- 
icy  against   change    in    title   or   interest. — See  -3    L.    N.   S.    107. 

Contributory  negligence  as  a  defense  in  suit  under  accident 
policy.— See    13    L.    266. 

Co-operative,    infants    as    members   of. — See    17    L.    547. 

Corporation,  insurance  of  officer  of  for  benefit  of. — See  16 
L.   N.    S.    1020. 

Cousins,  have  an  insurable  interest  in  a  life. — See  14  L.  N.  S. 
1172. 

Creditor — Insurable   interest — In   life   of  debtor. — See   2   L.   844. 

Same- — -Insurance    in    behalf   of.— See    53    L.    462-465. 

"Cyclone,"  meaning  of  in  insurance  policy. — See  8  L.  N.  S. 
308;   2   W.   &  P.   1809. 

Damages  or  penalty  for  refusal  or  failure  of  insurance  com- 
pany to  pay  losses,  constitutionality  of  statutes  providing. — See 
5   A.   C.    405, 

Days  of  grace,  in  payment  of  premium  on  policy. — See  14  L. 
284. 

Death — As   a   disability.— See    38    L.    537. 

Same — Caused  by  crime. — See   6  L.   495;   9  L.   685. 

Same — Caused  by   medical    treatnrient. — See    3   L.    486. 

1304 


Tit.XI.ch.I.art.I.]      INSURANCE,   GENERALLY.  §  2527 

Same — While  committing  a  public   offense. — See   9   L.    686. 

Same — While   traveling-. — See    9    L.    686. 

Same — While  under   influence  of  liquor. — See   3   L.   486. 

Same — While   violating   law. — See    3    L.    486;    13    L.    838. 

Same — ^While  violating  rules  of  insurance  company. — See  9 
L.   686. 

Default — Forfeiture  by  reason  of. — See  "Forfeiture,"  this 
note. 

Same — Of  subordinate  lodge,  forfeiture  of  benefit  certificate 
by.— See    50   L.    111. 

Defense — Based  on  conditions,  waiver  of. — See  1  L.  222;  1  L. 
563;    8   L.    74. 

Delivery  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2586  and  note  pars. 
14-18. 

"Dependent,"  who  may  be  considered  as  within  restrictions 
as  to  beneficiaries  in  mutual  benefit  associations. — See  2  L.  N. 
S.   653. 

Description  of  insured  property,  mistakes  in. — See  16  A.  D.' 
462. 

Determination  as  to,  by  tribunals  of  association. — See  49  L. 
363,    372. 

Distinction  between  certificate  in  benefit  society  and  life 
policy.— See  5  L.   98;   12  L.   210. 

Distribution   of  assets  of  insolvent   insurance   company — Con 
tract  rights. — See   38  L.   110. 

Same — Priorities   on. — See   38   L.    103. 

Same — Special    funds. — See    38   L.    108. 

Same — Valuation    and    adjustment    of    claims. — See    38    L.    100 

Same — Who  to  make. — See  38  L.  97. 

Distribution  of  surplus  upon  dissolution  of  mutual  insurance 
company. — See    3    L.    N.    S.    653. 

Dividends,  application  of  to  interest  in  case  of  paid-up  and 
nonforfoiting  policy  of  life  insurance. — See   15  L.  453. 

Divisibility  of  insurance  contracts. — See  2  A.  C.  22;  11  A.  C. 
805. 

Divorce,  as  affecting  wife's  liglit  to  insurance  upon  husband's 
life.— See   50  L.    552, 

Double  insurance — Definition  of. — See  88  A.  D.  477;  28  A.  S. 
821;  15  L.  127;   1  L.  ed.  867;   3  W.  &  P.- 2185. 

Same — Insurance  by  carrier  and  by  owner  of  goods  as. — See 
11   A.   C.    960. 

Same — What  constitutes  for  purposes  of  apportionment  of 
loss. — See    15     L.     127. 

Drowning,  as  an  accident  within  accident  policy. — See  30  L. 
211. 

Duty  of  insured  to  submit  to  examination  and  furnish  infor- 
mation.— See    52    L.    424. 

Duty  to   notify   insurer  of  facts  which   develop  after  submis- 

1305 


§  2527  CIVIL  CODE.  [Div.III.Pt.IV. 

sion    of    application,    but    before    delivery    of    policy    or    certifi- 
cate.— See    8   L.   N.    S.    983. 

Effect  of  condition  against  other  insurance  in  same  com- 
pany.—See   5   L.   N.    S.    579, 

Effect  of  limitation  on  agent's  authority  to  waive  conditions 
in   insurance  policy.— See  2  A.  C.   112;   9  A.  C.   380. 

Effect  of  receipt  of  insurance  money — To  mitigate  damages 
for   personal    injuries. — See    67   L..    87. 

Same — To  mitigate  damages  for  wrongful  death. — See  67 
L.    92. 

Effect  of  stipulations  seeking  to  make  agent  of  insurer  agent 
of   the  assured. — See   77   A.   D.   724. 

Effect  on  insurance  upon  building  of  forfeiture  as  to  per- 
sonal  property. — See    19   L.    217. 

Employment,  restrictions  as  to  in  accident  policy  of  insur- 
ance.— See    9    Li.    685. 

Entirety  of,  policy  void  as  to  part  of  property,  whether  void 
in  toto.— See  74  A.   D.   498;   38  A.  R.   230. 

Estoppel. — See   "Waiver,"   this  note. 

Same — Bad  faith  of  assured  as  affecting,  of  insurer  to  set  up 
falsity  of  answers  in  application,  because  of  agent's  knowledge 
of  such   falsit5^ — See   14  L.  N.   S.   279. 

Same — By  application   made   out   by  agents. — See   9   A.   S.    229. 

Same — By    insurer's    election    to    rebuild. — See    26    L.    857. 

Same — Effect  of  agent's  insertions  in  the  application  of  false 
answers  to  the  questions  correctly  answered  by  insured. — See 
4    L.    N.    S.    607. 

Same — Effect  of  insurance  agent's  mistake  in  designating  lo- 
cation of  property. — See  2  L.  N.  S.   548. 

Same — Effect  of  knowledge  of  agent  acting  in  two  capacities. 
—See  3  L.   N.   S.   444. 

Same — Knowledge  of  fraud  of  insurer's  agent. — See  5  L.  646; 
16    L.    33. 

Same — Of  mutual  benefit  society  by  misrepresentation  as  to 
loss  of  the  order. — See  14  L.  N.  S.  540. 

Same — Parol  evidence  as  to  varying  or  contradicting  written 
contracts  as  affected  by  the  doctrine  of. — See  16  L.  N.  S.  1165- 
1264. 

Same — Provisions  in  the  insurance  policy  in  respect  to  va- 
cancy as  affected  by  agent's  representations  or  knowledge. — 
See    4   L.  N.   S.    758. 

Same — Retention   of  policy. — See   "Waiver,"  this  note. 

Exemption    of   proceeds    of   insurance. — See    19    L.    34. 

Explosion — ^Effect  of  escape  and  explosion  of  gas  upon  lia- 
bility  of   insurer. — See   29   L.    359. 

Same — Liability  of  insurer  for  loss  caused  by. — See  19  L.  594. 

Expulsion   from   benefit  society,   effect   of. — See   25   L.   149. 

Extent  of  injury — Conflict  of  laws  as  to  value  of  policy. — 
See    63    L.    866. 

1306 


Tit.XI,ch.I,art.I.]      INSURANCE.   GENERALLY.  §  2527 

Same — Constructive  total  loss  of  insured  building — As  to, 
generally,   see    56   L.    784-792. 

Same — How  far  aggregate  of  several  policies  is  binding  as  to 
value   of  insured  property. — See  26  L.    107. 

Same — Insurer's  option  to  rebuild. — See  "Option  to  rebuild," 
this    note. 

Same — Laws  governing  as  to  damages  and  interest  ex  mora. — 
See  63  L.  868. 

Same — Marine   insurance. — See   "Marine   insurance,"   this  note. 

Same — Measure  of  recovery  as  affected  by  insurable  inter- 
est.— See    2   L.    845. 

Same — What  constitutes  double  insurance  for  purposes  of 
apportionment  of  loss. — See   15   L.   127. 

Same — What  constitutes  total  disability — As  to,  generally,  see 
38   L.   529-539. 

Extrahazards,   effect  of. — See   11  L.   299. 

Extrinsic  evidence  to  control  or  vary  policy. — See  2  A.  D.  364. 

Failure  to  pay  assessment  between  day  of  accident  and  time 
of  death,  effect  of. — See  26  L.   112;   "Forfeiture,"  this  note. 

False  representations  as  to  previous  application  for  insur- 
ance.—See   55   L.    122-138. 

False  warranty,  immaterial,  validity  of  statutes  providing 
that  insurance  contract  shall  not  be  avoided  for. — See  7  A.  C. 
1107. 

"Family,"  who  are  members  of  within  contract  of  benefit  so- 
ciety.—See   3   L.   N.   S.   334. 

Fidelity,  nature  of,  and  rules  governing. — See  100  A.  S.  774; 
also    note    §  2772,    post. 

Fire^Alterations  in  premises,  when  avoid  policy. — See  26 
A.    S.    407. 

Same — Conclusiveness  of  as  against  insured  or  beneficiary. — 
See   44  L.   856. 

Same — Conditions — As  to  use  of  premises,  construction  of. — 
See    30   A.   S.    731. 

Same — Same — Requiring   notice    of   other   insurance   to   be    in-  ■ 
dorsed   on    the   policy. — See    64    A.    D.    221. 

Same — Forfeiture,  hazard,  increase  of,  what  results  in. — See 
66   A.   S.    691. 

Same — Loss  by,  what  included   in. — See   45   A.   D.   657. 

Same — Loss,    total,   what    is. — Sec    59    A.    S.    810. 

Same — Overvaluation  of  insured  property,  effect  of. — See  29 
A.    D.    616;    25    A.    R.    74. 

Same — Right  of  insurer  to  rebuild  or  repair.— See  11  A.  R.  57. 

Same — Use  or  keeping  of  forbidden  materials,  when  avoids 
policy. — See    24   A.    R.    150. 

Same — What  property  included  within  policies  respecting. — 
See   22  A.   R.   253. 

First  and  last  days  in  computing  time  on — As  to  generally, 
see    49    L.    208. 

1307 


§  2527  CIVIL  CODE.  [DiV.III.Pt.IV. 

Same — As  to  life   of  policy. — See   49  L.   208. 

Same — Of  nonpayment  of  premium  or  assessment. — See  49  L. 
208. 

"For  whom  it  may  concern. "-^See  16  A.  D.  323. 

Foreign  insurance  companies— Effect  of  location  of  insured 
property  within  the  state  to  prevent  action  by  foreign  insur- 
ance company  on  contract  made  in  another  state. — See  9  L.  N. 
S.   417. 

Same — Effect  on  insurance  where  the  statutes  regulating  the 
business  of,  haA'e  not  been  complied  with. — See  20  L.   405-409. 

Same — Exclusion    of. — See    24    L.    312. 

Same — Not  complying  with  the  law,  right  to  enforce  domes- 
tic   contract. — See    9    A.    C.    338. 

Same — Restriction   on   business   of. — See    24   L.    298-303. 

Same — Revocation  of  license  of  on  account  of  removal  of  ac- 
tion to  Federal  court. — See  1  L.  N,  S.   1019. 

Forfeiture — -As  to,  generally,   see   2  A.   C.   99;    8   A.   C.   497. 

Same — Acts  and  knowledge  of  agents,  when  prevent. — See  9 
A.    S.    236. 

Same — By  failure  to  furnish  proof  of  loss  or  death  within 
a    stipulated   time. — See    18    L.    85. 

Same — Conflict  of  laws  as  to. — See  63  L.  862. 

Same — Discontinuance  of  cause  of,  whether  revives. — See  80 
A.    S.    305. 

Same — Effect  of  failure  to  pay  assessment  between  day  of 
accident   and    time    of   death.— See    26   D.    112. 

Same — Effect  on  assignee  6f  assignor's  act  of. — See  18  L.  136. 

Same — Estoppel  to  insist  upon  because  of  knowledge  of  agent. 
— See    26    A.    R.    370. 

Same — First  and  last  day  of  computing  time  in  case  of  non- 
payment.— See   42   L.    908. 

Same — For  breach  of  a  promissory  warranty. — See  2  A.  C.  99. 

Same — For   nonpayment   of   assessment.— See    9   L.    189. 

Same — For   nonpayment   of   premium. — See    5    L.    806. 
.     Same — Same— Waiver   of. — See   1  L.   256;    9   L.   317. 

Same — For  nonpayment  of  premium  note. — See   9   L.   317. 

Same — Not  favored  in   law. — See  2  L.   118;   9   L.   199. 

Same — Occurring  after  issuance  of  policy  and  before  loss. — 
See   10   L.   N.   S.    1064-1089. 

Same — Of  benefit  certificate  by  default  of  subordinate  lodge. — 
See   50   L.   111. 

Same — Reinstatement.— See    "Reinstatement,"    this    note. 

Same — Silence  or  failure  to  act  by  insurer  having  notice  of 
breach  of  condition  in  policy,  as  waiver  of  forfeiture  for 
breach. — See    8    A.    C.    500. 

Same — Strict  construction  of  clause  providing  for. — See  4  L. 
538. 

Same — Waiver    of. — See    15    L.    454. 

1308 


Tit.XI,ch.I,art.I.]     insurance,  generally.  §  2527 

Same — Same — For  nonpayment  of  premium. — See  1  L.  2iJG;  9 
L.    317. 

Fraud — As  to  terms  of  policy,  waiver  of  by  retention  of  pol- 
icy.— See   67   L.    70S. 

Same — By  agent,  effect  of  ex  necessitate  in  making  proofs 
of  loss  under  fire  insurance  policy. — See  9  L.  N.  S.   485. 

Same — Effect  of  on   contract   of   insurance. — See   19   L.    218. 

Habits  or  occupation  of  insured,  time  covered  by  provision  or 
representation   with   respect  to. — See   5   L.   N.  S.   283. 

"Hazardous"  and  "extrahazardous,"  meaning  of.^See  97  A. 
D.   798;  also  4  W.  &  P.   3224. 

Hazardous  and  prohibited  articles  kept  in  the  ordinary  course 
of  business. — See   24   A.  R.   150. 

Health  consultation^ — "What  constitutes  consultation  witli,  or 
attendance  by,  a  physician,  within  ineaning  of  application  for 
life   insurance, — See    18   L.   N.   S.    362. 

"Heirs,"  who  are  within  life  policy. — See  30  L.   583;  63  L.  856. 

Illness — Effect  of  incapacitating  on  failure  to  pay  insurance 
premium    when    due. — See    12   L.   N.    S.    319. 

Incontestable  clause — Application  of  to  non-payment  of  pre- 
miums.— See  6  L.  N.  S.   1039. 

Same — Defense  of  want  of  insurable  interest,  as  affected  by. — 
See    5    L.    N.    S.    747. 

Same — Effect  of  incontestable  clause  where  insured  is  in 
poor  health  when   policy  is  delivered. — See   6  L.   N.  S.   1064. 

Same — Provision    as    to. — See    47    L.    247-261.. 

Same — Validity  of  provision  for,  from  specified  date. — See  2 
L.  N.  S.   821. 

Incontestability,  provision  as  to,  see  47  L.  247-261;  see  "In- 
contestable   clause,"    this    note. 

Increase  of  risk — By  change  of  occupation  of  person. — See 
10    L.    383.    388. 

Same — Condition    against. — See    "Conditions,"    this    note. 

Same — Effect    of   extrahazards. — See    11    L.    299. 

Same — Provisions   against. — See   10   L.   359. 

Indemnity  insurance — Arrangements  by  masters  with  insur- 
ance company  for  indemnity  of  servants. — See  11  L.  N.  S.  194. 

Same — Construction  of  policy  of  contract  insuring  against 
loss   of    rents. — See    16    L.   N.   S.    1055. 

Same — How  far  docs  limitation  of  liability  in  policy  against 
liability  for  injuries  to  employees  and  others  include  expenses 
of   litigation. — See    12    L.   N.    S.    478. 

Same — Injured  employee's  right  to  reach  fund  under  em- 
ployer's  liability   policy. — See    7   L.   N.   S.    958. 

Same — Loss  and  settlement — Giving  note  as  loss  for  damage 
with  contents  for  contract  of  indemnity. — See   9  L.  N.  S.   478. 

Same — Same — Power  of  insurer  with  respect  to  settlement  of 
claims. — See   6  L.   N.  S.   562. 

1309 


§  2527  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Waiver  of  short-limitation  by  efforts  at  compromise 
extending-  beyond   its  termination. — See   9  L.   N.   S.   654. 

Infants  as  members  of  co-operative  company. — See  17  L.   547. 

Insanity,  effect  of  incapacitating  on  failure  to  pay  insurance 
premium  when  due. — See   12  L.  N.  S.   319. 

Insolvent,  life  insurance  as  assets  of. — See  50  L..  33. 

Insurable  interest — Defense  of  want  of  as  affected  by  incon- 
testable clause  of  policy. — See  5  L.  N.  S.   747. 

Same — In  life — As  to  generally. — See  1  L.  238;  2  L.  844;  6 
L.    136;    7    L.    218. 

Same — Same — Consent  of  person  whose  life  is  insured  as  a 
condition. — See    54   L.    233;    56   L.    586. 

Same — Same — Defense  of  want  of,  as  affected  by  incontestable 
clause. — See   5  L.  N.  S.   747. 

Same — Same — Designation  as  beneficiaries  of  one  without  in- 
surable interest,  as  affected  by  considerations  of  public  policy. — • 
See    16    L.    N.    S.    555. 

Same — Same — Have  cousins  an  insurable  interest  in  life. — 
See  14  L.  N.  S.   1172. 

Same — Same — Insurance  on  life  of  officer  of  corporation  for 
benefit   of  the   corporation. — See   16   L.   N.   S.    1020. 

Same — Same — Of  another,  and  necessity  of. — See  57  A.  D.  93; 
46  A.   R.   189;   52  A.  R.   135;   58  A.  R.   852. 

Same — Same — Of  blood  relation. — See  54  L.   225-233. 

Same — Same — Of  creditor  in  life  of  debtor. — See  2  L.  844. 

Same — Same — Right  to  take  life  insurance  for  benefit  of 
stranger. — See   25   L.    627. 

Same — Same — Validity  of  life  insurance  for  benefit  of  be- 
trothed   wife. — See    19    L.    187. 

Same — Same — Wager  policy. — See  6  L.  137;  7  L.  217;  12  L. 
409;    13    L.    434. 

Same — Same — Who  is  member  of  "family"  in  contract  of  bene- 
fit society. — See  3  L.  N.   S.   334. 

Same- — Same — Who  may  be  considered  as  "dependent"  within 
restrictions  as  to  beneficiaries  of  mutual  benefit  associations. — 
See   2   L.  N.   S.   653. 

Same — Same — Wife's  right  to  insure  life  of  husband. — See  53 
L.   817-825. 

Same — In  property — By  contractor  in  building  in  course  of 
erection. — See    43    L.    664. 

Same — Same — In  unfinished  building  during  course  of  con- 
struction   by    contractor. — See    43    L.    664. 

Same — Same — Of  husband  in  wife's  property. — See  66  L.  657- 
661. 

Same — Same — Of  one  secondarily  liable  on  an  obligation 
where  the  property  is  primarily  chargeable  with  the  same. — 
See    9   L.   N.    S.    490. 

Same— Same— What  is.— See  7  A.  D.  42;  20  A.  D.  510;  11  L. 
598. 

1310 


Tit.XI,ch.I,art.I.]      INSURANCE,   GENERALLY.  §  2527 

Insurance — On  buildings  and  contents,  severability  of  con- 
tract.—See    19    L.    214. 

Same — On  several  articles  of  personal  property,  severability 
of  contract. — See   19   L.   217. 

Same — On  several  buildings,  severability  of  contract. — See 
19   L.   212. 

Insurance  corporations. — See  Kerr's  Cyc.  C.  C.  §§  414-453p  and 
notes. 

Insurer,  subrogation  of  to  rights  of  insured  against  carrier. — 
See    3    L.    426. 

Interest  in  proceeds — As  to,  generally,  see  3  L.  426;  13  L.  *434; 
17  L.    438;   19   L.   34;    63   L.   862. 

Same — Adopted  children,  right  of  under  insurance  policy. — 
See  17  L.  438. 

Same — Divorce  as  affecting  wife's  right  to  insurance  upon 
husband's    life. — See    50    L.    552. 

Same — Exemption    of. — See    19   L.    34. 

Same — "Heirs,"  who  are  within  life  policy. — Sec  30  L.  593;  63 
L.    856. 

Same — In   creditor's   policy   on   life   of   debtor. — See    13   L.    434. 

Same — "Legal  representatives,"  who  are  within  life  policy. — 
See   30   L.    609. 

Same — Life  insurance  as  assets  of  bankrupt  or  insolvent. — 
See    50    L.    33-46. 

Same — Mortgagee,  rights  of. — See  19  L.  321;  25  L.  305;  25  L. 
679. 

Same — Subrogation  of  carrier  to  rights  against  insurer. — 
See   3  L.   426. 

Same — Subrogation  of  insurers  to  rights  of  insured  against 
carrier. — See   3    L.    426. 

Same — Vendor  and  vendee,  rights  of  to  proceeds. — See  37  L. 
150. 

Interpretation  of  contract,  as  to.  generally,  see  13  li.  263; 
also    "Construction    of    contract,"    this    note. 

Iron-safe  clause  in  insurance  policy,  what  books  and  In- 
ventories must  be  kept  in,  to  comply  witli. — See  15  L.  N.  S. 
471. 

I^aw  of  state  of  Incorporation  as  limitation  upon  powers  of 
insurance    company. — See    63    L.    853. 

"Legal  representatives,"  who  are  within  life  policy. — S<-o  30 
L.    609. 

Level  premium,  riglit  of  insurance  company  to  cliango  from 
assessmmt   to. — See    4    A.    C.    361. 

Inabilities  of  officers  of  mutual  company  to  members  for 
permitting   diversion    of   funds. — See   12   L.   N.   S.    165. 

Liability  of  funds  held  by  mutual  benefit  societies  to  the 
claims  of  their  creditors. — See   6  L.   N.   S.   235. 

1311 


§  2527  CIVIL.  CODE.  [Div.III.Pt.IV. 

Life — Agents   accepting   insurance   when    they   know    answers 
in  the  application  are  false. — See  7  A.  R.   128. 

Same — Assignee,   whether  must   have   an   insurable   interest. — 
See    27   A.    R.    327. 

Same — Assignment  of  policies  of. — See   87   A.  S.   484. 

Same — Assignment   of   to    one    having   no   interest   in    the   life 
insured. — See   16   A.    S.    906. 

Same — Beneficiary— Results  of  the  death  of  before  that  of  the 
person  whose  life   is   insured. — See   11  A.   S.   721. 

Same — Same — When    not    entitled    to    sue    for. — See    19    A.    R. 
331! 

Same — Conclusiveness    of   adjustment    of    loss    as    against    in- 
suered  upon   beneficiary. — See   45   L.    450. 

Same — Conflict   of   laws   respecting   nonforfeiture   of   policy. — 
See    104    A.    S.    483. 

Same — Death   by   voluntary   exposure   to   unnecessary   danger, 
hazard,    or   perilous   adventure,    what   is. — See    12   A.   S.    272. 

Same — Death  is  known  violation  of  law. — See  60  A.  S.   160. 

Same — Death    resulting    from    a    criminal    act. — See    21    A.    R. 
542. 

Same — Disease   existing   at   time    of   application,    when   avoids 
policy  of. — See  3  A.  S.   634. 

Same — Fraud  on  creditors,  whether  results  from   withdrawal 
by  debtor  of  moneys  for  procuring. — See  88  A.  D.  530. 

Same- — Fraudulent  as  to  creditors,  when. — See  29   A.  S.  360. 

Same — Good  health,   what   is  within   the  meaning   of  the  law 
of.— See    10   A.   S.    242. 

Same — Insurable    interest — When    exists. — See    57   A.    D.    93;    46 
A.  R.  189;  52  A.  R.  135. 

Same- — Same — Whether    policy    may    be    made    payable    to    a 
person    having   none. — See    58   A.    R.    852. 

Same — Premiums,   nonpayment   of   due   to   war. — See    19   A.   R. 
512. 

Same — Suicide  as   a   defense. — See   59   A.   D.    487;    3   A.   R.    454; 
19   A.   R.    628;    84   A.    S.    539. 

Same — ^Warranty    of    sober   and    temperate    habits,   what    con- 
stitutes  breach   of. — See   38  A.   R.    615. 

Same — When    regarded   as   wagering   contract   because   of   the 
small   insurable   interest. — See    60   A.   R.   729. 

Lightning,  insurance  against  loss  by,  nature  of  risk  under. — 
See    26    L.    267. 

Limitation  of  actions  on  policies  of. — See  28  A.  S.  583. 

Limitation  of  time — Contractual,  in  which  to  bring  action  on 
policy  of  insurance— Validity  of. — See  1  L.  847;   3  L.  344;   8  L.  48. 

Same — Estoppel  to  plead  defense  of  limitation. — See  63  L.  204. 

Same- — ^Flrst  and  last  days  in  computation  of  time. — See  49  L. 
208. 

Same — Law    governing. — See    63    L.    868. 

1312 


Tit.XI,ch.I,art.I.]      insurance,  generally.  §2527 

Same — When   begins  to  run. — See   47   L.    697-711. 

Lloyd   policies,    action    on. — See    55    L.    193. 

Location  of  movable  property — As  affecting  fire  insurance 
thereon. — See    26   L.    237-242. 

Same — As   affecting    lightning    insurance. — See    22    L.    267. 

Loss  and  its  adjustment — Actions  on. — See  "Actions,"  this 
note. 

Same — Arbitration. — See    "Arbitration,"    this    note. 

Same — Cause  of  loss  or  death. — See  "Cause  of  loss  or  death," 
this    note. 

Same — Conclusiveness  of  as  against  insured  or  beneficiary. — 
See   44   L.    846-860. 

Same — Same — In   fire  insurance. — See  44  L.   856. 

Same — Same — In    life    insurance. — See    44   L.    850. 

Same — Duty  of  insured  to  submit  to  examination  and  fur- 
nish   information. — See    52    L.    424. 

Same — ^Explosion,  liability  of  insurer  for  loss  caused  by. — See 
19   L.    594. 

Same — Same — Effect  of  escape  and  explosion  of  gas  upon 
liability   to   insurer. — See    29   L.    359. 

Same — Extent   of   injury. — See    "Extent   of   injury,"    this   note. 

Same — Interest  in  proceeds — As  to  generally,  see  13  L.  434; 
17  L.  438;  19  L.  34;  34  L.  426;  63  L.  862;  also  "Interest  and  pro- 
ceeds,"  this   note. 

Same — Same — And  change  of  beneficiary. — See  3  L.  N.  S.  478; 
3  L.  N.  S.  727;  3  L.  N.  S.  907;  4  L.  N.  S.  456;  4  L.  N.  S.  939;  6 
L.  N.  S.  448;  7  L.  N.  S.  393;  8  L.  N.  S.  923;  10  L.  N.  S.  1166;  11 
L.  N.  S.  143;  11  L.  N.  S.  234;  12  L.  N.  S.  1206;  13  L.  N.  S.  152;  13 
L.   N.   S.   909;    17  L.   N.   S.    1083. 

Same — Same — Divorce  as  affecting  wife's  riglits  to  insurance 
upon    husband's   life. — See    50   L.    552. 

Same — Same — Divorce,  effect  of  on  rights  of  beneficiary. — 
See   3   L.   N.   S.    478. 

Same — Same — Failure  of  beneficiary,  disposition  of  fund  by 
mutual   benefit  society  upon. — See  17  L.  N.   S.    1083. 

Same — Same — "Heirs,"  who  are  legal  to  whom  fund  is  pay- 
able.—See   3  L.  N.   S.   904. 

Same — Same — "Heirs,"  who  are  within  life  policy. — See  30  L. 
593;     63    L.    856. 

Same — Same — Insurance  company's  right  to  recover  back 
money  paid  in  settlement  of  policy  on  life  of  one  erroneously 
supposed  to  be  dead. — See  11   L.  N.  S.   234. 

Same — Same — "Legal  representatives,"  who  are  within  life 
policy. — See   30   L.    609. 

Same — Same — Life  insurance  as  assets  of  bankrupt  or  in- 
solvent.— See  50  L.   33-46. 

Same — Same — Mortgagee    to    hold    proceeds    of    insurance   and 
apply   on    indebtedness   as   it   falls   due. — See   10   L.   N.   S.    1166. 
Kerr's    C.    C— 42  1313 


§  2527  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Same — Mortgagor's  right  in  interest  in  insurance  se- 
cured by  mortgagee  to  protect  his  own  interests. — See  11  L.  N. 
S.    143. 

Same — Same — Murder  of  insured  as  affecting  right  to  insur- 
ance.— See    3   L.   N.    S.    727. 

Same — Same — Principal's  right  to  proceeds  of  insurance  on 
policy  taken  out  by  agent  in  his  own  namt. — See  13  L.  N.  S. 
152. 

Same — Same — Rights  of  mortgagee  in  proceeds. — See  19  L. 
321;   25   T>.   305;   25  L.   6^79. 

Same— Same — Rights  of  vendor  or  vendee  to  proceeds. — See  37 
L.    150. 

Same — Same — Vendor's  right  to  proceeds  of  insurance  policy 
in  name   of  vendee. — See   13  L.  N.   S.   909. 

Same — Same — "Where  loss  occurs  after  foreclosure  sale,  but 
during  period   of  redemption. — See   6  L.   N.   S.    448. 

Same- — -Notice  and  proof  of  loss. — See  9  L.  N.  S.  485;  14  L.  N. 
S.   459;    14  L.  N.   S.   503;    16   L.  N.   S.   400;   18  L.  N.   S.   106,   109. 

Same — Proof  of  loss  or  death. — See  "Proof  of  loss  or  death," 
this   note. 

Same— Risks  and  causes — Of  death  or  injury. — See  1  L.  N.  S. 
422;  2  L.  N.  S.  168;  4  L.  N.  S.  636;  5  L.  N.  S.  657;  5  L.  N.  S.  926; 
6  L.  N.  S.  609;  8  L.  N.  S.  970;  8  L.  N.  S.  1014;  10  L.  N.  S.  957;  13 
L.  N.  S.   258;   14   L.  N.  S.   356. 

Same — Same — Of  loss  or  injury  to  property. — See  1  L.  N.  S. 
1095;   8  L.  N.  S.   308;   14  L.  N.  S.   1161;   17  L.  N.  S.   189. 

Same — Submission  to  arbitration. — See  "Arbitration,"  this 
note. 

Same — Subrogation,  as  to,  generally,  see  2  L.  N.  S.  922;  3  L. 
N.   S.    79;    18   L.   N.   S.    211. 

Same — Suicide. — See    "Suicide,"   this    note. 

Same — Same — As  a  defense. — See  17  L.  89;  33  L.  867;  42  L.  253. 

Same — Same — Insanity  as  affecting  condition  as  to  suicide. — 
See   35   L.    258-266. 

Same— Under  accident  policy. — See  3  L.  443;  9  L.  371;  9  L.  687; 
13    L.    263,    264;    17   L.    753;    30   L.    211. 

Same — Same — What  constitutes  an  accident  within  policy. — 
See    30    L.    206. 

Same — Validity  of  provision  of  accident  or  health  policy  re- 
quiring notice  of  accident  or  sickness  within  specified  time. — 
See   18   L.   N.   S.    106. 

Same— Voluntary  exposure  to  unnecessary  danger,  effect  of. — 
See   43   L.   432. 

Loss  by  fire,   what   included   within. — See   23   A.   S.   915. 

Losses  for   which    insurer   is   liable.^ — See   36   A.   S.    852. 

Lunacy,    as    total    disability. — See    38    L.    537. 

Marine  insurance. — See  Kerr's  Cyc.  C.  C.  §§  2655-2746  and 
notes;  also  note  §  2655,  post. 

1314 


Tit.XI.ch.I.avt.I.]        INSURANCE.    GENERAI.T.Y.  §  2r,27 

Sanio — Effect  of  fraudulent  exposure  to  peril  upon  liability. — 
See    1    L.    N.    S.    1095. 

Same— "Sue  and  labor,"  right  to  recover  under  clause  In 
policy,  for  moving  cargo  over  land. — See  14  L.  N.  S.   1161. 

Minor's   life — Insurance    on. — See   note    57   L.    496-506. 

Misrepresentation — As    to,    generally,    see    2    A.    C.    299;    3    A. 

C.   821. 

Same— As  to  lioalth,  innocent,  by  insured  with  undiscovered 
disease,   see    53    L.    193-205. 

Same — As  to  previous  application  for  insurance. — See  55  L. 
122-138. 

Same — In  application  for  insurance,  law  governing,  as  to 
effect  of,  see   7   I..   217;   10  L.    666;    63  L.   864. 

Same — Made  or   induced  by   insurer's  agent. — See  8  L.   70. 
Same — Validity   of   statute   providing   that    insurance   contract 
shall   not  be  avoided   for   immaterial   false    warrants. — See    7    A. 
C.    1107. 

Mistake  or  fraud  as  to  terms  of  policy,  waiver  of  by  reten- 
tion  of  policy. — See   67   L.   708. 

Mistakes  and  misrepresentations — Effect  of  honest  mistake 
in  answer  as  to  health  of  insured,  warranted  by  him  to  be 
true.— See    15   L.   N.   S.    1277. 

Misstatements — As  to  health  and  attendance  of  physician,  see 
10  Iv.   266. 

Same — As  to  occupation  and  use  of  premises,  in  adjustment 
of  loss. — See   44   L.    858. 

Same — As  to  ownership  in  adjustment  of  loss. — See  44  L.   859. 
Same — In   application    for   insurance,   effect   of. — See   7    L.    217; 
10  L.   666. 

Same — Made   or    induced    by    insurer's   agent. — See    8   L.    70. 
Morphinism   of   insur.^d   as   affecting   policy    of    insurance. — See 
39    K    2  65. 

Mortgage — As  affecting  change  of  title  or  interest  in  insured 
property.— See   38   L.   562-565. 

Mortgagee — Forfeiture  of  as  against  for  breaches  of  condi- 
tion.— See   58   A.   S.   667. 

Same — Right  to  bring  suit  in  name  of  insured. — See  3  L.  525. 
Same — Rights   of  to  proceeds  of  fire   insurance  policy. — See   19 
L.   321;   25   L.   305;   25  I..   679. 

Same — Rights  of  under  an  insurance  on  tiie  mortgaged  prop- 
erty.—See    54    A.    D.    693. 

Murder  of  insured  as  affecting  right  to. — See  3  L.  N.  S.  727. 
Mutual    benefit    associations — Conflict    between    by-laws    and 
certificate  or  policy  of. — See  47  L.  681. 

Same — Estoppel  of  by  misrepresentation  as  to  loss  of  order. — 
See   14  L.  N.   S.   540. 

Same— Liability  of  funds  held  by,  to  tlie  claims  of  their 
creditors. — See   6   L.   N.   S.   235. 

1315 


§  2527  CIVIL  CODE.  [Div.III.Pt.TV. 

Same — Right  to  increase  rates  of. — See  7  L.  N.  S.  1154. 

Same- — Who  may  be  considered  as  "dependent"  within  re- 
strictions as  to  beneficiaries. — See  2  L.  N.  S.   653. 

Mutual  fire  insurance  companies — Liability  of  members  of — 
As   to,   generally,   see    32   L.    481. 

Same — Same — Assessment. — See  32  L.   496-508. 

Same- — Same — Defenses    against    contract. — See    32    L.    490. 

Same — -Same — For  what  losses  or  obligations  liable. — See  32 
L.  487. 

Same- -Same — Guaranty   members    of. — See    32   L.    496. 

Same — Same — 'Notes   of  members. — See  32   L.   483. 

Same — Same — Termination,  of  liability.- — See   32  L.   492. 

Same- — Same — Who  are   members. — See   32   L.    482. 

Same^ — Transferees  of  policy  or  property  as  members  of. — See 
32   L.   482. 

Mutual  insurance  company — Distribution  of  surplus  upon  dis- 
solution of. — See  3  L.  N.   S.   653. 

Same — Liability  of  officers  of  to  members  for  permitting 
diversion    of   funds. — See    12    L.   N.    S.    165. 

Same — Retroactive  effect  of  resolution  of  by-laws  of,  chang- 
ing period  during  which  policy  may  be  contested  for  suicide. — 
See    12   L.    504. 

Same — When  statute  of  limitations  begins  to  run  against 
unpaid  balance  on  premium  or  "stock"  notes  of. — See  1  L.  N. 
S.    914. 

Mutual  or  membership  insurance — Life  or  accident,  features 
of  law  specially  applicable  to. — See  52  A.  S.  543. 

Same — Special  features   of.— See  note   52   A.   S.   543-579. 

Nature  of  risk  under  insurance  against  loss  by  lightning. — 
See   26  L.   267. 

Non-complying  foreign  insurance  company,  right  to  enforce 
domestic  contract. — See   9  A.  C.   338. 

Non-development  of  injury  as  affecting  time  for  giving  notice 
required  by  an  accident  insurance  policy. — See  14  L.  N.  S.   503. 

Nonforfeiting  policy  of  life  insurance — As  to  generally,  see 
15    L.    449-455. 

Notice — And  proof  of  loss. — See  "Loss  and  its  adjustment," 
this  note. 

Same — Conflict  of  laws  as  to. — See  63  L.  862. 

Same — First  and  last  days  in  computing  time  for. — See  49 
L.   208. 

Same — Of   nonpayment   of   premium. — See   5   L.    806. 

Same — Of  premium  due. — See   2  L.    118. 

Same — Of  premium  or  assessment — Mode  of  proving  mailing 
of. — See    7   L.   N.   S.    238. 

Same — Same — Necessity  of. — See   7  L.  N.   S.   253. 

Same — To  agent  as  notice  to  insurance  company. — See  1  L. 
563. 

1316 


Tit.XI,ch.I,ait.I.]      INSURANCE,   GENERATJ.V.  §  2527 

Same — To   subagent,  effect  of. — See   21  L.   342. 

Occupancy — Condition  for  continuous. — See  8  L.   79;  9  K  81. 

Same — Wiiat   constitutes. — See   9   L.    82. 

Occupation — Restrictions  as  to  in  accident  policy  of  insur- 
ance.— See   9   L.    685. 

Of   bicycles. — See    47   L.    307. 

Officer  of  corporation,  insurance  of  life  of  fm  mn.nt  >>{  iIk- 
<-orporation. — See    16    L.    N.    S.    1020. 

(Md   ago,   as   total   disability. — See   38   L.    537. 

On  mortgaged  premises,  application  of  proceeds  of. — See  118 
A.   S.   968. 

On  movable  property  including  livestock,  and  the  effect  of 
removal. — See  95  A.   D.   751. 

Option  to  rebuild — Construction  and  effect  of. — See   26   L.   853. 

Same — Election    final. — See   26   L.   855. 

Same — Election    of    insurer. — See    3    L.    170. 

Same — Election,  right   to   control. — See   26  L.    856. 

Same — Estoppel. — See   26   L.   856. 

Same — E.xercise  of,  a  matter  of  defense. — See  26  L.  857. 

Same — Insurer  not  liable  for  rent. — See  26  L.   856. 

Same — Right   to   control    election. — See   26   L.    856. 

Same — Suit  against   builder. — See   26  L>.   851. 

Same — Time    of. — See    26    L.    856,    857. 

Same — Waiver   of. — See    26    L.    855. 

Oral  assignment  of  insurance  policy,  validity  of. — See  5  A. 
C.    410. 

Same — Contract  of   insurance,   validity  of. — See   6  A.  C.   624. 

Oral  contract  of  insurance,  reciuisltes  of  present. — See  5  L. 
N.    S.    407. 

Other  insurance — Condition   agaiiust   taking  out. — See   4   I^.   848. 

Same — First  and  last  days  in  (.'tjrnpiiting  time  as  to. — St^e  49 
L.    208. 

"Other,"   what  constitutes. — See   43   A.    H.   221. 

Overinsurance,  waiver  of  conditions  against. — See  27  A.  R. 
597. 

Overvaluation,   effect   of. — See   35   A.   R.   74. 

Paid-up  and  nonforfeiting  policy  of  life  insurance- — As  to 
generally,  see  15   I^.   449-455. 

Parol  assignment  of  insurance  policy,  validity  of. — Sec  5  A. 
C.    410. 

Parol  evidence  to  vary  or  contradict  written  contracts,  as 
affected  by  the  doctrine  of  waiver  or  estoppel  as  applied  to 
policies  of  Insurance. — See   16  L.   N.  S.   1165-1264. 

Partnership,  transfer  by  one  partner  of  his  Interest  In  In- 
sured property  to  other  members  of  firm  as  a  prohibited  change 
or   alienation    of    interest. — See    18   L.    482. 

Pecuniary  interest  necessary  to  entitle  one  to  take  out  life 
insurance. — See    54    L.    125. 

1317 


§  2527  CIVIL  CODE.  [Div.III.Pt.IV. 

Penalty  for  refusal  or  failure  of  insurance  to  pay  losses, 
constitutionality  of  statutes  providing. — See   5   A.   C.    405. 

Poisonous  substances,  contact  as  an  accident  within  acci- 
dent  policy. — See   9   L.    687. 

Policies— Of   life    insurance. — See    15    L.    453. 

Same — On  live  stock,  severability  of  contract. — See  19  L.   218. 

Same— What. — See   Kerr's  Cyc.   C.   C.   §  2586  and  note. 

Policyholder,  right  of  to  inspect  books  of  insurance  com- 
pany.—See    11   L.   N.    S.    1089. 

Power — Of  insTired  to  destroy  rights  of  beneficiary — In  case 
of   benefit   societies. — See    49    L.    749. 

Same — Same — In  case  of  regular  life  policy. — See  49  L.  737. 

Same — Of  members  of  benefit  associations. — See  2  L.  163. 

Premium — Payment  of — After  death,  reinstatement  of  de- 
frauded   policy    by. — See    14    L.    283. 

Same — ^Same — After  death  to  keep  insurance  in  force. — See 
14    L.    283. 

Same — Same — By    insured. — See    8   L.    114. 

Same — Suit  on  premium  notes  when  foreign  corporation  has 
not  complied  with  statute  as  to  doing  business  in  state. — See 
20    L.    407. 

Same — Taxes  on. — See  57  L.  69. 

Same — Waiver  of  payment  of,  what  amounts  to. — See  29  A. 
R.    777. 

Premium  notes — Failure  to  pay  interest  on,  forfeiture  for. — • 
See,  15  L.   452. 

Same — Forfeiture  for  nonpayment  of. — See  9  L.  317;  see  "For- 
feiture,"   this   note. 

Same — Payment  of  outstanding. — See   15  L.   452. 

Same — Suit  on  when  foreign  corporation  has  not  complied 
with   statute  as  to  doing  business  in   state. — See   20   L.   407. 

Premiums  and  assessments — A  priority  of  claim  for,  against 
property  in  hands  of  receiver. — See  2  L.  N.  S.  1051. 

Same — Allowance  to  applicant  of  agent's  commission  at  pay- 
ment of  premium. — See   8   L.   N.   S.   884. 

Same — Effect  of  incapacitating  illness  or  insanity  on  failure 
to  pay   when   due. — See   12  L.   N.   S.   319. 

Same — Mode  of  proving  mailing  of  notice  of  maturity  of. — 
See  7  L.  N.  S.   238. 

Same — Necessity  that  notice  of  maturity  of  sent  through  mail 
be  received. — See  7  L.  N.  S.  253. 

Same — Non-payment  of  as  effected  by  incontestable  clause. — 
See   6   L.   N.   S.    1039. 

Same — Return  of,  on  benefit  certificate  proving  void  for 
fraud.— See  3  L.  N.  S.   114. 

Same — Right  of  mutual  benefit  society  to  increase  rates. — 
See  7  L.  N.  S.  154. 

Same — When    statute    of    limitations    begins    to    run    against 

1318 


Tit.XI,ch.I,art.I.]     INSURANCE,' generally.  §-2527 

unpaid   balance   on    premium    or   "stock   note"    of   mutual    insur- 
ance company. — See  1  L.  N.  S.  914. 

Presumptions  and  burden  of  proof  as  to  insanity  in  case  of 
death  by  suicide. — See  35  L.   263. 

Previous  rejection  by  benefit  association  as  declination  or 
refusal  of  insurance  within  meaning  of  application  for  life 
insurance. — See   4  L.  N.  S.   247. 

Privileged  communications,  statement  of  physicians,  exacting 
in  and  respecting  proofs  of  death. — See  52  A.  R.   4. 

Profits — Application  of  to  payment  of  interest  in  case  of 
paid-up  and  nonforfeiting  policies  of  life  insurance. — See  15  L. 
453. 

Proof — As  to  insanity  in  case  of  death  by  suicide. — See  35 
L.  264. 

Same — Of  voluntary  exposure  to  unnecessary  danger  as  de- 
fense on  an  accident  policy. — See  40  L.  448. 

Proof  of  loss  or  death — As  to  generally,  see*  "Loss  and  its 
adjustment,"    this    note. 

Same — Forfeiture  for  failure  to  furnish  within  stipulated 
time. — See   18  L.   85. 

Same — Waiver  of  objections  to  want  of. — See  1  L.  217;  7  L. 
81,   83;    8   L,    77. 

Proximate  cause  of  loss,  what  is. — See  36  A.  S.  852. 

Real  party  in  interest  by  whom  action  on  insurance  policy 
may  be  brought. — See   64  L.   615. 

Reference  as  to  loss — Provision  for. — See   11  L.  598. 

Same — Waiver  of. — See   11  L.   598. 

Reforming   policies    of. — See    65    A.    S.    514. 

Reinstatement — After    death. — See    14    L.    284. 

Same — First  and  last  days  in  computing  time  of  payment  of. 
—See    49   L.    208. 

Same — Of  defrauded  policy  liy  i)aymont  of  premium  after 
death.— See    14    L.    283. 

'Reinsurance. — See  Kerr's  Cyc.  C.  C.  S  2646  and  note;  also  note 
S  2646,    post. 

Same — And  the  remedies  of  the  p;irtios  thereunder. — See  45 
A.    S.    442. 

Same — Liability    of    reinsurer. — See    8    L.    N.    S.    S44-862. 

Relative's  insurable  interest  in  life  of  another. — See  note 
54    L.    225-234. 

Remedy  for  n-fusal  to  levy  assessment. — See  1  1j.  146;  2  L. 
786;  8  L.   115. 

Rent,  insurer  eli^cting  to  rebuild  not  liable  for. — See  26  L.  857. 

Representation.s — By  insured  outside  of  his  application  as 
evidence  against  beneficiary. — See   11   L.  N.  S.  92. 

Same — Law  governing,  as  to  effect  of  misrepresentations  in 
application. — See    63    L.    864. 

Same — Misstatements — In  application,  effect  of. — See  7  L.  217; 
10    L.    666. 

1319 


§  2527  CIVIL,  CODE.  [Div.III.Pt.IV. 

Same — Same — Or  misrepresentations  made  or  induced  by  in- 
surer's agent. — See   8  L.    70. 

Same — Morphinism  of  insured  as  affecting  policy. — See  39  L. 
265. 

Same — Statements  as  to  health  and  attendance  of  physician. 
—See   10   L.    616. 

Same — When  may  statements  be  regarded  as,  although  ex- 
pressly denominated  in  the  policy  as  warranties. — See  11  L.  N. 
S.    981. 

Repiv-ocntations  and  warranties. — See  "Contract  of — Con- 
struction,"  this   note. 

Same — As  to  generally,  see  16  A.  D.  462;  1  L.  564;  7  L.  217; 
8   Lr.    70;   10   L.   666;    39  L.    265;    63   L.    864. 

Restrictions  on,  by  unincorporated  associations  or  individuals, 
Lloyd  associations. — See   25  L.    238. 

Results  and  causes  of  loss  for  injury  to  property — Effect  of 
voluntary  exposure  to  peril  upon  liability  on  marine  insurance 
policy.— See    1   L.   N.   S.    1095. 

Same — Liability  of  insurance  company  in  case  of  intentional 
destruction   of  property  by   insured. — See   17  L.  N.  S.    189. 

Same — Meaning  of  "cyclone,"  "tornado,"  or  other  kind  of 
wind  storm  in  an  insurance  policy. — See  8  L.  N.  S.  308;  2  W. 
&   P.    1809;    8   W.    &   P.    7006. 

Same — Right  to  recover  under  "sue  and  labor"  clause  in 
marine  insurance  for  moving  cargo  over  land. — See  14  L.  N. 
S.    1161. 

Retention  of  policy. — See  67  L.  708. 

Riders  or  slips  attached  to  insurance  policies,  effect  of. — 
See   30   L.    636. 

Right  of  assessment  company  to  change  from  assessment  to 
level    policies. — See    1   L.   N.    S.    623. 

Right  of  insurance  agent  to  commissions  on  renewal  pre- 
miums  after   termination    of   agency. — See   7   A.   C.    1169.  ^ 

Right  of  insurance  company  to  cease  writing  assessment 
policies  and  restrict  itself  to  legal  reserve  insurance. — See  4 
A.   C.   360,  361. 

Right  of  insurer  to  subrogation. — See  notes  30  A.  D.  102;  44 
A.   S.   731-739. 

Right  of  policy  holder  to  inspect  books  of  insurance  company. 
—See  11  L.  N.  S.   1089. 

Right  to  proceeds,  "heirs,"  who  entitled  as. — See  44  A.  S.   404. 

Right  to  rescind  contract  of  insurance  for  default  of  other 
party. — See  30  L.   69. 

Risks  incident  to  duty  or  necessity. — See   40  L.   437. 

Sale  or  alienation  of  property,  when  avoids.- — See  28  A.  D.  154. 

Set-off  in  case  of  bankruptcy. — See  55  L.  49;  66  L.  72. 

Severability  of  contract — Effect  on  insurance  upon  buildings 
of  forfeiture  as  to  personal  property. — See  19  L.   217. 

Same — Fraud. — See  19  L.  218. 

1320 


TitXI.ch.I.art.I.]      INSURANCE,   GENERALLY.  §2527 

Same — Insurance — On   buildings  and  contents. — See   19   L.    214. 

Same — Same — On  several  articles  of  personal  property. — See 
19  L.   217. 

Same — Same — On  several  buildings. — See  19  L.  212. 

Same — Marine   policies. — See    19    L.    218. 

Same — Policies   on   live   stock. — See  19   L.    218. 

Same — When  and  when  not  severable. — See  8  L.   834. 

Sickness,  as  total  disability. — See   38  L.   537. 

Situs  for  insurance  for  purposes  of  administration. — See  24 
L.    687. 

Statute  of  limitations — When  begins  to  run  against  unpaid 
balance  on  premium  or  "stock"  notes  of  mutual  insurance 
company. — See    1    L.    N.    S.    914. 

Stranger,  right  to  take  life  insurance  for  benefit  of. — See 
25  L.  627. 

Subagent,  notice  to,  effect  of. — See  21  L.  342. 

Submission   to  arbitration. — See   "Arbitration,   subim.-.-Miii    i.i,    . 
this  note. 

Subrogation — In  action  against  third  person  who  caus.il  tl..' 
loss,   when    insurer  has   paid   loss. — See   2   L.   N.   S.   922. 

Same — Insurer's   right   to. — See   44   A.   S.   731. 

Same — Of  carrier  to  rights  against  insurer. — See  3  L.  426. 

Same — Of  insurer  to  rights  of  insured  against  carrier. — See 
3  L.  426. 

Same — Right  of  life  or  accident  insurance  company  to. — See 
18  L,  N.  S.   211. 

Same — Rights  of  insurer  to,  to  mortgagees  when. — S<'e  .S  T>. 
N.   S.   79. 

Successive   insurers,   liability   of. — See   28   A.  D.    121. 

Suicide — As  a  defense — Conflict  of  laws  as   to. — See   r.3   1^.    si>.. 

Same — Same — Effect  of  provision  avoiding  policy  after  death 
results  from  "sane  or  insane." — See   17  L.  89. 

Same — Same — Statutes  prohibiting  defense  of. — See  42  L.   260. 

Same — Same — Under  policy  containing  incontestable  clause. — 
See   42   L.    253. 

Same — Insanity  as  affecting  condition  as  to  in  policy — Gen- 
erally, see  35  L.  258. 

Same — Same — Degree  of  insanity  which  will  excuse. — See  35 
L.   259-262. 

Same — Same — Determination  as  to  existence  of  insanity. — 
See   35   L,    263. 

Same — Same — Pleadings. — See    35    L.    263. 

Same — Same — Presumptions  and  burden  of  proof. — See  35 
L.  263. 

Same — Same — Proof   as   to    insanity. — See   35    L.    264. 

Same — Same — "Sane  or  insane." — See  35  L.   262. 

Same — Retroactive  effect  of  resolution  or  by-laws  of  mutual 
insurance  company  changing  period  during  which  policy  may 
be  contested   for. — See   12   L.   N.   S.   504. 

1321 


§  2527  CIVIL,  CODE.  [Div.III.Pt.IV. 

Surplus — Distribution  of  upon  dissolution  of  mutual  insur- 
ance company. — See  3  L.  N.  S.   653. 

Temporary  removal  of  property,  effect  of. — See  43  A.  R.  34. 

Title — Contract  to  convey,  as  breach  of  condition  against 
cliange  of  title  or  interest. — See   3  L.  N.  S.   107. 

Same — Effect  of  bankruptcy  or  insolvency  proceedings  or 
assignment  for  benefit  of  creditors  on  fire  insurance  policy. — 
See  15  L.   829. 

Sanie: — Effect  of  bond  for  title  to  defeat  unconditional  and 
sole   ownership. — ^See  5  L.  N.   S.   512. 

Same — Effect  of  change  of,  generally,  see  4  L.  539,  541;  9 
L.  627;   11  L.  293. 

Same — For  purposes  of  insurance,  of  house  on  government 
land  under  homestead  entry,  as  within  sole  and  unconditional 
ownership  of  clause  in  insurance  policy. — See  8  L.  N.  S.  903. 

Same — How  far  an  undivided  interest  in  property  is  a  com- 
plete or  full  ownership  for  purposes  of  insurance. — See  18  L.  481. 

Same — Mortgage  as  affecting  change  of  in  insured  property. 
—See   38  L.   562. 

Same — Partnership   interest. — See   18  L.   482. 

Same — Transfer  by  one  partner  of  his  interest  to  other  mem- 
bers of  firm  as  a  prohibited  change  or  alienation  of  interest. — 
See  18  L.  482. 

Same — Vendor's  lien  as  affecting  sole  and  unconditional  own- 
ership.—See  7  L.  N.  S.    627. 

"Tornado,"  meaning  of  in  insurance  policy. — See  8  L.  N.  S. 
308;    8   W.   &  P.   7006. 

Total  disability — As  to  what  constitutes. — See  36  L.   529-539. 

Same — Ability  to  attend  to  part  of  business. — See  38  L.  531. 

Same — "Immediately,"   construed. — See    28   L.    538. 

Same — "Per  week"   construed. — See  38  L.   539. 

Transfer  of  policy  or  interest  therein — As  to  generally,  see 
9  L.  660;  10  L.  259;  32  L.  482;  63  L.  858;  3  L.  N.  S.  935-952;  6 
L.   N.   S.    128;    12   L.   N.   S.    1206. 

Same — Effect  on  assignee  of  assignor's  act  of  forfeiture. — 
See    18   L.    136. 

Transferees  of  policy  or  property  as  members  of  mutual  fire 
insurance    company. — See    32    L.    482. 

Ultra  vires,  defense  of  by  insurance  company  in  action  on 
a   policy. — See   4   A.   C.    1046. 

Unauthorized  insurance  may  be  ratified. — See  Kerr's  Cyc.  O. 
C.    §  2586   and   note   pars.    32,    33. 

Undivided  interest  in  property — How  far  is  a  complete  or  full 
ownership  for  the  purposes  of   insurance. — See  18  L.   481. 

Same — Partnership  interest. — See  18  L.  482. 

Unexpected  risks,  effect  of  on  provision  as  to  voluntary  ex- 
posure to   unnecessary   danger. — See   40   L.    441. 

Use  of  intoxicating  liquors,  scope  and  effect  of  provisions 
in  policies  of  insurance  forbidding  use  of. — See  15  L.  N.  S.  206. 

1322 


Tit.X[,ch.I,art.I.]     IXSURA2<ICE,.  GENERALLY.  §2527 

Vacant — Building  in  process  of  erection  as. — See  4  L.  N.  S. 
1137. 

Same — Effect  of  tenant's  removal  without  insurer's  knowl- 
edge.— See   3   L.   N.   S.   966. 

Same — Necessity  of  proof  of  increase  of  risk  to  avoid  insur- 
ance policy  because  of. — See  12  L.  N.  S.   456. 

Same — When  a  building  is  "vacant"  or  "unoccupied"  within 
provision  of  policy. — See  2  L.  N.  S.  517;  8  W.  &  P.  719. 

Vacancy  and  non-occupancy — Conditions  against. — See  8  L. 
79;   9  L.   81. 

Same — "What  constitutes  occupancy  of  premises. — See  9  L.   82. 

"Vacant  and  unoccupied,"  significance  of  these  and  like  ex- 
pressions.— See   10   A.   S.   390. 

Validity  of  contract  of  insurance  in  violation  of  statute. — 
See    12    L.    N.    S.    612. 

Validity  of  law  imposing  tax  on  insurance  companies  for 
benefit  of  firemen. — See  13  L.  N.  S.   1147. 

Validity  of  life  insurance  for  benefit  of  betrothed  wife. — See 
19   L.    187. 

Validity  of  oral  contract  of  insurance. — See  6  A.  C.  624. 

Validity  of  parol  assignment  of  insurance  policy. — See  5  A. 
C.   410. 

Validity  of  provision  of  accident  or  health  policy  roriuiring 
notice  of  accident  or  sickness  within  specified  time. — See  IS 
L.  N.  S.  106. 

Validity  of  statute  providing  that  insurance  contract  shall 
not  be  avoided  for  immaterial  false  warranty. — See  7  A.  C.  1107. 

Valued  policy,  conflict  of  laws  as  to. — See  63  L.  866. 

Variance,  application  or  insurance  policy  as  governing  in 
case    of. — See    11    A.    C.    708. 

Vendor  and  vendee — Respective  rights  in  when  part  -of  the 
purchase   price   has  been   paid. — See   84   A.   D.   429. 

Same — Rights  of  to  proceeds  of  fire  insurance  policy. — See 
37   L.   150. 

Vendor's  lien  as  alTects  sole  and  unconditional  ownership. — 
See   7   L.  N.   S.   627. 

Voluntary  exposure  to  peril — Upon  liability  on  marine  insur- 
ance policy. — See  1  L.  N.  S.  1095. 

Voluntary  exposure  to  unnecessary  danger — Consciousness  of 
dangers. — See  40  L.  434. 

Same — Constructive  comparison  with  negligence. — See  40  I>. 
432.. 

Same — Proof  of.  as  a   defense. — See   40  L.   448. 

Same — Risks  incident  to  duty  or  necessity. — See  40  L.   437. 

Same — Unexpected   risks. — See   40   L.    441. 

Same — What   con.stitutes. — See    40   L.    442. 

Wager  policy  of  life  Insurance. — See  fl  L.  137:  7  L.  217;  12 
L.   409;    13    L.    434. 

1323 


§  2527  CIVIL  CODE.  [Div.III,Pt.IV. 

Waiver— By  agent. — See   1   L.    217. 

Same — By  officer  of  subordinate  lodge  of  forfeiture  for  non- 
payment of  assessment. — See   4  L.  N.  S.   421. 

Same — By  requiring  further  proof  of  loss. — See  9  A.  S.   236. 

Same — By  subordinate  lodge  of  right  of  benefit  association  to 
insist  upon  forfeiture  of  benefit,  cause  of  violation  of  the  laws 
of  the  association. — See  10  L.  N.  S.   136. 

Same — Of  conditions — Against  other  insurance. — See  27  A. 
R.    601 

Same — Same — In  insurance  policy  by  insurer's  failure  to  in- 
quire into   existing  facts. — See   9  A.   C.   994. 

Same — Same — Or  defenses  based  thereon. — See  1  L.  222;  1 
Li.    563;    8    L.    74. 

Same — Same — Requiring  waivers  to  be  indorsed  in  writing. — 
See   42  A.  R.   621;   107   A.  S.   99. 

Same — Of  forfeiture  for  nonpayment  of  premium. — See  1  L. 
256;   9  L.   317;   see   "Forfeiture,"   this   note. 

Same — Of  notice  and  statement  of  loss. — See  8  L.  76;  10  L.  558. 

Same — Of  objections  to  want  of  proof  of  loss  or  death. — See 
1    L.    217;    7    L.    81,    83;    8    L.    77. 

Same — Of  proof  of  loss. — See  1  L.  217;  7  L.  81;  8  L.  77. 

Same — Same — Of  provisions  for  submission  to  arbitration. — 
See   10   L.    558. 

Same — Same — Submission   to  arbitration  as. — See   10   L.    560. 

Same — Of   reference   as   to   loss. — See   11   L.   599. 

Same — Parol  evidence,  rule  as  to  varying  or  contradicting 
written  contracts,  as  affected  by  doctrine  of. — See  16  L.  N.  S. 
1165-1284. 

Same — Retention  of  policy  as  of  mistake  or  fraud  of  insurer 
or  its  agent. — ^See  67  L.  705-744. 

Warranties — Admissions  or  statements  by  insured  outside  of 
his  application  as  evidence  against  beneficiary. — See  11  L.  N. 
S.    92. 

Same — And  representations  and  their  effect. — See  16  A.  D. 
462;    59   A.   R.   816. 

Same — Effect  of  honest  mistake  in  answer  as  to  health  of 
insured,  warranted  by  him  to  be  true. — See  15  L.  N.  S.  1277. 

Same— Effect  of  temporary  condition  which  ceased  before 
loss,  under  general  provisions  against  increase  of  risk,  or 
specific  provisions  against  certain  conditions. — See  10  L.  N.  S. 
736. 

Same — Of  answers  in  application,  effect  of. — See  13  L.   263. 

Same — What  statements  are. — See  1  L.   564. 

Same — When  may  statements  be  regarded  as  representations, 
although  expressly  denoininated  in  the  policy  as. — See  11  L. 
N.   S.   981. 

When  contract  entire  and  when  severable. — See   8  L.   834. 

When  contract  of  insurance  is  completed. — See  9  A.  C.   220. 

Wife's  right  to  insure  life  of  husband. — See  53  L.  817-825. 

X324 


Tit.XI,ch.I,art.II.]    EVENTS  INSURED  AGAINST.     §§  2531,  2532 


ARTICLE  II. 

WHAT    MAY    BE    INSURED. 

§  2531.  What  events  may  be  insured  against. 

§  2532.  Insurance  of  lottery  or  lottery  pri/,<=>  iin;iiitliniized. 

§  2533.  Usual   kinds   of   insui'ance. 

§  2534.  All   subject  to  this  chapter. 

§2531.    AVIIAT    EVENTS    MAY    BE    INSURED    A(iAI>ST. 

Any  contingent  or  unknown  event,  whether  past  or  future, 
which  may  damnify  a  person  having  an  insurable  interest, 
or  create  a  liability  against  him,  may  be  insured  against,  sub- 
ject to  the  provisions  of  this  chapter. 

Hi-story:     Enacted  March   21,  1872. 

See   Kerr's  Cyc.   C.   C.   for   5  pars,  annotation. 

107  C.   327,  330,   48  A.  S.   140,  40  P.   431.  28  L.   692    (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

Delivery  of  policy  after  loss. — See  Kerr's  Cyc.  C.  C.  §  2586 
and  note  par.   15. 

Insurable  interest,  what. — See  Kerr's  Cyc.  C.  C.  §  2546  and 
note  par.   2. 

Wager  policies — Common  law  as  to. — See  article  32  Alb.  L. 
J.   385,   403,   reproduced  as  note   in    52   A.   R.    135-148. 

§  2532.  INSURAM  E  OF  LOTTERY  OR  LOTTERY  PRIZE 
UNAUTHORIZED.  The  preceding  section  does  not  authorize 
an  insurance  for  or  against  the  drawing  of  any  lottery,  or 
for  or  against  any  chance  or  ticket  in  a  lottery  drawing  a 
prize. 

Ilistor.v:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

Lottery  tickets,  penal  provisions  against  insuring. — See  Kerr's 
Cyc.  Pen.  C.  §  324  and  note. 

1325 


§§  2533,  2534  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2533.  USUAL  KINDS  OF  INSUKANCE.  The  most  usual 
kinds  of  insurance  are: 

1.  Marine  insurance; 

2.  Fire   insurance; 

3.  Life  insurance; 

4.  Health  insurance;   and, 

5.  Accident  insurance. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,    ante. 

Assumption  of  policy  by  another  company. — See  Kerr's  Cyc. 
C.  C.   §  2527  and  note  par.   4. 

Fire   insurance. — See   Kerr's  Cyc.   C.   C.    §§  2753-2757  and  notes. 

Life  and  health  insurance. — See  Kerr's  Cyc.  C.  C.  §§  2762- 
2766    and    notes. 

Marine  insurance. — See  Kerr's  Cyc.  C.  C.  §§  2655-2746  and 
notes. 

What  is  death   by  accidental   means. — See   23   A.   S.   641. 

§  2534.  ALL  SUBJECT  TO  THIS  CHAPTER.  All  kinds  of 
insurance  are  subject  to  the  provisions  of  this  chapter. 

HLstory:     Enacted  March   21,   1872. 


1326 


Tit.XI.ch.I.art.III.]  parties.  §§2538-2540 

/ 

ARTICLE  III. 

PARTIES  TO  THE  CONTRACT. 

§  2538.  Dosig-nation   of  parties. 

§  2539.  Who  may  insure. 

§  2540.  Who    may    be    insured. 

S  2541.  Assignment  to  mortgagee  of  thing  insured. 

§  2542.  New   contract  between    insurer   and   assignee. 

§2538.  1)ESIG\AT10X  OF  P.VRTIES.  The  person  who 
undertakes  to  indemnify  another  by  a  contract  of  insurance 
is  called  the  insurer,  and  the  person  indemnified  is  called 
the   insured. 

IliNlory:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,    ante. 

Insurance  agents. — See  Kerr's  Cyc.  C.  C.  §  2.")86  and  note 
pars.    1-4. 

§2539.  ^VHO  MAY  IXSI'RE.  Any  one  capable  of  makinc; 
a  contract  may  be  an  insurer,  subject  to  the  restrictions 
imposed  by  special  statutes  upon  foreign  corporations,  non- 
residents, and  others. 

IIlMtury:      Kiiact.d  Murt'h    21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  Insurance,  see  notes 
§§414,    2527,    ante. 

Assumption  of  policy  by  anotlier  company. — See  Kerr's  C.vc. 
C.  C.   §  2527  and  note   par.    I. 

§2510.  WHO  MAY  \iV  INSri{KI).  Any  one  except  a  i)ul.- 
lic  enemy  may  be  insured. 

HlHturyt     Enacted  March   21.  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  luatters  as  to  insuraiu.  .  .-.  v  notes 
§§  414,    2527,    ante. 

Assignment  of  insiirnncf.  policy. — .<=;iw  K.  rr"s  Cyc.  C.  C.  |  2599 
and  note. 

1327 


§§  2541,  2542  CIVIL  CODE.  [Div.III.Pt.IV. 

Consent  of  person  whose  life  is  insured  as  condition  of 
insurance. — See   56   L.    585. 

Insurable  interest,  what. — See  post  §  2546. 

Insurance  on  life  of  minor. — See  57  L.   496-506. 

Insurable  interest  in  life  of  parent  or  child  or  other  relative 
by  blood. — See   54  L.   225-234. 

§2541.  ASSIGNMENT  TO  MOETGAGEE  OF  THING 
INSUEKD.  Unless  the  policy  otherwise  provides,  where  a 
mortgagor  of  property  effects  insurance  in  his  own  name  pro- 
viding that  the  loss  shall  be  payable  to  the  mortgagee,  or 
assigns  a  policy  of  insurance  to  a  mortgagee,  the  insurance 
is  deemed  to  be  upon  the  interest  of  the  mortgagor,  who  does 
not  cease  to  be  a  party  to  the  original  contract,  and  any  act 
of  his,  prior  to  the  loss,  which  would  otherwise  avoid  the 
insurance  will  have  the  same  effect,  although  the  property 
is  in  the  hands  of  the  mortgagee,  but  any  act  which,  under  the 
contract  of  insurance,  is  to  be  performed  by  the  mortgagor, 
may  be  performed  by  the  mortgagee  therein  named,  with  the 
same  effect  as  if  it  had  been  performed  by  the  mortgagor. 

History:  Enacted  March  21,  1872,  amended  by  Code  Commis- 
sion, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  416,  held 
unconstitutional,  see  history,  §  4  ante;  amendment  re-enacted 
March  21,  1905,  Stats,  and  Amdts.  1905,  p.  616;  amended  April 
15,   1909,   Stats,  and  Amdts.   1909,   p.    914.     In  effect   immediately. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

128  C.  16,  19,  79  A.  S.  17,  60  P.  467  (applied);  136  C.  542,  547, 
19  P.  253,  615  (cited  in  dis.  op.);  148  C.  223,  226,  82  P.  964,  113 
A.  S.  223,  7  A.  C.  396  (any  act  of  owner  which,  by  terms  of 
policy  of  insurance  would  be  suflficient  to  avoid  it  as  against 
•owner,  would  prevent  recovery  by  creditor  whose  debt  is  se- 
cured by  deed  of  trust  of  property  insured,  although  he  was 
not  aware  of  violation  of  its  terms  and  did  not  consent  thereto, 
but  this  rule  may  be  changed  by  clause  in  policy  referring  to 
interest  in  favor  of  third  persons). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,    ante. 

Assignment  of  insurance,  when  valid,  and  what  constitutes. — 
See   56   A.   D.   747-755. 

Assignment  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2599  and  note. 

§  2542.     NEW  CONTRACT  BETWEEN  INSURER  AND  AS- 

SIGNEE.     If  an  insurer  assents  to  the  transfer  of  an  insur- 

1328 


Tit.XI.ch.I.art.IV.]         INSURABLE   INTPmEST.  5  2546 

ance  from  a  inortRaKer  to  a  mortgagee,  and,  at  the  time  of 
his  assent,  inii>oses  further  obligations  on  the  assi;;nee.  mak- 
ing a  new  contract  with  him,  the  acts  of  the  mortgager  canuut 
affect  his  rights. 

HiM(or>  :      Eii;i(  l<'(i   .M;ti>ji    .i,    i  ^  > -. 

Ab  to  ni.Tny  miscollanoous  matters  as  to  insurance,  see  notes 
{|  414.    2527,    ante. 

As  to  negrotial)ility  of  policy  of  Insurance,  see  Kerr's  Cye. 
C.  C.   i  2S42,  note. 


AiniCIJO   IV. 

INSUUA15LK    INTKREST. 

I  2546.  Insurable    interest,    what. 

I  2547.  In    wliat    may    consist. 

I  2548.  Interest  of  carrier  or  depusltary. 

I  2549.  Mere   expectancies. 

I  2550.  Measure   of  Interest   In   property. 

i  2561.  Insurance   without    Inti-rest,    lllegul. 

t  2562.  When   Interest  must   exist. 

i  2553.  PifTect    of   transfer. 

I  2554.  Transfer  after  loss. 

i  2655.  Excei)tlon   In   the  case  of  several  subjects   in  one  policy. 

I  2556.  In  case  of  the  death   of  the  Insurer. 

I  2557.  In   the  case  of   transfer   between   ro-tenanti«. 

12558.  Void  Insurance  stlpubiti 

§2ril«.  nSlRAHI-K  IM'KHKSr.  \MI\T.  Kvery  interest 
in  iM()i)prty,  or  any  relation  tlicreio,  or  lialiility  in  respt'ct 
tliereof,  of  such  a  nature  tliat  a  contemplated  peril  might 
(lirerfly   flamnifv   the   insured,   is  an   insurable   i?if<.r..<f 

lllatiirri     Enacted  March   21.  1S7: 

See   Kerr's  Cyc.   C.   C.   for  7  pars,  annotation. 

1  C.  A.  186,  188.  81  P.  1025  (cited  to  point  of  th.^-m  ^tix.  ...i.i- 
est). 

As  to  many  miscellaneous  matters  as  to  insurance,  sec  notea 
Si  414,    2627,   ante. 

Assli^nment  of  policy. — See  Kerr's  Cyc.  C.  C.  I  269S  and  note. 

Charterer  of  boat. — See  Kerr's  Cyc.  C.  C  1 2648  and  note 
pur.  2. 

Expectancies. — See  Kerr's  Cyc  C.  C.  |  2549  and  n.>te. 

1329 


§§  2547,  2548  CIVIL  CODE.  [Div.III,Pt.IV. 

Husband's  insurable  interest  in  wife's  property. — See  30  A. 
S.    806. 

Information  as  to  nature  of  interest  insured. — See  Kerr's 
Cyc.  C.  C.  §  2568  and  note. 

Insurable  interest  in  life  of  parent  or  child  or  other  relative 
by   blood. — See    54    L.    225-234. 

Insurable    interest   in   property. — See    20   A.    D.    510-518. 

Interest  of  carrier  or  depositary. — See  Kerr's  Cyc.  C.  C.  §  2548 
and   note. 

Lessor's  and  lessee's  insurable  interest. — See   20  A.  D.   514. 

Life  and  health  insurance — Insurable  interest. — See  Kerr's 
Cyc.    C.   C.    §  2763   and   note. 

Mortgagee's  insurable  interest. — See  54  A.  D.   693-700. 

Part  owner — Insurance  by. — See  Kerr's  Cyc.  C.  C.  §  2590  and 
note. 

Policy — Specification  of  insurable  interest  in. — See  Kerr's. 
Cyc.    C.    C.    §  2587   and   note. 

Purchaser's  insurable  interest  under  executory  contract. — 
See   30   A.   D.    101,   102. 

Sheriff's  insurable  interest  in  goods  taken. — See  20  A.  D.  516, 
517. 

Trustee's   insurable   interest. — See    20   A.    D.    515. 

Validity  of  life  insurance  to  secure  debt  to  insurer. — See  53 
L.    462-465. 

Wager  policies — Common  law  as  to. — See  article  32  Alb.  L. 
J.   385,   403,  reproduced  as  note  in   52  A.   R.    135-148. 

§2547.  IN  WHAT  MAY  COXSIST.  An  insurable  interest 
in  property  may  consist  in:  • 

1.  An  existing  interest; 

2.  An  inchoate  interest  founded  on  an  existing  interest;  or, 

3.  An  expectancy,  coupled  with  an  existing  interest  in  that 
out  of  which  the  expectancy  arises. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

Insurable  interest — What  constitutes. — See  Kerr's  Cyc.  C.  C. 
§  2546    and    note. 

§2548.     INTEREST   OF   CARRIER   OR   DEPOSITARY.     A 

carrier  or  depositary  of  any  kind  has  an  insurable  interest 
in  a  thing  held  by  him  as  such,  to  the  extent  of  its  value. 

History:     Enacted  March   21,  1872. 
1330 


»         Tit.XI.ch.l.sirt.lV.]      MHUK    EXPKCTAN<"Ii:s.  §5  2549-2r.52 

See  Kerr's  Cyc.  C  C.  for  3  pars,  annotation. 

As  to  many  mlscpllaneous  matters  as  to  insurance,  see  notes 
li  414,   2527,  ante. 

Insuralilc  interest  of  consii^nee  or  bailee. — -Ste  2(i  A.  I).  515. 
516. 

§2r>4«.  .MKHE  EXl'KCTAM'IES.  A  mere  contingent  or 
expectant  interest  in  anything,  not  fotinded  on  an  actual  right 
to  the  thing,  nor  u|)on  any  valid  contract  for  it.  is  not  insur- 
able. ■ 

IIiNli>r>:      Knacted  March    21.   1S72. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
{{  414,   2527.  ante. 

Kiitiire   products. — See   2ii   A.    1 ».    .'is. 

§2r>r»0.     MEASIRE    OF    INTEKEST    IN    riMU'EHTV.     The 

measure  of  an  in.surable  inlere.st  in  proijerty  i.s  liie  extent 
to  which  the  insured  might  be  damnified  by  loss  or  Injtiry 
thereof. 

Illotor.t:     Knacted  March    21,   lsT2. 

As  to  many  miscellaneous  matters  as  to  in.surance,  see  notes 
II  414,   2527.  ante. 

Purchaser's  insurable  int<'rest. — See  Kerr'.s  Cyc.  C.  C.  I  2553 
and   note   par.    3. 

Valuation  In  policy  of  marine  Insurance. — See  K<rr'a  Cyc. 
C.  C.  I  2736  and  note. 

gi'iol.     INSrHANTE      \>HU(H   I      I  MEREST,    lI.EEIiAI.. 

The  sole  object  of  insurance  is  the  indemnity  of  the  Insured, 
and  if  he  has  no  insurable  Interest  the  contract  is  void. 

lllNiiir.'.:      Hnart.d  March   21.   1S72. 

As  to  many  miscellaneous  matti-rs  ns  to  Insurance,  see  notes 
11  414.    2527,  ante. 

Invalidity  of  policy  as  to  part  of  property  insiired,  whether 
void  In  toto,  where  It  covers  different  kinds  of  property,  con- 
tract being  entire. — See  74  A.  D.  498-500. 

§2:):i2.     ^VHE>'     INTEREST     MIST     EXIST.      An    interest 

insured  must  exist  when  the  insurance  takes  effect,  and  when 
the  loss  occurs,  l)ut  need  not  exist  in  the  mean  time. 

HlKtorj  ;     Enacted  March   21.   '*>T2 
1831 


§§  2553-2555  CIVIL  CODE.  [Div.in,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,  ante. 

For  Commissioners'  comment  on  this  section  and  authorities, 
see  Kerr's  Cyc.  C.  C.   §  2552,  note. 


§2553.  EFFECT  OF  TRANSFER.  Except  in  the  cases 
specified  in  the  next  four  sections,  and  in  the  cases  of  life, 
accident,  and  healtli  insurance,  a  change  of  interest  in  any 
part  of  a  thing  insured,  unaccompanied  by  a  corresponding 
cliange  of  interest  in  the  insurance,  suspends  the  insurance 
to  an  equivalent  extent,  until  the  interest  in  the  thing  and 
the  interest  in  the  insurance  are  vested  in  the  same  person. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.  C.   for  5  pars,   annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,  ante. 

Alienation  defeating  claim  for  insurance. — See  28  A.  D.  154- 
159,   30   Id.    102. 

Assignment  of  life  policy. — See  Kerr's  Cyc.  C.  C.  §  2764  and 
note. 

Cognate  sections. — See  Kerr's  Cyc.  C.  C.  §§  2554-2557,  2593  and 
notes. 

§2554.  TRANSFER  AFTER  LOSS.  A  change  of  interest 
in  a  thing  insured  after  the  occurrence  of  an  injury  vi^hich 
results  in  a  loss,  does  not  affect  the  right  of  the  insured  to 
indemnity  for  the  loss. 

History:     Enacted  March   21,  1872. 

§2555.  EXCEPTION  IN  THE  CASE  OF  SEVERAL  SUB- 
JECTS IN  ONE  POLICY.  A  change  of  interest  in  one  or  more 
of  several  distinct  things,  separately  insured  by  one  policy, 
does  not  avoid  the  insurance  as  to  the  others. 

History:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§8  414,   2527,  ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.   §  2255,   note. 

1332 


I 


Tit.XI.ch.I.art.IV.]      i  jkath— tkanskkk.  §§2556-2558 

§2.w(;.     IN  CASE  OF  THE  DEATH  OF  THE  INSIKEK.     A 

change  of  interest,  by  will  or  succession,  on  the  death  of  the 
insured,  does  not  avoid  an  insurance;  and  his  interest  in 
the  insurance  passes  to  the  person  taking  his  interest  in  the 
thing  insured. 

liiNtury:     Enacted  March   21,   1S72. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527.  ante. 

Alienation  by  operation  of  law. — See  28  A.  D.  158,  159. 

Assignment    in    bankruptcy. — See    28   A.    D.    158. 

Death  of  Insured  does  not  constitute  alienation. — See  28  A. 
D.  158. 

§2557.  IN  THE  CASE  OF  TKANSFEK  BETWEEN  (  OTE\- 
ANTS.  A  transfer  of  interest  by  one  of  several  partners, 
joint  owners,  or  owners  in  common,  who  are  jointly  insured, 
to  the  others,  does  not  avoid  an  insurance,  even  though  it  has 
been  agreed  that  the  insurance  shall  cease  upon  an  aliena- 
tion of  the  thing  insured. 

IliNtory:      Enacted   Marcli    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,  ante. 

Part  owner — Insurance  by. — See  Kerr's  Cyc.  C.  C.  §  2tt'^0  and 
note. 

Transfer  by  partner. — See  28  A.  D.  157,  158;  49  A.  R.  22-25; 
52   A.   R.    442-443. 

§2r>:.s.  VOID  INSri{AN(E  STirn.ATIONS.  Every  stipu- 
lation in  a  policy  of  insurance  for  ihc  payment  of  loss 
whether  the  person  insured  has  or  has  not  any  Interest  in 
the  property  insured,  or  that  the  policy  shall  he  received  as 
proof  of  such  interest,  and  every  policy  executed  by  way  of 
gaming  or  wagering,  is  void. 

HiMtory:     Enacted  March   30,   1S74;   Code  Amdts.   1873-4,  p.   255. 

As  to  many  miscellaneous  matters  as  to  Insurance,  sec  notes 
§§  414,    2527,  ante. 

Wager  policies — Common  law  as  to. — See  article  32  Alb.  L. 
J.   385.   403,  reproduced  as   note   in    52   A.   R.    135-148. 

1333 


§  2561  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  V. 

CONCEALMENT  AND   REPRESENTATION. 

§  2561.  Concealment,   what. 

§  2562.  Effect  of  concealment. 

§  2563.  What   must   be    disclosed. 

§  2564.  Matters     which     need     not     be     communicated     without 

inquiry. 

§  2565.  Test   of   materiality. 

§  2566.  Matters    which    each    is    bound    to   know. 

§  2567.  Waiver   of   communication. 

§  2568.  Interest  of  insured. 

§  2569.  Fraudulent  warranty. 

§  2570.  Matters  of  opinion. 

§  2571.  Representation,   what. 

§  2572.  When  made. 

§  2573.  How  interpreted. 

§  2574.  Representation    as    to   future. 

§  2575.  How   may   affect  policy. 

§  2576.  When   may   be    withdrawn. 

§  2577.  Time   intended  by   representation. 

§  2578.  Representing-   information. 

§  2579.  Falsity. 

§  258(V.  Effect   of   falsity. 

§  2581.  Materiality. 

§  2582.  Application  of  provisions  of  this  article. 

§  2583.  Rescission   of  insurance  contract. 

§2561.  CONCEALMENT,  WHAT.  A  neglect  to  communi- 
cate that  which  a  party  knows,  and  ought  to  communicate, 
is  called  a  concealment. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

80  C.  440,  443,  22  P.  302,   303    (applied). 

As  to  false  representations,  see  note  §  2527,  ante. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,   ante. 

As  to  misrepresentations,  see  note  §  2527,  ante. 

As  to  misstatements,   see  note   §  2527,  ante. 

As  to  representations,  see  note  §  2527,  ante. 

Application  as  part  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2605  and 
note  pars.  2,  3. 

1384 


i\ 


Tit.XI,ch.I,art.V.]    matters  to  be  disclosed.   §§  2562-2564 

Duty  of  insured  to  submit  to  examination  and  furnish  in- 
formation  to  insurer. — See   52  L.   424-429. 

Enemies  of  insured — Failure  to  state  existence  of. — See  Kerr's 
Cyc.  C.  C.  §§  2563  and  note  par.   3. 

Fraud  as  ground  for  avoidance. — See   51  A.  S.   439. 

Innocent  misrepresentations  as  to  liealtli  of  insured  when  he 
has   undiscovered   disease. — See   53   L.    193-205. 

Liens  and  encumbrances  not  correctly  stated. — See  Kerr's 
Cyc.  C.  C.  §2611  and  note  par.  6. 

Marine  insurance — Concealment  by  insured. — See  Kerr's  Cyc. 
C.  C.   §§  2669-2672  and  notes. 

"Warranties. — See  Kerr's  Cyc.  C.  C.   §§  2603-2612  and  notes. 

What  must  be  disclosed. — See  Kerr's  Cyc.  C.  C.  §  2563  and  note. 

§2o()2.  EFFECT  OF  CONCEALMENT.  A  concealment, 
whether  intentional  or  unintentional,  entitles  the  injured 
party  to  rescind  a  contract  of  insurance. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
80  C.    440,    443,    22   P.   302,   303    (applied). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  note.« 
§§  414,    2527,   ante. 

§2563.  WHAT  MUST  BE  l)ISCL(hSEI).  Each  party  to  a 
contract  of  insurance  must  communicate  to  the  other,  in  good 
faith,  all  facts  within  his  knowledge  which  are  or  which  he 
believes  to  be  material  to  the  contract,  and  whicli  the  other 
has  not  the  means  of  ascertaining,  and  as  to  which  he  makes 
no  warranty. 

IliMtory:     Enactrd  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
80  C.    440.    443,    22   P.    302,   303    (applied). 

As  to  many  miscellaneous  mattirs  as  to  insurance,  see  notes 
§§  414,   2527,   ante. 

§25(54.  MATTEKS  >VHI(  H  NEED  NOT  IJE  (OMMIM- 
CATEI)  WITIKM'T  INOCIKV.  Neither  party  to  a  contract  of 
insurance  is  l)ound  to  communicate  information  of  the  mat- 
ters following,  except  in  answer  to  the  inquiries  of  the 
other : 

1.  Those  which  the  other  knows: 

2.  Those  which,  in  the  exercise  of  ordinary  care,  the  other 

1335 


§§  2565, 2566  CIVIL  CODE.  [Div.III.Pt.IV. 

ought  to  know,  and  of  which  the  former  has  no  reason   to 
suppose  him  ignorant; 

3.  Those  of  which  the  other  waives  communication;    . 

4.  Those  which  prove  or  tend  to  prove  the  existence  of  a 
risk  excluded  by  a  warranty,  and  which  are  not  otherwise 
material ;   and, 

5.  Those  which  relate  to  a  risk  excepted  from  the  policy, 
and  which  are  not  otherwise  material. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

125  C.  345,  350,  58  P.  7   (subd.  3  cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

As  to  representation  contained  in  application,  see  20  A.  R. 
575-578;   33  A.  R.   832-838;   59  A.  R.   816-822. 

Application  as  part  of  contract. — See  Kerr's  Cyc.  C.  C.  §  2605 
and  note  par.   2. 

Fraudulent  warranty. — See  Kerr's  Cyc.  C.  C.  §  2569  and  note. 

Matters  whicli  each  is  bound  to  know. — See  Kerr's  Cyc.  C. 
C.  §  2566  and  note. 

Waiver  of  communication. — See  Kerr's  Cyc.  C.  C.  §  2567  and 
note. 

§2565.  TEST  OF  MATERIALITY.  Materiality  is  to  be 
determined  not  by  the  event,  but  solely  by  the  probable  and 
reasonable  influence  of  the  facts  upon  the  party  to  whom 
the  communication  is  due,  in  forming  his  estimate  of  the 
disadvantages  of  the  proposed  contract,  or  in  making  his 
inquiries. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

Incendiary  danger — Appreliension  of. — See  Kerr's  Cyc.  C.  C. 
§  2561  and  note   par.    6. 

Representation — Materiality  of. — See  Kerr's  Cyc.  C.  C.  §  2581 
and  note. 

§2566.    MATTERS  TVHItH  EACH  IS  BOUND  TO  KNOW. 

Each  party  to  a  contract  of  insurance  is  bound  to  know  all 
the   general   causes   which   are   open   to  his   inquiry,   equally 

1336 


TitXI.ch.I.art.V]         WAIVER— FRAUD.  §§  2567-2569 

with  that  of  the  other,  and  which  may  affect  either  the 
political  or  material  perils  contemplated;  and  all  general 
usages  of  trade. 

IIi.s4or>:      Enartiil   Marfli    2\.   1S71'. 

§2.>67.  WAIVEK  OF  ( OMUl'NK  ATION.  The  right  to 
information  of  material  facts  may  be  waived,  either  by  the 
terms  of  insurance  f)r  by  neglect  to  make  inquiries  as  to 
such  facts,  where  they  are  distinctly  implied  in  other  facts 
of  which  information   is  communicated. 

IIiN(or>:     Enactod  Marcli   21,  1872, 

See   Kerr's  Cyc.  C.   C.   for  4   pars,   annotation. 

See  Kerr's  Cyc.  C.  C.  §  2566  and  note. 

As  to  many  miscellaneous  matters  as  to  liisiir.ince,  see  notes 
S§  414,    2527,  ante. 

MIsrepre.spntatiDn  waived. — See  Kerr's  Cyc.  C.  C.  $  2.'.S0  and 
note  par.   25. 

Violation  of  warranty  waived. — See  Kerr's  Cyc.  C.  C.  {  2610 
and   note  pars.   42-48. 

§2o(>N.  I.MKKKST  01  IN-SIKKD.  Information  of  the  na- 
ture or  amount  of  tlie  interest  of  one  insured  need  not  be 
communicated  unless  in  answer  to  an  inquiry,  except  a.s  pre- 
scribed by  section  twenty-five  hundred  and  eighty-seven. 

lllMtor>:      Enact. d  March   21,   1S72. 

§1V>(;!».     KK.VnU  l,KM     »\I{|{V\IK      An    intentional    and 
fraudulent  omission,  on  the  part  of  one  insured,  to  communi- 
cate information  of  matters  proving  or  tending  to  prove  the 
falsity  of  a  warranty,  entitles  the  insurer  to  rescind. 
IllHlor.i:      Enacted  Murcli   21,   ISTJ. 

S«T   Kerr's  Cyc.  C  C   for   3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  instjranre,  »oe  notes 
5$  11 4,    2,">27,   ante. 

ElTect    of    false    representntlon. — See    Kerr's    ('>•-.    •  80 

nnil    note. 

Violation  of  materliil  w.nrranty. — S.-e  Kerrs  Cyc.  r  C.  f  2610 
and   note. 


§§  2570-2573  CIVIL  CODE.  [Div.III.Pt.IV. 

§2570.  MATTERS  OF  OPINION.  Neither  party  to  a  con- 
tract of  insurance  is  bound  to  communicate,  even  upon 
inquiry,  information  of  his  own  judgment  upon  the  matters 
in   question. 

History:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

For  Commissioners'  comment,  see  Kerr's  Cyc.  C.  C.  §  2570, 
note. 

§  2571.  EEPRESENTATION,  >VHAT.  A  representation  may 
be  oral  or  written. 

Hi-story:     Enacted  March   21,  1872. 

25  P.  260,  261  (cited);  89  C.  203,  23  A.  S.  460,  26  P.  872  (on 
rehearing). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

Marine  insurance — Representations  of  insured. — See  Kerr's 
Cyc.  C.  C.  §§  2676,   2677  and  notes. 

Warranties  and  representations  in  contracts  of  insurance. — 
See   16  A.   D.   467;   54  A.  D.   320,  321. 

§  2572.  WHEN  MADE.  A  representation  may  be  made 
at  the  same  time  with  issuing  the  policy,  or  before  it. 

HLstory:     Enacted  March   21,  1872. 

25   P.   260,   261    (cited).  ; 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

Application  as  part  of  contract. — See  Kerr's  Cyc.  C.  C.  §  2605 
and  note  pars.   2,   3. 

§  2573.  HOW  INTERPRETED.  The  language  of  a  repre- 
sentation is  to  be  interpreted  by  the  same  rules  as  the  lan- 
guage of  contracts  in  general. 

History:      Enacted  March   21,  1872. 

25  P.  260,  261    (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

As  to  ownership  being  represented  by  application,  see  Kerr's 
Cyc.  C.  C.  §  2573,  note. 

1338 


Tit.XI.ch.I.art.V.]     REPRESENTATTON.     EFFECT.    §§  2r,74-2ri77 

Construction  of  warranty. — Sfo  Kerr's  Cyc.  C.  C.  §  2604  and 
note  par.  2. 

Uniformity  of  iiiti-rpr.tation. — See  Kt-rr'.s  Cyc.  C.  C.  $  1635 
and  note. 

S2'')74.  KEPKESENT.VTION  AS  TO  FITIHE.  A  ippre- 
sentation  as  to  the  future  is  to  be  deemed  a  lironiise,  unless  it 
appears  that  it  was  merely  a  statement  of  belief  or  expecta- 
tion. 

IILstory:      Enact..!   Marcli    21.    1S72. 

25  P.   260,  261    (cited). 
.  As  to  many  miscellaneous  matters  as  to  in.surance,  see  notes 
§S  414.    2527.   ante. 

Different  kinds  of  warranties. — See  Kerr's  Cyc.  C.  C.  S  2606 
and  note. 

§2r)7.'».  HOW  MAY  AFFECT  IMU.K  V.  A  representation 
cannot  be  allowed  to  qualify  an  exi)r<'ss  provision  in  a  con- 
tract of  insurance;  but  it  may  qualify  an  implied  warranty. 

IIiH«ory:      Enacted  March    21,   1S72. 

25  P.   260.   261    (cited). 

As  to  many  miscellaneous  matters  as  to  insur.iiice,  see  notes 
58  414,    2527.   ante. 

§2r>7«.  >VIIEN  MAY  BE  \YITHnKA\YX.  A  representation 
may  bo  altered  or  witiidrawii  beiOre  tin-  insui'ance  is  effected, 
but  not  afterwards. 

IliHtoryi      i:iia.t.Mi   .Mardi    21.    1ST2. 

25  P.  260.   261    (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
H  414.    2527.   ante. 

§2.>7:.     Tl.ME    INTEMJEO    HY     KETHESENTA  IMJN.      The 

completion  of  the  contract  of  insurance  is  the  time  to  which 
a  representation  must  be  presumed  to  refer. 

llUtoryt      Enacted   March    21,   1872. 

(C.  Dec.  13,  1890),  25  P.  260,  261  (cited).  89  C.  203.  23  A.  S. 
460.  26   P.   872    (on   reliearingr). 

Ab  to  many  miscellaneous  matters  as  to  insurancet  •©•  notes 
§1  414.    2527.   ante. 

1339 


§§  2578-2580  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2578.  REPRESENTING  INFORMATION.  When  a  person 
insured  has  no  personal  knowledge  of  a  fact,  he  may  neverthe- 
less repeat  information  which  he  has  upon  the  subject,  and 
which  he  believes  to  be  true,  with  the  explanation  that  he 
does  so  on  the  information  of  others,  or  he  may  submit  the 
information,  in  its  whole  extent,  to  the  insurer;  and  in 
neither  case  is  he  responsible  for  its  truth,  unless  it  pro- 
ceeds from  an  agent  of  the  insured,  whose  duty  it  is  to  give 
the  intelligence. 

History:     Enacted  March   21,  1872. 

§  2579.  FALSITY.  A  representation  is  to  be  deemed  false 
when  the  facts  fail  to  correspond  with  its  assertions  or  stipu- 
lations. 

Hi.story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for '7  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,    2527,   ante. 

Cancellation  of  prior  policy  by  anotlier  company. — See  Kerr's 
Cyc.  C.  C.  §  2565  and  note  par.  1. 

Chang-es  of  ownership — Delivery  of  deed  is  requisite. — See 
Kerr's  Cyc.  C.  C.  §  2610  and  note  pars.  7,  8. 

Negligence  of  insured. — See  Kerr's  Cyc.  C.  C.   §  2629  and  note. 

Overvaluation  of  property. — See  Kerr's  Cyc.  C.  C.  §  2580  and 
note  par.  16. 

Violation  of  material  warranty. — See  Kerr's  Cyc.  C.  C.  §  2610 
and  note. 

§  2580.  EFFECT  OF  FALSITY.  If  a  representation  is  false 
in  a  material  point,  whether  affirmative  or  promissory,  the 
injured  party  is  entitled  to  rescind  the  contract  from  the  time 
when  the  representation  becomes  false. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

86  C.  248,  251,  21  A.  S.  33,  24  P.  1018  (cited);  25  P.  260,  261 
(cited);   89  C.   203,   208,  23  A.  S.  460,  26  P.   872,  873   (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  rescission  of  contracts  generally,  see  Kerr's  Cyc.  C.  C. 
§§  1688-1691  and  notes. 

1340 


1 


f 


Tit.XI,ch.T,art.V.]  MATERTAl.TY.  §  2581 

Applications  made  out  by  agent. — See  82  A.  D.  722-723;  9  A.  S. 
229-236. 

Burden  of  proving  performance  of  conditions. — See  Kerr's 
Cyc.  C.  C.  §  2610  and  note  par.  6. 

Construction  of  warranty. — See  Kerr's  Cyc.  C.  C.  §  2604  and 
note  par.  2. 

Enemies  of  insured — Failure  to  state  existence  of. — See  Kerr's 
Cyc.  C.  C.  §  2563  and  note  par.  3. 

Forfeiture  of  life  insurance  by  false  representation  with 
respect  to  previous  applications  for  insurance. — See  55  L.  122- 
139. 

Fraud  as  ground  for  avoidance. — See  51  A.  S.  439. 

Husband  and  wife  must  join  in  rescission,  when. — See  Kerr's 
Cyc.  C.  C.  §  2586  and  note  par.  19. 

Incendiary  danger — Apprehension  of. — See  Kerr's  Cyc.  C.  C. 
§  2561  and  note  par.   6. 

Increase  of  hazard  need  not  be  shown. — See  Kerr's  Cyc.  C.  C. 
§  2610  and  note  par.  17. 

Innocent  misrepresentation  as  to  health  of  insured  wlien  lie 
■  has  undiscovered  disease. — See  53  L.  193-205. 

Knowledge  of  violation  of  warranty  immaterial. — See  Kerr's 
Cyc.  C.  C.   §  2610  and   note  par.   IS. 

Local  disease  concealed. — See  Kerr's  Cyc.  C.  C.  §  2562  and  note 
par.  2. 

Materiality  of  misrepresentation — Instruction. — See  Kerr's 
Cyc.  C.  C.  §  2581  and  note  pars.  3,  4. 

Misrepresentations — Effect  of. — See  25  A.  S.   680,  681. 

Negligence  of  insured. — See  Kerr's  Cyc.  C.  C.   §  2629  and  note. 

Policy  may  provide  for  avoidance. — See  Kerr's  Cyc.  C.  C. 
§  2611  and  note. 

Renewal  of  forfeited  policy. — See  Kerr's  Cyc.  C.  C.  §  2586  and 
note  par.  30. 

Violation  of  material  warranty. — See  Kerr's  Cyc.  C.  C.  §  2610 
and  note. 

Waiver  of  violation  of  warranty. — See  Kerr's  Cyc.  C.  C.  §  2610 
and  note  pars.  42-48. 

§25S1.  :>rATEI{IAI,ITY.  The  materiality  of  a  representa- 
tion is  determined  by  the  same  rule  as  the  materiality  (if  a 
concealment. 

HiMtory:     Enacted  March   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Cancellation  of  prior  policy  by  another  company. — See  Kerr's 
Cyc.  C.  C.  §  2565  and  note  par.   1. 

Concealment — Materiality  of. — See  Kerr's  Cyc.  C.  C.  !  2565 
and  note. 

1341 


§§  2582,  2583  CIVIL  CODE.  [Div.III,Pt.IV. 


1342 


1 


§2582.  APPLICATIO^V  OF  PROVISIONS  OF  THIS  ARTI- 
CLE.  The  provisions  of  this  article  apply  as  well  to  a  modi- 
fication of  a  contract  of  insurance  as  to  its  original  forma- 
tion. 

History:     Enacted  March   21,  1872.  f 

§  2583.  RESCISSION  OF  INSURANCE  CONTRACT.  When- 
ever a  right  to  rescind  a  contract  of  insurance  is  given  to  the 
insurer  by  any  provision  of  this  chapter,  such  right  may  be 
exercised  at  any  time  previous  to  the  commencement  of  an 
action  on  the  contract. 

HLstory:     Enacted  March  30,   1874,  Code  Amdts.   1873-4,   p.   255. 

25  P.  260,  261  (cited);  89  C.  203,  208,  23  A.  S.  460,  26  P.  872, 
873    (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Performance  excused. — See  Kerr's  Cyc.  C.  C.  §  2609  and  note. 

Waiver  of  forfeiture. — See  Kerr's  Cyc.  C.  C.  §  2610  and  note 
pars.   42-48. 


i 


Tit.XI,ch.I,art.VI.] 


THE    POLICV. 


.2586 


ARTICLE  VI. 

THE   POLICY. 

§  2586.  Policy,    what. 

§  2587.  What   mu.st  be   specified    in   a   policy. 

§  2588.  Whose  Interest  is  covered. 

S  2589.  Insurance   by  agent  or  trustee. 

§  J^DO.  Insurance  by  part  owner. 

§  2591.  General    terms. 

§  2592.  Success'ive    owners. 

§  2593.  Transfer  of  the  thing-  Insured. 

§  2594.  Open   and  valued  policies. 

§  2595.  Open   policy,   what. 

§  2596.  Valued    policy,    what. 

S  2597.  Running   policy,    what. 

§  259S.  Effect   of  receipt. 

§  2599.  Agreement   not   to   transfer. 


§258(5.  IMH.ICY,  WH.VT.  The  written  instrument,  in  which 
a  contract  of  insurance  is  set  forth,  is  called  a  i)olicy  of 
insurance. 

lllMtor.v:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  33  pars,  annotation. 

As  to  agent's  misstatement  in  application  made  out  by  him. 
see  Kerr's  Cyc.  C.  C.  §  2580  and  note  par.   2. 

As  to  construction  of  warranty,  see  Kerr's  Cyc.  C.  C  {  2603 
and  note  par.  4. 

As  to  contract  or  policy  of  Insurance,  see  note  $  2527.  ante. 

As  to  known  restrictions  upon  agent's  authority. — See  Kerr's 
Cyc.  C.  C.  §  2318  and  note. 

As  to  many  misccll.iiieous  matters  as  to  Insurance,  see  notes, 
SSI  411,  2527,  ante. 

Application  as  part  of  contract. — See  Kerr's  Cyc.  C.  C.  I  2605 
and  noti-  pars.  2,  3. 

Assumption  of  policy  by  another  company. — Sic  Korr's  Cyc. 
C.  C.  i  2527  and  note  par.  4. 

Authority  of  agent  to  cancel  policy. — See  Kerr's  Cyr.  C.  C. 
5  2611   and  note  par.  2. 

Authority  of  ;igent  to  w.TJve  ctmdlt  ions.— See  K-rrs  Cyc. 
C.  C.  i  2610  and  note  pars.  43,  44. 

Change  of  benelUiary. — See  Kerr's  Cyc.  C.  C.  $  2r.3S  nnd  note 
pars.   1,  2. 

Consent  of  person  whose  life  is  ln.>»nred  as  condition  of  Insur- 
niiie  tiureon. — See  56  L.  585. 

1343 


§  25«7  CIVIL  CODE.  [Div.III,Pt.IV. 

Contract  of  bailment. — See  Kerr's  Cyc.  C.  C.  §  2587  and  note 
par.  4. ' 

Custom  and  usage. — See  Kerr's  Cyc.  C.  C.  §  2604  and  note 
par.  3. 

Foreign  law. — See  Kerr's  Cyc.  C.  C.  §  2527  and  note  par.  9. 

Insurance  policy,  construction  of. — See  23  A.  S.  641. 

Misrepresentations  of  agents. — See  14  A.  S.  493. 

Necessary  and  ostensible  authority  of  agents. — See  Kerr's 
Cyc.  C.  C.  §§  2317,  2319  and  notes. 

Policy  may  provide  for  avoidance.^See  Kerr's  Cyc.  C.  C.  §  3^11 
and  note. 

Power  of  agent  to  waive  conditions  with  respect  to  notice, 
etc. — See  31  A.  S.  513,  514. 

Reformation  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2580  and  note 
par.  22. 

§2587.     WHAT  MUST   BE   SPECIFIED  IN  A  POLICY.     A 

policy  of  insurance  must  specify: 

1.  The  parties  between  whom  the  contract  is  made; 

2.  The  rate  of  premium; 

3.  Tlie  property  or  life  insured; 

4.  The  interest  of  the  insured  in  property  insured,  if  he 
is  not  the  absolute  owner  thereof; 

5.  The  risks  insured  against;   and, 

6.  The  period  during  which  the  insurance  is  to  continue. 

HLstory:     Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

98  C.  1,  7,  32  P.  705,  707  (cited);  107  C.  327,  330,  48  A.  S.  140, 
40  P.  431,  28  L.  692  (cited);  111  C.  409,  411,  412,  413,  43  P.  1115 
(construed). 

As  to  many  miscellaneous  matters  as  to  insurancfc,  see  notes, 
§§  414,  2527,  ante. 

Application  as  part  of  contract. — See  Kerr's  Cyc.  C.  C.  §  2605 
and  note  pars.  2,  3. 

Construction  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2586  and  note 
par.  10. 

Custom  and  usage. — See  Kerr's  Cyc.  C.  C.  §  2604  and  note 
par.  3. 

Information  as  to  nature  of  interest  insured. — See  Kerr's  Cyc. 

C.  C.   §  2568  and  note. 

Misdescription  of  insured  property,  what  is,  and  the  effect  of. 
— See  30  A.  D.  101. 

Non-forfeiture  clause — Right  to  paid-up  policy. — See  Kerr's 
Cyc.  C.  C.  §  450  and  note. 

Right  of  one  not  named  in  policy  to  sue  thereon. — See  35  A. 

D.  624. 

1344 


ri 


Tit.XI.ch.I.art.VI.]      INSURANCE  BY  AGENT.  8§  2588-2591 

§  2588.  WHOSE  IM'EKEST  IS  COVERED.  When  the  name 
of  the  person  intended  to  be  insured  is  specified  in  a  policy, 
it  can  be  applied  only  to  his  own  proper  interest. 

HiHtury:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes. 
§§  414,  2527,  ante. 

Information  as  to  nature  of  interest  of  insured. — See  Kerr's 
Cyc.  C.  C.   §  2568  and  note. 

Insurable  Interest — What  constitutes. — See  Kerr's  Cyc.  C.  C. 
§  2546  and  note.  * 

Mortgagee  .as  insured. — See  Kerr's  Cyc.  C.  C.  §  2541  and  note 
pars.  2,  3;  34  A.  D.  691;  39  A.  D.  542;  50  A.  D.  593;  54  A.  D.  693. 

§2rtS9.     nSlRAXE  KY  .\(JE>T  (H{  TIUSTEE.    When  an 

insurance  is  made  by  an  agent  or  trustee,  the  fact  that  his 
principal  or  beneficiary  is  the  person  really  insured  may  be 
indicated  by  describing  him  as  agent  or  trustee,  or  by  other 
general  words  in  the  policy. 

HlNtorj:      Enacted   March    21,   1872. 

As  to  many  miscellaneous  matters  as  to  Insurance,  see  notes, 
n  414,  2527,  ante. 

Agents  of  Insurance  companies. — See  Kerr's  Cyc.  C.  C.  {  2586 
and  note  pars.  1-4. 

Unauthorized  Insurance. — See  Kerr's  Cyc.  C.  C.  S  2586  and  note 
pars.  32,  33. 

§2'»!)0.  [NSIHAX  i:  HV  T  \  l{  I  OWM.K.  To  rohdor  an 
insurance,  effected  ity  one  partner  or  part  owner,  apiillcable 
,to  the  interest  of  his  copartners,  or  of  other  part  owners.  It 
is  necessary  that  the  terms  of  the  policy  should  be  such  as 
are  ai)i)licab!e  to  the  joint  or  common  interest. 

iliNior>i     Enacted  March  21.  1872. 

As  to  many  mlscellniu'dus  inalter.s  a.M  tn  lii.«i\irniu'e.  see  notes. 
SS  414,  2527,  ante. 

Transfer  between  cotenants,  etc.,  who  are  Insured. — See  Kerr'n 
Cyc.  C  C.  S  2557  and  note. 

§2:.»1.     UENEK.\1>   TEiniS.     Wlien    the  description   of   the 
insured    in    a    i^oiicy   la   so   general    that    it   may    comprehend 
any   |)erson  or  any  class  of  persons,  he  only   can  claim  the 
Kerr's    C.    C. — 43  1345 


§§  2592-2595  CIVIL  CODE.  [Div.III,Pt.IV. 

benefit  of  the  policy  who  can  show  that  it  was  intended  to 
include  him. 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

123  C.  222,  224,  55  P.  905   (referred  to). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  mortgage  as  insured,  see  Kerr's  Cyc.  C.  C.  §  2541  and 
note. 

Change  of  beneficiary. — See  Kerr's  Cyc.  C.  C.  §  2538  and  note 
pars.  1,  2. 

"For  whom  it  may  concern" — Nature  and  effect  of  phrase. — 
See  16  A.  D.  323,  324. 

Right  of  one  not  named  in  policy  to  sue  thereon. — See  35  A. 
D.  624. 

§  2592.  SUCCESSIVE  OWNERS.  A  policy  may  be  so  framed 
that  it  will  inure  to  the  benefit  of  whomsoever,  during  the 
continuance  of  the  risk,  may  become  the  owner  of  the  interest 
insured. 

History:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Change  of  beneficiary. — See  Kerr's  Cyc.  C.  C.  §  2538  and  note 
pars.  1,  2. 

Cognate  sections. — See  Kerr's  Cyc.  C.  C.  §§  2553-2557  and  notes. 

§  259.5.  TRANSFER  OF  THE  THING  INSURED.  The  mere 
transfer  of  a  thing  insured  does  not  transfer  the  policy,  but 
suspends  it  until  the  same  person  becomes  the  owner  of  both 
the  policy  and  the  thing  insured. 

History:     Enacted  March   21,  1872. 

§2594.  OPEN  AND  VALUED  POLICIES.  A  policy  is 
either  open  or  valued. 

History:     Enacted  March   21,  1872. 

§  2595.  OPEN  POLICY,  WHAT.  An  open  policy  is  one  in 
which  the  value  of  the  thing  insured  is  not  agreed  upon,  but 
is  left  to  be  ascertained  in  case  of  loss. 

History:     Enacted  March   21,  1872. 
1346 


Tit.XI,ch.I,art.VI.]        valued  policy.  §§2596-2598 

§2596.  VALUED  POLICY,  WHAT.  A  valued  policy  is  one 
which  expresses  on  its  face  an  agreement  that  the  thing 
insured  shall  be  valued  at  a  specified  sum. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

98  C.  1,  7,  32  P.  705,  707   (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Overvaluation  of  property. — See  Kerr's  Cyc.  C.  C.  §  2580  and 
note  pars.  16,  17;  29  A.  D.  616-621. 

Valuation  in  policy  of  marine  insurance. — See  Kerr's  Cyc.  C.  C. 
§  2736  and  note. 

§2597.    RUNNING  POLICY,  "WHAT.     A  running  policy  is 
one    which    contemplates*  successive    insurances,    and    which ' 
provides  that  the  object  of  the  policy  may  be  from  time  to 
time  defined,   especially  as  to  the  subjects  of  insurance,  by 
additional  statements  or  indorsements. 

History:      Enacted   Marcli   21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  marine  insurance,  see  Kerr's  Cyc.  C.  C.  §§  2597,  2655-2746 
and  notes. 

§2598.  EFFECT  OF  RECEIPT.  An  acknowledgment  in  a 
policy  of  the  receipt  of  premium  is  conclusive  evidence  of  its 
payment,  so  far  as  to  make  the  policy  binding,  notwithstand- 
ing any  stipulation  therein  that  it  shall  not  be  binding  until 
the  premium   is  actually   paid. 

History:     Enacted  March   21.    1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

83  C.  246,  255,  259,  17  A.  S.  233,  23  P.  869,  872,  873  (nppli.d); 
61  P.  784,  785  (effect  of  provision  is  simply  to  make  acknowlodg- 
ment  of  receipt  of  premium  conclusive  so  far  as  to  make  policy 
binding — before  code  point  was  disputed);  132  C.  68,  70,  72,  64 
P.  97   (construed). 

As  to  effect  of  tender,  see  Kerr's  Cyc.  C.  C.  §  1485  and  note. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Date  when  policy  takes  effect. — See  Kerr's  Cyc.  C.  C.  §  2586 
and  note  par.  13. 

1347 


ff 


§  2599  CIVIL  CODE.  [Div.III,Pt.IV. 

Premium — When  earned. — See  Kerr's  Cyc.  C.  C.  §  2616  and 
note. 

Promise  to  pay  premium  at  future  time. — See  Kerr's  Cyc.  C. 
C.   §  2586  and  note  par.   27. 

Receipt  as  evidence  of  payment. — See  Kerr's  Cyc.  C.  C.  §  1473 
and  note  pars.  74-94. 

§  2599.  AGREEMENT  NOT  TO  TRANSFER.  An  agreement 
made  before  a  loss,  not  to  transfer  the  claim  of  a  person 
insured  against  the  insurer,  after  the  loss  has  happened,  is 
void. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Assignment  of  insurance,  when  valid,  and  what  constitutes. — 
See  56  A.  D.   747-755. 

Neg-otiability  of  policy. — See  Kerr's  Cyc.  C.  C.  §  2542  and  note. 


1348 


Tit.XI.ch.I.art.VII.]     WARRANTY.  FORM.  §§2603,2604 

ARTICLE  VII. 

WARRANTIES. 

§  2603.  TA'arranty,  express  or  implied. 

§  2604.  Form.      [No  particular   words  necessary.] 

§  2605.  Warranty   must    be    in    policy. 

§  2606.  Past,   present,   and  future   warranties. 

§  2607.  Warranty  as  to  past  or  present. 

§  2608.  Warranty  as  to  the  future. 

§  2609.  Performance  excused. 

§  2610.  What  acts   avoid   the  policy. 

§  2611.  Policy  may  provide  for  avoidance. 

§  2612.  Breach  without  fraud. 

§2003.  WARRAMY,  EXPRESS  OR  IMPLIED.  A  war- 
ranty  is   either   express  or   implied. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

122  C.  595,  599,  55  P.  417. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes. 
§§  414,  2527,  ante. 

As  to  warranties,  see  note,  §  2527,  ante. 

Application  as  part  of  contract. — See  Kerr's  Cyc.  C.  C.  §  2605 
and  note  pars.  2,  3. 

Conditions  in  fire  policy  as  to  keeping,  preserving-,  and  pro- 
ducing papers. — See  51  L.  698-715. 

Exemption  of  insurer  from  liability. — See  Kerrs  Cyc.  C.  C. 
§  2610  and  note  par.  12. 

Marine  Insurance — Implied  warranties. — See  Kerr's  Cyc.  C.  C. 
§§  2681-2688  and  notes. 

Pleading — Performance  of  conditions. — See  Kerr's  Cyc.  C.  C. 
§  2610  and  note  pars.  22-29. 

Waiver  of  violation  of  warranty. — See  Kerr's  Cyc.  C.  C.  §  2610 
and  note  pars.   42-48. 

§2604.     FORM.    [>(►  PARTK  ILAR  WORDS  NECESSARY.] 

No   particular  form   of  words  is  necessary  to  create   a  war- 
ranty. 

IliMiory:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  construction  of  policy,  see  Kerr's  Cyc.  C.  C.  §  2586  and 
note  pars.  10,  11. 

1349 


§§  2605-2607  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Application  as  part  of  contract. — See  Kerr's  Cyc.  C.  C.  §  2605 
and  note  pars.  2,  3. 

Construction  of  warranty. — See  Kerr's  Cyc.  C.  C.  §  2603  and 
note  par.  4. 

Parol  contract  as  valid. — See  Kerr's  Cyc.  C.  C.  §  2586  and  note 
par.  24. 

§  2605.  WARRANTY  MUST  BE  IN  POLICY.  Every  express 
warranty,  made  at  or  before  the  execution  of  a  policy,  must 
be  contained  in  the  policy  itself,  or  in  another  instrument 
signed  by  the  insured  and  referred  to  in  the  policy,  as  making 
a  part  of  it. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   255. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

25  P.  260,  261  (cited);  89  C.  203,  208,  23  A.  S.  460,  26  P.  872 
(cited  on  rehearing);  130  F.  743,  744,  65  C.  C.  A.  127  (cited  with 
§§  2607.  2608). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Policy  stipulating  that  representation  is  warranty. — See  Kerr's 
Cyc.  C.  C.   §  2611  and  note  par.  14. 

Representations  in  application.— See  29  A.  R.  575-578;  33  A.  R. 
832-838;  59  A.  R.  816-822. 

Representation,   what. — ^See  Kerr's  Cyc.  C.  C.   §  2571  and  note. 

§2606.     PAST,  PRESENT,  AND   FUTURE   WARRANTIES. 

A  warranty  may  relate  to  the  past,  the  present,  the  future, 
or  to  any  or  all  of  these. 

History:     Enacted  March  21,   1872. 

As  to  different  kinds  of  warrants,  see  Kerr's  Cyc.  C.  C.  §§  2606- 
2608  and  notes. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

§  2607.  W  ARRANTY  AS  TO  PAST  OR  PRESENT.  A  state- 
ment in  a  policy,  of  a  matter  relating  to  the  person  or  thing 
insured,  or  to  the  risk,  as  a  fact,  is  an  express  warranty 
thereof. 

History:     Enacted  March   21,   1872. 
1350 


t 


Tit.XI,ch.I,art.VII.]  WARRANTY.  §§2608.2609 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

66  C.  361,  303.  5  P.  617,  618  (applied);  67  C.  138,  440.  7  P.  817 
(applied);  88  C.  497,  504,  22  A.  S.  324.  26  P.  509  (construed);  130 
F.  743,  744.  65  C.  C.  A.  127   (cited  with   §§2605,  2608). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Agent's  misstatement  in  application. — See  Kerr's  Cyc.  C.  C. 
§  2580  and  note  par.  2. 

Definition  of  warranty. — See  Kerr's  Cyc.  C.  C.  §  2603  and  note 
par.  5. 

New  deflnitifjn  of  warranty  not  created. — See  Kerr's  Cyc.  C.  C. 
ji  2605   and   note   i)ar.    4. 

§260S.  WARR.\>'TY  AS  TO  THE  FUTUKE.  A  statement 
in  a  policy,  which  imports  that  it  is  intended  to  do  or  not  to 
do  a  thing  which  materially  affects  the  risk,  is  a  warranty 
that  such  act  or  omission  shall  take  place. 

HlMtory:     Enacted  March   21.   1872. 

See  l-Cerrs  Cyc.  C.  C.  for  7  pars,  annotation. 

137  C.  596,  597,  70  P.  660  (applied);  130  F.  743.  74  1.  65  C.  C. 
A.    127    (cited   with   §§2605,   2607). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

Cliange  of  occupancy. — See  Korr'.s  Cyc.  C.  C.  §  2610  and  note 
pars.  7,  8. 

New  definition  of  warranty  nut  created. — See  Kerr's  Cyc.  C.  C. 
§  2605  and   note  par.   4. 

Violation  of  mat. -rial  warranty. — See  Kerr's  Cyc.  C.  C.  5  2610 
and  note. 

Watchman  stipulated  to  bo  kei)t. — See  Kerr's  Cyc.  C.  C.  J  2610 
and  note. 

§2«0J).  rEIJFOK.MANCE  EXCISEI).  Wlion,  before  the 
time  arrives  for  the  performance  of  a  warranty  relating;  to 
the  future,  a  loss  insured  aprainst  happens,  or  performance 
becomes  unlawful  at  the  i)lace  of  the  contract,  or  imiiosslhle, 
the  omission  to  fulfil  tho  warranty  does  not  avoid  the  policy. 

Ili.slirry:  Knnctod  March  21,  ISTl'-  nm.n.l.Mi  M:ir.)i  HO.  ISTI. 
Code    Amdls.    1S73-4.    pp.    255-' 

As  to  many  miscellaneous  matti.r.s  as  to  insurance,  see  notes. 
S§  414,  2527,  aJite. 

Riglit  to  rescind. — See  Kerr's  Cyc.  C.  C.  §  2583  and  note. 

1.351 


§  2610  CIVIL  CODE.  [Div.III,Pt.IV 

§  2610.  WHAT  ACTS  AVOID  THE  POLICY.  The  violation 
of  a  material  warranty,  or  other  material  provision  of  a  policy, 
on  the  part  of  either  party  thereto,  entitles  the  other  to 
rescind. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  50  pars,  annotation. 

86  C.  348,  251,  21  A.  S.  33,  24  P.  1018   (cited). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  negligence  of  insured,  see  Kerr's  Cyc.  C.  C.  §  2629  and 
note. 

As  to  rescission  of  contracts  generally,  see  Kerr's  Cyc.  C.  C. 
§§  1688-1691  and  notes. 

As  to  transfer  of  interest  in  partnership  property,  see  Kerr's 
Cyc.  C.  C.   §  2557  and  note  par.  3. 

Application  as  part  of  contract.- — See  Kerr's  Cyc.  C.  C.  §  2605 
and  note  pars.  2,  3. 

Enemies  of  insured — Failure  to  state  existence  of. — See  Kerr's 
Cyc.  C.  C.  §  2563  and  note  par.  3. 

Exclusive  grounds  for  rescission.^ — See  Kerr's  Cyc.  C.  C.  §  2580 
and  note  par.  8. 

Falsit5^  of  representations. — See  Kerr's  Cyc.  C.  C.  §  2575  and 
note. 

Foreclosure  proceedings  with  knowledge  of  insured. — See 
Kerr's  Cyc.  C.  C.  §  2608  and  note  par.  3. 

Forfeiture  of  life  insurance  by  false  representations  with 
respect  to  previous  applications  for  insurance. — See  55  L.  122- 
139. 

Fraud — Breach  of  warranty  without. ^See  Kerr's  Cyc.  C.  C. 
§  2612  and  note. 

Hushand  and  wife  must  join  in  rescission,  when. — See  Kerr's 
.  Cyc.  C.  C.  §  2586  and  note  par.  19. 

Incendiary  danger — Apprehension  of. — See  Kerr's  Cyc.  C.  C. 
§  2561  and  note  par.   6. 

Innocent  misrepresentations  as  to  health  of  insured  when  he 
has  undiscovered  disease. — See  53  L.  193-205. 

Liens  and  encumbrances. — See  Kerr's  Cyc.  C.  C.  §  2611  and  note 
par.  6. 

Local  disease  concealed. — See  Kerr's  Cyc.  C.  C.  §  2562  and  note 
par.   2. 

Paid-up  policy  in  lieu  of  original. — See  Kerr's  Cyc.  C.  C.  §  2586 
and  note  pars.  22,  23. 

Power  of  agent  to  waive  conditions  with  respect  to  notice,  etc. 
—See   31  A.  S.   513,   514. 

Provision  in  policy  for  avoidance. — See  Kerr's  Cyc.  C.  C.  §  2611 
and  note. 

1352 


I 


Tit.XI,ch.I,art.VII.]  AVOIDANCE.  §§2611,2612 

Renewal  of  forfeited  policy.— See  Kerr's  Cyc.  C.  G.  §  2586  and 

note  30. 

Replication   denying  breach   of  warranty  of  title. — See   Kerr's 
Cyc.  C.  C.  §  2546  and  note  par.  6. 

Waiver  of  forfeiture. — See  53  A.  S.   526. 

What  constitutes  waiver. — See  25  A.  S.  681. 


§2611.    POLICY    MAY    PROVIDE    lOK    AVOIDANCE.     A 

policy  may  declare  that  a  violation  of  specified  provisions 
thereof  shall  avoid  it,  otherwise  the  breach  of  an  immaterial 
provision  does  not  avoid  the  policy. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

66  C.  361,  363,  5  P.  617,  618  (applied);  67  C.  438,  441,  7  P.  81.7 
(cited);  112  C.  548,  559,  44  P.  922  (cited);  122  C.  595,  599,  55  P. 
417  (referred  to);  143  C.  287,  291,  77  P.  63  (applied);  46  F.  355, 
356    (applied). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 

§§  414,  2527,  ante. 

As  to  waiver  of  forfeiture,  see  Kerr's  Cyc.  C.  C.  §  2610  and 
note  par.  42. 

Foreclosure  proceedings  with  knowledge  of  insured.— See 
Kerr's  Cvc.  C.  C.  §  2608  and  note  par.  2;  84  A.  S.  20. 

Negligence  of  insured.— See  Kerr's  Cyc.  C.  C.  §  2629  and  note. 

Paid-up  policy  in  lieu  of  original.— See  Kerr's  Cyc.  C.  C.  §  2586 
and  note  pars.  22,  23. 

Renewal  of  forfeited  policy.— See  Kerr's  Cyc.  C.  C.  §  2nS6  and 
note  par.  30. 

Waiver  of  forfeiture.— See  Kerr's  Cyc.  C.  C.  §  2610  and  note 
pars.   42-48.- 

§2612.  BREACH  ^VITHOIT  FRAUD.  A  breach  of  war- 
ranty, without  fraud,  merely  exonerates  an  insurer  from  the 
time  that  it  occurs,  or  where  it  is  broken  in  its  inception  pre- 
vents the  policy  from  attaching  to  the  risk. 

HlMtory:     Enacted  March   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

67  C.  438,  440,  7   P.  617    (cited). 

As  to  many  miscellaneous  matters  as  to  iiusurance,  .see  notes. 
§§  414,  2527,  ante. 

Non-forfeiture  clause— Right  to  paid-up  policy.— See  Kerr  s 
Cyc.  C.  C.  §  450  and  note. 

1353 


§§  2616, 2617  CIVIL  CODE.  [Div.III.Pt.IV. 

Pleading — Performance  of  conditions. — See  Kerr's  Cyc.  C.  C. 
§  2610  and  note  pars.   22-29. 

Return  of  premium  for  fraud. — See  Kerr's  Cyc.  C.  C.  §  2619 
and  note. 

Waiver  of  violation  of  warranty. — See  Kerr's  Cyc.  C.  C.  §  2610 
and  note  par.  42. 


ARTICLE  VIII. 

PREMIUM. 

§  2616.  When   premium   is   earned. 

§  2617.  Return    of   premium. 

§  2618.  When    not    allowed. 

§  2619.  Return   for   fraud. 

§  2620.  Over-insurance   by  several   insurers. 

§  2621.  Contribution. 

§  2622.  Proportionate   contribution. 

§2616.     WHEH    PREMIUM    IS    EARNED.      An    insurer    is 
entitled   to   payment   of   the   premium   as    soon    as   the   thing 
insured  is  exposed  to  the  peril  insured  against. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  53  pars,  annotation. 

86  C.  248,   252,   21  A.  S.  33,  24  P.  1018,  1019    (construed). 

As  to  assessments,  see  note  §  2527,  ante. 

As  to  forfeiture  for  non-payment  of  premium,  see  1  L.  256; 
9  L.  317. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  premiums,  see  note  §  2527,  ante. 

As  to  receipt  in  policy,  how  far  conclusive  of  payment,  see 
Kerr's  Cyc.  C.  C.  §  2598. 

As  to  waiver  of  conditions  requiring  payment  before  delivery 
of  policy,  see  57  A.  R.  514. 

As  to  waiver  of  payment  of  premium,  what  amounts  to,  see 
29  A.  R,  777. 

§  2617.  RETURN  OF  PREMIUM.  A  person  insured  is  enti- 
tled to  a  return  of  premium,  as  follows: 

1.  To  the  whole  premium,  if  no  part  of  his  interest  in  the 
thing  insured  be  exposed  to  any  of  the  perils  insured  against. 

2.  Where   the   insurance   is   made   for   a  definite   period   of 

1354 


Tit.XI,ch.I,art.VIII.]       KETURN— FRAUD.  §§2618.2619 

time,  and  the  insured  surrenders  his  policy,  to  such  propor- 
tion of  the  premium  as  corresponds  with  the  unexpired  time, 
after  deducting  from  the  whole  premium  any  claim  for  loss 
or  damage  under  the  policy  which  has  previously  accrued. 

HiMtory:  Enacted  March  21,  1S72;  amendt'd  Martli  30,  1S74, 
Code   Amdts.    1873-4,   p.    2.5G. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

86  C.  248,  253,  254  (applied  but  erroneously  cited  as  §  1542), 
21  A.  S.  33  (same  error),  24  P.  1018,  1019  (same  error);  150  C. 
346,  354,  89  P.  93  (cited);  150  C.  510,  518,  89  P.  130  (return  of 
premium). 

As  to  many  miscellaneous  matters  as  to  insui'ance,  see  notes, 
§§  414.  2527,  ante. 

As  to  return  of  premium  for  fraud,  see  Kerr's  Cyc.  C.  C.  §  2619 
and  note. 

§2618.  WHEN  IVOT  ALLOWED.  If  a  peril  insured  against 
has  existed,  and  the  insurer  has  been  liable  for  any  period, 
however  short,  the  insured  is  not  entitled  to  return  of  pre- 
miums, so  far  as  that  particular  risk  is  concerned. 

History:  Enacted  Marcli  21,  1S72;  amended  March  30,  1874, 
Code   Amdts.   1873-4.  p.   256. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

86  C.  248,  253  (applied  but  erroneously  cited  as  §  1543),  21  A.  S. 
33    (same  error).  24  P.   1018.   1019   (same  error). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

§2619.  KETrU>  FOR  FKAl'I).  A  person  insured  is  enti- 
tled to  a  return  of  the  ])remium  when  the  contract  is  voidable, 
on  account  of  the  fraud  or  misrepresentation  of  the  insurer, 
or  on  account  of  facts,  of  the  existence  of  which  the  insured 
was  ignorant  without  his  fault;  or  when,  by  any  default  of 
the  insured  other  than  actual  fraud,  the  insurer  never  incur- 
red  any   liability   under   the   policy. 

IliNtory:     Enacted  Marcli   21.   1,S72. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

86  C.  248,  253  (applied  but  erroneously  cited  as  §  l.">44),  21  A.  S. 
33  (same  error),  24  P.  1018,  1019  (same  error). 

As  to  many  miscellaneous  matters  as  to  Insurance,  see  notes, 
§§  414,  2527,  ante. 

1355 


§§  2620-2622 


CIVIL  CODE. 


[Div.III,Pt.IV. 


§  2620.     OVER-IJfSURANCE  BY  SEVERAL  INSURERS.    In 

case  of  an  over-insurance  by  several  insurers,  the  insured"  is 
entitled  to  a  ratable  return  of  the  premium,  proportioned  to 
the  amount  by  which  the  aggregate  sum  insured  in  all  the 
policies  exceeds  the  insurable  value  of  the  thing  at  risk. 

HLstory:     Enacted  March   21,   1872. 

As  to  dnuble  insurance,  see  Kerr's  Cyc.  C.  C.  §§  2641,  2642  and 
notes. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

§2621.  C;0?iTRIBUTION.  When  an  over-insurance  is 
effected  by  simultaneous  policies,  the  insurers  contribute  to 
the  premium  to  be  returned  in  proportion  to  the  amount 
insured  by  their  respective  policies. 

History:      Enacted  March   21,   1872. 

As  to  contribution  in  cases  of  double  insurance,  see  post  §  2642. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

§2622.  PROPORTIOIVATE  CONTRIBUTION.  When  an 
over-insurance  is  effected  by  successive  policies,  those  only 
contribute  to  a  return  of  the  premium  who  are  exonerated 
by  prior  insurances  from  the  liability  assumed  by  them,  and 
in  proportion  as  the  sum  for  which  the  premium  was  paid 
exceeds  the  amount  for  which,  on  account  of  prior  insurance, 
they  could  be  made  liable. 

History:     Enacted  March  21,   1872. 


1356 


Tit.XI,ch.I,art.TX.]  PERILS.  §§  2626,  2627 


ARTICLE  IX. 

LOSS. 

§  2626.  Perils,  remote  and  proximate. 

§  2627.  Loss   incurred   in   rescue  from   peril. 

§  2628.  Excepted   perils. 

§  2629.  Negligence  and  fraud. 

§  2626.  PERILS,  1{E3I()TE  AND  PR(>XL>IATE.  An  insurer 
is  liable  for  a  loss  of  which  a  peril  insured  against  was  the 
proximate  cause;  although  a  peril  not  contemplated  by  the 
contract  may  have  been  a  remote  cause  of  the  loss;  but  he 
is  not  liable  for  a  loss  of  which  the  peril  insured  against  was' 
only  a  remote  cause. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 
As  to  loss  by  Are,  what  included  within,  see  23  A.  S.  915. 
As  to  loss  for  which  insurer  is  liable,  see  36  A.  S.  852. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  negligence   of  insured,  see  Kerr's  Cyc.  C.  C.   §  2629  and 

note. 

As  to  right  to  proceeds,  "heirs,"  who  entitled  as,  see  44  A.  S. 

404. 

As  to  what  are  "perils  at  sea,"  see  Kerr's  Cyc.  C.  C.  §  2199  and 

note. 

As  to  when  liability  for  loss  is  fixed,  see  3  L.  523. 

§2627.    LOSS  I.XURHED  I>  RESCUE  FROM  PERIL.    An 

insurer  is  liable  where  the  thing  insured  is  rescued  from  a 
peril  insured  against,  that  would  otherwise  have  caused  a 
loss,  if  in  the  course  of  such  rescue  the  thing  is  exposed  to 
a  peril  not  insured  against,  which  permanently  deprives  the 
insured  of  its  possession,  in  whole  or  in  part;  or  where  a 
loss  is  caused  by  efforts  to  rescue  the  thing  insured  from  a 
peril  insured  against. 

History:     Enacted  March  21,  1872. 
1357 


§§  2628,  2629  CIVIL.  CODE.  [Div.III.Pt.IV. 

§2628.  EXCEPTED  PERILS.  Where  a  peril  is  specially 
excepted  in  a  contract  of  insurance,  a  loss,  which  would  not 
have  occurred  but  for  such  peril,  is  thereby  excepted;  although 
the  immediate  cause  of  the  loss  was  a  peril  which  was  not 
excepted. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  when  more  than  three-fourths  of  building  left  standing, 
see  Kerr's  Cyc.  C.  C.  §  2627,  note. 

§2629.  NEGLIGENCE  AND  FEAUD.  An  insurer  is  not 
liable  for  a  loss  caused  by  the  wilful  act  of  the  insured;  but 
he  is  not  exonerated  by  the  negligence  of  the  insured,  or  of 
his  agents  or  others. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code    Amdts.    1873-4,    p.    256. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

67  C.  27,  28,  7  P.  4  (construed);  76  C.  235,  237,  18  P.  267,  268 
(construed);  112  C.  548,  557  (construed),  558  559  (referred  to),  44 
P.  922;  25  P.  260,  261  (applied);  123  F.  820,  825  (applied — plead- 
ing); 133  F.  636,  647  (construction  placed  on  the  statute  by  the 
Supreme  Court  of  California  not  sustainable). 

As  to  liiany  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 


1358 


Tit.XI.ch.I.art.X.l  NOTICE  OF  LOSS.  §§2633,2634 

ARTICLE  X, 

NOTICE    OF    LOSS. 

§  2633.  Notice   of   lo-ss. 

§  2634.  Preliminary    proofs. 

§  2635.  Waivers  of  defects   in    notice,  etc. 

§  2636.  "Waiver   of    delay. 

§  2637.  Certificate,   when   dispensed   with. 

§  2«33.  >OTICE  OF  LOSS.  In  case  of  loss  upon  an  insur- 
ance against  fire,  an  insurer  is  exonerated,  if  notice  thereof 
be  not  given  to  him  by  some  jierson  insured,  or  entitled  to  the 
benefit  of  the  insurance,  without  unnecessary  delay. 

HiMtory:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Amdts.    1873-4,   pp.    256-7. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

As  to  agreements  to  submit  disputes  to  arbitration,  sec  2  A.  S. 
565. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
IS  414,  2527,  ante. 

As  to  notice  and  proof  of  loss,  see  note  §  2527,  ante. 

As  to  waiver  of  proofs  of  loss,  see  1  L.  216;  7  L.  81;  8  L.  77. 

As  to  when  insurance  adjustments  may  be  opened,  see  35  A.  R. 
775. 

§2034.  PKELIMINAUY  PROOFS.  When  preliminary  proof 
of  loss  is  required  by  a  policy,  the  insured  is  not  bound  to 
give  such  proof  as  would  be  necessary  in  a  court  of  justice; 
but  it  is  sufficient  for  him  to  give  the  best  evidence  which  he 
has  in  his  power  at  the  time. 

History:     Knacttd  March   21,    1872. 

See  Kerr's  Cyc.  C.  C  for  11  pars,  annotation. 

As  to  conclusiveness  of  proof  of  loss  as  against  insured  or 
his  beneficiaries,  see  44  L.  846. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  proof  of  loss;  conditions  to  impede  or  hinder;  when 
offer  of  proofs  would  be  in   vain,  see   7  L.   81. 

As  to  waiver  by  requiring  further  proofs  of  loss,  see  9  A.  S. 
236. 

1359 


§§  2635-2637  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2635.  WAIVERS  OF  DEFECTS  IJf  NOTICE,  ETC.  All  de- 
fects in  a  notice  of  loss,  or  in  preliminp.ry  proof  thereof,  which 
the  insured  might  remedy,  and  which  the  insurer  omits  to 
specify  to  him,  without  unnecessary  delay,  as  grounds  of 
objection,  are  waived. 

History:     Enacted  March   21,   1872. 

See  TTerr's  Cyc.  C.  C.  for  11  pars,  annotation. 
98  C.  241,  243,  S3  P.  195,  196    (applied). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

§2636.  WAIVER  OF  DELAY.  Delay  in  the  presentation 
to  an  insurer  of  notice  or  proof  of  loss  is  waived,  if  caused 
by  any  act  of  his,  or  if  he  omits  to  make  objection  promptly 
and  specifically  upon  that  ground. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  forfeiture  by  failure  to  furnish  proofs  of  loss  within 
stipulated  time,  see  18  L.  85. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

§2637.     CERTIFICATE,  WHEN  DISPENSED  WITH.     If  a 

policy  requires,  by  way  of  preliminary  proof  of  loss,  the 
certificate  or  testimony  of  a  person  other  than  the  insured,  it 
is  sufficient  for  the  insured  to  use  reasonable  diligence  to 
procure  it,  and  in  case  of  the  refusal  of  such  person  to  give 
it,  then  to  furnish  reasonable  evidence  to  the  insurer  that 
such  refusal  was  not  induced  by  any  just  grounds  of  disbe- 
lief in  the  facts  necessary  to  be  certified. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
88  C.  152,  153,   157,   26  P.  103,  105    (applied). 

As  to  false  proofs  for  policies,  see  Kerr's  Pocket  Pen.  C.  §  549. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 


1360 


Tit.XI,ch.I,art.XI.]    double  INSURANCE.  §§  2641,  2642 

ARTICLE  XI. 

DOUBLE   INSURANCE. 

§  2641.     Double  insurance. 

§  2642.     Contribution  in  case  of  double  insurance. 

§  2641.    DOUBLE  INSURANCE.    A  double  insurance  exists 
where  the  same  person  is  insured  by  several  insurers  sepa- 
rately in  respect  to  the  same  subject  and  interest. 
History:     Enacted  Marcli  :il,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  conditions  requiring  notice  of  other  insurance  to  be 
indorsed  on  fire  policy,  see  64  A.  D.  221.  ^    ,—     oo    a 

As  to  double  insurance— Definition  of.— See  88  A.  D.  4<.;  -8  A. 
S    821-  15  L.  127;  1  L.  ed.  867;  3  W.  &  P.  2185. 

Same— Insurance  by  carrier  and  by  owner  of   goods  as.— See 

11  A.  C.  960.  ^      ^^^ 

Same— What  constitutes,  for  purposes  of  apportionment.— bee 

15  L.  127.  ^   ^ 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes. 

§§  414,  2527,  ante.  . 

As  to  subsequent   insurance  against   fire,  when  avoids  policj. 

see  20  A.  R.  319.  „. 

As   to    waiver   of    conditions    against    other    insurance,    see    28 

A.  R.  602.  .,_ 

As  to  waiver  of  conditions  against  ovennsurance,  see  _•   A.   u. 

597 

As  to  what  constitutes  double  insurance  for  purpose  of  appor- 
tionment of  loss,  see  15  L.  127.  ^ 

As  to  what  constitutes  other  insurance,  see  43  A.  R.   --i. 

§2642.  COMKIIU  TI(»\  I>  CASE  OF  IMKBLE  INSUR- 
ANCE. In  case  of  double  insurance,  the  several  insurers  are 
liable  to  pay  losses  thereon  as  follows: 

1.  In  fire  insurance,  each  insurer  must  contribute  ratably 
towards  the  loss,  without  regard  to  the  dates  of  the  several 

policies. 

2.  In  marine  insurance,  the  liability  of  the  several  insurers 
for  a  total  loss,  whether  actual  or  constructive,  where  the 
policies  are  not  simultaneous,  is  in  the  order  of  the  dates  of 

1361 


§  2642  CIVIL  CODE.  [Div.III.Pt.IV. 

the  several  policies;  no  liability  attaching  to  a  second  or  other 
subsequent  policy,  except  as  to  the  excess  of  the  loss  over 
the  amount  of  all  previous  policies  on  the  same  interest.  If 
two  or  more  policies  bear  date  upon  the  same  date,  they  are 
deemed  to  be  simultaneous,  and  the  liability  of  insurers  on 
simultaneous  policies  is  to  contribute  ratably  with  each 
other.  The  insolvency  of  any  of  the  insurers  does  not  affect 
the  proportionate  liability  of  the  other  insurers.  The  liability 
of  all  insurers  on  the  same  marine  interest  for  a  partial  or 
average  loss,  is  to  contribute  ratably. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.   257. 

As  to  joining  of  insurers  in  separate  policies  in  action  for 
loss,  see  Kerr's  Cyc.  C.  C.  P.  §  383  and  note. 

As  to  liability  of  successive  insurers,  see  28  A.  D.  121. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes, 
§§  414,  2527,  ante. 

As  to  return  of  premium  by  successive  insurers,  see  Kerr's 
Cyc.  C.  C.  §  2622. 

As  to  when  insurer  cannot  defend  against  loss,  see  Kerr's  Cyc. 
C.  C.   §  2642,  note. 


1362 


Tit.XI,ch.I,art.Xri.]  REINSURANCE.  §§  2646,  2647 

ARTICLE  XII. 

REINSURANCE. 

§2646.  Reinsurnnce,  •  wliat. 

§  2647.  Disclosurf.s   required. 

§  2648.  Reinsurance  presumed  to  be  against  liability. 

§  2649.  Original    insured   has   no    interest. 

§2646.  REINSUKA>"('E,  WHAT.  A  contract  of  reinsur- 
ance is  one  by  which  an  insurer  procures  a  third  person  to 
insure  him  against  loss  or  liability  by  reason  of  such  original 
insurance. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

68  C.  430,  432,  9  P.  712,  713  (applied);  107  C.  327,  330,  48  A.  S. 
140,  40  P.  431,  28  L.  692  (applied);  56  P.  50,  52  (instance  of  con- 
tract much  broader  than  one  of  mere  technical  reinsurance); 
127  C.  464,  470,  59  P.  897  (referred  to). 

REINSURANCE. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  note 
§  2527,  ante. 

As  to  the  remedies  of  the  parties  tliereunder. — See  45  A.  S.  442. 

Action  on  policy  of. — See  10  L.  424. 

Construction  of  contract  of. — See  10  L.  423. 

Same — Effect  of  reinsurance,  insolvency  of  original  insurer. — 
See   10   L.   432. 

Definition  of. — See  43  A.  R.  413:   10  L.  423;  7  W.  &  P.  6052. 

Liability  of  reinsurance  in  case  of  insolvency  of  original  in- 
surer.— See   10  L.   424. 

Proceeds  of  reinsurance  as  special  fund  in  case  of  insolvency. 
—See  38  L.  110. 

§2647.  I>IS(  LOSl  iniS  IMMH  IHED.  Where  an  insurer 
obtains  reinsurance,  he  must  communicate  all  the  representa- 
tions of  the  original  insured,  and  also  all  the  knowledge  and 
information  he  i)ossesses,  whether  previously  or  subsequently 
acquired,  which  are  material  to  the  risk. 

History:     Enacted  March  21,   1872. 
1363 


§§2648,2649  CIVIL  CODE.  [DiV.III.Pt.IV. 

§2648.    REINSURANCE    PRESUMED    TO    BE    AGAINST 
LIABILITY.     A  reinsurance  is  presumed  to  be  a  contract  of 
indemnity  against  liability,  and  not  merely  against  damage. 
History:     Enacted  March   21,   1872. 

107  C.   327,  330,   48  A.  S.   140,  40  P.  431,  28  L.   692    (applied). 
See  Kerr's  Cyc.  C.  C.  §  2646  and  note. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2649.    ORIGINAL   INSURED  HAS  NO  INTEREST.     The 

original  insured  has  no  interest  in  a  contract  of  reinsurance. 
History:     Enacted  March   21,   1872. 

68  C.  431,  433,  9  P.  712   (applied). 
See  Kerr's  Cyc.  C.  C.  §  2646. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 


1364 


•        Tit.XI,ch.II,art.I.]      MARINE  INSURANCE.  §  2655 


CHAPTER  II. 
MARINE  INSURANCE. 

[For    Commissioners'    comment    on    this    chapter,    see    Kerr's 
Cyc.   C.   C] 

Article  I.  Definition  of  Marine  Insurance,  §  2655. 

II.  Insurable  Interest,  §§  2659-2665. 

III.  Concealment,  §§  2669-2672. 

IV.  Representations,  §§  2676,  2677. 

V.  Implied  Warranties,  §§  2681-2688. 

VI.  The  Voyage  and  Deviation,  §§  2692-2697. 

VII.  Loss,  §§2701-2712. 

VIII.  Abandonment,  §§  2716-2732. 

IX.  Measure  of  Indemnity,  §§  2736-2746. 


ARTICLE  I. 

DEFINITION  OF  MARINE  INSURANCE. 

S  2655.     Marine  insurance,   wliat. 

§2«r)r).  MARI>E  INSURANCE,  WHAT.  Marine  insurance 
is  an  insurance  against  risks  connected  with  navigation,  to 
which  a  ship,  cargo,  freightage,  profits,  or  other  insurable 
interest  in  movable  property,  may  be  exposed  during  a  certain 
voyage  or  a  fixed  period  of  time. 

History:     Enacted  March   21,   1872. 

MARINE    INSURANCE — GENERALiL-Y. 

As  to  Insurable  interests,  see  Kerr's  Cyc.  C.  C.  2546-2557  and 
notes;  also  note  2527,  ante. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  what  are  perils  of  the  sea,  see  41  A.  D.  281. 

Abandonment   under. — See   9   L.    831. 

Collisions,  liability  for  injuries  caused  by  to  another  vessel 
by  the  insured  vessel. — See  54  A.  D.  787;  see  "Perils  of  the  sea," 
this  note. 

1365 


§  2655  CIVIL  CODE.  [Div.III.Pt.IV. 

Contractual  limitation  of  time  in  which  to  bring  action,  be- 
gins to  run   when. — See   47  L.   708. 

Deviation  by  necessity,  effect  of  upon  policy. — See  58  A.  D. 
673. 

Deviation  of  vessel,  what  is  and  effect  of. — See  33  A.  D.  60. 

Effect  of  voluntary  exposure  to  peril. — See  1  L.  N.  S.  1095. 

Foreign  court  of  admiralty,  conclusiveness  of  judgment  of  on 
policy  of  marine  insurance. — See  20  L.  669. 

Goods  stowed  on  deck  and  jettisoned,  when  covered  by  polic5\ 
—See  86  A.  D.   500. 

Judgment  of  foreign  court  of  admiralty  on  policy  of,  con- 
clusiveness   of. — See    20    L.    669. 

Jurisdiction  of  admiralty — As  to  maritime  insurance. — See  66 
L.   200,   234. 

Same — ^Conclusiveness  of  judgment  of  foreign  court  of  ad- 
miralty on  policy  of  marine  insurance. — See  20  L.  669. 

Same — On  Lloyd  policies. — See   55  L.   193. 

Liability  for  injuries  caused  by  another  vessel  through  col- 
lision with  the  insured  vessel. — See  54  A.  D.  787. 

Loss  due  to  neglect  to  employ  a  pilot. — See  33  A.  D.  599. 

Maritime  lien  for. — See  70  L.  389. 

"Perils  of  the  sea,"  what  are. — See  41  A.  D.  281;  6  W.  &  P. 
5295. 

Same — Act  of  God  as. — See  31  A.  D.  745;  46  A.  D.  587;  41  L. 
ed.    1039;    6   W.    &    P.    5297. 

Same — Blockade  as. — See  3  A.  D.  319;  6  W.  &  P.   5298. 

Same — Capture  as. — See  24  A.  D.  716;   6  W.  &  P.   2598. 

Same— Collision  as. — See  51  A.  D.  128;  54  A.  D.  776,  787;  10 
L.  ed.  371;  14  L.  ed.  452;  6  W.  &  P.  2598. 

Same — Dampness  and  sweating  as. — See  13  L.  ed.  985;  21  L. 
ed.   719;   6  W.  &  P.  5299. 

Same — Embezzlement  is  not. — See  6  W.  &  P.  5299. 

Same — Entry  of  water  through  port  hole  as. — See  23  L.  746; 
6  W.  &  P.   5299. 

Same — Escape  of  steam  as. — See  6  W.  &  P.  5299. 

Same — Explosions  as. — See  9  A.  S.  184;  43  L.  ed.  234;  6  W.  & 
P.    5300. 

Same — Fires  as. — See  18  L.  ed.   172;   6  W.  &  P.   5300. 

Same — Grounding  and  stranding  as. — See  49  A.  D.  81;  6  W. 
&  P.  5300. 

Same — Injury  by  worms  as. — See  6  W.  &  P.  5300. 

Same — Jettison  as. — See   15  L.   ed.    58,  584;    6   W.   &   P.    5300. 

Same — Leakage  as. — See  2  A.  D.  493;  6  W.  &  P.  5301. 

Same — Negligent  stowage  of  cargo  as. — See  6  W.  &  P.  5301. 

Same — Ordinary  wear  and  tear. — See  6  W.  &  P.  5301. 

Same — Sinking  of  ship  by  man-of-war  as. — See  6  W.  &  P. 
5301. 

Same — Stress  of  weather  as. — See  3  L.  ed.  189;  6  W,  &  P.  5301. 

1366 


Tit.XI,ch.II,art.II.]     INSURABLE   INTEREST.  §§2659,2660 

Same— Swell   caused    by   passing   steamer   as.— See   6   W.    &   P. 

Same— Vermin   on  shipboard  as.— See  6  W.  &  P.   5301. 

Same-Wetting  of  cargo  as.-See  38  A.  D.  747,  6  W.  &  P.  5301. 

Policies,  severability  of  contract.— See  19  L.  218. 

Right  to  recover  under  "'sue  and  labor"  clause  in  marme  m- 
surance  for  moving  cargo   over  land.— See   1^^^-  N"^^" /_1/^- 

Seaworthiness— Implied  warranty  of.— See  58  A.  D.   bll. 

Same— What  is  within  the  meaning  of  the  law  of.— See  66 
A.   D.    33. 

Technical  total  loss.— See  9  L.  832.  ,    »     t^    icr 

Warranty  of  seamanship,  what  embraced  m.— See  1  A.  V.  ibb. 


ARTICLE  II. 

INSURABLE  INTEREST. 

§  2659.  Insurable   interest  in   a  ship. 

§  2660.  Interest  reduced   by  bottomry. 

§  2661.  Freightage,   what. 

§  2662.  Expected    freightage. 

§  2663.  Interest  in  expected  freightage,  what. 

§  2664.  Insurable   interest  in   profits. 

§  2665.  Insurable  interest  of  charterer. 

§  2659.  INSURABLE  INTEREST  IN  A  SHIP.  The  owner 
of  a  ship  has  in  all  cases  an  insurable  interest  in  it,  even 
when  it  has  been  chartered  by  one  who  covenants  to  pay  him 
its   value   in   case   of   loss. 

History:     Enacted  March   21,   1872. 
As  to  definition  of  bottomry,  see  Kerr's  Cyc.  C.  C.   §  3017  and 
note;  19  L.  ed.  651;  1  W.  &  P.  848. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 

SS  414,   2527,   ante.  ^^       ,      _,^„ 

As  to  rights  of  bottomry  holder  and  insurer,   see  Kerr  s  Cyc. 

C.  C.    §  3025   and  note. 

§2660.  INTEREST  REDUCED  BY  BOTTOMRY.  The  in- 
surable interest  of  the  owner  of  a  ship  hypothecated  by  bot- 
tomry is  only  the  excess  of  its  value  over  the  amount  secured 
by  bottomry. 

History;     Enacted  March   21,   1872. 
1367 


§§  2661-2665  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  insurable  interest,  generally,  see  Kerr's  Cyc.  C.  C. 
§§  2546  et  seq.  and  notes. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2661.  FREIGHTAGE,  WHAT.  Freightage,  in  the  sense 
of  a  policy  of  marine  insurance,  signifies  all  the  benefit 
deriveii  by  the  owner,  either  from  the  chartering  of  the  ship 
or  its  employment  for  the  carriage  of  his  own  goods  or  those 
of  others. 

History:     Enacted  March   21,   1872. 

As  to  definition  of  marine  insurance,  see  Kerr's  Cyc.  C.  C. 
§  2655  and  note;    5   W.   &  P.   4370. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§  2662.  EXPECTED  FREIGHTAGE.  The  owner  of  a  ship 
has  an  insurable  interest  in  expected  freightage  which  he 
would  have  certainly  earned  but  for  the  intervention  of  a 
peril  insured  against. 

History:     Enacted  March  21,   1872. 

§  2663.     INTEREST  IN  EXPECTED  FREIGHTAGE,  WHAT. 

The  interest  mentioned  in  the  last  section  exists,  in  the  case 
of  a  charter  party,  when  the  ship  has  broken  ground  on  the 
chartered  voyage,  and  if  a  price  is  to  be  paid  for  the  carriage 
of  goods  when  they  are  actually  on  board,  or  there  is  some 
contract  for  putting  them  on  board,  and  both  ship  and  goods 
are  ready  for  the  specified  voyage. 

History:     Enacted  March   21,   1872. 

§2664.     INSURABLE   INTEREST  IN  PROFITS.     One  who 

has  an  interest  in  the  thing  from  which  profits  are  expected 
to  proceed,  has  an  insurable  interest  in  the  profits. 
Hi.story:     Enacted  March   21,   1872. 

§2665.     INSURABLE   INTEREST    OF    CHARTERER.     The 

charterer  of  a  ship  has  an  insurable  interest  in  it,  to  the 
extent  that  he  is  liable  to  be  damnified  by  its  loss. 

Hi.story:     Enacted  March   21,   1872. 
1368 


Tit.XI,ch.II,art.III.]       concealment.  §§  2669-2671 

ARTICLE  III. 

CONCEALMENT. 

§  2669.  Information  must  be  communicated. 

§  2670.  Material  information. 

§  2671.  Presumption    of  knowledge   of   loss. 

§  2672.  Concealments  which   only  affect  the  risk  in   question. 

§2669.    I>F0R3IATI0>    MUST  BE   COMMUMCATED.     In 

marine  insurance  each  partj"  is  bound  to  communicate,  in 
addition  to  what  is  required  by  section  two  thousand  five 
hundred  and  sixty-three,  all  the  information  which  he  pos- 
sesses, material  to  the  risk,  except  such  as  is  mentioned  in- 
section  two  thousand  five  hundred  and  sixty-four,  and  to 
state  the  exact  and  whole  truth  in  relation  to  all  matters  that 
he  represents,  or  upon  inquiry  assumes  to  disclose. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  concealment  in  insurance,  generally,  see  Kerr's  Cj'c.  C. 
C.   §§  2561,   2672  and  notes. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2670.  MATERIAL  INFORMATiOX.  In  marine  insur- 
ance, information  of  the  belief  or  expectation  of  a  third  per- 
son, in  reference  to  a  material  fact,  is  material. 

Hist«fry:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  when  representation  of  expectation  avoids  contract,  see 
post  §  2677. 

§2671.     PRESrMPTK^N    OF    KXMVLEIHJE    OF    LOSS.     A 

person  insured  by  a  contract  of  marine  insurance  is  presumed 
to  have  bad  knowledge,  at  tbe  time  of  insuring,  of  a  prior  loss, 
if  the  information  might  possibly  have  reached  him  in  the 
usual  mode  of  transmission,  and  at  the  usual  rate  of  commun- 
ication. 

History:     Enacted  March  21,  1872. 
1369 


§§  2672-2677  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.   C.    §  2671,   note. 

§2672.  COINCEALMEIVTS  WHICH  ONLY  AFFECT  THE 
RISK  IX  QUESTION.  A  concealment  in  a  marine  insurance, 
in  respect  to  any  of  the  following  matters,  does  not  vitiate 
the  entire  contract,  hut  merely  exonerates  the  insurer  from 
a  loss  resulting  from  the  risk  concealed: 

1.  The  national  character  of  the  insured; 

2.  The  liability  of  the  thing  insured  to  capture  and  deten- 
tion; 

3.  The  liability  to  seizure  from  breach  of  foreign  laws  of 
trade ; 

4.  The  want  of  necessary  documents';    and, 

5.  The  use  of  false  and  simulated  papers. 

Hi.story:     Enacted  March   21,   1872. 


ARTICLE  IV. 

REPRESENTATIONS. 

§  2676.      Effect  of  intentional  falsity. 
§  2677.     Representation    of   expectation. 

§2676.  EFFECT  OF  INTENTIONAL  FALSITY.  If  a  rep- 
resentation, by  a  person  insured  by  a  contract  of  marine 
insurance,  is  intentionally  false  in  any  respect,  whether  mate- 
rial or  immaterial,  the  insurer  may  rescind  the  entire  con- 
tract. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  representation,  generally,  see  Kerr's  Cyc.  C.  C.  §§  2371 
et  seq.  and  notes. 

§2677.     REPRESENTATION     OF      EXPECTATION.       The 

eventual  falsity  of  a  representation  as  to  expectation  does  not, 
in  the  absence  of  fraud,  avoid  a  contract  of  insurance. 

History:     Enacted  March   21,   1872. 
1370 


*      Tit.XI,ch.TI,art.V.]        SEAWORTHINESS.  §§2681,2682 


ARTICLE  V. 

IMPLIED    WARRANTIES. 

§  26S1.  Warranty    of    scawortliiness. 

§  26S2.  Soawortliiness,    wliat. 

§  2683.  When    complied    with.      [Exceptions.! 

§  2684.  Wliat   things  are   required   to   constitute   seaworthiness. 

§  26S5.  Different    degrees    of    seaworthiness   at   different    stages 

of  the  voyage. 

§  2686.  Unseaworthiness  during  the  voyage. 

§  2687.  Seaworthiness  for  purposes   of   insurance   on   cargo. 

§  2688.  Neutral    papers. 

§  2681.  AVARKA>TY  OF  SEA>VORTHI>ESS.  In  every  ma- 
rine insurance  upon  a  ship  or  freight,  or  freightage,  or  upon 
anything  which  is  the  subject  of  marine  insurance,  a  war- 
ranty is  Implied  that  the  ship  is  seaworthy. 

IILstory:  Enacted  March  21,  1872;  amended  Marcli  30,  1874, 
Code    Amdts.    1873-4,    p.    257. 

4  F.  153,  154  (applied  with  §  2683 — implied  warranty  as  to  sea- 
worthiness). 

As  to  definition  of  seaworthiness,  see  Kerr's  Cyc.  C.  C.  §§  2682- 
2685  and  notes. 

As  to  explosion  of  boilers  on  ship  at  sea  not  being  peril 
within   policy,   see   Kerr's   Cyc.   C.   C.    §  2681,  note. 

As  to  implied  warranty  of  seaworthiness  within  the  meaning 
of  law,   see   33   A.  D.   37. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  what  is  embraced  in  warranty  of  seaworthiness, 
whether  of  the  ship,  the  freight,  or  the  cargo,  see  1  A.  D.  165. 

§2682.  SEAWOKTHI>KSS,  WHAT.  A  ship  is  seaworthy 
when  resonably  fit  to  perform  the  services,  and  to  encounter 
the  ordinary  perils  of  the  voyage,  contemplated  by  the  par- 
ties to  the  policy. 

History:      Enacted  March    21.   1872. 

As  to  definition  of  siaworthiness,  see  Kerr's  Cyc.  C.  C.  §§  2683- 
2685  and  notes;   7  W.  &  P.   6362. 

As  to  many  miscellaneous  matters  as  to  Insurance,  see  notes 
§§  414,  2527,  ante. 

1371 


§§  2683-2685  CIVIL  CODE.  [Div.III,Pt.IV. 

§2683.    WHEN  COMPLIED  WITH.     [EXCEPTIONS.]     An 

implied  warranty  of  seaworthiness  is  complied  with  if  the 
ship  be  seaworthy  at  the  time  of  the  commencement  of  the 
risk,  except  in  the  following  cases: 

1.  When  the  insurance  is  made  for  a  specified  length  of  time, 
the  implied  warranty  is  not  complied  with,  unless  the  ship 
be  seaworthy  at  the  commencement  of  every  voyage  she  may 
undertake  during  that  time;    and, 

2.  When  the  insurance  is  upon  the  cargo,  which,  by  the 
terms  of  the  policy,  or  the  description  of  the  voyage,  or  the 
established  custom  of  the  trade,  is  to  be  transhipped  at  an 
intermediate  port,  the  implied  warranty  is  not  complied  with, 
unless  each  vessel  upon  which  the  cargo  is  shipped,  or  tran- 
shipped, be  seaworthy  at  the  commencement  of  its  particular 
voyage. 

History:  Enacted  March  21,  1872;  amended  March"  30,  1874, 
Code   Amdts.    1873-4,    p.    258. 

4  F.  153,  154  (applied  with  §  2681 — implied  warranty  as  to  sea- 
worthiness). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§2684.  WHAT  THINGS  ARE  KEQUIKEI)  TO  CONSTI- 
TUTE  SEAWORTHINESS.  A  warranty  of  seaworthiness  ex- 
tends not  only  to  the  condition  of  the  structure  of  the  ship 
itself,  but  requires  that  it  be  properly  laden,  and  provided 
with  a  competent  master,  a  sufficient  number  of  competent 
officers  and  seamen,  and  the  requisite  appurtenances  and 
equipments,  such  as  ballast,  cables,  and  anchors,  cordage  and 
sails,  food,  water,  fuel,  and  lights,  and  other  necessary  or 
proper  stores  and  implements  for  the  voyage. 

History:     Enacted  March   21,   1872. 

§  2685.  DIFEERENT  DEGREES  OF  SEAWORTHINESS  AT 
DIFFERENT  STAGES  OF  THE  YOYAGE.  Where  different 
portions  of  the  voyage  contemplated  by  a  policy  differ  in 
respect  to  the  things  requisite  to  make  the  ship  seaworthy 
therefor,  a  warranty  of  seaworthiness  is  complied  with  if,  at 

1372 


Tit.XI,ch.II,art.V.]     UNSEAWORTHINESS.  §§  2686-2688 

the  commencement  of  each  portion,  the  ship  is  seaworthy 
with  reference  to  that  portion. 

Hi.story;     Enacted  March   21,   1872. 

§2686.      UNSEAWORTHIXESS    DUIIOG    THE    VOYAGE. 

When  a  ship  becomes  unseaworthy  during  the  voyage  to 
which  an  insurance  relates,  an  unreasonable  delay  in  repair- 
ing the  defect  exonerates  the  insurer  from  liability  from  any 
loss  arising  therefrom. 

History:     Enacted  March   21,   1872. 

§2687.  SEAWORTHINESS  FOR  PURPOSES  OF  INSUR- 
ANCE ON  CARGO.  A  ship  which  is  seaworthy  for  the  pur- 
pose of  an  insurance  upon  the  ship  may,  nevertheless,  by  rea- 
son of  being  unfitted  to  receive  the  cargo,  be  unseaworthy  for 
the  purpose  of  insurance  upon  the  cargo. 

History:     Enacted  March   21,   1872. 

§  2688.  NEUTRAL  PAPERS.  Where  the  nationality  or  neu- 
trality of  a  ship  or  cargo  is  expressly  warranted,  it  is  implied 
that  the  ship  will  carry  the  requisite  documents  to  show  such 
nationality  or  neutrality,  and  that  it  will  not  carry  any  docu- 
ments which  cast  reasonable  suspicion  thereon. 

History:     Enacted  March   21,   1872. 


IZli 


§§  2692-2694  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  VI. 

THE   VOYAGE    AND    DEVIATION. 

§  2692.  Voyage   insured,    how   determined. 

§  2693.  Course  of  sailing,  how  determined. 

§  2694.  Deviation,  what. 

§  2695.  When  proper. 

§  2696.  When    improper. 

§  2697.  Deviation   exonerates   tlie   insurer. 

§2692.  VOYAGE  INSURED,  HOW  DETERMINED.  When 
the  voyage  contemplated  bj'  a  policy  is  described  by  the 
places  of  beginning  and  ending,  the  voyage  insured  is  one 
which  conforms  to  the  course  of  sailing  fixed  by  mercantile 
usage  betwen  those  places. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 

§§  414,   2527,  ante. 

§2693.    COURSE   OF   SAILING,  HOW   DETERMINED.     If 

the  course  of  sailing  is  not  fixed  by  mercantile  usage,  the  voy- 
age insured  by  a  policy  is  the  way  between  the  places  speci- 
fied which,  to  a  master  of  ordinary  skill  and  discretion,  would 
seem  the  most  natural,  direct,  and  advantageous. 

History:     Enacted  March   21,   1872. 

§  2694.     DEVIATION,  WHAT.    Deviation  is  a  departure  from 
the  course  of  the  voyage  insured,  mentioned  in  the  last  two 
sections,  or  an  unreasonable  delay  in  pursuing  the  voyage,  or 
the  commencement  of  an  entirely  different  voyage. 
Hi.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  deviation  of  vessel,  what  is,  and  effect  of,  see  33  A. 
D.    60. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

1374 


Tit.XI,ch.II,art.VI.]     DEVIATION,   PROPER.  §§  2695-2697 

§2695.     WHEX  PROPER.    A  deviation  is  proper: 

1.  When  caused  bj'  circumstances  over  whicli  neither  the 
master  nor  the  owner  of  tlie  sliip  has  any  control ; 

2.  When  necessary  to  comply  with  a  warranty,  or  to  avoid 
a  peril,  whether  insured  against  or  not; 

3.  When  made  in  good  faith,  and  upon  reasonable  grounds 
of  belief  in  its  necessity  to  avoid  a  peril;  or, 

4.  W^aen  made  in  good  faith,  for  the  purpose  of  saving 
human  life,  or  relieving  another  vessel  in  distress. 

History:     Enacted  March   21,   1872. 

As  to  effect  of  deviation  by  necessity  upon  marine  policy,  see 
58  A.  D.   673. 

As  to  many  miscellaneous  matters  as  to  insiirance,  see  notes 
§§  414,   2527,  ante. 

As  to  when  another  ship  may  be  procured  in  which  to  for- 
ward cargo,  and  liability  of  underwriter  continue,  see  Kerr's 
Cyc.  C.  C.   §  2695,   note. 

§  2696.  WHEN  IMPROPER.  Every  deviation  not  specified 
in  the  last  section  is  improper. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,   ante. 

§2697.     DEVIATION   EXONERATES   THE    INSURER,     An 

insurer  is  not  liable  for  any  loss  happening  to  a  thing  insured 
subsequently  to  an  improper  deviation. 

History:     Enacted  March   21,   1872. 

66  C.  294,  297,  5  P.  478   (applied). 
See  Kerr's  Cyc.  C.  C.   §  2636  and  note. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 


1375 


§§  2701-2703  CIVIL  CODE.  [Div.III,Pt.IV 

ARTICLE  VII. 
LOSS. 

§  2701.  Total  and  partial  loss. 

§  2702.  Partial   loss. 

§  2703.  Actual  and  constructive  total  loss. 

§  2704.  Actual   total   loss,   what. 

§  2705.  Constructive    total   loss. 

§  2706.  Presumed  actual   loss. 

§  2707.  Insurance  on  cargo,  etc.,   when  voyage  is.  broken   up. 

§  2708.  Cost  of  reshipment,  etc. 

§  2709.  "When    insured    is    entitled    to    payment. 

§  2710.  Abandonment    of    goods    on    insurance    of    profits     [re- 
pealed]. 

§  2711.  Average  loss. 

§  2712.  Insurance   against   total   loss. 

§  2701.  TOTAL  AND  PARTIAL  LOSS.  A  loss  may  be  either 
total  or  partial. 

History:     Enacted  March   21,   1872. 

As  to  definition  of  constructive  total  loss,   see  post   §  2705. 

As  to  definition  of  loss  actual  or  constructive,  see  post  §  2704. 

As  to  goods  stowed  on  deck  and  jettisoned,  when  covered  by 
marine  policy,  see  86  A.  D.  500. 

As  to  liability  under  a  marine  policy  for  injuries  caused  by 
collision  to  another  vessel  by  insured  vessel,  see  54  A.  D.  787. 

As  to  loss  due  to  neglect  to  employ  a  pilot,  see  33  A.  D.  599. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  total  loss  either  actual  or  constructive,  see  post  §  2703. 

§  2702.  PARTIAL  LOSS.  Every  loss  which  is  not  total  is 
partial. 

Hi-story:     Enacted  March  21,   1872. 

As  to  liability  on  partial  loss,  see  post  §  2737. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  one  third  new  for  old,  see  post  §  2746. 

§  2703.    ACTUAL  AND  CONSTRUCTIVE  TOTAL  LOSS.    A 

total  loss  may  be  either  actual  or  constructive. 

History:     Enacted  March  21,   1872. 
1376 


Tit.XI,ch.II,art.VII.]         total  LOSS.  §§2704-2707 

As  to  definition  of  actual  total  loss,  see  post  §  2704. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  when  actual   loss  presumed,  see  post  §  2706. 

§2704.  ACTUAL  TOTAL  LOSS,  WHAT.  An  actual  total 
loss  is  caused  by: 

1.  A  total  destruction  of  the  thing  insured; 

2.  The  loss  of  the  thing  by  sinking,  or  by  being  broken  up; 

3.  Any  damage  to  the  thing  which  renders  it  valueless  to 
the  owner  for  the  purposes  for  which  he  held  it;  or, 

4.  Any  other  event  which  entirely  deprives  the  owner  of 
the  possession,  at  the  port  of  destination,  of  the  thing  insured. 

History:     Enacted  March   21,   1872. 

146  C.  279,  280,  79  P.  967  (applied — construction  of  contract — 
constructive    loss — actual    total    loss). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§2705.  CO>'STKUCTIVE  TOTAL  LOSS.  A  constructive 
total  loss  is  one  which  gives  to  a  person  insured  a  right  to 
abandon,  under  section  two  thousand  seven  hundred  and  sev- 
enteen. 

History:     Enacted  March   21,   1872. 

133  F.  636,  643  (no  case  for  operation  of  doctrine  of  abandon- 
ment). 

As  to  abandonment  for  constructive  total  loss,  see  post  §§  2716 
et  seq. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2706.  PKESFMED  ACTUAL  LOSS.  An  actual  loss  may 
be  presumed  from  the  continued  absence  of  a  ship  without 
being  heard  of;  and  the  length  of  time  which  is  sufficient  to 
raise  this  presumption  dei)ends  on  the  circumstances  of  the 
case. 

Hi.s<<»ry:     Enacti-d  March   21,   1872. 

§  2707.     I>SUKA>(  E  (►>  C.VKG(K  ETC.,  W1IE>  VOYACJE  IS 
BROKEN  UP.     When  a  ship  is  prevented,  at  an  intermediate 
Kerr's    C.    C— 44  1377 


§§  2708-2711  CIVIL  CODE.  [Div.III.Pt.IV. 

port,  from  completing  the  voyage,  by  the  perils  insured 
against,  the  m'aster  must  make  every  exertion  to  procure,  in 
the  same  or  a  contiguous  port,  another  ship,  for  the  purpose 
of  conveying  the  cargo  to  its  destination;  and  the  liability  of 
a  marine  insurer  thereon  continues  after  they  are  thus 
reshipped. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,  p.    258. 

As  to  barratry  of  master  and  marines  being  insured  against 
in  marine  policy  of  insurance,  see  Kerr's  Cyc.  C.  C.  §  2707,  note. 

As  to  constructive  total  loss  of  cargo,  see  ante  §  2616  subd.  4. 

As  to  many  miscellaneous  matters  as  to  insurance',  see  notes 
§§  414,  2527,  ante. 

§  2708.  COST  OF  RESHIPMENT,  ETC.  In  addition  to  the 
liability  mentioned  in  the  last  section,  a  marine  insurer  is 
bound  for  damages,  expenses  of  discharging,  storage,  reship- 
ment,  extra  freightage,  and  all  other  expenses  incurred  in 
saving  cargo  reshipped  pursuant  to  the  last  section,  up  to 
the  amount  insured. 

History:     Enacted  March   21,   1872. 

§2709.     WHEIV   INSURED    IS   ENTITLED    TO   PAYMENT. 

Upon  an  actual  total  loss,  a  person  insured  is  entitled  to  pay- 
ment without  notice  of  abandonment. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2710.  ABANDONMENT  OF  GOODS  ON  INSURANCE  OF 
PROFITS   (repealed). 

History:  Enacted  Marcli  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   258. 

§2711.  AVERAGE  LOSS.  Where  it  has  been  agreed  that 
an  insurance  upon  a  particular  thing,  or  class  of  things,  shall 
be   free    from   particular    average,    a   marine   insurer   is    not 

1378 


Tit.XI,ch.II,art.VII.]     against  total  loss.  §  2712 

liable  for  auy  particular  average  loss  not  depriving  the 
insured  of  the  possession,  at  the  port  of  destination,  of  the 
whole  of  such  thing,  or  class  of  things,  even  though  it  become 
entirely  worthless;  but  he  is  liable  for  his  proportion  of  all 
general  average  loss  assessed  upon  the  thing  insured. 

Himtory:  Enacted  March  21.  1872;  amended  March  30.  1874, 
Code    Amdts.    1873-4,   p.    258. 

92  C.  382,  387  (erroneously  cited  for  §  2911),  28  P.  573,  575 
(correct   citation). 

As  to  many  iniscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§2712.  INSURANCE  AG.VINST  TOTAL  LOSS.  An  insur- 
ance confined  in  terms  to  an  actual  total  loss,  does  not  cover 
a  constructive  total  loss,  but  covers  any  loss  which  neces- 
sarily results  in  depriving  the  insured  of  the  possession,  at 
the  port  of  destination,  of  the  entire  thing  insured. 

HIMory:  Enacted  Marcli  21,  1872:  amended  Marcli  30,  1S74. 
Cod.'   Amdts.    1873-4,   p.    259. 


1379 


§§2716,2717  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE  VIII. 

ABANDONMENT. 

§  2716.  Abandonment,  what. 

§  2717.  When   insured  may  abandon. 

§  2718.  Must  be  unqualified. 

§  2719.  When    may    be   made. 

§  2720.  Abandonment   may   be    defeated. 

§  2721.  How  made. 

§  2722.  Requisites   of   notice. 

§  2723.  No    otlier   cause   can    be   relied   on. 

§  2724.  Effect. 

§  2725.  Waiver  of  formal   abandonment. 

§  2726.  Ag-ents  of  the   insured   become   agents   of   the   insurer. 

§  2727.  Acceptance    not    necessary. 

§  2728.  Acceptance    conclusive. 

§  2729.  Accepted   abandonment,    irrevocable. 

§  2730.  Freig-htag-e,    how   affected    by    abandonment    of    ship. 

§  2731.  Refusal  to  accept. 

§  2732.  Omission   to  abandon. 

§  2716.  ABANDONMENT,  WHAT.  Abandonment  is  the  act 
by  which,  after  a  constructive  total  loss,  a  person  insured  by 
contract  of  marine  insurance  declares  to  the  insurer  that  he 
relinquishes  to  him  his  interest  in  the  thing  insured. 

History:     Enacted  March  21,   1872. 

As  to  definition  of  constructive  total  loss,  see  ante  §  2705. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  requisites  of  abandonment,  see  post  §§  2718-2723. 

§2717.  WHEN  INSURED  MAY  ABANDON.  A  person  in- 
sured by  a  contract  of  marine  insurance  may  abandon  the 
thing  insured,  or  any  particular  portion  thereof  separately 
valued  by  the  policy,  or  otherwise  separately  insured,  and 
recover  for  a  total  loss  thereof,  when  the  cause  of  the  loss  is 
a  peril  insured  against: 

1.  If  more  than  half  thereof  in  value  is  actually  lost,  or 
would  have  to  be  expended  to  recover  it  from  peril; 

1380 


Tit.XI,ch.II,art.VIII.]       ABANDONMENT.  §§2718.2719 

2.  If  it  is  injured  to  such  an  extent  as  to  reduce  its  value 
more  than  one-half; 

3.  If  the  thing  insured,  being  a  ship,  the  contemplated  voy- 
age cannot  be  lawfully  performed  without  incurring  an 
expense  to  the  insured  of  more  than  half  the  value  of  the 
thing  abandoned,  or  without  incurring  a  risk  which  a  pru- 
dent man  would  not  take  under  the  circumstances;   or, 

4.  If  the  thing  insured,  being  cargo  or  freightage,  the  voy- 
age cannot  be  performed  nor  another  ship  procured  by  the 
master,  within  a  reasonable  time  and  with  reasonable  dili- 
gence, to  forward  the  cargo,  without  incurring  the  like  expense 
or  risk.  But  freightage  cannot  in  any  case  be  abandoned, 
unless  the  ship  is  also  abandoned. 

HiMtory:     Enacted  March   21,   1872. 

146  C.  279,  280,  79  P.  967  (subds.  3  and  4  applied — construc- 
tion   of    contract — constructive    loss — actual    total    loss). 

As  to  how  freightage  affected  by  abandonment,  see  post 
S  2730. 

As  to  many  miscellaneous  matters  as  to  Insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  marine  Insurance;  riglit  to  abandon;  time  for  abandon- 
ment; notice' of;  revocation  of;  acceptance  and  effect  of;  tech- 
nical total  loss,  see  9  L.  831. 

As  to  rule  of  one  third  new  for  old  in  cases  of  partial  loss, 
see  post  §  2746. 

§2718.  Ml'ST  BE  rNQlAMFIKI).  An  abandonment  must 
be  neither  partial  nor  conditional. 

IllNtoryt     Enacted  Marcli  21,   1872. 


§2719.  >V1IE\  .MAY  HE  .MADE.  An  abandonment  must  be 
made  within  a  reasonable  time  after  the  Information  of  the 
loss,  and  after  the  commencement  of  the  voyage,  and  before 
the  party  abandoning  has  information  of  its  completion. 

HiMtory:     Enacted  March  21.   1872. 

As  to  effect  of  omitting  to  abandon,  see  post  5  2732. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
S$  414.  2527,  ante. 

1381 


§§  2720-2725  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2720.  ABANDOIVMEKT  MAY  BE  DEFEATED.  Where  the 
information  upon  which  an  abandonment  has  been  made 
proves  incorrect,  or  the  thing  insured  was  so  far  restored 
when  the  abandonment  was  made  that  there  was  then  in  fact 
no  total  loss,  the  abandonment  becomes  ineffectual. 

History:     Enacted  March   21,   1872. 

§2721.  HOW  MADE.  Abandonment  is  made  by  giving  no- 
tice thereof  to  the  insurer,  which  may  be  done  orally,  or  in 
writing. 

History:     Enacted  March   21,   1872. 

§2722.  REQUISITES  OF  NOTICE.  A  notice  of  abandon- 
ment must  be  explicit,  and  must  specify  the  particular  cause 
of  the  abandonment,  but  need  state  only  enough  to  show  that 
there  is  probable  cause  therefor,  and  need  not  be  accompanied 
with  proof  of  interest  or  of  loss. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§2723.     NO    OTHER    CAUSE    CAN   BE    RELIED    ON.     An 

abandonment  can  be  sustained  only  upon  the  cause  specified 
in  the  notice  thereof. 

History:     Enacted  March  21,   1872. 

§  2724.  EFFECT.  An  abandonment  is  equivalent  to  a  trans- 
fer, by  the  insured,  of  his  interest,  to  the  insurer,  with  all  the 
chances  of  recovery  and  indemnity. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  subrogation  of  insurer,  see  post  §  2745. 

§  2725.  WAIVER  OF  FORMAL  ABANDONMENT.  If  a  ma- 
rine insurer  pays  for  a  loss  as  if  it  were  an  actual  total  loss, 
he  is  entitled  to  whatever  may  remain  of  the  thing  insured,  or 

1382 


Tit.XI,ch.II,art.VIII.]         ACCEPTANCE.  §§  2726-2730 

its  proceeds  or  salvage,  as  if  there  had  been  a  formal  aban- 
donment. 

History:     Enacted  March   21,   1872. 

§2726.    AGEMS    OF   THE    INSURED   BECOME    AGEXTS 

OF  THE  IjVSURER.  Upon  an  abandonment,  acts  done  in  good 
faith  by  those  who  were  agents  of  the  insured  in  respect  to 
the  thing  insured,  subsequent  to  the  loss,  are  at  the  risk  of 
the  insurer,  and  for  his  benefit. 

History:     Enacted  March  21,   1872. 

§2727.    ACCEPTANCE  NOT  NECESSARY.     An  acceptance 

of  an  abandonment  is  not  necessary  to  the  rights  of  the 
insured,  and  is  not  to  be  presumed  from  the  mere  silence  of 
the  insurer,  upon  hig  receiving  notice  of  abandonment. 

History:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  refusal  to  accept  abandonment,  see  post  §  2731. 

§2728.  ACCEPTANCE  CONCLUSIVE.  The  acceptance  of 
an  abandonment,  whether  express  or  implied,  is  conclusive 
upon  the  parties,  and  admits  the  loss  and  the  sufficiency  of 
the  abandonment. 

Hieitory:     Enacted  March  21,  1872. 

§2729.     ACCEPTED  ABANDONMENT,  IRREVOCABLE.    An 

abandonment  once  made  and  accepted  is  irrevocable,  unless 
the  ground  upon  which  it  was  made  proves  to  be  unfounded. 

History:     Enacted  March   21,   1872. 

§2730.  FREIGHTAGE,  HOW  AFFECTED  BY  ABANDON- 
MENT OF  SHIP.  On  an  accepted  abandonment  of  a  ship, 
freightage  earned  previous  to  the  loss  belongs  to  the  insurer 
thereof;  but  freightage  subsequently  earned  belongs  to  the 
insurer  of  the  ship. 

History:     Enacted  March   21,   1872. 
1383 


1I 


§§  2731,  2732  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  abandonment  of  freightage,  see  ante  §  2017  subd.  4. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§2731.  REFUSAL  TO  ACCEPT.  If  an  insurer  refuses  to 
accept  a  valid  abandonment,  he  is  liable  as  upon  an  actual 
total  loss,  deducting  from  the  amount  any  proceeds  of  the 
thing  insured  which  may  have  come  to  the  hands  of  the 
insured. 

History:     Enacted  March  21,  1872. 

As  to  acceptance  not  presumed  from  silence,  see  ante  §  2727. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2732.  OMISSIOJf  TO  ABANDON.  If  a  person  insured 
omits  to  abandon,  he  may  nevertheless  recover  his  actual  loss. 

History:     Enacted  March   21,   1872. 


1384 


Tit.XI,ch.II,art.IX.]       valuation— LOSS.  §§  2736,  2737 


ARTICLE  IX. 

MEASURE    OF    INDEMNITY. 

§  2736.  Valuation,  when   conclusive. 

§  2737.  Partial  loss. 

§  2738.  Profits. 

§  2739.  Valuation  apportioned. 

§  2740.  Valuation    applied    to    profits. 

§  2741.  Estimating  loss  under  an  open  policy. 

§  2742.  Arrival    of    thing   damaged. 

§  2743.  Labor  and  expenses. 

§  2744.  General  average. 

§  2745.  Contribution. 

§  2746.  One   third   new   for   old. 

§2736.  VALUATIOX,  WHEN  CONCLISIVE.  A  valuation 
in  a  policy  of  marine  insurance  is  conclusive  between  the  par- 
ties thereto  in  the  adjustment  of  either  a  partial  or  total  loss, 
if  the  insured  has  some  interest  at  risk,  and  there  is  no  fraud 
on  his  part;  except  that  when  a  thing  has  been  hypothecated 
by  bottomry  or  respondentia,  before  its  insurance,  and  with- 
out the  knowledge  of  the  person  actually  procuring  the  insur- 
ance, he  may  show  the  real  value.  But  a  valuation  fraudulent 
in  fact  entitles  the  insurer  to  rescind  the  contract. 

History:     Enacted  March  21,  1872. 

133  F.  636,  643  (what  does  not  change  binding  cliaracter  of 
valuation  as   fixed  by  terms  of  policy). 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  valuation  of  profits,  see  post  §  2740. 

As  to  valued  policy  of  fire  insurance,  see  post  §  2756. 

As  to  valued  policy  on  freightage  or  cargo,  see  post  §  2739. 

§2737.  PARTIAL  LOSS.  A  marine  insurer  is  liable  upon 
a  partial  loss,  only  for  such  proportion  of  the  amount  insured 
by  him  as  the  loss  bears  to  the  value  of  the  whole  interest 
of  the  insured  in  the  property  insured. 

History:     Enacted  March   21,   1872. 
1385 


§§  2738-2741  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  measure  of  indemnity  in  case  of  fire  insurance,  see  post 
§  2756. 

§  2738.  PROFITS.  When  profits  are  separately  insured  in 
a  contract  of  marine  insurance,  the  insured  is  entitled  to 
recover,  in  case  of  loss,  a  proportion  of  such  profits  equiva- 
lent to  the  proportion  which  the  value  of  the  property  lost 
bears  to  the  value  of  the  whole. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527.  ante. 

As  to  valuation  applied  to  profits,  see  post  §  2740. 

§  2739.  VALUATION  APPORTIONED.  In  case  of  a  valued 
policy  of  marine  insurance  on  freightage  or  cargo,  if  a  part 
only  of  the  subject  is  exposed  to  risk,  the  valuation  applies 
only  in  proportion  to  such  part. 

History:     Enacted  March  21,   1872. 

§2740.  VALUATION  APPLIED  TO  PROFITS.  When 
profits  are  valued  and  insured  by  a  contract  of  marine  insur- 
ance, a  loss  of  them  is  conclusively  presumed  from  a  loss  of 
the  pi'operty  out  of  which  they  were  expected  to  arise,  and 
the  valuation  fixes  their  amount. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  profits,  see  ante  §  2738. 

§2741.    ESTIMATING  LOSS  UNDER  AN  OPEN  POLICY. 

In  estimating  a  loss  under  an  open  policy  of  marine  insur- 
ance, the  following  rules  are  to  be  observed: 

1.  The  value  of  a  ship  is  its  value  at  the  beginning  of  the 
risk,  including  all  articles  or  charges  which  add  to  its  per- 
manent value,  or  which  are  necessary  to  prepare  it  for  the 
voyage  insured; 

2.  The  value  of  cargo  is  its  actual  cost  to  the  insured,  when 

1386 


Tit.XI,ch.II,art.IX.]      ARRIVAL,  DAMAGED.  §§  2742-2744 

laden  on  board,  or  where  that  cost  cannot  be  ascertained,  its 
market  value  at  the  time  and  place  of  lading,  adding  the 
charges  incurred  in  purchasing  and  placing  it  on  board,  but 
without  reference  to  any  losses  incurred  in  raising  money  for 
its  purchase,  or  to  any  drawback  on  its  exportation  or  to  the 
fluctuations  of  the  market  at  the  port  of  destination,  or  to 
expenses  incurred  on  the  way  or  on  arrival; 

3.  The  value  of  freightage  is  the  gross  freightage,  exclusive 
of  primage,  without  reference  to  the  cost  of  earning  it;  and, 

4.  The  cost  of  insurance  is  in  each  case  to  be  added  to  the 
value  thus  estimated. 

Hijstory:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  partial  loss  of  ship  one  third  new  for  old,  see  post 
§  2746. 

§  2742.  ARRIVAL  OF  THING  DAMAGED.  If  cargo  insured 
against  partial  loss  arrives  at  the  port  of  destination  in  a 
damaged  condition,  the  loss  of  the  insured  is  deemed  to  be 
the  same  proportion  of  the  value  which  the  market  price  at 
that  port,  of  the  thing  so  damaged,  bears  to  the  market  price 
it  would  have  brought  if  sound. 

History:     Enacted  March  21,   1872, 

§  2743.  LABOR  A^D  EXPENSES.  A  marine  insurer  is  lia- 
ble for  all  the  expenses  attendant  upon  a  loss  which  forces 
the  ship  into  port  to  be  repaired;  and  where  it  is  agreed  that 
the  insured  may  labor  for  the  recovery  of  the  property,  the 
insurer  is  liable  for  the  expense  incurred  thereby,  such  expense, 
in  either  case,  being  in  addition  to  a  total  loss  if  that  after- 
wards occurs. 

History:     Enacted  March  21,  1872. 

§  2744.  GENERAL  AVERAGE.  A  marine  insurer  is  liable 
for  a  loss  falling  upon  the  insured,  through  a  contribution 
In  respect  to  the  thing  insured,  required  to  be  made  by  him 

1387 


§§2745,2746  CIVIL  CODE.  [Div.III.Pt.IV. 

towards  a  general  average  loss  called  for  by  a  peril  insured 
against. 

History;     Enacted  March   21,   1872. 

As  to   general  average   in   general,   see   ante    §§  2152   et   seq. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

§2745.  CONTWBUTION.  Where  a  person  insured  by  a 
contract  of  marine  insurance  has  a  demand  against  others 
for  contribution,  he  may  claim  the  whole  loss  from  the  in- 
surer, subrogating  him  to  his  own  right  to  contribution.  But 
no  such  claim  can  be  made  upon  the  insurer  after  the  separa- 
tion of  the  interests  liable  to  contribution,  nor  when  the 
insured,  having  the  right  and  opportunity  to  enforce  contri- 
bution from  others,  has  neglected  or  waived  the  (the)  exer- 
cise of  that  right. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,    p.    259. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  subrogation  of  insurer,  see  ante  §  2724. 

§2746.  ONE  THIRD  NEW  FOR  OLD.  In  the  case  of  a 
partial  loss  of  a  ship  or  its  equipments,  the  old  materials  are 
to  be  applied  towards  payment  for  the  new,  and  whether  the 
ship  is  new  or  old,  a  marine  insurer  is  liable  for  only  two 
thirds  of  the  remaining  cost  of  the  repairs,  except  that  he 
must  pay  for  anchors  and  cannon  in  full,  and  for  sheathing 
metal  at  a  depreciation  of  only  two  and  one  half  per  cent  for 
each  month  that  it  has  been  fastened  to  the  ship. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,   2527,  ante. 

As  to  wrecked  or  damaged  vessels,  see  Kerr's  Pocket  Pol.  C. 

§  2507. 


1388 


Tit.XI.ch.III.]  INCREASE  OF  RISK.  §§  2752,  2753 


CHAPTER  III. 

FIRE  INSURANCE. 

§  2752.  False  representations   [repealed]. 

§  2753.  Alteration   increasing  risk. 

§  2754.  Alteration  not  increasing  risk. 

§  2755.  Acts  of  the  insured. 

§  2756.  Measure   of  indemnity. 

§  2757.  Value   of   interest   in    policy   of   insurance,   how   may   be 
fixed.     Total  or  partial  loss. 

§2752.    FALSE  REPRESENTATIONS  (repealed). 

HLstory:  Enacted  March  21,  1872;  repealed  March  30,  1874', 
Code   Amdts.    1873-4,    p.    259. 

§2753.  ALTER.VTION  INCREASINO!  RISK.  An  alteration 
in  the  use  or  condition  of  a  thing  insured  from  that  to  which 
it  is  limited  by  the  policy,  made  without  the  consent  of  the 
insurer,  by  means  within  the  control  of  the  insured,  and 
increasing  the  risk,  entitles  an  insurer  to  rescind  a  contract 
of  fire  insurance. 

HiHtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  25  pars,  annotation. 

122  C.  595,  599,  55  P.  417   (construed). 

As  to  alienation  and  effect  on  insurance,  see  note  §  2527, 
ante. 

As  to  assessments,  see  note  §  2527,  ante. 

As  to  condition  against  keeping  of  petroleum  or  other  in- 
flammable  fluids,    when   violated,   see   37   A.   R.    650. 

As  to  explosion,  liability  of  insurer  of  loss  caused  by;  express 
provisions  against  losses  by  explosions;  insurance  against  ex- 
plosions;  marine   policies,   similar   cases,   see   19   L.    594. 

As  to  fire  insurance,  see  note  §  2527,  ante. 

As  to  hazardous  and  prohibited  articles  kept  in  ordinary 
course  of  business,  see  24  A.  R.   150. 

As  to  Increase  of  risk,  see  note  §  2527,  ante. 

As  to  Insurable  Interest  in  life,  see  note  §  2527.  ante. 

As  to  loss  by  lightning  and  insurance  against  loss  by  light- 
ning,  see    26   L.    267. 

As  to  many  miscellaneous  matters  as  to  Insurance,  see  notes 
§§  414,  2527,  ante. 

1389 


§§  2754,  2755  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  meaning  of  "hazardous"  and  "extrahazardous,"  see  97 
A.    D.    798. 

As  to  premiums,  see  note  §  2527,  ante. 

As  to  respective  rights  of  vendor  and  vendee,  when  part  of 
purchase  price  has  been  paid,  see  84  A.  D.  429. 

As  to  rights  of  mortgagee  to  benefit  of  insurance  taken  in 
name   of  mortgager,    see    25   L.   305. 

As  to  title,  and  effect  of  insurance,  see  note  §  2527,  ante. 

As  to  what  increase  of  hazard  results  in  forfeiture  of  fire 
policy,  see  66  A.  S.   691. 

As  to  when  alterations  in  premises  avoid  fire  policy,  see  26 
A.   S.    407. 

As  to  when  insurance  against  fire  remains  in  force  after  re- 
moval  of  property,   see  33   A.   R.   147. 

As  to  when  use  or  keeping  of  forbidden  materials  avoids  fire 
policy,   see   24  A.  R.    150. 


§  2754.  ALTERATION  NOT  INCREASING  RISK.  An  alter- 
ation in  the  use  or  condition  of  a  thing  insured  from  that  to 
which  it  is  limited  by  the  policy,  which  does  not  increase  the 
risk,  does  not  affect  a  contract  of  fire  insurance. 

History:     Enacted  March  21,   1872. 

See  'Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
122  C.  595,  597,  599   (referred  to),  600   (construed),  55  P.  417. 
As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§  2755.  ACTS  OF  THE  INSURED.  A  contract  of  fire  insur- 
ance is  not  affected  by  any  act  of  the  insured  subsequent  to 
the  execution  of  the  policy,  which  does  not  violate  its  pro- 
visions, even  though  it  increases  the  risk  and  is  the  cause 
of  a  loss. 

History:     Enacted  March   21,   1872. 

As  to  assignment  of  policy,  when  valid,  and  what  constitutes, 
see   note   56   A.    D.    747. 

As  to  effect  of  temporary  removal  of  property,  see  note  23 
A.    R.    143. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  when  sale  or  alienation  of  property  avoids  policy,  see 
note  28  A.  D.  154;  also  see  Kerr's  Cyc,  C.  C.  §§  2753,  2754  and 
notes. 

1390 


Tit.XI,ch.III.]  INDEMNITY.  §§  2756, 2757 

§  2756.  MEASURE  OF  INDEMNITY.  If  there  is  no  valua- 
tion in  the  policj',  the  measure  of  indemnity  in  an  insurance 
against  fire  is  the  expense  it  would  be  to  the  insured  at  the 
time  of  the  commencement  of  the  fire  to  replace  the  thing 
lost  or  injured  in  the  condition  in  which  it  was  at  the  time 
of  the  injury;  but  the  effect  of  a  valuation  in  a  policy  of  fire 
insurance  is  the  same  as  in  a  policy  of  marine  insurance. 

History:  Enacted  March  21,  1872;  amended  April  15,  1909, 
Stats,  and  Amdts.   1909,  p.  914.     In  effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  constructive  total  loss  of  insured  building,  see  56  L. 
784. 

As  to  insurer's  option  to  rebuild,  see  26  L.  853. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527.  ante. 

As  to  right  of  insurer  to  rebuild  or  repair  after  fire,  see  11 
A.    R.    58. 

As  to  valued  policy  in  marine  insurance,   see  ante   §  2736. 

As  to  what  included  in  loss  by  fire,  see  45  A.  D.  657. 

As  to  what  is  total   loss  by   fire,  see  59  A.  S.   810. 


§2757.    VALUE    OF   INTEKEST   IN   POLICY    OF    INSUR- 
ANCE, HOW  MAY  BE  FIXED.    TOTAL  OR  PARTIAL  LOSS. 

Whenever  the  insured  desires  to  have  a  valuation  named  in 
his  policy,  insuring  any  building  or  structure  against  fire,  he 
may  require  such  building  or  structure  to  be  examined  by 
the  insurer  and  the  value  of  the  insured's  interest  therein 
shall  be  thereupon  fixed  by  the  parties.  The  cost  of  sueli 
examination  shall  be  paid  for  by  the  insured.  A  clause  shall 
be  inserted  in  such  policy  stating  substantially  that  the  value 
of  the  insured's  interest  in  such  building  or  structure  has 
been  thus  fixed.  In  the  absence  of  any  change  increasing  the 
risk  without  the  consent  of  the  insurer  or  of  fraud  on  the 
part  of  the  insured,  then  in  case  of  a  total  loss  under  such 
policy,  the  whole  amount  so  insured  upon  the  insured's  inter- 
est in  such  building  or  structure,  as  stated  in  the  policy  upon 
which  the  insurers  have  received  a  premium,  shall  be  paid, 
and  in  case  of  a  partial  loss  the  full  amount  of  the  partial 
loss   shall   be   so  paid,  and   in   case  there   are  two   or  more 

1391 


§  2762  CIVIL  CODE.  [DiV.III.Pt.IV. 

policies  covering  the  insured's  interest  therein,  each  policy 
shall  contribute  pro  rata  to  the  payment  of  such  whole  or 
partial  loss.  But  in  no  case  shall  the  insurer  be  required  to 
pay  more  than  the  amount  thus  stated  in  such  policy.  This 
section  shall  not  prevent  the  parties  from  stipulating  in  such 
policies  concerning  the  repairing,  rebuilding  or  replacing 
buildinp-s  or  structures  wholly  or  partially  damaged  or  de- 
stroyed. 

History:      Enacted   March    23,    1901,    Stats,    and    Amdts.    1900-1, 
p.    572. 


CHAPTER   IV. 

LIFE  AND  HEALTH  INSURANCE. 

§  2762.  Insvirance  upon  life,  when  payable. 

§  2763.  Insurable    interest. 

§  2764.  Assignee,  etc.,  of  life  policy  need  have  no  interest. 

§  2765.  Notice  of  transfer. 

§  2766.  Measure  of  indemnity. 

§  2762.    INSURANCE  UPON  LIFE,  WHEN  PAYABLE.    An 

insurance  upon  life  may  be  made  payable  on  the  death  of 
the  person,  or  on  his  surviving  a  specified  period,  or  periodic- 
ally so  long  as  he  shall  live,  or  otherwise  contingently  on 
the  continuance  or  determination  of  life. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

As  to  assessments,  see  note  §  2527,  ante. 

As  to  beneficiary  of  life  policy,  results  of  death  of  before  that 
of  the  person  wliose  life  is  insured,  see  11  A.  S.  721. 

As  to  insurable  interest  in  life,  see  note  §  2527,  ante. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  mutual  life,  health,  and  accident  insurance  corporations, 
see  'Kerr's  Cyc.  C.  C.  §  437,  note. 

As  to  payment  of  life  policy  to  whom  made,  see  2  L.   161. 

As  to  premiums,  see  note  §  2527,  ante. 

As  to  proximate  cause  of  death,  see  17  L.  753. 

As  to  wliat  constitutes  total   disability   of  insured,   see   38   L. 
529. 

1392 


Tit.XI,ch.IV.]  INSURABLE   INTEREST.  §  2763 

As  to  who  are  "heirs"  within  meaning  of  life  insurance  poli- 
cies, see  30  L.  593. 

As  to  who  are  legal  representatives  within  meaning  of  life 
insurance  policies,  see  30  L.  609. 

§  2763.  INSURABLE  INTEREST.  Every  person  has  an  in- 
surable interest  in  the  life  and  health: 

1.  Of  himself; 

2.  Of  anj^  person  on  whom  he  depends  wholly  or  in  part 
for  education  or  support; 

3.  Of  any  person  under  a  legal  obligation  to  him  for  the 
payment  of  money,  or  respecting  property  or  services,  of 
which  death  or  illness  might  delay  or  prevent  the  perform- 
ance ;   and, 

4.  Of  any  person  upon  whose  life  any  estate  or  interest 
vested  in  him  depends. 

History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.   for   5  pars,  annotation. 

90  C.   245,    248,   25  A.   S.   114,   27   P.   211,   212    (construed). 

As  to  insurable  interest  in  general,  see  ante   §§  2546  et  seq. 

As  to  insurable  interest  in  life  insurance,  see  1  L.  238;  2  L. 
844;  6  L.  136;  7  L.  217. 

As  to  insurable  interest  in  life  of  another,  and  necessity  of, 
see  46  A.  R.  189;  52  A.  R.  135;  57  A.  D.  93;  58  A.  R.  852. 

As  to  insurable  interest  in  life  of  parent  or  child,  or  otlier 
relative  by  blood,  see  54  L.  225. 

As  to  insurable  interest  in  life  insurance,  whether  policy  may 
be  made  payable  to  person   having  none,  see  58  A.  R.  852. 

As  to  insurable  interest  of  wife  in  husband's  life,  and  wife's 
capacity  to  make  contract  of  insurance,  see  10  L.  259. 

As  to  insurable  interest,  when  exists  in  life  insurance,  see  46 
A.  R.  189;  52  A.  R.  135;  57  A.  D.  93. 

As  to  insurance  on  life  of  minor,  see  57  L.  496. 

As  to  life  insurance  to  secure  debt  to  insurer,  see  53  L.  462. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

As  to  right  to  take  life  insurance  for  benefit  of  stranger,  see 
25  L.  627. 

As  to  validity  of  life  Insurance  for  benefit  of  betrothed  wife, 
see    19   L.    187. 

As  to  what  is  good  health  within  the  meaning  of  the  law  of 
life  insurance,  see   10  A.  S.   242. 

As  to  whether  assignee  of  life  insurance  policy  must  have  in- 
surable interest,   see   27  A.   R.   327. 

1393 


§§  2764-2766  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2764.  ASSIGNEE,  ETC.,  OF  LIFE  POLICY  NEED  HAVE 
NO  INTEREST.  A  policy  of  insurance  upon  life  or  health 
may  pass  by  transfer,  will,  or  succession  to  any  person, 
whether  he  has  an  insurable  interest  or  not,  and  such  person 
may  recover  upon  it  whatever  the  insured  might  have  re- 
covered. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

90  C.   245,  248,   251,  25  A.  S.  114,  27  P.   211,   213    (applied). 

As  to  assignment  of  life  policies,  see  87  A.  S.  484. 

As  to  assignment  of  life  policy  to  one  liaving  no  interest  in 
life  insured,  see  16  A.  S.   906. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 

§  2765.  NOTICE  OF  TEANSFER.  Notice  to  an  insurer  of 
a  transfer  or  bequest  thereof  is  not  necessary  to  preserve 
the  validity  of  a  policy  of  insurance  upon  life  or  health, 
unless  thereby  expressly  required. 

History:     Enacted  March   21,   1872. 

§2766.  MEASURE  OF  INDEMNITY.  Unless  the  interest 
of  a  person  insured  is  susceptible  of  exact  pecuniary  measure- 
ment, the  measure  of  indemnity  under  a  policy  of  insurance 
upon  life  or  health  is  the  sum  fixed  in  the  policy. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  death  of  insured  by  voluntary  exposure  to  unnecessary 
danger,  hazard  or  perilous  adventure,  what  is,  see  12  A.  S.  272. 

As  to  death  of  insured  in  known  violation  of  law,  see  60  A.  S. 
160. 

As  to  death  of  insured  resulting  from  a  criminal  act,  see  21 
A.  R.   542. 

As  to  many  miscellaneous  matters  as  to  insurance,  see  notes 
§§  414,  2527,  ante. 


1394 


Tit.XII.]  INDEMNITY.   GENERALLY.  §  2772 


TITLE  XII. 

INDEMNITY. 

§  2772.  Indemnity,   what. 

§  2773.  Indemnity  for  a  future  wrongful  act  void. 

§  2774.  Indemnity   for  a  past  wrongful   act  valid. 

§  2775.  Indemnity  extends  to  acts  of  agents. 

§  2776.  Indemnity  to  several. 

§  2777.  Person    indemnifying    liable    jointly    or    severally    with 

person  indemnified. 

§  2778.  Rules  for  interpreting  agreement  of  indemnity. 

§  2779.  When   person   indemnifying   is  a   surety. 

§  2780.  Bail.   what. 

§  2781.  How  regulated. 

§  2772.    INDEMNITY,  >YHAT.     Indemnity  is  a  contract  by 
which  one  engages  to  save  another  from  a  legal  consequence 
of  the  conduct  of  one  of  the  parties,  or  of  some  other  person. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  65  pars,  annotation. 
58  C.   435,  439    (construed  and  applied  with   §2775'»:   70  C.   553, 
557,  12  P.  451,  453   (construed  and  applied  with  §  2794). 

INDEMNITY. 

As    to   agreements    for    indemnity,   when    void    because   act    in- 
demnified against  is  illegal,  see  40  A.  D.  425. 

As  to  duty  and  liability  of  officer  on  receiving  bond  of  Indem- 
nity,  see    15   A.   S.   315. 

As  to  fidelity  insurance,  nature  of,  and  rules  governing,  see  100 
A.  S.  774. 

As  to  liability  of  surety  on  contract  of,  see  1  A.  D.  47. 

As   to  necessity  of   indemnity   before   bringing  action   on    lost 
bond  or  note,  see  13  A.   D.  479-482. 

As  to  right  of  indemnity  b.fore  action  on  destroyed  bills  and 
notes,   see   13  A.   D.   479-482. 

As  to  right  of  indemnity  of  non-negotiable  instruments  In  case 
of  loss,  see  13  A.  D.  479-483. 

As  to  right  of  indemnity  when  note  deliberately  destroyed  by 
holder,  see  13  A.  D.  479-482. 

As  to  sheriffs  right  to  exact  indemnity,  see  86  A.  S.  554. 

Same — While  executing  civil   process,  see   89   A.   S.   413. 

As  to  when  action  will  He  upon  lost  bond,  see   13  A.  D.   479- 
482. 

1395 


§  2772  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  when  contract  of  indemnity  is  original  undertaking,  see 
note  John.  Cas.    (N.   Y.)    52,   1  L.  ed.  435. 

As  to  when  right  of  action  accrued  in  contract  of  indemnity, 
see  49  A.  D.  362,  363. 

As  to  when  surety  becomes  liable  on  contract  of  indemnity, 
see  1  A.  D.  47. 

As  to  whether  contract  of  indemnity  is  within  statute  of 
frauds,  see  42  A.  S.  186-194. 

Agre*;f;ientR  for,  when  void  because  the  act  indemnified  against 
is  illegal. — See  40  A.  D.  425. 

Application  of  indemnity  contract  to  negligence  of  indemni- 
tee.—See    10   A.    C.    593. 

Beneficiary  in — Form  of  judgment  on. — See   62  L.  446. 

Same — In  bond  insuring  fidelity  of  officer  or  employee,  right 
to  repudiate  authority  of  person  making  representations  in  re- 
liance upon  which  bond  was  issued. — See  7  L.  N.  S.  549. 

Same — Liability  of  surety  under,  for  defalcation  subsequent 
to  .a  reappointment  to  the  office  or  employment,  made  after  ex- 
piration of  original  term,  or  during  an  indefinite  term. — See  11 
L.   N.    S.    493. 

Same — Penalty  as  limit  of  liability  on. — See  55  L.  394. 

Same — Verification  of  accounts  required  by,  what  constitutes. 
— See  10  L.  N.  S.  323. 

Bond  for — As  to,  generally,  see  7  L.  N.  S.  549;  10  L.  N.  S.  323; 
11   L.  N.   S.   493;   12  L.  N.   S.   247. 

Same — Duty  of  obligee  to  disclose  prior  defalcation  in  absence 
of  any  inquiry  in  regard  thereto. — See  12  L.  N.  S.  247. 

Breach  of  contract  of,  time  when  limitation  begins  to  run  on 
liability  for. — See  15  L.  N.  S.  164. 

Construction  of  contract  of — As  to,  generally,  see  3  A.  C.  962; 
10  A.  C.   589. 

Contingency  of  claim  for,  as  affecting  time  for  presentation 
to  decedent's  estate. — See  58  L.  88. 

Duty  and  liability  of  officer  on  receiving  a  bond  of. — See  15 
A.  S.  315. 

Effect  on  status  as  independent  contractor  of  provisions  in 
contract  of  that  employer  shall  be  indemnified  for  all  losses 
caused  by  negligence  of  the  person  employed. — See  17  L.  N.  S. 
381. 

Form  of  judgment  on  indemnity  bond. — See  62  L.  446. 

Indemnity  insurance,  as  to,  see  note  §  2527,  ante. 

Judgment  against  principals,  conclusiveness  against  indem- 
nitors.— See  22  A.  S.  204. 

Penalty  as  limit  to.  liability  on  indemnity  bond. — See  55  L. 
394. 

Promise  to  indemnify  is  within  the  statute  of  frauds. — See  6 
A.  C.  671. 

Right — Of  action   on,  when  accrues. — See   49   A.   D.   362. 

1396 


Tit.XII.]  FOR  FUTURE  "WRONGFUL  ACT.        §§  2773,  2774 

Same — Of  municipality  which  has  been  held  liable  for  injuries 
from  unsafe  conditions  of  street  to  recover  against  the  owner 
or  occupant  of  abutting  property. — See  12  L.  N.  S.  949. 

Same — To  recover  from  obligor  under  collateral  contract,  the 
damages  which  the  obligee  was  compelled  to  pay  because  of  his 
breach  of  contract  with  a  third  person,  in  consequence  of  the 
failure  or  delay  in  performance  of  the  collateral  contract. — See 
18    L.    N.    S.    575. 

Sheriff's  right  to  while  executing  civil  process. — See  89  A.  S. 
413. 

Specific  performance  of  contract  to  give,  to  surety. — See  6 
L.    N.    S.    590. 

Statute  of  frauds,  contracts  of,  whether  within. — See  42  A.  S. 
186. 

Surety,  when  becomes  liable  on  contract  of. — See  1  A.  D.  47. 

Time  when  limitation  begins  to  run  on  liability  for  breach 
of  contract  of. — See   15  L.  N.  S.   164. 

To  sheriffs — For  damages  suffered  by  them  in  executing  civil 
process. — See  89  A.  S.  448. 

Same — Right  of  to  exact. — See  86  A.  S.  554. 

Warranties  as  inducement  to  co-partner  to  enter  into  a  con- 
tract, as  a  promise  to  indemnify. — See  15  L.  N.  S.   1151. 


§2773.  INDEMNITY  F()R  A  FUTCRE  WRONGFUL  ACT 
VOID.  An  agreement  to  indemnify  a  person  against  an  act 
thereafter  to  be  done,  is  void,  if  the  act  be  known  by  such 
person  at  the  time  of  doing  it  to  be  unlawful. 

HlNtory:  Enacted  March  21.  1872;  amended  March  30,  1874. 
Code   Amdts.    1873-4,   p.    259. 

See  Kerr's  Cyc.  C.  C.  for  34  pars,  annotation. 

As  to  agent's  right  to  indemnity  when  acting  in  good  faith, 
see   8  A.  D.   378. 

As  to  agreement  for  indemnity  when  void  by  reason  of  acts 
being   illegal,    see    40    A.    D.    425-427. 

As  to  bond  of  indemnity  given  to  sheriff  to  induce  him  to 
perform  act  In  plain  violation  of  duty,  see  62  A.  D.  768. 

As  to  indemnity  generally,  see  note  §  2772,  ante. 

§2774.  INDE.HMTY  FOR  A  PAST  WRONGFUL  A(  T 
VALID.  An  agreement  to  indemnify  a  person  again.'st  an  act 
already  done,  is  valid,  even  though  the  act  was  known  to  be 
wrongful,  unless  it  was  a  felony. 

History:     Enacted  March  21,  1872. 
1397 


§§  2775-2778  CIVIL  CODE.  [Div.III,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

89  F.   73,  76   (applied  in  construing  §  2777). 

As  to  indemnity  generally,  see  note  §  2772,  ante. 

§2775.    INDEMMTT    EXTENDS    TO   ACTS   OF   AGENTS. 

An  agreement  to  indemnify  against  the  acts  of  a  certain  per- 
son, applies  not  only  to  his  acts  and  their  consequences,  but 
also  to  those  of  his  agents. 

History:     Enacted  March   21,   1872. 

58  C.   435,   439    (construed  and  applied  with   §  2772). 
As  to  indemnity  generallj',  see  note  §  2772,  ante. 

§  2776.  INDEMNITY  TO  SEVERAL.  An  agreement  to  in- 
demnify several  persons  applies  to  each,  unless  a  contrary 
intention  appears. 

History;     Enacted  March   21,   1872. 

§  2777.  PERSONS  INDEMNIFYING  LIABLE  JOINTLY  OR 
SEVERALLY  WITH  PERSONS  INDEMNIFIED.  One  who  in- 
demnifies another  against  an  act  to  be  done  by  the  latter,  is 
liable  jointly  with  the  person  indemnified,  and  separately,  to 
every  person  injured  by  such  act. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

89  F.  73,  76,  77  (section  includes  all  cases  of  indemnity  against 
future   contingencies — is   not   limited   how). 

As  to  indemnity  generally,  see  note  §  2772,  ante. 

§2778.     RULES    FOR   INTERPRETING   AGREEMENT   OF 

INDEMNITY.  In  the  interpretation  of  a  contract  of  indem- 
nity, the  following,  rules  are  to  be  applied,  unless  a  contrary 
intention  appears: 

1.  Upon  an  indemnity  against  liability,  expressly,  or  in  other 
equivalent  terms,  the  person  indemnified  is  entitled  to  recover 
upon  becoming  liable; 

2.  Upon  an  indemnity  against  claims,  or  demands,  or  dam- 
ages, or  costs,  expressl5%  or  in  other  equivalent  terms,  the 
person  indemnified  is  not  entitled  to  recover  without  payment 
thereof; 

1398 


Tit.XII.]  INTERPRETING    AGREEMENT.  §  2779 

3.  An  indemnity  against  claims,  or  demands,  or  liability, 
expressly,  or  in  other  equivalent  terms,  embraces  the  costs 
of  defense  against  such  claims,  demands,  or  liability  incurred 
in  good  faith,  and  in  the  exercise  of  a  reasonable  discretion; 

4.  The  person  indemnifying  is  bound,  on  request  of  the  per- 
son indemnified,  to  defend  actions  or  proceedings  brought 
against  the  latter  in  respect  to  the  matters  embraced  by  the 
indemnity,  but  the  person  indemnified  has  the  right  to  conduct 
such  defenses,  if  he  chooses  to  do  so; 

5.  If,  after  request,  the  person  indemnifying  neglects  to 
defend  the  person  indemnified,  a  recovery  against  the  latter 
[,]  suffered  by  him  in  good  faith,  is  conclusive  in  his  favor 
against  the  former; 

6.  If  the  person  indemnifying,  whether  he  is  a  principal  or 
a  surety  in  the  agreement,  has  not  reasonable  notice  of  the 
action  or  proceeding  against  the  person  indemnified,  or  is  not 
allowed  to  control  its  defense,  judgment  against  the  latter 
is  only  presumptive  evidence  against  the  former; 

7.  A  stipulation  that  a  judgment  against  the  person  indem- 
nified shall  be  conclusive  upon  the  person  indemnifying,  is 
inapplicable  if  he  had  a  good  defense  upon  the  merits,  which 
by  want  of  ordinary  care  he  failed  to  establish  in  the  action. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  79  pars,  annotation. 

57  C.  49,  50  (construed  and  applied);  68  C.  430,  432,  9  P.  712 
(construed  and  applied);  81  C.  270.  273.  274,  22  P.  663,  664,  665 
(construed  and  applied);  121  C.  515,  519,  53  P.  1119  (construed 
and  applied);  89  F.  73,  76,  77  (subd.  2  applied  In  construing 
§  2777). 

As  to  conclusiveness  of  judgment  against  sureties  on  bonds 
in  judicial  proceedings,  sheriffs  and  constables,  executors  and 
administrators,  etc.,  see  83  A.  D.  380-385. 

As  to  conclusiveness  of  judgment  recovered  against  sheriff 
as  upon  party  Indemnifying  him,  see  83  A.  D.  386. 

As  to  conclusiveness  of  judgments,  see  18  A.  S.  142-144.,  22 
A.   S.   204. 

As  to  indemnity  generally,  see  note  §  2772,  ante. 

§2779.     WHEN  PERSON  IM)E>IMFYI>G  IS  \   SURETY. 

Where  one,  at  the  request  of  another,  engages  to  answer  in 

1399 


§§  2780, 2781  CIVIL  CODE3.  [Div.III,Pt.IV. 

damages,  whether  liquidated  or  unliquidated,  for  any  viola- 
tion of  duty  on  the  part  of  the  latter,  he  is  entitled  to  be 
reimbursed  in  the  same  manner  as  a  surety,  for  whatever  he 
may  pay. 

History:     Enacted  March   21,  1872. 

§  2780.  BAIL,  WHAT.  Upon  those  contracts  of  indemnity 
which  are  taken  in  legal  proceedings  as  security  for  the  per- 
formance of  an  obligation  imposed  or  declared  by  the  tri- 
bunals, and  known  as  undertakings  or  recognizances,  the 
sureties  are  called  bail. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  416, 
held  unconstitutional,  see  history,    §   4  ante. 

§2781.  HOW  REGULATED.  The  obligations  of  bail  are 
governed  by  the  statutes  specially  applicable  thereto. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  416, 
held   unconstitutional,   see   history,    §   4   ante. 


1400 


Tit.XIII,ch.I,art.I.]     GUARANTY,  generally. 


§2787 


TITLE  XIII. 

GUARANTY. 

Chapter  I.     Guaranty  in  General,  §§  2787-2825. 
II.     Suretyship,  §§  2831-2866. 

CHAPTER  I. 

GUARANTY  IN  GENERAL. 

Article    I.  Definition  of  Guaranty,  §§  2787,  2788. 

II.  Creation  of  Guaranty,  §§  2792-2795. 

III.  Interpretation  of  Guarantj',  §§  2799-2802. 

IV.  Liability  of  Guarantors,  §§  2806-2810. 

V.  Continuing  Guaranty,  §§  2814,  2815. 

VI.  Exoneration  of  Guarantors,  §§  2819-2825. 


ARTICLE  I. 

DEFINITION   OF   GUARANTY. 

§  2787.     Guaranty,   what. 

§  2788.     Knowledge    of    principal    not    necessary    to    creation    of 
guaranty. 

§2787.  GUARAATY,  WHAT.  A  guaranty  is  a  promise  to 
answer  for  the  debt,  default,  or  miscarriage  of  another  person. 

History:  Enacted  March  21,  1872,  founded  upon  §  12,  Act 
April   19,   1850,   Stats.   1850,  p.   267. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

62  C.  484,  487  (construed  in  connection  with  other  sections); 
77  C.  476,  477,  19  P.  882,  883  (cited);  94  C.  96,  103,  28  A.  S.  94,  29 
P.  415  (cited);  113  C.  432,  434,  54  A.  S.  361,  45  P.  812  (applied): 
119  C.  67,  70,  51  P.  14   (cited). 

GUARANTY. 

As  to  effect  of  assignment  of  note  on  contract  of  guaranty,  see 
12  L.   270. 

As  to  letter  of  credit  a  guaranty,   see   98   A.   D.   547. 

1401 


§  2787  CIVIL  CODE.  [DiV.III,Pt.IV. 

As  to  negotiability  of  guaranty,  see  37  A.  D.  270;  44  A.  D.  308. 

As  to  transfer  of  guaranty  by  assignment  of  debt,  see  100  A. 
D.    475;    64   A.    S.   401. 

As  to  transfer  of  note  by  guaranty  on  separate  paper,  see  36 
L.    232. 

As  to  transfer  of  note  by   indorsement  in  form   of  guaranty, 
see  36  L.   232. 

As  to  what  constitutes  contract  of  guaranty,  see  8  L.  380. 

As   to   what  constitutes   guaranty,    see   45   A.   D.   335;    brief   51 
L.    758,    759. 

As  to  whether  guaranty  an  indorsement,  see  36  L.   232. 

Acceptance  of  necessary. — See  4  W.  &  P.  3180. 

Action   for  breach    of   contract   of   in   bond. — See    3   A.    C.    456; 
6  A.  C.   465,   467. 

As  a  collateral  agreement. — See  3  A.  R.  56;  54  A.  S.  361;   8  L. 
380;  4  W.  &  P.  3181. 

As  a  concurrent  agreement. — See  5  A.  D.  317;  4  W.  &  P.  3182. 

As  an  absolute  agreement. — See  95  A.  D.  246;  4  "W.  &  P.  3180. 

As  an  agreement  or  a  promise. — See  4  W.  &  P.  3181. 

As  surety. — See  4  W.  &  P.   3183. 

As  warranty.— See  78  A.  D.  296;  6  L.  342;  27  L.  136;  4  W.  &  P. 
3183. 

Company. — See  4  W.  &  P.  3184. 

Conditional  guaranty,  liability  of  guarantor  on. — See  54  A.  S. 
440. 

Consideration  for. — See  4  W.  &  P.  3182. 

Construction  of,  rule  for. — See  4  L.  268;  4  L>.  343. 

Continuing — ^As   to,   generally,   see   4  L.   343;   8  L.   381. 

Same- — Parol    evidence    to    show    that    guaranty    is. — See    2    L. 
183. 

Same — "What  constitutes. — See   4   A.   C.    818. 

Continuing  liability,  when  created  by. — See  55  A.  R.  701. 

Contract  of.— See  105  A.  S.  502. 

Death — Of  guarantor   or   cosurety,   effect  of. — See   2   L.    183;    6 
L.   383. 

Same — Of  party,  effect  on. — ^See  23  L.   709. 

Definition  of.— See  83  A.  D.  358;  70  A.  S.  907;  8  L.  380;  4  W.  & 
P.   3179. 

Discharge  of  guarantor  for  causes  existing  prior  to  his  enter- 
ing upon  contract  of. — See  63  A.  S.  327. 

Distinction   between   continuing  and   limited   guaranties. — See 
4  A.  C.   822. 

Effect  of  purchase  at  tax  sale,  by  or  in  the  interest  of  mort- 
gagor, of  mortgage  indebtedness. — See  16  L.  N.  S.   121. 

Estoppel   to   enforce   contract   of   released   through  mistake. — 
See  13  L.  N.  S.   596. 

Fund.— See   4  W.   &  P.   3184. 

General  or  special. — See  45  A.  R.  204;  4  W.  &  P.  3182. 

1402 


Tit.XIII,ch.I,art.I.]     GUARANTY,  generally.  §2787 

Guaranteeing  stock  or  bonds  of  another  corporation,  power 
of  corporation  in  reference  to. — See  11  A.  C.  891. 

Guarantor  of  lessee. — See  9  L.  353. 

Implied  power  of  railroad  to  guaranty  enterprise  other  than 
transportation  of  goods  or  passengers. — See  2  L.  N.  S.   887. 

In  reply  to  inquiry  as  to  third  party's  financial  condition. — 
See   1   L.  N.  S.   305. 

Indorsement  distinguished. — See  4  W.  &  P.  3182. 

Indorser  of  note  as  guarantor. — See  18  L.  N.  S.  565. 

Insurance. — See   44  L.   124;   4  W.  &  P.   3184. 

Letters  of  credit — As  to,  generally,  see  7  L.  209. 

Same — Liability  on  general. — See  28  A.  R.  347. 

Liability — Of  guarantor  limited  to  strict  terms  of  contract. — 
See  3  L.   160;   9  L.   353. 

Same — Of  guarantor  of  note,  as  to  being  collateral. — See  45 
A.   D.   235. 

Same — Of  guarantor  on  conditional  guaranty. — See  54  A.  S. 
440. 

Same — Of  guai'antor  or  general  letter  of  credit. — See  28  A.  R. 
347. 

Same — On  guaranty  obtained  by  fraud. — See  21  L.  409. 

Same — Under  continuing,  running  to  partnership  or  corpora- 
tion, for  goods  sold  or  credits  extended  after  change  in  the  firm 
or  corporation. — See  14  L.  N.  S.  1231. 

Limitation — As  to  time  and  amount. — See  4  L.  344. 

Same — Of  liability  of  guarantor  to  terms  of  contract. — See  64 
A.  D.  549;  4  L.  680. 

Notice  of  acceptance — Necessity  of. — See  4  L.  346;  4  W.  &  P. 
3180. 

Same — Necessity  of  to  bind  guarantor. — See  16  L.  N.  S.  353- 
379. 

Same — When  necessary. — See  39  A.  D.  221. 

Notice  of  default — Necessity  of  to  bind  guarantor. — See  20  L. 
257-264;  4  W.  &;  P.  3182. 

Of  collection. — See  64  A.  R.  393;  4  W.  &  P.  3185. 

Of  commercial  paper,  when  does  it  cover  renewals. — See  16 
L.   N.   S.   775. 

Of  credit  extended  for  price  of  goods  sold,  does  it  cover  sales 
to  successor. — See  19  L.  N.  S.  901. 

Of  dividends  on  corporate  stock. — See  2  L.  183. 

Of  note,  as  to  being  conditional. — See  45  A.  D.  235. 

Of  payment,  distinguished  from  of  collection. — See  '^  A.  S.  II: 
4  W.  &  P.  3185. 

Oral,  by  transfer  of  negotiable  instrument,  validity  of. — See 
2   A.  C.   504,   506. 

Oral  contract  of,  as  to,  see  9  L.  N.  R.  54;  15  L.  N.  S.  214;  15 
L.   N.  S.   1087. 

1403 


§  2788  CIVIL  CODE.  [Div.III,Pt.IV. 

Parol  evidence  to  show  that  guaranty  is  a  continuing  one,  ad- 
missibility of. — See  2  L.  183. 

Payment  voidable  under  bankruptcy  act  as  discharge  of  guar- 
antor.—See  9  L.  N.  S.  581. 

Personal  liability  imported. — See  4  W.  &  P.  3182. 

Request  to  make  advances  to  another  as  implying,  of  repay- 
ment.—See  15  L.  N.  S.   1115. 

Right  of  guarantor  to  have  judgment  against  principal  set 
aside. — See  54  L.  765. 

Severable  contract. — See  8  L.  382. 

Specific  performance   of  contract  of. — See   3   A.   C.    773. 

Statute  of  frauds  as  affecting,  of  the  contract  of  a  person 
under  disability. — See  33  L.  359. 

Statute  of  limitations,  does  time  begin  to  run  on  breach  of 
contract  of,  or  at  the  time  actual  damages  are  sustained,  in  con- 
sequence thereof. — See  15  L.  N.  S.  159. 

Suretyship  distinguished. — See  48  A.  S.  496;  6  L.  686;  4  W.  &  P. 
3183. 

To  save  harmless. — See  4  W.  «&  P.  3184. 

Transfer  by  assignment  of  commercial  paper. — See   12  L.   270. 

Transfer  of  title  to  note  by  indorsement  in  form  of. — See  3  L. 
232. 

Understanding  as  a. — See  8  W.  &  P.  7163. 

Unlimited  as  to  time  or  amount. — See  4  L.  344. 

What  constitutes  contract  of. — See  6  A.  C.  465. 

Written  contract  of  not  required. — See  4  W.  &  P.  3184. 

§2788.  KNOWLEDGE  OF  PRIIVCIPAL  NOT  NECESSARY 
TO  CREATION  OF  GUARANTY.  A  person  may  become  guar- 
antor even  without  the  knowledge  or  consent  of  the  principal. 

HLstory:  Enacted  March  21,  1872,  founded  upon  Code  Napo- 
leon,  art.   2014. 

As   to  guaranty  generally,   see  note   §  2787,   ante. 

Acceptance  of  guaranty. — See  Kerr's  Cyc.  C.  C.  §  2795  and  note. 


1404 


Tit.XIII,ch.I,art.II.]      CONSIDERATION.  §§2792,2793 

ARTICLE  II. 

CREATION    OF    GUARANTY. 

§  2792.     Necessity  of  a  consideration. 

§  2793.     Guaranty  to  be  in  writing-,  etc. 

§  2794.     Engagement  to  answer  for  obligation  of  another,  wlien 

deemed  original. 
§  2795.     Acceptance   of  guaranty. 

§2792.  NECESSITY  OF  A  CONSIDERATION.  Where  a 
guarantj'  is  entered  into  at  the  same  time  with  the  original 
obligation,  or  with  the  acceptance  of  the  latter  by  the  guar- 
antee, and  forms  with  that  obligation  a  part  of  the  consider- 
ation to  him,  no  other  consideration  need  exist.  In  all  other 
cases  there  must  be  a  consideration  distinct  from  that  of  the 
original  obligation. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  12   pars,  annotation. 

40  P.  491  (applied);  J.09  C.  211.  221,  41  P.  1028  (applied);  146 
C.  545,  547,  80  P.  698  (applied — subsequent  indorsement  of  prom- 
issory note  by  third  person  without  new  consideration  imposes 
no  obligation  upon   indorser) ;   79  P.   404    (applied). 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

As  to  necessity  of  consideration  for  guaranty  of  collection, 
see  64  A.  S.   401. 

As  to  sufficiency  of  consideration  for  contract  of  guaranty, 
see  32  A.  D.  526;  also  brief  62  L.  954,  955. 

§2793.  GUARANTY  TO  HE  IN  WRITING,  ETC.  Except  as 
prescribed  by  the  next  section,  a  guaranty  must  be  in  writ- 
ing, and  signed  by  the  guarantor;  but  the  writing  need  not 
express  a  consideration. 

Hlstoryi  Enacted  March  21,  1872,  founded  upon  §  12,  Act 
April  19,  1850,  Stats.   1850,  p.  267. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

Ill  C.  281.  284,  43  P.  899  (applied);  113  C.  432,  434,  54  A.  S. 
361,   45   P.    812    (applied). 

As  to  contracts  of  guaranty  required  to  be  in  writing  under 
statute  of  frauds,  see  Kerr's  Cyc.  C.  C.  §1624  note  pars.  129-160. 

1405 


§  2794  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  effect  of  statute  of  fi'auds  on  guaranty  of  contract  of 
person   under  disability,   see   45   L.    846. 

As  to  expression  of  consideration  of  contract  of  guaranty  in 
writing'  under  statute  of  frauds,  see  Kerr's  Cyc.  C.  C.  §  1624  note 
pars.   138,    214-219. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

As  to  necessity  of  consideration  for  guaranty  being  expressed 
in  writing,  see  5  A.  D.  317;  75  A.  D.  413. 

As  to  sufficiency  of  expressing  consideration  in  guaranty,  see 
53  A.   D.   :i88;   64   A.   D.   549. 

As  to  validity  of  parol  promise  to  pay  debt  of  anotlier,  see  15 
A.  D.  393;  31  A.  D.  614;  43  A.  D.  739;  57  A.  D.  198. 


§2794.  ENGAGEMENT  TO  ANSWEK  FOE  OBLIGATION 
or  ANOTHER,  WHEN  DEEMED  ORIGINAL.  A  promise  to 
answer  for  the  obligation  of  anotlier,  in  any  of  the  following 
cases,  is  deemed  an  original  obligation  of  the  promisor,  and 
need  not  be  in  writing: 

1.  Where  the  promise  is  made  by  one  who  has  received 
property  of  another  upon  an  undertaking  to  apply  it  pursuant 
to  such  promise;  or  by  one  who  has  received  a  discharge  from 
an  obligation  in  whole  or  in  part,  in  consideration  of  such 
promise; 

2.  Where  the  creditor  parts  with  value,  or  enters  into  an 
obligation,  in  consideration  of  the  obligation  in  respect  to 
which  the  promise  is  made,  in  terms  or  under  circumstances 
such  as  to  render  the  party  making  the  promise  the  prin- 
cipal debtor,  and  the  person  in  whose  behalf  it  is  made,  his 
surety; 

3.  Where  the  promise,  being  for  an  antecedent  obligation  of 
another,  is  made  upon  the  consideration  that  the  party  receiv- 
ing it  cancels  the  antecedent  obligation,  accepting  the  new 
promise  as  a  substitute  therefor;  or  upon  the  consideration 
that  the  party  receiving  it  releases  the  property  of  another 
from  a  levy,  or  his  person  from  imprisonment  under  an  execu- 
tion on  a  judgment  obtained  upon  the  antecedent  obligation; 
or  upon  a  consideration  beneficial  to  the  promisor,  whether 
moving  from  either  party  to  the  antecedent  obligation,  or  from 
another  person; 

140G 


Tit.XIII,ch.I,ai-t.II.]         acceptance.  §  2795 

4.  Where  a  factor  undertakes,  for  a  commission,  to  sell  mer- 
chandise and  guaranty  the  sale; 

5.  Where  the  holder  of  an  instrument  for  the  payment  of 
money,  upon  which  a  third  person  is  or  may  become  liable 
to  him,  transfers  it  in  payment  of  a  precedent  debt  of  his  own, 
or  for  a  new  consideration,  and  in  connection  with  such  trans- 
fer enters  into  a  promise  respecting  such  instrument. 

History:     Enacted  March   21,  1872. 

.   See  Kerr's  Cyc.   C.  C.  for  10  pars,  annotation. 

59  C.  442,  444  (applied);  67  C.  293,  294,  7  P.  705,  70G  (applied); 
67  C.  595,  598,  8  P.  322,  323  (applied);  70  C.  553,  557,  12  P.  451, 
453  (applied);  77  C.  79',  81,  19  P.  182  (referred  to);  81  C.  280,  288, 
22  P.  856,  857,  858  (applied  with  §  1624 — contract  by  third  per- 
son to  pay  for  supplies  furnished  to  a  corporation  is  void  unless 
in  writing);  113  C.  432,  434,  54  A.  S.  361,  45  P.  812  (applied);' 
117  C.  587,  591,  593,  49  P.  710  (referred  to);  53  P.  693,  697  (subd. 
4  cited);  123  C.  379,  383,  55  P.  1064  (applied);  128  C.  250,  253,  60 
P.  860  (applied);  61  P.  578,  579  (applied);  130  C.  411,  415,  62  P. 
611  (applied);  1  C.  A.  560,  564,  566,  82  P.  568  (subd.  3  applied); 
3  C.  A.  414,  416,  86  P.  824  (subd.  2  applied  with  §  1605 — who  is  a 
"principal  debtor"). 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

As  to  requirements  of  statute  of  frauds,  see  Kerr's  Cyc.  C.  C. 
§  1624  note  pars.   129-160. 

As  to  validity  of  parol  promise  to  pay  debt  of  another  when 
based  on   original   consideration,  see  3.7  A.  D.   153;   46  A.   R.   296. 

As  to  whether  undertaking  of  guarantor  is  original  or  col- 
lateral, see   23  A.  D.   345;   59  A.   D.   345. 

§2795.  ACCEPTANCE  OF  GUABA>TY.  A  mere  offer  to 
guaranty  is  not  binding,  until  notice  of  its  acceptance  is  com- 
municated by  the  guarantee  to  the  guarantor;  but  an  absolute 
guaranty  is  binding  ujion  the  guarantor  without  notice  of 
acceptance. 

History:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

125  C.  472,  481,  73  A.  S.  64,  58  P.  164  (construed  as  not  affected 
by  §1565  and  applied);   128  C.  250,  253,   60  P.  860  (applied). 

As  to  guaranty  generally,  see  note  §  2787,  ante. 

As  to  necessity  of  notice  of  acceptance  of  guaranty,  see  4  L. 
343,  347;  note  45  A.  D.  47;  53  A.  D.  289;  56  A.  D.  619;  39  A.  R. 
221;   65  L.   729. 

1407 


§§  2799, 2800  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE  III. 

INTERPRETATION  OF  GUARANTY. 

§  2799.  Guaranty   of   incomplete   contract. 

§  2800.  Guaranty  that  an  obligation  is  good  or  collectable. 

§  2801.  Recovery  upon  such  guaranty. 

§  2802.  Guarantor's  liability  upon  such  guaranty. 

§  2799.  GUARANTY  OF  INCOMPLETE  CONTRACT.  In  a 

guaranty  of  a  contract,  the  terms  of  which  are  not  then  set- 
tled, it  is  implied  that  its  terms  shall  be  such  as  will  not 
expose  the  guarantor  to  greater  risks  than  he  would  incur 
under  those  terms  which  are  most  common  in  similar  con- 
tracts at  the  place  where  the  principal  contract  is  to  be  per- 
formed. 

Hi-story:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

80  C.  338,  341  (erroneously  cited  for  §  514),  22  P.  254,  255  (cor- 
rect citation). 

As  to  construction  of  guaranties  as  to  whether  continuing 
guaranties,  see  Kerr's  Cyc.  C.  C.  §  2814  and  note. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

§  2800.    GUARANTY  THAT  AN  OBLIGATION  IS  GOOD  OR 

COLLECTABLE.  A  guaranty  to  the  effect  that  an  obligation 
is  good,  or  is  collectable,  imports  that  the  debtor  is  solvent, 
and  that  the  demand  is  collectable  by  the  usual  legal  pro- 
ceedings, if  taken  with  reasonable  diligence. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

As  to  guaranty  generally,  see  note  §  2787,  ante. 

As  to  nature  of  guaranty  of  collection,  see  100  A.  D.  476;  64  A. 
S.   393. 

As  to  necessity  of  consideration  for  guaranty,  see  Kerr's  Cyc. 
C.   C.   §  2792  note. 

As  to  necessity  of  demand  or  notice,  see  Kerr's  Cyc.  C.  C. 
§  2807  note. 

As  to  obligation  assumed  by  guarantor  of  collection  of  note, 
see  74  A.  D.  387. 

As  to  what  constitutes  guaranty  of  collection,  see  64  A.  S. 
393. 

1408 


Tit.XIII.ch.I.art.III.]  RECOVERY    UPON.  §§  2801,  2802 

§  2S01.  RECOVERY  UPON  SUCH  GUARAMY.  A  guaranty, 
such  as  is  nieutioned  in  the  last  section,  is  not  discharged 
by  an  ©mission  to  take  proceedings  upon  the  principal  debt, 
or  upon  any  collateral  security  for  its  payment,  if  no  part  of 
the  debt  could  have  been  collected  thereby. 

Hlwtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.   for  4  pars,  annotation. 

As  to  discharge  of  guarantor,  see  Kerr's  Cyc.  C.  C.  S  2819  note. 

As  to  guaranty  generally,  see  note  §  2787,  ante. 

As  to  recovery  upon  guaranty  of  collection  of  note,  see  74  A. 
D.   386. 

As  to  what  will  discharge  guarantor  of  collection,  see  64  A.  S. 
399. 

§2802.  GUARANTOR'S  LIABILITY  UPO>  SUCH  GUAR- 
A>'TY.  In  the  cases  mentioned  in  section  two  thousand  eight 
hundred,  the  removal  of  the  principal  from  the  state,  leaving 
no  property  therein  from  which  the  obligation  might  be  satis- 
fied, is  equivalent  to  the  insolvency  of  the  principal  in  its 
effect  upon  the  rights  and  obligations  of  the  guarantor. 

HiMtory:     FJnacted  March   21,  1872. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 
As  to  removal  of  maker  of  note  from  state,  see  Kerr's  Cyc.  C. 
C.   i  2802,   note. 


Kerrs    C.    C— 45  1409 


§§  2806, 2807  CIVIL  CODE.  [Div.III,Pt.IV. 


ARTICLE   IV. 

LIABILITY   OF   GUARANTORS. 

§  2806.     Guaranty,   how   construed. 

§  2807.     Liability  upon  guaranty  of  payment  or  performance. 
§  2808.     Liability  upon  guaranty  of  a  conditional  obligation. 
§  2809.      Obligation  of  guarantor  cannot  exceed  that  of  the  prin- 
cipal. 
§  2810.     Guarantor    not   liable    on    an    illegal    contract. 

§  2806.  GUARANTY,  HOW  COIVSTEUED.  A  guaranty  is  to 
be  deemed  unconditional  unless  its  terms  import  some  condi- 
tion precedent  to  the  liability  of  the  guarantor. 

History:     Enacted  March   21,  1872. 

78  C.  443,  448,  21  P.  2,  4  (construed);  128  C.  464,  470,  79  A. 
S.  56,   61  P.  64    (applied). 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

As  to  liability — Of  guarantor  of  note  being  conditional,  see  45 
A.   D.   235. 

Same — Of  guarantor  on  conditional  guaranty,  see  54  A.  S.  440. 

Same — Of  guarantor  on  general  letter  of  credit,  see  28  A.  R. 
347. 

As  to  limitation  of  liability  of  guaranty  to  terms  of  contract, 
see  64  A.  D.  549;   4  L.   680. 

§  2807.    LIABILITY  UPON  GUARANTY  OF  PAYMENT  OR 

PERFORMANCE.  A  guarantor  of  payment  or  performance  is 
liable  to  the  guarantee  immediately  upon  the  default  of  the 
principal,  and  without  demand  or  notice. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

62  C.  484,  487  (construed  in  connection  with  other  sections) ; 
77  C.  476,  477,  478,  19  P.  882,  883  (cited);  78  C.  443,  448,  21  P. 
2,  4  (construed);  86  C.  367,  373,  24  P.  1072,  1073  (applied);  94  C. 
96,  103,  28  A.  S.  94,  29  P.  415  (applied);  105  C.  434,  441,  39  P.  20 
(applied);  (Aug.  26,  1895),  41  P.  490,  491  (applied);  128  C.  464, 
470,  79  A.  S.  56,  61  P.  64  (applied);  128  C.  665,  668,  61  P.  369 
(applied). 

As  to  guaranty  generally,  see  note  §  2787,  ante. 

As  to  necessity  of  demand  and  notice  to  charge  guarantor,  see 

1410 


Tit.XIII,ch.r,art.IV.]  LIABILITY.  §§2808-2810 

11  A.  D.  703;  45  A.  D.  245;  59  A.  D.  345;  74  A.  D.  386;  note  20  L. 
257;   brief  62  L.   954,  955. 

As  to  necessity  to  demand  or  request  in  guaranty  of  collection, 
see  64  A.  S.  401. 

§2808.  LIABILITY  11M)>  (JUARAMY  OF  A  CO>DI. 
TIONAL  OBLIGATION.    Where  one  guarantees  a  conditional 

obligation,  his  liability  is  commensurate  with  that  of  the  prin- 
cipal, and  he  is  not  entitled  to  notice  of  the  default  of  the 
principal,  unless  he  is  unable,  by  the  exercise  of  reasonable 
diligence,  to  acquire  information  of  such  default,  and  the 
creditor  has  actual  notice  thereof. 

HiHtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

121  C.  604,  606,  53  P.  1117    (applied). 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

§2809.  OBLIGATIO\  OF  GFARAXTOR  CANNOT  EXCEED 
THAT  OF  THE  PRINCIPAL.  The  obligation  of  a  guarantor 
must  be  neither  larger  in  amount  nor  in  other  respects  more 
burdensome  than  that  of  the  principal,  and  if  in  its  terms  it 
exceeds  it,  it  is  reducible  in  proportion  to  the  principal  obli- 
gation. 

HiHtory:  Enacted  March  21,  1S72,  founded  upon  Code  Napo- 
leon, art.   2013. 

See  Kerr's  Cyci  C.  C.  for  5  pars,  annotation. 

61  C.  396,  399   (mlscited  for  §  2899). 

As  to  admissibility  against  guarantor  of  judgment  against 
principal,  see  32  A.  D.   203. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

As  to  liability  of  surety  and  guarantor,  see  3  L.  168;  9  L.  353; 
brief  62   L.    954,    955. 

As  to  limitation  of  liability  of  guarantor,  see  4  L.  343,  344. 

As  to  limitation  of  liability  of  guarantor  by  restrictions  In 
letter  of  credit,  see   53  A.   D.   289. 

As  to  rlgiit  of  guarantor  to  maintain  proceedings  to  set  aside 
judgment  against  principal,  see  54  L.  758,  765. 

§  2810.  GUARANTOR  NOT  LIABLE  ON  AN  ILLEGAL  CON- 
TR.VCT.  A  guarantor  is  not  liable  if  the  contract  of  the  prin- 
cipal is  unlawful;   but  he  is  liable  notwithstanding  any  mere 

1411 


§§  2814,  2815  CIVIL  CODE.  [Div.III.Pt.IV. 

personal  disability  of  the  principal,  though  the  disability  be 
such  as  to  make  the  contract  void  against  the  principal. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  discharge  of  guarantor  by  fraud  of  principal,  see  65  L. 
729,   731. 

As  to  effect  of  illegal   contract  on   contract  of  guaranty,   see 
brief  57  L.   811,  812. 

As   to  effect  of  usury  in  principal   debt   on  contract   of  guar- 
anty, see  22  A.  R.  293. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

As  to   liability  of  guarantor  or  surety  on  fraudulent  obliga- 
tion,  see   21  L.   409. 


ARTICLE  V. 

CONTINUING  GUARANTY. 

§  2814.     Continuing  guaranty,  what. 
§  2815.     Revocation. 

§  2814.  CONTINUING  GUARANTY,  WHAT.  A  guaranty  re- 
lating to  a  future  liability  of  the  principal,  under  successive 
transactions,  which  either  continue  his  liability  or  from  time 
to  time  renew  it  after  it  has  been  satisfied,  is  called  a  con- 
tinuing guaranty. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

138  C.  724,  729,  72  P.  352  (cited);  141  C.  674,  677,  75  P.  296  (ap- 
plied). 

As  to  definition  of  continuing  guaranty,  see  56  A.  D.  619. 

As  to  what  constitutes  continuing  guaranty,  see  4  L.  343;  8 
L.  380;  also  45  A.  D.  492;  55  A.  R.  701;   64  A.  D.  549;  86  A.  D.   53. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

§  2815.  REVOCATION.  A  continuing  guaranty  may  be  re- 
voked at  any  time  by  the  guarantor,  in  respect  to  future  trans- 
actions, unless  there  is  a  continuing  consideration  as  to  such 
transactions  which  he  does  not  renounce. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

141  C.  674,  676,  75  P.  296  (applied). 

As  to  effect  of  death  of  guarantor,  see  2  L.  183;  6  L.  383;  note 
23  L.   707,  709. 

As  to  guaranty  generally,  see  note  §  2787,  ante. 

1412 


I 


Tit.XIII.oh.I.art.VI.]       EXONERATION.  §§2819.2820 

ARTICLE  VI. 

EXONERATION  OF  GUARANTORS. 

S:i819.  What  dealings  with  dobtor  exonerate  guarantor. 

§  L'S20.  Void  promises. 

S  2821.  Resiission   of  alteration. 

§  2822.  Part   performance. 

§  2823.  Delay  of  creditor  does  not  discharge  guarantor. 

§  2824.  Guarantor  indemnified  by  the  debtor,  not  exonerated. 

§  2825.  Discharge  of  principal  by  act  of  law  does  not  discharge 
guarantor. 

S2S1J>.  ^\U\T  DE.VMNiJS  WITH  DEBTOR  EXONKHATE 
(ir.VH.VNTOH.  A  j^uarantor  is  exonerated,  except  so  far  as. 
he  may  be  indemnified  by  the  principal,  if  by  any  act  of  the 
creditor,  without  the  consent  of  the  guarantor,  the  original 
obligation  of  the  principal  is  altered  in  any  respect,  or  the 
remedies  or  rights  of  the  creditor  against  the  principal,  in 
respect  thereto,  in  any  way  impaired  or  suspended. 
IllM(i»r.v:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  51  pars,  annotation. 

6  P.  853.  857  (referred  to);  70  C.  79.  84.  11  P.  505,  508  (applied): 
77  C.  476.  477,  19  P.  882.  883  (cited);  87  C.  423.  25  P.  552.  553 
(cited);  91  C.  206.  210,  27  P.  648,  649  (referred  to);  110  C.  658. 
665,  43  P.  202  (applied):  117  C.  491,  497.  49  P.  460  (referred  to); 
120  C.  495.  501..  52  P.  848  (applied);  122  C.  65.  66.  67.  54  P.  387 
(applied):  122  C.  66.'..  668,  .'.5  P.  683  (construed):  130  C.  245,  254. 
62  P.  466,  600  (applied):  139  C.  416,  41S.  73  P.  179  (applied):  145 
C.  241,  244,  78  P.  734  (applied);  146  C.  518.  521.  SO  P.  695  (ap- 
plied); 3  C.  A.  338,  342.  S.'J  P.  156  (applied  to  building  contract); 
t!  C.  A.  696.  700.  S6  P.  9S1  (contract  of  suretyship — right  to  ben- 
efit   of    collateral    security). 

As  to  discharge  of  guarantor  or  surety  by  matters  existing  at 
'ir  j>rlor  to  the  making  of  contract,  see  63  A.  S.  327. 

As  to  discharge  of  guarantors  or  surety,  see  9  1j.  353:  64  A. 
S.   399. 

As   to  guaranty   g<-nerally.   see  note    S  2787,   ante. 

As  to  release  by  refusal  of  offer  of  perform.ance.  see  Kerr's 
Cyc.  C.  C.   8  2839  and   note. 

§ '2s-_M».  V(H1»  PHOMISES.  A  i)romise  by  a  creditor,  which 
for  any  cause  is  void,  or  voidable  by  him  at  his  optiDU.  does 

1413 


§§  2821-2824  CIVIL  CODE.  [Div.III.Pt.IV. 

not  alter   the   obligation   or   suspend   or   impair   the   remedy, 
within  the  meaning  of  the  last  section. 

History:      Enacted  March   21,  1872. 

§2821.  RESCISSION  OF  ALTERATION.  The  rescission  of 
an  agreement  altering  the  original  obligation  of  a  debtor,  or 
impairing  the  remedy  of  a  creditor,  does  not  restore  the  lia- 
bility of  a  guarantor  who  has  been  exonerated  by  such  agree- 
ment. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
As  to  guaranty  generally,   see  note   §  2787,  ante. 

§2822.  PART  PERFORMANCE.  The  acceptance,  by  a 
creditor,  of  anything  in  partial  satisfaction  of  an  obligation, 
reduces  the  obligation  of  a  guarantor  thereof,  is  [in]  the  same 
measure  as  that  of  the  principal,  but  does  not  otherwise 
affect  it. 

History:     Enacted  March   21,  1872. 

See  Kerr's   Cyc.  C.  C.  for  3   pars,   annotation. 

145  C.   497,  499,  78  P.   1056    (applied). 

As.  to  guaranty  generally,  see  note   §  2787,  ante. 

§2823.  DELAY  OF  CREDITOR  DOES  NOT  DISCHARGE 
GUARANTOR.  Mere  delay  on  the  part  of  a  creditor  to  pro- 
ceed against  the  principal,  or  to  enforce  any  other  remedy, 
does  not  exonerate  a  guarantor. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

77  C.  54,  60,  11  A.  S.  235,  18  P.  808,  811  (applied);  77  C.  476,  478, 
19  P.  882,  883  (cited);  94  C.  96,  103,  28  A.  S.  94,  29  P.  415  (ap- 
plied); 130  C.  245,  254,  62  P.  466,  600    (applied). 

As  to  discharge  of  guarantor  by  indulgence  to  maker,  see  45 
A.  D.   492;   51  A.  D.   302. 

As  to  exoneration  of  guarantor  by  failure  to  sue  maker,  see 
brief  62  L.   954,  955. 

As  to  guaranty  generally,  see  note   §  2787,  ante. 

§2824.     GUARANTOR  INDEMNIFIED   BY   THE   DEBTOR, 

NOT  EXONERATED.    A  guarantor,  who  has  been  indemnified 

1414 


Tit.XIir.ch.I.ait.VI.]  DISCHARGE.  §2825 

by  the  principal,  is  liable  to  the  creditor  to  the  extent  of  the 
indemnity,  notwithstanding  that  the  creditor,  without  the 
assent  of  the  guarantor,  may  have  modified  the  contract  or 
roleased  the  principal. 

IliHtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

117  C.  491.  497,  49  P.  460  (applied);  147  F.  95,  97  (section  is 
from  statutes  of  New  York — it  is  sufficiently  comprehensive  to 
include  case  of  rescission  of  contract). 

As  to  guaranty  generally,  see  note   §  27S7,  ante. 

§2825.  DISCHARfiE  OF  THIXirVL  IJY  ACT  OF  TAW 
DOKS  \0T  DISCHARGE  (U'ARANTOR.  A  guarantor  is  not 
exonerated  by  the  discharge  of  his  principal  by  operation  of 
law,  without  the  intervention  or  omission  of  the  creditor. 

Hintory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  act  of  God,  see  Kerr's  Cyc.  C.  C.  §  1511  note  par.  213. 

As  to  guaranty  generally,  sec  note   §  2787,  ante. 


1415 


§  2831  CIVIL  CODE.  [Div.III,Pt.IV. 

CHAPTER   II. 

SURETYSHIP. 

Article    I.  Who  Are  Sureties,  §§  2831,  2832. 

II.  Liability  of  Sureties,  §§  2836-2840. 

IIT.  Rights  of  Sureties,  §§  2844-2850. 

IV.  Rights  of  Creditors,  §  2854. 

V.  Letter  of  Credit,  §§  2858-2866. 

ARTICLE  I. 

WHO  ARE   SURETIES. 

§  2831.     Surety,  what. 

§  2832.     Apparent  principal  may  show  that  he  is  surety. 

§  2831.  SURETY,  WHAT.  A  surety  is  one  who  at  the  re- 
quest of  another,  and  for  the  purpose  of  securing  to  him  a 
benefit,  becomes  responsible  for  the  performance  by  the  latter 
of  some  act  in  favor  of  a  third  person,  or  hypothecates  prop- 
erty as  security  therefor. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

78  C.  443,  448,  21  P.  2,  4  (cited);  101  C.  415,  420,  35  P.  1027;  105 
C.  434,  441,  39  P.  20  (applied);  109  C.  211,  221,  41  P.  1028  (ap- 
plied); 112  C.  31,  34,  53  A.  S.  155,  44  P.  305  (applied);  119  C.  67, 
70,  51  P.  14  (construed);  120  C.  495,  501,  52  P.  848  (applied);  127 
C.  525,  526,  59  P.  989  (applied);  138  C.  724,  729,  72  P.  352  (ap- 
plied); 139  C.  246,  253,  255,  72  P.  997  (construed);  145  C.  497,  499, 
78  P.  1056  (cited);  3  C.  A.  115,  118,  84  P.  435  (maker  of  note  as 
principal  debtor  as  his  comakers  as  sureties  for  payment  of  his 
debt);  3  C.  A.  696,  700,  86  P.  981  (contract  of  suretyship — right 
to  benefit  of  collateral  security). 

SURETYSHIP. 

As  to  conclusiveness  against  surety  of  judgment  against  prin- 
cipal, see  32  A.  D.  202;  43  A.  D.  440;  56  A.  D.  6.  72  A.  D.  276;  83 
A.  D.  380;  33  A.  R.  802;  69  A.  S.  644;  2  L.  644;  52  L.  313;  52 
L.   506. 

As  to  considerations,  see  Kerr's  Cyc.  C.  C.  §  2792  and  note. 

1416 


I 


Tit.XIII.ch.IT.art.I.l  SURETYSHIP.  §  2831 

As  to  distinction  between  sureties  and  guarantors,  see  Kerr's 
Cyc.  C.  C.  §§  2807,  2808  and  notes. 

As  to  effect  of  secret  agreement  between  principal  and  surety, 
see  76  A.  D.  131. 

As  to  existence  of  relation  of  principal  and  surety  between 
maker  of  notes  and  grantee  who  assumes  and  agrees  to  pay,  see 
brief  40  L.  154. 

As  to  guaranty  by  one  signing  obligation  as  surety  of  genu- 
ineness of  other  signature,  see  49  L.  315. 

As  to  liability  of  infant  on  contract  of  suretyship,  see  18  A. 
S.   614. 

As  to  liability  of  surety  on  failure  of  promised  cosurety  to 
sign,  see  28  A.  D.  679;  52  A.  D.  548;  85  A.  D.  444;  25  A.  R.  76;  29 
A.  R.  377;  54  A.  R.  440;  67  A.  S.  275;  67  A.  S.  318;  45  L.  321;  brief 
37  L.   854. 

As  to  nature  of  contract  of  suretyship,  see  67  A.  S.  275;  brief 
55   L.   552. 

As  to  rights  and  liabilities  of  one  who  becomes  surety  for 
surety,  see  21  L..   247. 

As  to  validity  of  promise  by  third  person  to  indemnify  surety, 
see  brief  55  L.  206. 

Account-books  of  the  former,  when  admissible  against  tlie  lat- 
ter.—See   37   A.    R.    234. 

Actions  and  defenses,  as  to  generally,  see  4  A.  C.  344;  7  A.  C. 
1061;  9  A.  C.  150. 

Admissibility  of  extrinsic  evidence  to  show  relation  of  prin- 
cipal and  surety  between  party  to  note. — See   20  L.  711. 

Alterations  of  instrument — Effect  of  on  surety's  liability. — 
See  7  L.  743. 

Alteration  of  terms  of  lease  as  discharge  of  sureties  of  lessee. 
—-See   6  A.  C.   359. 

Alteration  or  deviation  from  contract  as  a  discharge  of  surety. 
—See  2  A.  C.  764;  5  A.  C.  435;  8  A.  C.  241;  10  A.  C.  357. 

Amounts  of  liability  of  surety  on  official  bond. — See  12  A.  C. 
436. 

Apparent  principal,  wiien  may  show  himself  to  be  a  surety. — • 
See   17   A.   D.   416. 

Application  of  principal  and  surety's  rule  as  to  creditors  on 
assumption  of  debt  at  dissolution  of  partnership. — See  9  L.  N. 
S.  88. 

Bond  executed  in  blank,  surety,  when  bound  by  unautliorized 
insertions  in. — See  54  A.  R.  440. 

Breach  of  promise  to  surety  as  to  getting  other  sureties. — 
See  45  L.  321. 

Breach  of  warranty  in  the  principal  contract  as  defense. — See 
21   L.    406. 

Conflict  of  laws  as  to  capacity  of  married  woman  to  become 
surety  for   her  husband. — See   .")7   L.    513. 

1417 


§  2831  CIVIL  CODE.  [Div.III.Pt.IV. 

Constitutionality  of  statute  authorizing  surety  company  to  be- 
come surety  on  bonds  required  by  law. — See  2  A.  C.  487. 

Construction  of  contract  of  surety. — See  8  A.  C.  241;  10  A.  C. 
357. 

Contingency  of  claim — Against  surety  on  bond  for  title. — See 
58  L.   86. 

Same — Effect  of  against  estate  of  deceased  sureties. — See  58 
L.   82. 

Contract  of. — See  10  A.  C.  357. 

Contractor's  bond — Release  of  surety  on  by  premature  pay- 
ment to  principal,  extension  of  time,  discharge  of  surety  by. — 
See  4  A.  C.   883,   884;   5  A.   C.   435,  442;   9  A.  C.   259. 

Contribution — Between  sureties  and  the  remedies  for  its  en- 
forcement.—See   10   A.   S.    639;    70   A.   S.    444. 

Same — Between   cosureties. — See   9   L.    411. 

Creditor's  duty  to  surety. — See  115  A.  S.  85. 

Decree  against  principal,  effect  of  and  vacating  or  setting 
aside. — See   2   L.   644. 

Demand  and  notice  not  necessary  to  sustain  action  by  latter 
against    former. — See    13    A.    D.    122. 

Different  sets  of  sureties,  liability  as  between. — See  70  A.  S. 
443 

Discharge  of  surety — As  discharge  of  security  given  by  him. — 
See  12  A.  C.  550;  see  "Release,"  this  note. 

Same — Breach  of  promise  of  surety  as  to  getting  other  sure- 
ties.— See    45    L.    321. 

Same — By  alteration  in  or  deviation  from  contract. — See  2 
A.  C.   764;   5  A.  C.   435;   8  A.  C.   24;   10  A.  C.   357;  7  L.  743. 

Same — Same — Of  terms  of  lease  as  discharge  of  sureties. — 
See   6   A.   C.    359. 

Same — Same — On  contractor's  bond  by  premature  payment  of 
principal. — See    7    A.    C.    766. 

Same — By  alteration   of  instrument. — See   7  L.   743. 

Same — By  bank's  failure  to  apt>ly  principal's  deposit  accounts 
upon    note. — See    8   L.   N.   S.    944. 

Same — By  creditor's  acceptance  of  bill  or  note  from  debtor. — 
See   4   A.   C.   884. 

Same — By  discharge  in  bankruptcy  when  on  a  bond  given 
by  principal  in  action  at  law. — See  14  L.  N.  S.  507. 

Same — ^By  estoppel  to  enforce  contract  of  suretyship;  re- 
lease through  mistake. — See  13  L.  N.  S.  576. 

Same — By  extension  of  time — As  to  generally,  see  4  A.  C.  883; 
5   A.   C.   435;    9   A.   C.   259. 

Same — Same — For   levying   execution. — See    5   L.   N.    S.    764. 
Same — Same — In  consideration  of  payment  of  interest. — See  5 
A.   C.   442. 

Same — Same — To  grantee  who. has  assumed  mortgage  debt. — 
See   9  A.   C.   259. 

1418 


Tit.XIII,ch.II,art.T.]         SURETYSHIP.  §  2831 

Same — Same — To  principal  as  a  release  to  one  who,  on  the 
face  of  the  instrument  is  primarily  liable,  but  is  in  fact  a 
surety. — See    10   L.    N.    S.    129. 

Same — By  failure  of  bank  to  apply  general  deposit  in  dis- 
charge  of  surety  or  indorser. — See   7   A.   C.    1007. 

Same — By  failure  to  enforce  lialnlity  of  maker. — See  18  L. 
N.   S.    530. 

Same — By  fraud  of  principal. — See  2  A.  C.  353. 

Same — By    indulgence    of   principal. — See    5   A.   C.    435. 

Same — By   negligence   of   officials. — See   2   A.   C.    165,    170. 

Same — By  obligee's  surrender  of  original  obligation  and  ac- 
ceptance of  another    which   is   defective. — See   16  L.  N.   S.   343. 

Same — By  payment  of  promissory  note  by  maker,  which 
proves  ineffectual  as  a  satisfaction,  as  affecting  liability  of 
surety.— See   13   L.  N.   S.   204. 

Same — By  payment  voidable  under  bankruptcy  act. — See  9 
L.   N.    S.    581. 

Same — By  release  of  securities,   extent  of. — See  3  A.  C.   433. 

Same — By  surrender  of  security. — See  4  A.  C.  431;  10  A.  C. 
357. 

Same — Change  of  principals  to  obligation  as  a. — See  10  L. 
N.   S.    1160. 

Same — For  causes  existing  prior  to  his  entering  upon  con- 
tract of  suretyship. — See   63  A.   S.   327. 

Same — On  building  contractor's  bond  by  making  payments  not 
authorized  by  contract. — See   5  L.  N.   S.   418. 

Same — On  criminal  bail  bond  by  enlistment  of  principal  in 
military   or   naval   services. — See   6   A.   C.   616. 

Same — Surrender  of  lease  containing  option  to  purchase,  effect 
on    liability.— See    9    L.    N.    S.    557. 

Same — What  acts  amount  to. — See   7  L.   405;   13  L.   418. 

Distinguished  from  guaranty. — See  48  A.  S.  496;  6  L.  686; 
4  W.  &  P.  3183. 

Duration  of  liability  of  surety — As  to  generally,  see  1  A.  C. 
379;   5  A.  C.   945. 

Same — For  default  after  expiration  of  term. — See  1  A.  C.  383. 

Same — On  bail  bond,  whether  ends  with  conviction  of  prin- 
cipal or  continues  until  execution  of  judgment. — See  3  A.  C. 
930. 

Same — On  bond  of  officer  appointed  for  definite  term,  but  for 
whom  the  law  fixes  no  definite  term. — See  5  A.  C.   949. 

Duty  of  the  creditor  to  collect  of  the  principal  when  re- 
quested  by  the  surety. — See   34   A.  R.   580. 

Effect  of  contingency  of  claim  against  estate  of  deceased 
surety. — See   58  L.   82. 

Effect  of  death   of  cosurety. — See   21   L.   184. 

Enjoining  judgment — Against  or  in  favor  of  sureties. — See  31 
L.    59. 

1419 


§  2831  CIVIL  CODE.  [Div.III,Pt.IV. 

Execution   of,  formality  and  effect. — See  2  A.   C.    219;    3  A.   C. 
98;    4   A.    C.    344. 

Extension     of    time    by     the    legislature,     when     releases     the 
surety. — See    45    A.    R.    406. 

Failure  of  one  obligor  to  sig'n  bond,  when  releases  the  others. 
— See    25    A.    R.    706. 

Failure   of  principal   to  sign   obligation,  as   affecting  liability 
of    surety. — See    2    A.    C.    225. 

Foreign   surety   company,   power   to   act   as   surety. — See   48   L. 
592. 

Fraud  of  principal  as  discharge  of  surety. — See  2  A.  C.  353. 

Guaranty  by  surety  of  other  signatures. — See  49  L.   315. 

Indemnity — Given   to   one   surety,  right   of  another  to   benefit 
of. — See   15   A.   D.    526. 

Same — Held    by    one    surety,    right    of    another    to    participate 
in. — See    43    A.    D.    563. 

Same — Of   surety. — See    13    L.    340. 

Indulgence  to  principal  as   discharge   of   surety. — See   5   A.   C. 
435. 

Infant's  contract  of  suretyship. — See   18   A.   S.   614. 

Injunction- — Against  judgment  entered  on   confessions  against 
sureties. — See  30  L.   240. 

Same — Against  principal  to  prevent  his  transferring  his  prop- 
erty to  defraud  his  surety. — See  15  L.  N.  S.   484. 

Same — In  behalf  of  surety  against  judgment. — See  30  L.  567, 

Intervention,   right   of   surety,    in   action   against   principal,   or 
principal    in   action   against   surety. — See    68   L.    736. 

Judgment   against   principal — As   evidence   against   sureties. — 
See    9    A.    C.    153. 

Same — Effect   of. — See   7   A.   C.    1061;    9   A.   C.    150. 

Same — Extinction   of  by  surety's  payment. — See   68  L.   513-585. 

Same — Right  of  surety   to   sue   to   set   aside. — See    54   L.    765. 

Judgments  against  the  former  as  evidence  against  the  latter. 
— See  32  A.   D.   202;   83  A.   D.   380. 

Law  as   to    becoming  surety   for   a   surety   maker. — See    21    L. 
247-252. 

Liability  of  sureties — As  to  generally,  see  8  L.  N.  S.  1223;   9  L. 
N.   S.    889;    14   L.   N.   S.   376. 

Same — Actions  and  defenses,  as  to  generally,  see  4  A.  C.  344; 
6   A.   C.   616;   7   A.   C.   1063;    9   A.   C.   150. 

Same — Construction     of    contract. — See     8    A.     C.     241;     10     A. 
C.    357. 

Same — ^Duration  of  liability. — See  1  A.  C.  379;   5  A.  C.  945,   949. 

Same — Effect    of    judgment    against    principal. — See    7    A.    C. 
1061;  9  A.  C.   150,   153. 

Same — For   particular   debts    or   acts. — See    2   A.    C.    353;    4   A. 
C.    344;    6  A.  C.   917. 

Same — For  past  defaults,  or  additional  and  substituted  bonds 
of  guardian. — See   4   A.   C.   345. 

1420 


I 


Tit.Xin.ch.II.art.I.]  SURETYSHIP.  §2831 

Same — In  case  of  fraud  of  principal. — See  21  L.  409-413. 
Same — Not  to  be  cxtonded  by  implication. — See  13  L.   418. 
Same — Of   executor    or  administrator   for   debt    of   their    prin- 
cipal to  decedent. — See  2  A.  C.  355. 

Same — On    bond    of    public    officer   for    act    wholly    outside    of 
official   duty. — See  9   A.  C.   919. 

Same — On    official    bond,    not   affected   by    negligence    or    oml.s- 
sion   of  other  officer. — See  2   A.  C.   170. 

Same — Restriction    of  to   agreement. — See   3   L.    168;    4  L.    680; 
9  L.  353. 

Same — When    bound   by   signature. — See   8   L.    735. 
Same — When    the   name    of  the   principal    or   of   a   cosurety   is 
forged. — See   8   A.  S.    246. 

Limitation  of  actions  by  one  surety  against  another. — See   61 
A.  D.  504. 

Married  woman  as  to  becoming  surety  for  her  husband. — See 
57   K    513;   66   L.   632. 

Negligence    of    officers   as    discharge    of    surety. — See    2    A.    C; 
165.   170. 

Notice  of  default  necessary  to  bind  guarantor. — See  20  L.  257. 
Number    of    sureties. — See    9    A.    C.    707. 

Payment — Of   debt   by  bankrupt  as   a   preference   to   a   surety 
therefor. — See   18  L.   N.   S.   660. 

Same — Of  whole  debt  by  surety  as  essential   to  right  of  sub- 
rogation to  creditors'  securities. — See  6  A.  C.  204. 

Principal    and    surety,    admissibility    of    extrinsic    evidence    to 
show  relation  of  to  note. — See  20  L.  711. 

Priority    of   claims   of   sureties   against   property   in    hands    of 
receiver  over  recorded  liens. — See   2  L.  N.  S.   1026. 

Proceedings   by   surfty    to   compel    principal    to   discharge    his 
obligation.— See   117   A.   S.   35. 

Qualiflrations  of  surety  company  as  surety  upon  appeal   bond. 
—See    3   A.   C.    98. 

Receipts    of    ofllcers,    when    evldonce    against    their    sureties. — 
See    3    A.    S.    749. 

Relation    of    retiring    partner    as    surety    upon    dissolution    of 
partnership. — See    1    A.   C.    725. 

Release — Of  mortgagor  as  surety  by  mortgagee  dealing  with 
vendee   who   has   assumed    mortgage. — See    16    L.    85. 

Same — Of    principal,    wlien    may    not    relieve    surety. — See    73 
A.    D.    297. 

Release   of  surety — As  affecting  liability   of   principal. — See   S 
A.   C.   468;   see   "Discharge,"   this  note. 

Same — By   alteration   of  Instrument. — See  7  L.   743. 
Same — By  an  acceptance  or  other  evidence  of  Indebtedness. — 
See    33    A.    R.    85. 

Same — By   changing   tlie   duties   or   obligations    of   the    princi- 
pal.— See   6   A.  S.    458. 

1421 


§  2831  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — By  indulgence  of  principal. — See  30  A.  D.  257. 

Same — What  operates  as. — See  28  A.  S.  691. 

Relief  of  surety  in  equity. — See   7   L.    84. 

Right  of  surety — As  to  generally,  see   5  A.  C.   435;   7   A.   C.   78. 

Same — On  appeal  or  supersedeas  bond,  to  look  to  the  sure- 
ties on  a  prior  bond  of  the  same  principal. — See  6  L.  N.  S.   1021. 

Same — On  bail  bond  to  pursue  principal  into  another  state 
for  the   purpose  of  arresting  him. — See   14  L.    605. 

Same — On  payment  of  judgment. — See  16  L.   115. 

Samc-^Prior  to  obtaining  a  judgment  or  lien,  to  enjoin  prin- 
cipal's transfer  of  property  to  defraud  him  when. — See  15  L. 
N.    S.    484. 

Same — To   control  application   of  collaterals. — See   12   L.   131. 

Same — To  interpose  an  independent  cause  of  action  in  favor 
of  the  principal  against  the  plaintiff  as  a  defense  or  counter- 
claim.— See  18  L.   N.  S.   600. 

Same — To  pay  debt  of  principal. — See   1   L.    642. 

Same — To  set  off — Generally,  see   13   L.    239. 

Saine — To  subrogation  on  payment  of  whole  debt. — See  6  A. 
C.    204. 

Same — To  sue  to  set  aside  judgment  against  principal. — See 
54    Lr.    765. 

Rights  of  creditors — Against  principal — As  to,  generally,  see 
3   A.   C.    465. 

Same — Same — Release  of  surety  as  affecting. — See  3  A.  C.  468. 

Same — To  be  subrogated  to  security  given  to  surety. — See  6 
A.  C.  395. 

Set-off — In  bankruptcy  cases. — See  55  L.   68. 

Same — In  insolvency  cases. — See  17  L.   460. 

Same — Rights  of  surety,  as  to  generally,  see  13  L.   239. 

Signature  of  name  of  partnership  below  the  name  of  another 
signer,  does  the  fact  raise  a  presumption  that  it  is  as  a  surety 
only.— See    10   L.   N.   S.    426. 

Specific  performance  of  contract  to  give  indemnity  to  surety. 
— See    6   L.   N.   S.    590. 

Statute  of  frauds — As  to  contract  between  sureties. — See  39 
L.    378. 

Statute  of  limitations — Time  commences  to  run  to  bar  an 
action  against  cosurety  for  contribution,  when. — See  18  L.  N. 
S.    585. 

Subrogation,  as  to  right  of  by  surety. — See  1  L.  642;  5  L. 
282;   7  L.   84;   9  L.   277;   29  L.   240-248. 

Subrogation  of  creditor  to  securities  held  by  surety. — See  5 
L.   790. 

Successive  bonds,  liability  of  sureties  upon. — See  10  A.  S.  843. 

Surety  company — Constitutionality  of  statute  authorizing,  to 
become  surety  upon  bonds  required  by  law. — See  2  A.  C.  487. 

Same — Foreign,  power  to  act  as  surety. — See  48  L.  592. 

1422 


I 

i         TJt.XIII.ch.n.art.I.]      APPARENT  PUINCII'AI..  §2832 

Same — Power  to  act  as  surety. — See  48  L.  589. 

Same — Qualifications  of  as  surety  upon  appeal  bond. — See  3 
A.   C.   98. 

Suretyship  of  wife  under  mortgage  of  separate  property  fi)r 
husband's  debts. — See  5  A.  C.   643. 

Surrender  of  security  as  discharge  of  surety. — See  3  A.  C. 
431;   7   A.  C.    1007:   10   A.  C.   357. 

Termination  of,  right  of  surety  to  bring  about  by  notice  to 
obligee  before  breach   of  contract. — See   11  A.  C.   272. 

Usury  in  consideration  for  extension,  effect  of. — See  52  L.  312. 

Validity  and  effect  of  bond  having  a  fewer  than  the  required 
number  of  sureties. — See  9  A.  C.   707. 

Validity  of  agreement  with  surety  as  to  custody  and  control 
of  trust  funds. — See  16  L.  N.  S.  994. 

Validity  of  incumbrances  by  husband  and  wife  of  properly 
held  by  the  entireties  to  secure  the  individual  debt  of  the  hus- 
band.— See   66   L.   632. 

Validity  of  sale  to  surety  on  executor's  bond. — See  4  L.  N. 
S.    820. 

Vendor  as  surety  in  respect  to  mortgage. — See  5  L.  277;  8 
L.   317. 

Who  may  become  surety. — See  2  A.  C.  485,  487;  3  A.  C.  98. 

When  surety   bound  by  signature. — See  8  L.  735. 

S  l»s:{->.      VriVVKKM  THIX  IIVVL  .H.VV  SHOW  THAT  HK  IS 

M'liETV.  One  who  aitpear.s  tu  he  a  principal,  whether  by  the 
terms  of  a  written  instrument  or  otherwise,  may  show  that 
he  is  in  fact  a  surety,  except  as  against  |)er.sons  who  have 
acted  on  the  faith  of  his  ai)i)arent  character  of  principal. 

llUliirj:      i:ii:i<ttMl   .March    21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

55  C.  340,  342  (construed):  60  C.  387.  392  (applied);  62  C. 
496,    502,    503    (cited);    76    C.    127,    130,    17    P.    937    (construed):    77 

C.  476.  477,  19  P.  882,  883  (applied);  109  C.  406,  409.  42  P.  159 
(applied »:  114  C.  620.  625.  626.  627.  46  P.  613  (applied);  136  C. 
368,  371,  68  P.  1032  (applied);  137  C.  685,  692,  70  P.  771  (applied); 
139  C.  416,  418,  73  P.  179  (npplledl;  145  C.  497,  498,  78  P.  497 
(cited);    3   C.   A.    696.   699.  86    P.   981    (applied). 

As  to  nuiiiy  miscellaneous  matters  as  to  svirotyshlp.  see  nolo 
t  2S31.    ante. 

As  to  right  of  nppar<nt  principal  to  show  that  In-  Is  siir.ty. 
see   17   A.  J\   416;   32   A.    D.   256;   34   A.   D.   272:   43   A     !•     i  •    A 

D.  292;    85    A.    D.    58. 


1423 


§§  2836, 2837  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  II. 

LIABILITY  OF  SURETIES. 

§  2S36.     Limit  of  surety's  obligation. 
§  2837.     Rules  of  interpretation. 

§  2838.     Judgment  against  surety  does  not  alter  the  relation. 
§  2839.     ^'urety  exonerated  by  performance  or  offer  of  perform- 
ance. 
§  2840.     Surety  discharged  by  certain  acts  of  the  creditor. 

§  2836.  LIMIT  OF  SURETY'S  OBLIGATION.  A  surety  can- 
not be  held  beyond  the  express  terms  of  his  contract,  and  if 
such  contract  prescribes  a  penalty  for  its  breach,  he  cannot 
in  any  case  be  liable  for  more  than  the  penalty. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

71  C.  295,  300,  12  P.  167,  169  (referred  to);  81  C.  528,  532,  537, 
22  P.  920,  922,  923  (modifying  §2837,  applied);  108  C.  562,  565, 
41  P.  445  (applied);  116  C.  32,  36,  47  P.  772  (applied);  119  C. 
249,  257,  47  P.  124,  51  P.  340  (construed);  2  C.  A.  561,  565,  83 
P.  1086,  1087  (applied). 

As  to  liability  of  surety  commensurate  with  that  of  principal, 
see  38  A.   S.   712. 

As  to  liability  of  sureties  on  official  bond,  see  Kerr's  Cyc. 
Pol.  C.  art.  IX. 

As  to  liability  of  surety  when  name  of  principal  or  cosurety 
is  forged,  see  8  A.  S.   246. 

As  to  limitation  of  liability  of  surety  to  terms  of  contract, 
see  74  A.  D.  545;  7  A.  S.  372;  38  A.  S.  702;  also  3  L.  168,  482; 
9   L.   353;   13  L.   418. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,   ante. 

§2837.  RULES  OF  INTERPRETATION.  In  interpreting 
the  terms  of  a  contract  of  suretyship,  the  same  rules  are  to 
be  observed  as  in  the  case  of  other  contracts. 

Hi-story:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.   for  3  pars,  annotation. 

20  P.  553,  555  (applied);  78  C.  443,  448,  21  P.  2,  4  (referred 
to);  80  C.  611,  618,  22  P.  327,  329  (applied);  81  C.  528,  532,  22 
P.    920,    922    (construed);    100    C.    100,    104,    34    P.    627    (applied); 

1424 


i       Tit.XIII.ch.II,art.II.]      EXONERATION.  §§2838-2840 

119  C.  249,  257,  47  P.  124,  51  P.  340  (applied  with  $2830);  138 
C.   724,   730,   72   P.    352    (applied). 

As  to  construction  of  contract  of  suretyship,  see  60  A.  S.  419; 
21  L.  247. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
i  2831,   ante. 

§2838.  JUI)OME>T  AGAINST  SIRETV  D(»ES  >0T 
ALTER  THE  RELATION.  Notwithstanding  the  recovery  of 
judgment  by  a  creditor  against  a  surety,  tiie  latter  still  occu- 
pies the  relation  of  surety. 

HIcitory:     Enacted  March  21,  1872. 

As  to  agreement  by  creditor  after  Judgment  not  to  collect, 
see  Kerr's  Cyc.  C.  C.  §  2838,   note. 

As  to  continuation  of  relation  of  principal  and  surety  after 
judgment,   see   42   A.    D.    67;    44   A.   D.    384;    46   A.    D.    434. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
$  2831,  ante. 

As  to  release  of  surety  by  extension  of  time  after  judgment, 
see  Kerr's  Cyc.  C.  C.  5  2819  note. 

§2s:}<>.  SIRKTV  KXONKH  ATEI)  HY  1»ERF(M{.MAN(  E  i)\i 
OFFER  OF  rERF(M{.>IAN(E.  FcMlonnaiice  of  the  priiiciiial 
obligation,  or  an  offer  of  such  performance,  duly  made  a.s  pro- 
vided in  this  code,  exonerates  a  surety. 

IIlNtory:  Enacted  March  21,  1872;  amended  March  30.  1874. 
Code   Amdts.    1873-4,    p.    i;GO. 

See  Kerr's  Cyc.  C.  C.  for  13   purs,  annotation. 

98  C.  390,  399.  33  P.  433  (construed,  not  affected  l>y  Jir)O0>; 
139  C.  416,  418,  73  P.  179   (applied). 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
t  2831,  ante. 

§2840.  SIRETV  I)IS(  11  AlUiEl)  RV  (ERTAIV  \(  |s  OF 
THE  CREDITOR.     A  surety  is  exonerated: 

1.  In  like  manner  with  a  guarantor; 

2.  To  the  extent  to  wliich  lie  is  i)rejudiced  by  any  act  of 
the  creditor  which  would  naturally  j)rove  injurious  to  the 
remedies  of  the  surety  or  inconsistent  with  his  iii:hts.  or 
which  lessens  his  security;  or, 

3.  To  the  extent  to  which  ho  is  prejudiced   by  aii  nnnssKin 

1425 


§  2840  CIVIL  CODE.  [Div.III,Pt.IV. 

of  the  creditor  to  do  anything,  when  required  by  the  surety, 
which  it  is  his  duty  to  do. 

History:      Enacted  March   21,   1S72. 

See   Kerr's  Cyc.  C.   C.  for  8   pars,  annotation. 

6  P.  853,  857  (cited);  77  C.  476,  477,  19  P.  882,  883  (applied); 
78  C.  443,  448,  21  P.  2,  4  (referred  to);  87  C.  423,  25  P.  552,  553 
(cited);  91  C.  206,  210,  27  P.  648,  649  (applied);  96  C.  623,  626, 
641,  29  P.  500,  503,  31  P.  588,  18  L.  465  (referred  to  in  dis.  op.); 
112  C.  31,  35,  53  A.  S.  155,  44  P.  305  (applied);  114  C.  620,  625, 
626,  627,  46  P.  613  (construed);  120  C.  495,  501,  52  P.  848 
(applied);  130  C.  245,  254,  62  P.  466,  600  (applied);  139  C.  416,  418, 
73  P.  179  (applied);  144  C.  91,  96,  77  P.  765  (applied);  145  C. 
241,  244,  78  P.  734  (applied);  146  C.  518,  520,  80  P.  695,  696 
(applied). 

As  to  discharge  of  surety  by  concealment  by  obligee  of 
default  of  employee,  see  note  54  L.  945;  13  A.  D.  463;  6  A.  R. 
458;  33  A.  R.  63;  39  A.  R.  186;  62  A.  S.  154;  64  A.  S.  479. 

As  to  discharge  of  surety  by  change  in  principal's  duties,  see 
32  A.  R.   242;   60  A.   S.   419. 

As  to  discharge  of  surety  by  his  death,  see  68  A.  D.  763;  30 
A.  R.   56;   22  A.  S.   814;   63   A.  S.   63. 

As  to  discharge  of  surety  in  general,  see  28  A.  S.  691;  see  also 
Kerr's  Cyc.  C.  C.  §§  2819,  2845  and  notes. 

As  to  discharge  of  surety  by  act  of  creditor,  see  12  L.  418; 
29  A.  D.  225;  38  A.  D.  379;  90  A.  D.  415;  54  A.  S.  257;  43  A.  D. 
408;   74   A.  D.   545. 

As  to  discharge  of  surety  by  matters  existing  at  or  prior  to 
entering  into  contract,   see   63  A.  S.   327. 

As  to  discharge  of  surety  by  running  of  statute  of  limitations 
against  principal,   see   60  A.   S.   208. 

As  to  exoneration  of  surety  by  concealment  by  employer, 
see  62  A.  S.  926;  67  A.  S.  319;  21  L.  411. 

As  to  exoneration  of  surety  in  same  manner  as  guarantor,  see 
Kerr's  Cyc.  C.  C.  §  2819  and  note. 

As  to  liability  of  sureties  on  employee's  bond  as  to  duties  in 
capacity  indemnified  though  other  duties  are  performed,  see 
42  A.   R.   404. 

As  to  liability  of  surety  on  a  new  promise  after  discharged 
by  statute  of  limitations,  see  68  A.  S.  516. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,  ante. 

As  to  release  of  surety  by  neglect  of  creditor  to  sue  principal, 
see   Kerr's  Cyc.   C.   C.   §  2823. 

As  to  release  of  surety  by  release  of  cosurety,  see  Kerr's  Cyc. 
C.  C.  §  1543  and  note. 

As  to  running  of  statute  of  limitations  against  surety,  see 
Kerr's  Cyc.  C.  C.  P.  title  11. 

1426 


J 


Tit.XIII,ch.lI,art.lI.]      SURKTY'S  RIGHTS.  §§  2844,  2845 

ARTICLE   III. 

RIGHTS  OF  SURETIES. 

§  2844.     Surety  has  rights  of  guarantor. 

§  2845.     Surety  may  require  the  creditor  to  proceed  against  the 

principal. 
§  2846.     Surety    may    compel    principal    to    perform    obligations, 

when  due. 
§  2847.     A  prinQipal  bound  to   reimburse  his  surety. 
§  2848.     The  surety  acquires  the  right  of  the  creditor. 
§  2849.     Surety  entitled  to  benefit  of  securities  held  by  creditor. 
§  2850.     The  property  of   principal   to   be   taken   first. 

§  2844.  SURETY  HAS  RIGHTS  OF  GUARANTOR.  A  surety 
has  all  the  rights  of  a  guarantor,  whether  he  becomes  per- 
sonally responsible  or  not. 

History:     Enacted  March   21,   1872. 

77  C.  476,  477,  19  P.  882  (applied);  78  C.  443,  448,  21  P.  2,  4 
(referred  to);  105  C.  434,  441,  39  P.  20  (applied);  109  C.  211,  221. 
41  P.  1028  (applied);  110  C.  658,  665,  43  P.  202  (applied);  120  C. 
495,  501,  52  P.  848  (applied);  141  C.  674,  677,  75  P.  296  (applied); 
145  C.   241,  244,   78  P.   734    (applied). 

As  to  indemnity  of  surety,  see  13  L.  340. 

As  to  liability  of  surety  on  obligation  obtained  by  fraud,  see 
21    L.    409. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,  ante. 

As  to  necessity  of  demand  or  notice,  see  Kerr's  Cyc.  C.  C. 
§  2807    and    note. 

As  to  right  of  surety  to  revoke  suretj'ship  of  continuing  lia- 
bility, see  Kerr's  Cyc.  C.  C.   §  2815  and  note. 

As  to  right  of  surety  to  take  advantage  of  usurious  transac- 
tions, see  22  A.   R.   290,   293. 

§2845.  SURETY  MAY  RE^UIKE  THE  CREDITOR  TO 
PROCEED  AOAI>ST  THE  THIXirAL.  A  surety  may  re- 
quire his  creditor  to  proceed  against  the  principal,  or  to  pur- 
sue any  other  remedy  in  his  power  which  the  surety  cannot 
himself  pursue,  and  which  would  lighten  his  burden :  and 
if  in  such  case  the  creditor  neglects  to  do  so,  the  surety  is 
exonerated  to  the  extent  to  which  he  is  thereby  prejudiced. 

History:     Enacted  March   21,  1872. 
1427 


§§  2846,  2847  CIVIL  CODE.  [Div.in,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

53  C.  686,  689    (construed). 

As  to  discharge  of  surety  by  failure  of  creditor  to  collect  debt 
of  principal  after  request  by  surety,  see  7  A.  D.  370;  11  A.  D. 
589;  also  note  7  L.   405;  brief  27  L.   257. 

As  to  discharge  of  surety  by  failure  of  creditor  to  sue  prin- 
cipal upon  request,  see  34  A.  R.  580. 

As  to  enjoining  judgment  against  or  in  favor  of  surety,  see 
31   L.   59. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,  ante. 

§2846.  SIJJETY  MAY  COMPEL  PRINCIPAL  TO  PER- 
FORM ORLIGATIOXS,  WHEN  DUE.  A  surety  may  compel  his 
principal  to  perform  the  obligation  when  due. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
53  C.  686,  689    (construed). 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,  ante. 

§2847.     A     PRINCIPAL     BOUND     TO     REIMBURSE     HIS 

SURETY.  If  a  surety  satisfies  the  principal  obligation,  or  any 
part  thereof,  whether  with  or  without  legal  proceedings,  the 
principal  is  bound  to  reimburse  what  he  has  disbursed,  in- 
cluding necessary  costs  and  expenses;  but  the  surety  has  no 
claim  for  reimbursement  against  other  persons,  though  they 
may  have  been  benefited  by  his  act,  except  as  prescribed  by 
the  next  section. 

HlMtory:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

53  C.  686,  689  (construed);  67  C.  238,  243,  7  P.  664  (applied);  22 
P.  203,  205  (applied);  117  C.  195,  202,  49  P.  8,  9  (construed);  121 
C.  419,  423,  66  A.  S.  44,  53  P.  933  (applied);  122  C.  669,  673,  55 
P.  689  (principal  is  liable  to  sureties);  127  C.  525,  527,  59  P. 
989  (applied);  133  C.  574,  578,  65  P.  1094  (applied — payment  of 
note  by  accommodation  indorser,  as   surety  for  corporation). 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,  ante. 

As  to  right  of  surety  to  maintain  assumpsit  against  princi- 
pal, see  38  A.  D.   44. 

1428 


Tlt.XIII,ch.n.ait.lII.]      ACQUIHKD  RIGHTS.  §§2848.2849 

As  to  riKlit  of  surely  to  sue  principal  before  actual  payment, 
see  24  A.  D.  324;  to  principal,  see  1  A.  D.  47. 

As  to  right  of  surety  to  ."^ue  principal  wltliout  notUe  of  pay- 
ment,   see    24    A.    D.    324. 

S2>^t^.    niK  siHKiv  A(  (M  m:i:s   rm;  ijh.hi   ok   iiik 

CKKIHTOK.  .\  surety.  ui)ou  satisfying  the  obliKatidii  of  the 
liriii(i|ial.  is  entitled  to  enforce  every  remedy  which  the 
creditor  then  has  against  the  principal  to  the  extent  of  reim- 
bursing what  he  has  expended,  and  also  to  require  all  his 
cosureties  to  contribute  thereto,  without  regard  to  the  order 
of  tin)o  in  which  they  became  such. 

lllMtoryt      Knacted   March   21.    1S72. 

See   Kerr's  Cyc.   C.  C.   for   10   pars,  annotation. 

53  C.  686.  6S9  (construed)  67  C.  23S.  243.  7  P.  664  (appli.-l..  -. 
\\  203.  205  (applied):  51  P.  20.  21  (applied);  122  C.  669.  673,  55 
P.  689  (principal  Is  liable  to  sureties);  130  C.  245.  254,  62  P.  466. 
600  (api)lled);  133  C.  674.  578,  65  P.  1094  (referred  to);  139  C. 
II.  49.   72  P.   440    (applied   In  dis.  op.);   145  C.   497.   499,   7S   P.    1056 

Ited):  152  C.  443.  448.  93  P.  75  (subroKatlon  to  all  rights  and 
■  inrrlli-s  of  Judgment  <redltor;  1  C.  A.  I).  173  (referr<d  to); 
I  C.  A.  251.  253.  81  P.  1115  (construed  with  J5  1473.  2849 — ex- 
tinguishment of  obligation  through  paymi-nt  by  surety);  6  C. 
A.  686.  6S8.  92  P.  1035  (right  of  cosurety  to  subrogation);  7  C. 
A.  124.  126.  93  P.  893.  894   (applleil — payment  of  note  by  surety). 

Ah  to  contribution  against  an   insolvent  cosurety,  see  45  A.   It. 

As  to  contribution  between  sureties,  see  20  A.  D.  659;  27  A. 
1>.  612:  52  A.  n.  641;  56  A.  D.  6S;  K3  A.  I>.  390;  10  A.  S.  639;  70 
A.  S.  443;  9  L.  411;   21  Is.  252;  32  A.  D.  96;  brief  22  I..  444.   44$. 

Am  Iu  discharge  of  surety  by  his  deittli  from  liability  to  con* 
tribute,  see  68   A.    P.   7(>4. 

As  to  effect  i>f  statute  of  frauds  upon  contracts  between  suro- 
tl.B  to  fix   their  liabilities,  see  39  U  378. 

As  to  many  miscellaneous  matters  as  tn  suretyship,  s^e  note 
I  2831.  ante. 

As  to  rights  <if  surety  who  has  paid  debts  of  principal,  see 
1   T>.  641:   7  K.  84. 

As  to  statute  of  limitations  In  artlon  between  auretles.  see  tl 
A.   D.   604. 

As  to  subrogation  of  surety  of  rights  of  creditor,  see  SI  A.  D. 
•1.   tl    A.  D.  384;  90   A     W   115.  brief  45  L.  IBt,  «7. 

r>»'».  SI  IM  1\  IMITi.in  TO  nK>KFIT  OF  SF(  IIU- 
IIFS    m.l.I)    in     (IIIDIIOH,      A    .^ui.tv    is    .niitl.d    m    the 

1429 


§  2850  CIVIL  CODE.  [Div.III.Pt.IV. 

benefit  of  every  security  for  the  performance  of  the  principal 
obligation  held  by  the  creditor,  or  by  a  cosurety  at  the  time 
of  entering  into  the  contract  of  suretyship,  or  acquired  by 
him  afterwards,  whether  the  surety  was  aware  of  the  secur- 
ity or  not. 

Ht.story:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

96  C.  626,  641.  29  P.  500,  503,  31  P.  588,  18  L.  465  (referred  to 
in  dis.  op.  by  Harrison,  J.);  114  C.  620,  625,  626,  627,  46  P.  613 
(applied);  119  C.  67,  70,  51  P.  14  (referred  to);  127  C.  365,  371,  78 
A.  S.  60,  59  P.  762  (applied);  133  C.  574,  578,  65  P.  1094  (referred 
to);  139  C.  41,  49,  50,  52,  72  P.  440  (applied  in  dis.  op.  by  Shaw, 
J.);  1  C.  A.  D.  173,  174  (construed  with  §1473,  ante);  1  C.  A. 
251,  253,  81  P.  1115  (construed  with  §§  1473,  2848 — surety's  pay- 
ment of  obligation  extinguishes  it — remedy);  3  C.  A.  696,  700, 
86  P.  981  (contract  of  suretyship — right  to  benefit  of  collateral 
security);  6  C.  A.  686,  689,  92  P.  1035  (right  of  cosurety  to  sub- 
rogation); 7  C.  A.  124,  125,  93  P.  893,  894  (applied  with  §§1473, 
2848 — full  performance  of  obligation,  by  any  person,  on  behalf 
of  principal,  with  his  assent,  extinguishes  obligation — remedy 
of  surety). 

As  to  indemnity  to   surety,   see  brief,  28  L.   400. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,  ante. 

As  to  right  of  sureties  to  indemnity  taken  by  cosurety,  see  15 
A.   D.   526;   27  A.  D.   720;   43  A.  D.   563;   71   A.  S.   906. 

As  to  right  of  surety  to  control  application  of  collaterals,  see 
12    L.    131. 

As  to  right  of  surety  to  enforce  judgment  which  he  has 
paid,    see    16    L.    115. 

As  to  right  of  surety  to  security  in  hands  of  creditor,  see  34 
A.  D.  413;  37  A.  D.  458;  7  A.  S.  372;  12  A.  S.  506;  5  L.  288;  9  L. 
227;  brief  1   L.  715. 

§2850.  THE  PKOPERTY  OF  PRINCIPAL  TO  BE  TAKEN 
FIRST.  Whenever  property  of  a  surety  is  hypothecated  with 
property  of  the  principal,  the  surety  is  entitled  to  have  the 
property  of  the  principal  first  applied  to  the  discharge  of 
the   obligation. 

HiMtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
119  C.   67,   70,   51  P.   14    (referred  to);   120  C.  495,   501,  52  P.   848 
(applied). 

1430 


Tit.XIII.ch.lI.iirt.lV.l         CREDITOR'S    UIOHTS.  $2854 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
S  2831.   ante. 

As  to  rlfflit  of  surety  to  set-oflf  In  favor  of  principal,  see  47 
A.   S.  592;  also  17  L.  R.  A.  460. 

As  to  rlfflit  of  surety  to  s<»t  up  counterclaim  cxlstinR  in  favor 
of  Ills  principal  against  plaintiff,  see  Kerr's  Cyc.  C.  C.  P.  |  438 
and  note. 


AUTirLK    IV. 
RIGHTS  OF  CHKDITORS. 

S  2.s.">4.      Creditor  entitled  to  benefit  of  securities  hild   l>y   sur.^ty. 

^2s:a.   (kfditor  entitled  to  kenefit  of  SECr- 

KITIES  lli;i,I>  IJV  SI  HKTV.  A  creditor  is  entitled  to  the 
benefit  of  everything  wliich  a  surety  has  received  from  the- 
debtor  by  way  of  security  for  the  performance  of  the  obli- 
gation, and  may,  upon  the  maturity  of  the  obligation,  compel 
the  application  of  such  security  to  its  satisfaction. 

HlMtoryi      Enacted  March    21,    1872. 

See   Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

109  C.   133,   133,  186.   41   V.  868    (applied). 

As  to  many  miscellaneous  matters  as  to  surrty.shlp.  see  note 
I  2831,  ante. 

As  to  riKht  of  creditor  to  securities  In  hands  of  surety,  see  27 
A.   D.   720. 


1431 


§§  2858-2861  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  V. 

LETTER  OF  CREDIT. 

§  2858.  Letter  of  credit,  what. 

§  2859.  How  addressed. 

§  2860.  Liability   of  tlie   writer. 

§  2861.  Letters  of  credit  eitlier  general  or  special. 

§  2862.  Nature   of  general   letter  of  credit. 

§  2863.  Extent  of  general  letter  of  credit. 

§  2864.  A  letter  of  credit  may  be  a  continuing  guaranty. 

S  2865.  When  notice  to  the  writer  necessary. 

§  2866.  The  credit  given  must  agree  with  the  terms  of  the  letter. 

§2858.  LETTEE  OF  CREDIT,  WHAT.  A  letter  of  credit 
is  a  written  instrument,  addressed  by  one  person  to  another, 
requesting  tlie  latter  to  give  credit  to  the  person  in  whose 
favor  it  is  drawn.' 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
125  C.  472,  481,  73  A.  S.  64,  58  P.  164   (applied). 
As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,    ante. 

§2859.  HO>V  ADDRESSED.  A  letter  of  credit  may  be 
addressed  to  several  persons  in  succession. 

History:     Enacted  March   21,   1872. 

§28(50.    LIABILITY   OF  THE   WRITER.     The  writer  of  a 
letter  of  credit  is,  upon  the  default  of  the  debtor,   liable  to 
those  who  gave  credit  in  compliance  with  its  terms. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
70  C.   380,   384,  59  A.  R.  416,  11  P.   636    (applied). 
As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,    ante. 

§2861.  LETTERS  OF  CREDIT  EITHER  GENERAL  OR 
SPECIAL.  A  letter  of  credit  is  either  general  or  special. 
When  the  request  for  credit  in  a  letter  is  addressed  to  speci- 

1432 


k      Tlt.XIIF.fh.FI.art.V.]        I.ETTER  OF  CREDIT.  §§2862-2865 

fled  persons  by  name  or  descrii)tion,  the  letter  is  special. 
All  other  letters  of  credit  are  general. 

lllM<or.v:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
f        8  2831,  ante. 

As  to  what  constitutes  a  general  letter  of  credit,  see  Kerr's 
Cyc.  C.  C.  §  2861,  note. 

§2862.     \ATLKE    OF    GENERAL    LETTER    OF    (  REDIT. 

A  general  letter  of  credit  gives  any  person  to  whom  it  may 
be  shown  authority  to  comply  with  its  request,  and  by  his 
so  doing  it  becomes,  as  to  him,  of  the  same  effect  as  if 
addressed   to  him   by  name. 

IIlHtury:     Enacted  March   21,   1872. 

As  to  liability  of  general  letter  of  credit,  see  28  A.  R.   347. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
{  2831,    ante. 

As  to  nature  of  general  letter  of  credit,  see  Kerr's  Cyc.  C.  C. 
t  2862,    note. 

5  2S63.     EXTENT    OF    (GENERAL    LETTER    OK    (REDIT. 

Several  persons  may  successively  give  credit  upon  a  general 
h'ttt-r. 

Illsiiir.v:     Eiiact.Hl  March   21,   1872. 

i5  2s<5l.  A  LKTTKR  OF  CREDIT  .MAY  RE  A  TONTIM'- 
I>(«  (>rARA\TV.  if  the  parties  to  a  letter  of  credit  appear, 
by  its  terms,  to  contemplate  a  course  of  future  dealing  be- 
tween the  parties,  it  is  not  exhausted  by  giving  a  credit,  even 
to  the  amount  limited  by  the  letter,  which  is  subsequently 
reduced  or  satisfied  by  payments  made  by  the  debtor.  b\it  is 
to  be  deemed  a  continuing   guaranty. 

lllH(..r>:      Kn.ut.d  March   21,    1S72. 

!j2s«r..     »IIE>    NOTICE   TO  THF    »RITKR    NK(  KSSVRY. 

The  writer  of  a  letter  of  credit  is  lial)]e  for  credit  given  upon 
it  without  notice  to  him.  unless  its  terms  express  or  imply 
the  necessity  of  giving  notice. 

Ilintory:      Knarlo.l    M:iroli    21.    1872. 
1433 


§2866  CIVIL  CODE.  .[Div.III,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
125  C.   472,   481,  73  A.  S.  64,   58  P.  164    (applied). 
As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,    ante. 

§2866.  THE  CREDIT  GIVEN  MUST  AGREE  WITH  THE 
TERMS  OF  THE  LETTER.  If  a  letter  of  credit  prescribes 
the  persons  by  whom,  or  the  mode  in  which,  the  credit  is  to 
be  given,  or  the  term  of  credit,  or  limits  the  amount  thereof, 
the  writer  is  not  bound  except  for  transactions  which,  in 
these  respects,  conform  strictly  to  the  terms  of  the  letter. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

61   C.    405,   430    (applied   in   dis.    op.). 

As  to  limitation  of  letter  of  credit  to  person  addressed,  see 
53    A.    D.    289. 

As  to  many  miscellaneous  matters  as  to  suretyship,  see  note 
§  2831,    ante. 


1434 


i        Tit.XIV.ch.I.art.I.]  LIENS— DEFINITION.  §2872 


TITL?:    XIV. 
LI  EX. 

[For   Commissioners'    comment    on    this   title,    see    Kerr's   Cyc. 
C.  C] 

Chapter  I.  Liens  in  General,   §§2872-2913. 

II.  Mortgage,    §§  2920-2973. 

III.  Pledge,  §§  2986-3011. 

IV.  Bottomry,    §§3017-3029. 

V.  Respondentia,  §§  3036-3040. 

VI.  Other  Liens,  §§3046-3065. 

VII.  Stoppage  in  Transit,   §§  3076-3080. 


CHAPTER  I. 

LIENS    IN   GENERAL. 

Article    I.  Definition  of  Liens,  §§  2872-2877. 

II.  Creation  of  Liens,.  §§  2881-2884. 

111.  Effect  of  Liens,   §§2888-2892. 

IV.  Priority  of  Liens,  §§  2897-2899. 

V.  Redemption  from  Liens,  §§  2903-2905. 

VI.  Extinction  of  Liens,   §§2909-2913. 


.\UTICLK   I. 

DIOF^INITION   OF  LIEN. 

§  2872.  Lien,    wliat. 

8  2873.  Liens,   pcncrnl   or  special. 

S  2874.  General    lien.   what. 

§  2875.  Special  lien,  what. 

§  2876.  Prior  liens. 

§  2877.  Contracts  subject  to  provi.slons  of  this  chapter. 

§  2S72.     LIE>',  WHAT.    .\  lien  is  a  charge  imposed  in  some 
mode  other  than   l)y   a   transfer   in   trust  upon   specific   prop- 

1435 


§  2872  CIVIL  CODE.  [Div.III.Pt.IV. 

erty   by   which   it  is   made   security   for   the   performance   of 
an  act. 

History:  Enacted  March  21,  1872;  amended  February  15, 
1878,   Code   Amdts.    1877-8,  p.    88. 

See  Kerr's  Cyc.  C.  C.  for  14  pars,  annotation. 

118  C.  413,  419,  50  P.  546  (construed  and  applied):  121  C.  379, 
384,  53  P.  813  (construed  and  applied);  126  C.  467,  469,  77  A.  S. 
192,  58  P.  907  (construed  and  applied);  149  C.  316,  320,  86  P. 
706  (construed  and  applied  with  other  sections  of  the  codes  as 
to  effect  of  deed  of  trust);  3  C.  A.  561,  569,  86  P.  820  (no  lien, 
legal  or  equitable,  when);  58  F.  666,  668,  7  C.  C.  A.  422  (con- 
strued and  applied  with  other  sections). 

lilENS — IN   GENERAL. 

As   to   actions   in    general    to   enforce   liens,    see    11    L.    740. 
As    to    attachment    liens,    see    Kerr's    Cyc.    C.    C.    P.    §  537    and 
note. 

As  to  attorneys'  liens  for  compensation,  etc.,   see  Kerr's  Cyc. 

C.  C.   §2872  and  note;   and  Kerr's  Cyc.   C.  C.   P.   §300  and  note; 
31   A.   D.    755-760;    51   A.    S.    251-281. 

As  to  bottomry  liens,  see  Kerr's  Cyc.  C.  C.  §  3017  and  note; 
also   note   §  3017,  post. 

As  to  carrier's  lien  for  freightage,  see  Kerr's  Cyc.  C.  C.  §  2144 
and    note. 

As  to  carrier's  lien  upon  baggage  for  payment  of  fare,  etc., 
see  Kerr's  Cyc.  C.  C.   §  2191  and  note. 

As  to  common-law  or  statutory  liens,  when  enforceable,  in 
equity,   see   74   A.   S.    383,   389. 

As  a  conveyance  in  fraud  of  lien-holders,   see   61  A.   D.    699. 

As  to  corporation  liens  upon  stock,  see  57  A.  S.  393,  394. 

As  to  cotenant's  lien  on  share  of  another,  see  35  A.  S.  416-422. 

As  to  crops  raised  by  tenant,  right  of  landlord  to  reserve  lien 
thereon,    etc.,   see   14    A.   S.    166-168. 

As  to  deposits  in  bank,  liens  of  bankers  tliereon,  see  4  A.  S. 
202,    204. 

As  to  equitable  estate,  when  covered  by  lien,  see  45  A.  D.  678. 

As  to  equitable  liens  in  general,  see  4  A.  S.  700,   701. 

As  to  equitable  liens  of  partners,  see  28  L.   102,   103. 

As  to  equitable  liens,   when  arise,   see  74  A.   S.   387. 

As  to  general  liens,  see  Kerr's  Cyc.  C.  C.  §  2874  and  note; 
also    note    §  2872,    ante. 

As  to   improvements  by   lessee,   liens   therefor,   etc.,   see   61   A. 

D.  697. 

As  to  innkeepers'  and  boarding-house  keepers'  liens,  see 
Kerr's   Cyc.   C.   C.    §§  1861-1863   and  notes. 

As  to  interests  affected  by  liens  in  general,  see  45  A.  D. 
678-680. 

1436 


Tit.XIV,ch.I,art.I.]      I^TRNS,  GENERALLY.  §  2872 

As  to  judgment  liens,  see  Kerr's  Cyc.  C.  C.  P.  §§  671  et  seq. 
and    notes. 

As  to  laborers'  lien,  see  58  A.  S.   303-309. 

As  to  laborers'  liens,  liens  for  salary,  etc.,  see  Kerr's  Cyc. 
C.   C.   P.    §§  1204-1208. 

As  to  liens  in  general,  see  note  88  A.  D.  59. 

As  to  liens  for  taxes,  see  Kerr's  Cyc.  Pol.  C.  §§3716-3718  and 
notes. 

As  to  liens  on  steamers,  vessels,  boats,  etc.,  see  Kerr's  Cyc. 
C.   C.   P.   §813   and  note;    13   A.   R.   273-275. 

As  to  life  estate,  when  covered  by  lien,  see  45  A.  D.  679. 

As  to  mechanics'  liens  upon  real  property  and  means  of  en- 
forcement thereof,  see  Kerr's  Cyc.  C.  C.  P.  §§  1183-1203a  and 
notes;  also  Kerr's  Pocket  C.  C.  P.  §§    1183-1203a  and  notes. 

As  to  mining  partner's  lien,  see  §  2514  and  note. 

As  to  mortgage  as  lien  upon  everything  that  passes  by  grant 
of  property,   see  Kerr's  Cyc.  C.  C.  §  2926  and  note. 

As  to  mortgage  liens  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2920 
et  seq.  and  notes;  also  note  §  2920,  post. 

As  to  mortgage  liens  on  real  property,  see  Kerr's  Cyc.  C.  C. 
§§  2947   et  seq.  and  notes. 

As  to  mortgage  liens  upon  real  property,  procedure  for  en- 
forcement thereof,  etc.,  see  Kerr's  Cyc.  C.  C.  P.   §  726  and  note. 

As  to  mortgage  of  personal  property,  see  Kerr's  Cyc.  C.  C. 
§§  2955    et   seq.   and    notes. 

As  to  partner's  lien  upon  partnership  property  for  payment 
of  partnership  debts,  etc.,  see  Kerr's  Cyc.  C.  C.  §  2405  and  note. 

As  to  persons  entitled  to  liens  in  general,  see  32  A.  R.  266, 
267. 

As  to  pledge,  see  Kerr's  Cyc.  C.  C.  §§  2986  et  seq.  and  notes. 

As  to  powers  of  receivers  to  create  Hens,  see  83  A.  S.  72-80. 

As  to  preferred  stockholders  not  entitled  to  Hens  on  corpo- 
rate  property,  see   73   A.   S.   229,    230. 

As  to  purchase  price,  lien  on  homestead  therefor,  etc.,  see 
86  A.  S.   174-182. 

As  to  receivers,  lions  against  property  in  liands  of,  etc.,  see 
71    A.    S.    359,    369. 

As  to  redemption  from  tax  liens,  sec  Kerr's  Cyc.  Pol.  C. 
§§  3781-3785  and   notes. 

As  to   respondentia,  see  Kerr's  Cyc.  C.   C.   §3096  and   note. 

As  to  special    lions,   see   Kerr's   Cyc.  C.   C.    §  3875  and   note. 

As  to  stoppage  in  transitu,  see  Kerr's  Cyc.  C.  C.  S  3076  and 
note. 

As  to  waiver  of  liens,  see  41  A.  D.   221-224. 

Acquired  by  service  of  notice  In  supplementary  proceedings. — 
See  3   L.  N.  S.   123. 

Against  trust  estates  in  favor  of  creditors  or  trustees. — See 
19    A.    S.    67. 

1437 


§  2872  CIVIL  CODE.  [Div.III.Pt.IV. 

Agister's   lien,   priority    of. — See   17   L.    792;    12    L.    N.    S.    310. 

Agreement  for  support  in  consideration  of  conveyance,  as 
basis  for  equitable  lien. — See  13  L.  N.  S.   725. 

Banker's  not  founded  on  contract. — See  4  A.  S.  202;  111  A.  S. 
419. 

Banker's   on    deposit. — See    6   L.    327. 

Carrier's. — See  4  L.   376. 

Duress  by,  on  real  property. — See    16   L.    376. 

Equitable — As   to   what  are   and  how   created — See   4   L.    248. 

Exemption  of  debts  on  dissolution  of  partnership  as  affecting 
partnership   lien. — See    9    L.   N.   S.    102. 

Extinguishment  of,  as  to,  generally,  see  23  L.  233;  57  L. 
340;    68    L.    323. 

For  labor,  priority  of  pre-existing  mortgage. — See  2  L.  N.  S. 
615. 

Garage  owner,  right  to. — See   1  L.   N.  S.   240. 

Implied  covenant  of  title  on  sale  of  chattels  as  protection 
against   outstanding   liens. — See    16   L.   N.    S.    410. 

Injunction  in  favor  of,  or  against  lien  creditors  to  prevent 
execution    sales. — See    30   L.    125. 

Inkeeper's. — See   21    L.    229. 

Jurisdiction   of  equity   to   enforce   liens. — See   74  A.   S.    387. 

Liability  of  different  parcels  in  inverse  order  of  alienation. — 
See   5   L.    282. 

Of  alimony.— See   9   A.  C.   89,   90;   9  A.  C.   1083. 

Of  artisans  and  tradesmen  at  the  common  law. — See  37  A.  D. 
522. 

Of  attorneys.— See  31  A.  D.  755;  51  A.  S.   251. 

Of  bank  against  deposit. — See  2  A.  C.   206. 

Of  carrier  for  demurrage. — See  3  L.  N.  S.  329;  also  note  §  2114, 
ante. 

Of  corporations  against  shares  of  stock. — See  3  A.  C.  187,  188; 
57   A.   S.    393. 

Of   factors. — See    3    A.   C.    643,    644. 

Of  innkeepers. — See  3  A.  C.   625. 

Of  judgment,  as  to,  generally,  see  3  A.  C.  1146;  4  A.  C.  100; 
5  A.  C.  204;  7  A.  C.  334;  7  L.  N.  S.  415;  9  L.  N.  S.  1026. 

Same — Interests  of  estates  subject  thereto. — See  117  A.  S. 
776. 

Of  landlord  on  the  property  of  his  tenant. — See  119  A.   S.   122. 

Of  mechanics  and  materialmen. — See  Kerr's  Cyc.  C.  C.  P. 
§§  1183-1203a  and  notes;  also  Kerr's  Pocket  C.  C.  P.  §§  1183-1203a 
and   notes. 

Of  mortgage. — See  note  §  2929,  post. 

Of  one  cotenant  on  the  moiety  of  another. — See  35  A.  S.  416. 

Of  part  owner  of  a  vessel  for  debts  and  advances. — See  90  A. 
S.    387. 

Of  purchaser  for  purchase  money  on  vendor's  failure  to  com- 
plete  contract. — See   8   A.   C.    956,   958. 

1438 


i      Tit.XIV,ch.I,art.I.]     I^IENS,  generat.t.y.  §  2872 

Of  vendors — Of  personal  property. — See  83  A.  S.  451. 

Same — Of  real  estate  for  unpaid  purchase  money. — See  4  A.  S. 
704;    36    A.    S.    174. 

On  abutting  property  for  cost  of  sewer. — See   60   L.   230. 

On  animals  for  cost  of  keeping-. — See   6  L.   82. 

On  commercial  paper  purchased  by  bank  after  it  has  mingled 
trust  money  witli  its  own  funds. — See  5  L.  N.  S.  1100. 

On  property — Of  bankrupt  of  one  whose  funds  are  wrong- 
fully used  in  purchasing  it. — See  9  L.  N.  S.   876. 

Same — Of  member  of  mutual  insurance  company  as  security 
for  his  liability. — See  32  L.   504. 

Power — Of  courts  to  create  and  enforce  to  secure  for  the  pay- 
ment of  alimony. — See  102  A.  S.  700. 

Same — Of  partner  to  create,  upon  firm  real  property. — See  28 
L.  97. 

Same — To  permit  receiver  of  private  corporation  to  create,  on 
its  property. — See   16  L.   603. 

Priority   of — As  to,   generally,  see   9  L.   481. 

Same — Agister's   to   chattel    mortgage. — See    17  L.   792. 

Same — As  between  lien  of  chattel  mortgage  and  lien  ac- 
quired by  furnishing  food  or  care  for  animals. — See  12  L.  N.  S. 
310. 

Same — Implied  covenant  of  title  on  sale  of  chattels  as  pro- 
tection against  outstanding  liens. — See   16  L.  N.  S.   410. 

Same — Of   agister. — See    12    L.   N.    S.    310. 

Same — Of  chattel  mortgage  filed  for  record  as  against  lien 
acquired  after  execution   of  mortgage. — See  33   L.   163. 

Same — Of  claims  against  property  in  hands  of  receiver  over 
recorded   liens. — See   2   L.   N.   S.   1013. 

Same — Of  local  assessment   over  prior  lien. — See   35   L.    372. 

Same — Of  railroad  mortgage  over  other. — See   9  L.    143. 

Same — Of  statutory  preference  of  claim  for  labor  over  pre- 
existing mortgage. — See   2   L.   N.   S.   615. 

Priority   of  agister's  Hen. — See   17   L.    792. 

Purchase  subject  to,  as  to,  generally,  see  25  L.  275;  59  L. 
737. 

Receiver's  power  to   create. — See   83   A.  S.    72. 

Right — Of  creditors  of  a  corporation  which  has  transferred 
all  or  substantially  all  of  its  assets  to  another  corporation,  to 
subject  the  assets  so  transferred  to  inequitable  lion. — See  5  Li. 
N.   S.    520. 

Same — Of    lienor,   as    to,    generally,   see   4    A.    C.    980. 

Same — Of  owner  of  garage  to. — See   1    L.  N.  S.  240. 

Same — Of   trustee   to   create,    on    trust   estate. — See    7    L.    656. 

Statute  of  limitations,  effect  of  upon  vendors. — See  95  A.  S. 
663. 

Taking  of  property  by  general  owner  for  purpose  of  de- 
feating lien    thereon,   as   larceny. — See    12   L.   N.   S.   94. 

1439 


§§  2873-2875  CIVIL  CODE.  [Div.III.Pt.IV. 

Vendor's,  for  purchase  price  of  railroad  rails. — See  66  L.  44. 
Waiver  of — By  attachment  or  execution. — See  50  L.  714-722. 
Same — By  refusal  to  surrender  property. — See  63  A.  D.  413. 

§  2873.  LIENS,  GENERAL  OR  SPECIAL.  Liens  are  either 
general  or  special. 

History:     Enacted  March  21,   1872. 

As  to  general  and  special  liens,  see  Kerr's  Cyc.  C.  C.  §§  2872, 
2874,    2875    and    notes. 

As  to  general  liens  for  services,  see  37  A.  D.  522. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,   ante. 

As  to  particular  liens  for  services,  see   37  A.  D.  522, 

As  to  unclassified  liens,  designated  as  "other  liens,"  see  Kerr's 
Cyc.  C.  C.  §§  3046  to  3065  and  notes. 

§2874.  GENERAL  LIEN,  WHAT.  A  general  lien  is  one 
which  the  holder  thereof  is  entitled  to  enforce  as  a  security 
for  the  performance  of  all  the  obligations,  or  all  of  a  par- 
ticular class  of  obligations,  which  exist  in  his  favor  against 
the   owner  of   the   property. 

Hi-story:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  general  and  special  liens,  see  Kerr's  Cyc.  C.  C.  §  2872 
and  note. 

As  to  general  lien  of  mates  and  seamen,  see  Kerr's  Cyc.  C.  C. 
§  3056   and   note. 

As  to  general  lien  of  shipmaster,  see  Kerr's  Cyc.  C.  C.  §  3055 
and  note. 

As  to  general  liens  of  banker,  see  Kerr's  Cyc.  C.  C.  §  3054 
and  note. 

§2875.  SPECIAL  LIEN,  WHAT.  A  special  lien  is  one 
which  the  holder  thereof  can  enforce  only  as  security  for 
the  performance  of  a  particular  act  or  obligation,  and  of 
such  oblitions    [obligations]   as  may  be  incidental  thereto. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

146  C.  555,  560,  80  P.  711,  713  (construed  and  applied  with  other 
sections);  152  C.  350,  352,  93  P.  67  (cited);  3  C.  A.  561,  569,  86 
P.   820   (no  lien,  legal  or  equitable,  when). 

1440 


i 

i      Tit.XIV,ch.I,art.I.]  PRIOR  LIENS.  §§  2876, 2877 

As  to  lien  of  factor,  see  Kerr's  Cyc.  C.  C.  §  3053  and  note. 

As  to  many  miscellaneous  matters  as  to  liens  In  general,  see 
note   §  2872,  ante. 

As  to  mortgage  lien,  when  special,  see  Kerr's  Cyc.  C.  C. 
S  2923  and  note. 

As  to  officer's  lien  on  attachment  or  execution,  see  Kerr's  Cyc. 
C.  C.  §3057  and  note;  also  Kerr's  Cyc.  C.  C.  P.  5§  542  et  seq. 
and   notes   §§  682   et  seq.   and   notes. 

As  to  special  lien  for  services,  see  Kerr's  Cyc.  C.  C.  §  3051 
and   note. 

As  to  special  lien  of  seller  of  personal  property,  see  Kerr's 
Cyc.  C.   C.    §  3049   and  note. 

As  to  special  lien  on  personal  property  for  alterations,  re- 
pairs, etc.,  see  Kerr's  Cyc.  C.  C.  §  3052  and  note. 

As  to  vendor's  lien  upon  real  property,  see  Kerr's  Cyc.  C.  C. 
§  3046   and   note. 

§  2876.  PRIOR  LIENS.  Where  the  holder  of  a  special  lien 
is  compelled  to  satisfy  a  prior  lien  for  his  own  protection, 
he  may  enforce  payment  of  the  amount  so  paid  by  him,  as 
a  part  of  the  claim  for  which  his  own   lien  exists. 

Ill.story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

121  C.  647,  656,  54  P.  254  (construed  and  applied):  14S  C.  669. 
675,  113  A.  S.  324,  84  P.  155  (advances  by  mortgagee  to  dis- 
charge paramount  liens  are  barred  by  statute  of  limitations 
when);  152  C.  350,  353,  93  P.  67  (construed — mortgagee  has  spe- 
cial  lien — meaning  of  "satisfy"). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   8  2872,  ante. 

§2S77.  (()>TRV(TS  Sl'IUECT  TO  PROVISIONS  OF  THIS 
CII.VPTER.  Contracts  of  mortgase,  pledi^e.  bottomry,  or  re- 
si)ondentia,  are  subject  to  all  the  provisions  of  this  chapter. 

lllHlory:      Ktia.t.<l   Marcli    21,   1S72. 

58  F.  666,  668,  7  C.  C.  A.  422  (construi^d  and  applied  with 
other   sections). 

As  to  many  miscellaneous  m.-itters  as  to  Hens  in  general,  see 
note   !  2872.  ante. 

As  to  bottomry  and  respondentia,  see  Kerr's  Cyc.  C.  C.  if  3017- 
3040   and    notes. 

As  to  niortgnge.  pledge,  bottomry,  and  respondentia,  see 
Kerr's  Cyc.   C.   C.   §  2872   and   note. 

Kerr's    C.    C. — 16  1441 


§§  2881,  2882  CIVIL  CODE.  [Div.III,Pt.IV. 

ARTICLE  II. 

CREATION  OF  LIENS. 

§  2881.  Lien,  how  created. 

§  2882.  No  lien  for  claim  not  due. 

§  2883.  Lien  on  future  interest. 

§  2884.  Lien  may  be  created  by  contract. 

§2881.     LIEN,  HOW  CREATED.     A  lien  is  created: 

1.  By  contract  of  the  parties;  or, 

2.  By  operation  of  law. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

80  C.  114,  116,  13  A.  S.  112,  22  P.  53,  54  (construed  and  ap- 
plied); 92  C.  76,  79,  28  P.  46,  47  (construed  and  applied);  118 
C.  413,  419,  50  P.  546  (construed  and  applied  together  with 
§2872);  126  C.  467,  469,  77  A.  S.  192,  58  P.  907  (construed  and 
applied);  146  C.  555,  560,  80  P.  711,  713  (construed  and  applied 
with    §  2891). 

As  to  many  miscellaneous  matters  as  to  liens  in  g-eneral,  see 
note   §  2872,  ante. 

As  to  doctrine  of  fixtures  between  mortgagee  and  mortgager, 
see  Kerr's  Cyc.   C.  C.   §  660  note  pars.   46-56. 

As  to  formalities  required  in  creation,  renewal,  or  extension 
of  mortgages,  see  Kerr's  Cyc.  C.  C.    §  2922  and  note. 

As  to  lien  created  by  contract  of  parties  by  deposit  of  title 
deed,  see  Kerr's  Cyc.  C.  C.  §  2872  and  note  pars.  8,  9. 

As  to  property  subject  to  lien,  but  afterwards  losing  its 
character  as  such,  and  rights  of  purchaser  of  such  property 
in  good  faith  and  for  value,  see  Kerr's  Cyc.  C.  C.  §  3440  and 
note, 

§  2882.  NO  LIEN  FOR  CLAIM  NOT  DUE.  No  lien  arises 
by  mere  operation  of  law  until  the  time  at  which  the  act 
to  be  secured  thereby  ought  to  be  performed. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
80  C.  114,  116,  13  A.  S.  112,  22  P.  53,  54  (construed  and  applied). 
As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

1442 


Tit.XIV.ch.I.art.II.]   T^IEN  BY  CONTRACT.  §§  2883,  2884 

§  2883.  LIE?f  ON  FUTURE  INTEREST.  An  agreement  may 
be  made  to  create  a  lien  upon  property  not  yet  acquired  by 
the  party  agreeing  to  give  the  lien,  or  not  yet  in  existence. 
In  such  case  the  lien  agreed  for  attaches  from  the  time 
when  the  party  agreeing  to  give  it  acquires  an  interest  in 
the  thing,  to  the  extent  of  such  interest. 

Historj-:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

80  C.  114,  116,  13  A.  S.  112,  22  P.  53,  54  (applied  with  other  sec- 
tions);   118   C.    413,    419,   50  P.   546,   547    (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

§  2884.  LIEN  MAY  BE  CREATED  BY  CONTRACT.  A  lien 
may  be  created  by  contract,  to  take  immediate  effect,  as 
security  for  the  performance  of  obligations  not  then  in 
existence. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

77  C.  383,  386,  11  A.  S.  288,  19  P.  641,  643  (construed  and  ap- 
plied);  80  C.  114,  116,  13  A.  S.  112,  22  P.  53,  54  (construed  and 
applied);   121  C.  272,  274,  53  P.  801    (construed  and  applied). 

As  to  liens  created  for  future  advances,  see  20  A.  D.  659-663; 
10   A.    D.    108. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  mortgages  given  in  good  faith  to  secure  future  ad- 
vances and  as  to  validity  thereof  as  against  creditors  of  mort- 
gager, etc.,  see  20  A.  D.  659,  660;  87  A.  D.  74;  11  A.  S.  293;  26 
A.  S.   174;    29   A.   S.   483,   506;   49  A.   S.   209. 


1443 


§  2888  CIVIL  CODE.  [Div.III,Pt.IV.      }| 

ARTICLE   III. 

EFFECT    OF    LIENS. 

§  2888.  Lien,  or  contract  for  lien,  transfers  no  title. 

§  2889.  Certain   contracts  void. 

§  2890.  Creation  of  lien  does  not  imply  personal  obligation. 

§  2891.  Extent  of  lien. 

§  2892.  Holder  of  lien  not  entitled  to  compensation. 

§2888.  LIEN,  OR  CONTRACT  FOR  LIEIV,  TRANSFERS 
NO  TITLE.  Notwithstanding  an  agreement  to  the  contrary, 
a  lien,  or  a  contract  for  a  lien,  transfers  no  title  to  the 
property  subject  to  the  lien. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  36  pars,   annotation. 

73  C.  302,  306,  2  A.  S.  808,  14  P.  885  (construed  and  applied); 
99  C.  516,  518,  33  P.  1081  (construed  and  applied);  101  C.  445,  452, 
35  P.  1035  (construed  and  applied);  105  C.  292,  297,  38  P.  726 
(construed  and  applied);  105  C.  467,  468,  38  P.  1109  (construed 
and  applied);  112  C.  8,  12,  53  A.  S.  151,  44  P.  357  (construed  and 
applied);  112  C.  215,  219,  53  A.  S.  207,  44  P.  487  (construed  and 
applied);  112  C.  598,  601,  53  A.  S.  228,  44  P.  1063,  32  L.  479  (con- 
strued and  applied  with  §1835);  115  C.  584,  593,  56  A.  S.  119,  47 
P.  482,  35  L.  309  (construed  and  applied);  121  C.  515,  519,  53 
P.  1119  (construed  and  applied) ;  54  P.  93  (construed  and  ap- 
plied);  126  C.  201,  207,  58  P.  460  (construed  and  applied  in  con- 
nection with  language  of  decision  in  63  C.  550,  relating  to  title 
to  personal  property  passing  to  mortgagee  under  chattel  mort- 
gage); 128  C.  399,  406,  407,  60  P.  961  (construed  and  applied  in 
dis.  op.  with  §2889);  138  C.  334,  336,  71  P.  344  (construed  and 
applied);  58  F.  666,  668,  7  C.  C.  A.  422  (construed  and  applied 
with  other  sections);  123  F.  24,  28  (construed  with  §2988 — ■ 
nature  of  pledgee  lien  as  recognized  at  common  law  not 
changed). 

As  to  absolute  conveyance  of  inortgaged  property,  etc.,  see 
post  §  2889  and  note  par.    6. 

As  to  assignment  of  pledges  in  general,  see  post  §§  2913,  2987 
and    notes. 

As  to  chattel  mortgages,  execution  thereof,  etc.,  see  post 
§§  2955-2957   and  notes. 

As  to  contract  for  forfeiture  of  right  of  redemption  in  abso- 
lute deed  being  void,  see  post  §  2889  and  note  par.   7. 

1444 


TitXIV.ch.I.art.III.]      CONTRACTS  VOID.  §§2889,2890 

As  to  deed  absolute  given  as  security  not  passing  title  to  real 
property,  see  post  §  2924  and  note. 

As  to  formalities  required  for  chattel  mortgage,  and  as  to 
unlimited  riglit  as  between  parties  to  mortgage  personal  prop- 
erty where  interests  of  creditors  or  third  persons  are  not  in- 
volved, see  post  §§  2924,  2955  and  notes. 

As  to  many  miscellaneous  matters  as  to  Hens  in  general,  see 
note   §  2872,  ante. 

As  to  lien  of  pledge  being  dependent  upon, possession,  see  post 
§  2988   and   note. 

As  to  pledgeor's  right  to  surplus  realized  above  amount  for 
which  pledged  upon  sale,  etc.,  see  post  §  3008  and  note. 

As  to  special  deposit  in  bank  in  usual  course  of  business  con- 
sidered in  relation  to  title,  etc.,  see  ante  §  1835  and  note  par.  3. 


§2889.  CERTAIN  CONTRACTS  VOID.  All  contracts  for 
the  forfeiture  of  property  subject  to  a  lien,  in  satisfaction- 
of  the  obligation  secured  thereby,  and  all  contracts  in  re- 
straint of  the  right  of  redemption  from  a  lien,  are  void. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.  C.  C.  for  18   pars,  annotation. 

14  P.  885,  887  (as  between  pledgee  and  pledgeor,  general  prop- 
erty remains  in  latter);  85  C.  365,  368,  24  P.  725,  726  (con- 
strued and  applied);  (C.  Dec.  13,  1893),  34  P.  1031.  1033  (con- 
strued as  not  applying);  105  C.  70,  76,  38  P.  527  (construed  and 
applied);  114  C.  593,  599,  55  A.  S.  92,  46  P.  1062  (construed  and 
applied);  120  C.  152,  153,  154,  52  P.  301  (construed  and  applied); 
128  C.  399,  406,  407,  60  P.  961  (construed  and  applied  in  dis.  op. 
with  §2888);  3  C.  A.  387,  394.  86  P.  729  (applied— validity  of 
sales  of  pledged  property  discuss<'d);  58  F.  666.  668.  7  C.  C.  A. 
422    (construed  and  applied    witli   other  sections). 

As  to  contracts  for  waiver  of  equity  of  redeiniition,  see  55  A. 
S.  100-111. 

As  to  many  miscellaneous  matters  as  to  lions  in  general,  see 
note    §  2872,   ante. 

As  to  seamen's  liens,  stipulations  waiving,  ot.'  lining  void, 
see  Kerr's  Cyc.  C.  C.  §  2052  and  note. 

§2890.  CREATION  ()F  LIEN  DOES  NOT  U\VL\  PER- 
SONAL ORLHiATlON.  The  creation  of  a  lien  does  not  of 
itself  imply  that  any  person  is  bound  to  perform  the  act  for 
which  the  lien  is  a  security. 

Hiiituryi     Enacted  March  21,   1872. 
1445 


§§  2891, 2892  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

114  C.   136,   139,   44  P.   915,  45   P.   1057    (construed  and  applied). 
As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 


§  2891.  EXTENT  OF  LIEN.  The  existence  of  a  lien  upon 
property  does  not  of  itself  entitle  the  person  in  whose  favor 
it  exi&ts  to  a  lien 'upon  the  same  property  for  the  perform- 
ance of  any  other  obligation  than  that  which  the  lien  origi- 
nally  secured. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.   C.   C.   for   3  pars,  annotation. 

146  C.  555,  560,  80  P.  711,  713  (construed  and  applied);  153  C. 
234,  238,  94  P.  889  (if  property  is  pledged  to  secure  specific 
indebtedness,  pledgee  cannot  hold  it  as  security  for  any  other 
obligation). 

As  to  lien  deemed  accessory  to  act  for  which  given  as  security, 
see  Kerr's  Cyc.  C.  C.   §  2909  and  note. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  mortgage  not  binding  to  perform  act  for  which  given 
as  security,   see  Kerr's   Cyc.   C.  C.   §  2928   and  note. 

As  to  pledgee's  right  to  sell  when  performance  of  act  is  due, 
see  Kerr's  Cyc.  C.  C.   §  3000  and  note. 

§2892.  HOLDER  OF  LIEN  NOT  ENTITLED  TO  COM- 
PENSATION.  One  who  holds  property  by  virtue  of  a  lien 
thereon,  is  not  entitled  to  compensation  from  the  owner 
thereof  for  any  trouble  or  expense  which  he  incurs  respect- 
ing it,  except  to  the  same  extent  as  a  borrower,  under  sec- 
tions eighteen  hundred  and  ninety-two  and  eighteen  hun- 
dred and  ninety-three. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.   C.  C.  for  2  pars,  annotation. 

As  to  accountability  of  mortgagee  in  possession  for  income 
profits,  etc.,   see  Kerr's  Cyc.  C.  C.   §  2888   and  note  par.   24. 

As  to  agistor  not  having  lien  for  services,  see  37  A.  D.   522. 

As  to  artisan  or  tradesman,  lien  for  services  of,  etc.,  see  37 
A.  D.  522. 

As  to  liens  for  services  in  general,  see  37  A.  D.  522;  38  A.  D. 
668. 

1446 


Tit.XIV.ch.I.art.IV.]     PRIORITY  OF  LIENS.  §§  2897-2899 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  non-assignability  of  liens  for  services,  see  37  A.  D.  523. 

Repairs  and  improvement  allowed  for. — See  25  A.  D.  729;  35 
A.    D.    39. 


ARTICLE  IV. 

PRIORITY   OF   LIENS. 

§  2897.     Priority  of  liens. 

§  2898.     Priority  of  mortgage  for  price. 

§  2899.     Order  of  resort  to  different  funds. 

§2897.  PRIORITY  OF  LIENS.  Other  things  being  equal, 
different  liens  upon  the  same  property  have  priority  accord- 
ing to  the  time  of  their  creation,  except  in  cases  of  bot- 
tomry and  respondentia. 

History:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  priority  of  bottomry  liens,  see  Kerr's  Cyc.  C.  C.  §  3029 
and  note. 

As  to  respondentia,  see  Kerr's  Cyc.  C.  C.  §§  3036  et  seq.  and 
notes. 

§2898.  PRIORITl  OF  MORTGAGE  FOR  PRICE.  Amort- 
gage  given  for  the  price  of  real  property,  at  the  time  of 
its  conveyance,  has  priority  over  all  other  liens  created 
against  the  purchaser,  subject  to  the  operation  of  the  record- 
ing laws. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

87  C.  619,  627,  22  A.  S.  272,  25  P.  919,  921  (construed  and  ap- 
plied with  §1186  C.  C.  P.);  120  C.  680,  683,  53  P.  266  (construed 
and  applied). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  priority  of  mechanics'  liens  over  liens  of  mortgage, 
see  Kerr's  Cyc.  C.  C.  P.  §  1192  and  note. 

As  to  vendor's  lien,  see  Kerr's  Cyc.  C.  C.   §  3046  and  note. 

§2899.     ORDER    OF    RESORT    TO    DIFFERENT    FUNDS. 

Where  one  has  a  lien  upon  several  things,  and  other  persons 

1447 


§  2899  CIVIL  CODE.  [Div.III,Pt.IV. 

have  siibordinate  liens  upon,  or  interests  in,  some  but  not 
all  of  the  same  things,  the  person  having  the  prior  lien,  if 
he  can  do  so  without  risk  of  loss  to  himself,  or  of  injustice 
to  other  persons,  must  resort  to  the  property  in  the  follow- 
ing order,  on  the  demand  of  any  party  interested: 

1.  To  the  things  upon  which  he  has  an  exclusive  lien; 

2.  To  the  things  which  are  subject  to  the  fewest  subordi- 
nate liens; 

3.  In  like  manner  inversely  to  the  number  of  subordinate 
liens  upon  the  same  thing;   and, 

4.  When  several  things  are  within  one  of  the  foregoing 
classes,  and  subject  to  the  same  number  of  liens,  resort  must 
be  had — 

(1.)  To  the  things  which  have  not  been  transferred  since 
the  prior  lien  was  created; 

(2.)  To  the  things  which  have  been  so  transferred  without 
a  valuable  consideration;    and, 

(3.)  To  the  things  which  have  been  so  transferred  for  a 
valuable   consideration  in  the  inverse  order  of  the  transfer. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

61  C.  396,  399  (applied  but  erroneously  cited  as  §  2809);  114  C. 
537,  541,  46  P.  462  (construed  and  applied);  119  C.  283,  296,  63 
A.  S.  108,  109,  51  P.  2,  542  (construed  and  applied);  119  C. 
352,  354,  355,  51  P.  544,  949  (construed  and  applied);  135  C.  113, 
117,  67  P.  40  (construed  and  applied);  139  C.  350,  352,  361,  63 
P.  335,  73  P.  159  (construed  and  applied);  141  C.  11,  12,  74  P. 
356  (construed  and  applied);  142  C.  554,  557,  100  A.  S.  145,  76 
P.   388   (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  doctrine  of  marshaling  assets  in  general,  see  59  A.  R. 
389;   11   A.  D.   799;   5  L.   280,   281. 

As  to  marshaling  grantor's  assets  in  favor  of  grantee,  see 
13   L.    724. 

As  to  marshaling  of  assets  as  affecting  priority  of  state  or 
United  States  claims,  see  29  L.  248. 

As  to  partnership  and  separate  creditors,  marshaling  assets 
between,  see  54  A.  D.   203;   46  A.  D.  447. 

As  to  subsequent  mortgagee,  when  he  may  compel  marshaling 
of  assets,   see   90   A.   D.   607. 

1448 


*        Tit.XIV,ch.I,art.V.]  SUBROGATION.  §2903 


ARTICLE  V. 

REDEMPTION   FROM    LIEN. 

§  2903.     Right  to  redeem.     Subrogation. 

§  2904.     Rights  of  inferior  lienor. 

§  2905.     Redemption   from  lien,  how  made. 

§2903.  RIGHT  TO  REDEEM.  SUBROGATION.  Every 
person,  having  an  interest  in  property  subject  to  a  lien,  has 
a  right  to  redeem  it  from  the  lien,  at  anj^  time  after  the 
claim  is  due,  and  before  his  right  of  redemption  is  fore- 
closed, and,  by  such  redemption,  becomes  subrogated  to  all 
the  benefits  of  the  lien,  as  against  all  owners  of  other  inter- 
ests in  the  property,  except  in  so  far  as  he  was  bound  to 
make  such  redemption  for  their  benefit. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417. 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  190.5,  Stats,  and  Amdts.  1905,  p.  617. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

61  C.  405,  429  (erroneously  cited  in  dis.  op.  for  §2993);  79  C. 
115,  120,  19  P.  532,  21  P.  610,  3  L.  754  (construed  and  applied); 
80  C.  348,  355,  22  P.  200,  202  (construed  and  applied);  95  C. 
184,  195,  196,  201,  203,  27  P.  30,  31,  30  P.  213,  214,  16  L.  646  (con- 
strued  and  applied). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  actions  for  redemption,  who  are  entitled  to  maintain, 
etc.,  see  Kerr's  Cyc.  C.  C.   P.   §  347  and  note. 

As  to  foreclosure  of  pledgee's  right  of  redemption,  see  Kerr's 
Cyc.    C.    C.    §  3011    and    note. 

As  to  limitation  of  right  to  redeem,  see  Kerr's  Cyc.  C.  C.  P. 
§  346    and    note. 

As  to  redeeming  mortgage  of  real  property  with  or  witliout 
account  of  rents  and  profits,  see  Kerr's  Cyc.  C.  C.  P.  §  346  and 
note. 

As  to  right  of  redemption  of  real  property,  see  Kerr'.s  Cyc. 
C.    C.    P.    §§  701-707    and    notes. 

As  to  who  are  redeemers  on  sales  of  real  property,  see  Kerr's 
Cyc.  C.  C.  P.   §  701  and  note. 

1449 


§§  2904, 2905  CIVIL  CODE.  [Div.III.Pt.IV. 

§2904.    EIGHTS  OF  INFERIOR  LIENOR.     One   who  has 

a   lien   inferior   to   another,   upon   the   same   property,   has   a 
right : 

1.  To  redeem  the  property  in  the  same  manner  as  its  owner 
might,  from  the   superior   lien;    and, 

2.  To  be  subrogated  to  all  the  benefits  of  the  superior  lien, 
when  necessary  for  the  protection  of  his  interests,  upon  sat- 
isfying the  claim  secured  thereby. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  28  pars,  annotation. 

78  C.  600,  603,  604,  12  A.  S.  118,  21  P.  365,  366  (construed  and 
applied). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  priority  of  liens  in  general,  see  9  L.  481;  20  L.  719. 

As  to  subrogation  of  junior  mortgagee  of  superior  liens,  see 
6  L.   73. 

§2905.  REDEMPTION  FROM  LIEN,  HOW  MADE.  Re- 
demption from  a  lien  is  made  by  performing,  or  offering  to 
perform,  the  act  for  the  performance  of  which  it  is  a  secu- 
rity, and  paying,  or  offering  to  pay,  the  damages,  if  any, 
to  which  the  holder  of  the  lien  is  entitled  for  delay. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

11  P.  781,  782  (construed  and  applied  with  §§1485  et  seq.); 
101  C.  545,  548,  36  P.  106  (construed  and  applied);  39  P.  781;  80 
F.  62  (what  mode  of  offering  is  applicable  to  offers  of  per- 
formance  which    operate    a    redemption). 

As  to  action  to  redeem  mortgage  upon  real  property  with  or 
without  an  account  of  rents  and  profits,  see  Kerr's  Cyc.  C.  C.  P. 
§  346    and   note. 

As  to  actions  for  claim  and  delivery,  see  Kerr's  Cyc.  C.  C.  P. 
§§  509   et  seq.   and   notes. 

As  to  extinguishment  of  liens  by  lapse  of  time,  see  Kerr's 
Cyc.  C.   C.    §  2511   and  note. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 


1450 


Tit.XIV,ch.I,art.VI.]  EXTINCTION.  §§  2909, 2910 

ARTICLE  VI. 
EXTINCTION   OF   LIENS. 

§  2909.     Lien  deemed  accessory  to  the  act  whose  performance  it 

secures. 
§  2910.     Extinction  by  sale  or  conversion. 
§  2911.     Lien    extinguished    by    lapse    of    time    under    statute    of 

limitations. 
§2912.     Apportionment  of  lien. 
§  2913.     Wlien  restoration  extinguishes  lien. 

§2909.  LIEN  DEEMED  ACCESSORY  TO  THE  ACT 
WHOSE  PERFORMAJfCE  IT  SECURES.  A  lien  is  to  be 
deemed  accessory  to  the  act  for  the  performance  of  which 
it  is  a  security,  whether  any  person  is  bound  for  such  per- 
formance or  not,  and  is  extinguishable  in  like  manner  with 
any  other  accessory  obligation. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

104  C.  10,  12,  37  P.  626:  122  C.  413,  416,  55  P.  145  (construed 
and   applied   with    other   sections). 

As  to  extinguishment  of  Hen  by  lapse  of  time,  see  Kerr's 
Cyc.  C.  C.   §  2911   and  note. 

As  to  many  miscellaneous  matters  as  to  Hens  in  general,  see 
note   §  2872,  ante. 

§2910.    EXTINCTION    RY   S.VLE   OR   C(»NYERSIO\.     The 

sale  of  any  property  on  which  there  is  a  lien,  in  satisfaction 
of  the  claim  secured  thereby,  or  in  case  of  personal  prop- 
erty, its  wrongful  conversion  by  the  person  holding  the  lir-n. 
extinguishes  the  lien  thereon. 

HlHtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

74  C.  250,  255,  5  A.  S.  435.  14  P.  369,  371,  15  P.  773  (construed 
and  applied);  87  C.  15,  21  (erroneously  cited  as  §29),  25  P.  161, 
162  (correct  citation);  100  C.  30,  37,  34  P.  671,  672  (construed 
as  not  applying):  111  C.  180,  185,  43  P.  595  (construed  and 
applied);  117  C.  364,  368,  49  P.  204  (construed  and  applied):  53 
P.    404    (applied);    122   C.    279.    2S3.   68   A.   S.    30,   54   P.    844    (con- 

1451 


§  2911  CIVIL  CODE.  [Div.III,Pt.IV. 

strued  and  applied);  122  C.  413,  416,  55  P.  145  (construed  and 
applied  with  other  sections);  124  C.  282,  288,  71  A.  S.  58,  57  P. 
84  (construed  and  applied);  142  C.  529,  542,  543,  76  P.  243  (con- 
strued and  applied). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  means  prescribed  by  code  of  extinguishing  liens  being 
exclusive,  see  Kerr's  Cyc.  C.  C.  §  2909  and  note  par.  10. 

As  to  trover  liy  lien-holder,  see  52  A.  D.   678. 

As  to  waiver  of  lien  by  refusal  to  deliver  property,  see  63 
A.   D.   413,    414. 


§2911.  LIEN  EXTIAGUI8HED  BY  LAPSE  OF  TIME 
UJVDEK  STATUTE  OF  LIMITATIONS.  A  lien  is  extinguished 
by  the  lapse  of  time  within  which,  under  the  provisions  of 
the  code  of  civil  procedure,  an  action  can  be  brought  upon 
the  principal  obligation. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  38  pars,  annotation. 

56  C.  342,  343  (construed  and  applied);  58  C.  147,  151,  152 
(construed  and  applied):  66  C.  332,  336,  5  P.  588  (construed  and 
applied);  72  C.  307,  311,  13  P.  866,  867  (construed  and  applied); 
92  C.  382,  387  (applied  but  erroneously  cited  as  §  2711),  28  P. 
573,  575  (correct  citation);  115  C.  170,  176,  46  P.  923  (referred 
to  with  §3716  Pol.  C);  116  C.  254,  259,  48  P.  73,  74  (construed 
and  applied);  120  C.  220,  222,  223,  65  A.  S.  179,  52  P.  583  (con- 
strued and  applied);  53  P.  404  (applied);  53  P.  907,  908,  911 
(construed  and  applied);  122  C.  413,  416,  418,  55  P.  145  (con- 
strued and  applied  with  other  sections);  124  C.  509,  512,  57  P. 
387  (construed  and  applied);  131  C.  437,  439,  63  P.  727  (con- 
strued and  applied  with  §  3339  C.  C.  P.);  132  C.  421,  423,  428,  84 
A.  S.  53,  64  P.  705  (construed  and  applied  with  §  3337  C.  C.  P.); 
137,  C.  384,  385,  386,  70  P.  223  (construed  and  applied  with  §  1339 
C.  C.  P.);  140  C.  16,  20,  21,  73  P.  625  (construed  and  applied);  142 
C.  471,  475,  76  P.  35  (construed  and  applied);  142  C.  477,  480, 
76  P.  67  (construed  and  applied);  144  C.  361,  77  P.  973  (applied); 
144  C.  574,  577,  578,  78  P.  5  (construed  and  applied);  152  C.  419, 
421,  93  P.  114  (contracts  of  mortgage  and  pledge  are  subject 
to  provisions  of  this  section,  expressly  made  so  by  §  2877);  1  C. 
A.  637,  643,  82  P.  982  (applied — right  to  enforce  lien  is  barred 
when). 

As  to  extension  of  time,  renewal,  etc.,  required  to  be  in  writ- 
ing, see  Kerr's  Cyc.  C.  C.   §  2922  and  note. 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

1452 


Tit.XIV,ch.I,art.VI.]        apportionment.  §§  2912, 2913 

As  to  means  prescribed  by  code  of  extinguisliing  liens  being 
exclusive,   see  Kerr's  Cyc.  C.   C.   §  2909  and  note   pars.   4,  5. 

As  to  right  to  foreclose  being  barred  when  right  to  redeem 
is  barred,  see  Kerr's  Cyc.  C.  C.  §  2911  and  note. 

As  to  the  requirements  or  formalities  required  for  creation, 
renewal,  or  extension  of  mortgage,  see  Kerr's  Cyc.  C.  C.  §  2922 
and  note. 

As  to  time  within  which  action  may  be  brought  upon  claims 
and  obligations,  in  general,  see  Kerr's  Cyc.  C.  C.  P.  §  339  and 
note. 

§2912.  APPOKTIOi>"MEKT  OF  LIE^'.  The  partial  per- 
formance of  an  act  secured  by  a  lien  does  not  extinguish  the 
lien  upon  any  part  of  the  property  subject  thereto,  even  if 
it  is  divisible. 

History:     Enacted  March   21,   1872. 

122  C.  413,  416,  418,  55  P.  145  (construed  and  applied  with 
other  sections). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  means  prescribed  by  code  of  extinguishing  liens  being 
exclusive,   see   Kerr's  Cyc.   C.   C.   §  2909  and  note  par.    10. 

§2913.     WHEN    BESTOHVTIOX    EXTINGUISHES     LIEN. 

The  voluntary  restoration  of  property  to  its  owner  by  the 
holder  of  a  lien  thereon  dependent  upon  possession  extin- 
guishes the  lien  as  to  such  property,  unless  otherwise  agreed 
by  the  parties,  and  extinguishes  it,  notwithstanding  any  sucli 
agreement,  as  to  creditors  of  the  owner  and  persons,  subse- 
quently acquiring  a  title  to  the  property,  or  a  lien  thereon, 
in  good  faith,  and  for  value. 

HLstory:  Enacted  March  21,  1872:  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  260;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417,  held  uncon- 
stitional,  see  history,  §  4  ante;  amendment  re-enacted  Marcli 
21,   1905,   Stats,  and  Anidts.    1905,   p.   617. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

59  C.  154,  159,  168,  43  A.  R.  245  (construed  and  applied);  99 
C.  516,  518,  33  P.  1081,  1082;  122  C.  413,  416,  418,  55  P.  145  (con- 
strued and  applied   with    other  sections). 

As  to  many  miscellaneous  matters  as  to  liens  in  general,  see 
note   §  2872,  ante. 

As  to  means  prescribed  by  code  of  extinguishing  liens  being 
exclusive,  see  Kerr's  Cyc.  C.  G.  §S  2909  et  seq.  and  notes. 

1453 


§  2920/ 


CIVIL  CODE. 


[Div.III.Pt.IV. 


CHAPTER  II. 

MORTGAGE. 

Article    I.     Mortgages  in  General,  §§  2920-2942. 

II.     Mortgages  of  Real  Property,  §§  2947-2952. 
TIT.     Mortgages  of  Personal   Property,   §§  2955-2973. 


ARTICLE  I. 

MORTGAGES  IN  GENERAL. 

§  2920.  Mortgage,  what. 

§  2921.  Property  adversely  held  may  be  mortgaged. 

§  2922.  To  be  In  writing. 

§  2923.  Lien  of  a  mortgage,  when  special. 

§  2924.  Transfer,   when   mortgage,   when   pledge. 

§  2925.  Transfer  made  subject  to  defeasance  may  be  proved. 

§  2926.  Mortgage,  on  wliat  a  lien. 

§  2927.  Mortgage  does  not  entitle  mortgagee  to  possession. 

§  2928.  Mortgage   not  a   personal   obligation. 

§  2929.  Waste. 

§  2930.  Subseqxiently  acquired  title  inures  to  mortgagee. 

§  2931.  Foreclosure. 

§  2932.  Power   of    sale. 

§  2933.  Power   of  attorney   to    execute. 

§  2934.  Recording  assignment  of  mortgage. 

§  2935.  Not  notice  to   mortgager. 

§  2936.  Mortgage  passes  by  assignment  of  debt. 

§  2937.  Time  allowed  for  filing  mortgage  for  record  [repealed]. 

§  2938.  Mortgage,  how  discharged. 

§  2939.  Same.      [On  certificate.] 

§  29391/^.     Same — How  foreign  executors  and  administrators  may 

satisfy  mortgages. 

§  2940.  Same.      [Record  and  reference.] 

§  2941.  Duty  of  mortgagee  on  satisfaction  of  naortgage. 

§  2942.  Provisions    of    this    chapter    do    not    affect    bottomry    or 

respondentia. 

§  2920.  MORTGAGE,  WHAT.  Mortgage  is  a  contract  by 
which  specific  property  is  hypothecated  for  the  performance 
of  an  act,  without  the  necessity  of  a  change  of  possession. 


History: 


Enacted  March  21,  1872. 
1454 


Tit.XIV.ch.II.art.I.]  mortgages.  §  2920 

See  Kerr's  Cyc.  C.  C.  for  56  pars,  annotation. 

58  C.   11,  15    (cited);    66   C.   97,   98,   4   P.    1062,    1063    (cited);    88 

C.  437,  441,  22  A.  S.  314,  26  P.  203,  204,  13  L.  137  (construed); 
98  C.  514,  518,  33  P.  486,  487,  488  (cited);  107  C.  144,  148,  40  P. 
37  (cited);  109  C.  360,  365,  42  P.  35  (cited);  112  C.  180,  187, 
53  A.  S.  201,  40  P.  104,  44  P.  484  (cited);  121  C.  487,  489,  66  A. 
S.  57,  53  P.  1081  (cited);  122  C.  478,  479,  55  P.  143  (referred 
to);  125  C.  459,  461,  58  P.  89  (cited);  128  C.  293,  300,  60  P.  769 
(cited);  128  C.  489,  491,  61  P.  84  (cited);  135  C.  277,  279,  67  P. 
129  (applied);  147  C.  384,  389,  81  P.  1077  (cited);  148  C.  650, 
653,  84  P.  186  (cited — what  is  more  than  a  mortgage);  151  C. 
606,  612,  91  P.  518  (power  to  "mortg'age"  property  carries  only 
what  power);  6  C.  A.  455,  458,  92  P.  393  (construed  with  §2927 — 
effect  of  mortgage  as  to  title  or  possession);  11  F.  253,  259 
(cited). 

MORTGAGES — GENERALLY. 
As  to  vendor's  lien,  see  Kerr's  Cyc.  C.  C.  §  3046  and  note. 
Absence    of   mortgagor   from    state   as    suspension   of   running' 
of    statute    of    limitations    against    action    for    foreclosure. — See 

8  A.  C.   1173. 

Actions  and  defenses  on,  as  to,  generally,  see  4  A.  C.  818;  5 
A.   C.    515. 

Actions  by  mortgagees  for  removal  of  fixtures. — See  13  A. 
S.    153. 

Adverse  possession  by  mortgagor  or  his  grantee  against 
mortgagee. ^See    1   L.   N.    S.    136. 

After-acquired   personal    property,    effect   of   upon. — See    76   A. 

D.  723;    109   A.  S.  510. 

After-acquired  property,  as  to  whether  included  in. — See  9 
L.    140-142. 

Agreement  for  support  in  consideration  of  conveyance,  as 
basis  for  equitable  lien. — See  13  L.  N.  S.  725. 

Agreement  to  renew. — See  Kerr's  Cyc.  C.  C.  §  2922  and  note 
pars.    25-29. 

Application   of   insurance  money   extinguishes   mortgage. — See 

9  A.  C.   58,   66. 

Application  of  proceeds  of  sale  under  deed  of  trust  or  mort- 
gage, effect  of  upon  the  running  of  limitation  against  the  in- 
debtedness secured. — See   14   L.   N.   S.   479. 

Application  of  rents  and  profits  in  hands  of  mortgagee  in 
possession. — See  3  A.  C.  1132. 

Another  debt,  continuing  lien  after  payment  of  to  secure. — 
See   4  A.  C.   316. 

Antecedent  debt  as  consideration  constituting  grantee  or 
mortgagee  purchaser  for  value. — See  3  A.  C.   395. 

Assignee  of  mortgage  as  to  lateral  security,  who  forecloses 
the  same  and  holds  tlie  property,  does  he  hold  the  title  subject 
to  a  trust  in  favor  of  the  assignor. — See  7  L.  N.  S.   1094. 

1455 


§  2920  CIVIL  CODE.  [Div.III,Pt.IV. 

Assignment  of  mortgage,  as  to  generally,  and  effect  of. — See 
14  A.  D.  512;  2  L.  736;  5  L.  292;  5  L.  621;  6  L.  61;  8  L.  724;  13 
L.    294. 

Assignor  of  mortgage,  right  to  enforce  option  to  declare 
entire  mortgage  debt  due  for  default  of  payments. — See  15 
L.   N.   S.    590. 

Assumption  of  by  grantees,  what  amounts  to  and  tlieir  lia- 
bility under. — See  78  A.  D.   73. 

Bar  of  other  remedies,  effect  to  prevent  sale  under  power 
in.— See   13  K  N.   S.   1210. 

Breach  of  policy  of  insurance  by  mortgagor,  effect  of  on 
rights  of  mortgagee. — See   18  L.  N.  S.   197. 

Burial  lot,  right  to  mortgage. — See  67  L.  122. 

By  guardian,  necessity  of  bond  to  make  valid. — See  33  L.  761. 

Chattel  mortgages. — See  Kerr's  Cyc.  C.  C.  §§  2955-2973  and 
notes. 

Concurrent  remedies  of  holders  of. — See  73  A.  S.  559. 

Consideration  for,  as  to  generally,  see  10  L.  459;  33  L.  303; 
55    L.    933;    62    L.    61. 

Contents  and  sufficiency  of. — See  3  A.  C.   393;   10  A.  C.  249. 

Continuance  of,  as  security  notwithstanding  changes  in  the 
form  of  the  debt. — See  85  A.  D.   466,  467,  471. 

Continuing  lien  of  mortgage  after  payment  to  secure  another 
debt.— See   4   A.   C.    316. 

Contribution  among  persons  holding  lands  affected  by. — See 
16   A.   D.    141. 

"Conveyance"  includes  "mortgage." — See  Kerr's  Cyc.  C.  C. 
§  2952   and  note   par.   3. 

Corporation — Foreign,  right  to  take  on  real  property  in  the 
state. — See  24  L.   328. 

Same — Mortgage  by  in  favor  of,  or  for  the  benefit  of,  direct- 
ors, right  of  subsequent  creditor  to  question,  in  absence  of 
fraud. — See   12   L.   N.   S.    825. 

Same — Power  of  president  and  vice  president  of,  to  give. — 
See   14  L.   359. 

Same — Power   of  to  mortgage. — See   6   L.   565;    11   L.    846. 

Cotenant,  right  of  one  who  pays  mortgage  as  to  subrogation 
to  the  rights  of  mortgagee  as  against  other  cotenants  or  his 
■privies. — See   8   L.   N.   S.    559. 

Crops  and  emblements,  right  to  on  foreclosure. — See  4  L.  453. 

Crops  to  be  planted,  validity  of  mortgage  of,  or  agreement 
to  mortgage. — See  5  A.  C.   400. 

Debts  secured,  right  of  bondholders,  as  to  generally,  see  6  L. 
566;  10  L.  508;  20  L.  535;  21  L.  550;  24  L.  800;  35  L.  536. 

Decree  and  sale  on  foreclosure. — See  37  L.   743. 

Deduction  of,  in  computing  succession  tax. — See  16  L.  N.  S.  329. 

Deed — Absolute  in  form  with  agreements  to  reconvey. — See  17 
A.    D.    300. 

1456 


i 


Tit.XIV,ch.II,art.I.]  MORTGAGES.  §  2920 

Same — Absolute  on  face,  a  mortgage  when. — See  5  L.  N.  S. 
387;  11  L.  N.  S.   209;   11  L.  N.  S.  825. 

Same — Delivered  in  escrow  as  further  security  for  debt, 
effect  of  on  right  to  redeem  from  sale  under  foreclosure. — See 
2  L.  N.  S.   628. 

Deed  and  mortgage,  effect  upon  one  who  signs  but  is  not 
named  in. — See  13  L.  N.  S.  298. 

Defective  execution  of  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2922 
and  note  par.  7. 

Deficiency,  judgment  and  execution  for. — See  4  L.  205. 

Description  in,  what  title  or  interest  passes. — See  6  L.  566; 
9   Lr.   140,   141,   142;   12   L.   177;    18  L.   76;   66  L.   44. 

Same — Fixtures. — See  "Fixtures,"  this  note;  also  note  §  660, 
ante. 

Description   of  indebtedness  in. — See  49  A.  S.   207. 

Distinction  between  deed  of  trust  and  mortgage. — See  Kerr's 
Cyc.  C.  C.  §  2932  and  note  pars.  5,  6. 

Distinction  between  pledge  and  mortgage. — See  Kerr's  Cyc. 
C.  C.   §  2928  and  note  par.   11. 

Distinction  of  liens. — See  Kerr's  Cyc.  C.  C.  §§  2909-2913  and 
notes. 

Effect  of  release  by  mortgagee  of  mortgaged  premises  to 
grantee  or  mortgagor  on  liability  of  mortgagor  for  mortgage 
debt. — See    6   A.   C.    550. 

Ejectment  by  mortgagee. — See  18  L.  788. 

Eminent  domain,  remedies  by  and  against  mortgagees  in 
proceedings  in. — See  88  A.  S.  363. 

Entry  by  mortgagee  by  virtue  of  an  interest  in  the  property, 
but  not  under  the  mortgage,  effect  of  to  enable  him  to  hold 
as  mortgagee  in  possession. — See  16  L.  N.  S.  151. 

Equitable  mortgages — As  to  generally,  see  4  A.  D.   696-708. 

Same — Keeping  alive  after  payment. — See   1   L.   N.   S.    405. 

Same — What  constitute. — See  4  A.  S.  696;  3  W.  &  P.  2442. 

Equity  has  jurisdiction  to  declare  effect  of  instrument. — See 
Kerr's  Cyc.  C.  C.  §  2924  and  note  par.  22;  §  2948  note  par.  11. 

Equity  of  redemption — Contracts  between  mortgagor  and 
mortgagee  for  the   release  of. — See  55   A.  S.   100. 

Same — Terms  of  redemption. — See  6  A.  C.  471. 

Same — Whether  subject  to  execution  on  judgment  for  the 
mortgage  debt. — See  11  A.  D.  193. 

Same — ^Who  may  exercise. — See  4  A.  C.  806;  4  A.  C.  846;  6 
A.   C.   471;    8  A.   C.   361. 

Same — Same — Married  woman  during  life  of  husband. — See  6 
A.   C.   475. 

Same — Same — One  improperly  omitted  as  party. — See  4  A. 
C.  848. 

Same — Same — Tenant   for   years. — See   4   A.   C.    807. 

Estate  of  the  mortgagee  at  common  law. — See  7  A.  S.  31. 

1457 


§  2920  CIVIL  CODE.  [Div.III,Pt.IV. 

Estoppel  created  by  against  the  mortg-agor. — See  45  A.  D.  392. 

Execution  of,  formalities  and  validity. — See  6  L.  565;  8  L. 
614;    16   L.   719;   22  L.   297. 

Same — Execution  and  acknowledgment  by  corporation. — See  6 
L.   565. 

Same — Signed  by  proxy. — See  22  L.   97. 

Extension  of  time — As  discharge. — See  "Payment,  discharge, 
and  extinction,"   this   note. 

Same — To  grantee  who  has  assumed  mortgage  debt  as  re- 
leasing personal  liability  of  mortgagor. — See  9  A.  C.  259. 

Extent  to  which  bondholders  are  represented  by  trustee  in 
mortgage  or  deed  of  trust,  securing  bonds. — See  16  L.  N.  S.  1006. 

Extinguishnient  of  mortgage — By  application  of  insurance 
money. — See   9  A.  C.   58,    66. 

Same — By  payment. — See  9  A.  C.  1193;  10  A.  C.   278. 

Same — By  tender. — See  7  A.  C.  1061;  8  A.  C.  361;  10  A.  C.  278. 

Same — Same — By  whom  must  be  made  to  extinguish  lien. — 
See   7  A.  C.  1065. 

Same — Same — Effect  of  tender  after  maturity  and  before 
foreclosure. — See   8   A.   C.   368. 

Failure  of  mortgagor  to  give  notice  of  proof  of  loss,  effect 
of   upon   right   of  mortgagee   to   recover   under  the   policy. — See 

14  L.  N.  S.   459. 

Fictitious  names  as  affecting  liability  of.— See  49  L.  423. 

First  and  last  days  in  computing  time  for  sale  under  mort- 
gage foreclosure. — See   49   L.   233. 

Fixtures — As  to  between  mortgagor  and  mortgagee,  and  pur- 
chaser under  sale — Generally,  see  1  L.   350;   7  L.   279;   10  L.   725; 

15  L.    57;    19   L.    444. 

Same- — Right  of  purchaser  at  foreclosure  sale  with  respect 
to.— See  7  L.  278. 

Foreclosure  of — As  to  generally,  see  4  A.  C.  846;  1  L.  397;  4 
L.  453;  5  L.  46;  7  L.  278;  9  L.  143;  9  L.  731;  10  L.  507;  21  L. 
321;   21  L.   550;   32  L.   208;   49  L.   233;   54  L.   763;   69   L.   682. 

Same — As  against  persons  not  in  being.— See  8  L.  N.  S.  70. 

Same — Bar  of  other  remedies,  effect  of  to  prevent  a  sale  of 
property  under  a  power  in. — See  13  L.  N.  S.  1210. 

Same — By  exercise  of  power  of  sale. — See  92  A.  S.   573. 

Same — By  power  of  sale,  strict  foreclosure,  as  to  generally, 
see  8  Lr.  50;  20  L.  733;  70  L.   135-145. 

Same — Deficiency  on,  judgment  and  execution  for. — See  4  L. 
205;    50    L.    583. 

Same — Does  homestead  exemption  attach  to  the  surplus  upon 
sale  under  a  lien  paramount  to  the  homestead  right. — See  18 
L.    N.    S.    491. 

Same— Does  last  payment  on  a  past-due  debt  secured  by 
mortgage,  which  debt  *  subsequently  becomes  barred,  fix  the 
period  from  which  the  limitation  applicable  to  the  mortgage  is 
to  be   computed. — See  11  L.   N.   S.   744. 

1458 


Tit.XIV,ch.II,art.I.]  MORTGAGES.  §  2920 

Same — Effect  of  acceleration  provision  in  mortgage  to  start 
the  statute  of  limitations  running-. — See  12  L.  N.  S.   1190. 

Same — Effect  of  by  taking  possession  before  all  of  mortgage 
debt  due. — See  3  L.  N.  S.  343. 

Same — Effect  on  of  debt  becoming  barred  by  statute  of  lim- 
itations, under  conveyance  absolute  on  its  face  but  intended 
as  a   mortgage. — See   11   L.   N.  S.   825. 

Same — Enjoining  sale — Pending  bankruptcy. — See  2  L.  N.  S. 
560. 

Same — Same — Under  power  in  mortgage  against  which  the 
statute  of  limitations  has  run. — See  6  L.  N.  S.  510. 

Same — Entry  by  mortgagee  by  virtue  of  interest  in  the  prop- 
erty, effect  to  enable  him  to  hold  as  a  mortgagee  in  posses- 
sion.— See  16  L.  N.  S.  151. 

Same — Litigation  of  paramount  titles  in  suits  for. — See  68 
A.  S.   354. 

Same — Of  subsequent,  effect  of  upon  prior. — See  80  A.  D.  714. 

Same — Power  of  equity,  wliere  mortgage  does  not  convey" 
title,  to  impound  rents  and  profits  of  mortgaged  property  pend- 
ing foreclosure. — See  7  L.  N.  S.   1001. 

Same — Proceedings  on. — See  37  L.   737-759. 

Same — Redemption  from. — See  "Redemption,"  this  note. 

Same — Removal,  for  separable  controversy,  of  proceedings  to 
foreclose. — See  5  L.  N.  S.   72. 

Same — Riglit  of  assignee  to  enforce  option  to  declare  entire 
mortgage  due  for  default  of  payment. — See  15  L.  N.  S.  590. 

Same — Right  of  tenant  in  common  who  pays  mortgage  debt 
to  enforce  against  cotenants. — See  10  A.  C.   282. 

Same — Sale  under. — See  "Sale  under  foreclosure,"  this  note. 

Same — Upon  land  in  another  state. — See  4  L.  N.  S.  986. 

Same — Waiver  of  junior  lien  by  failure  to  assert  in. — See  68 
L.   323. 

Same — When  right  of  barred. — See  7  A.  C.  189;  8  A.  C.  1160; 
8  A.  C.   1173. 

Same — Same — Absence  of  mortgagor  from  state  suspends  run- 
ning of  limitation  against  foreclosure. — See  8  A.  C.  1173. 

Same — Same — Injunction  to  restrain  sale  of  property  under 
mortgage  on  ground  that  debt  secured  is  barred  by  statute. — 
See  7  A.  C.  1189. 

Same — Who  may  enforce  and  parties  to  action. — See  1  L. 
334;   5  L.    291;   24   I..   320!   64  L.   618. 

Foreign  corporation,  rlglit  to  take  mortgage  on  property  In 
the  state. — See  24  L.  328. 

Forfeiture,  validity  of  contract  providing  for. — Sio  Kerr's 
Cyc.  C.   C.   §  2889  and  note. 

Form  of  mortgage. — See  Kerr's  Cyc.  C.  C.   §  294S  and  note. 

"Grant"  defined. — See  Kerr's  Cyc.  C.  C.  §  1053  and  note;  4 
W.  &  P.  3152. 

1459 


§  2920  CIVIL  CODE.  [Div.III,Pt.IV. 

Growing  crop — Lien  of  mortgage  on. — See  Kerr's  Cyc.  C.  C. 
§  2972  and  note. 

Homestead  exemption,  does  it  attach  to  the  surplus  upon  fore- 
closure of  a  lien  paramount  to  the  homestead  right. — See  18 
L.  N.  S.   491. 

Illegal  bonus  for  discharge  of,  payment  of  pending  foreclosure 
as  duress. — See  2  L.  N.  S.  574. 

Impairment  of  value  of  security,  rights  and  remedies  of 
mortgagees  against. — See  43  A.  S.   432. 

Injunction  to  restrain  sale  of  property  under  mortgage  of 
trust  deed  on  ground  that  action  on  debt  secured  is  barred  by 
statute  of  limitations. — See   7  A.   C.    189. 

Insolvency  statutes,  effect  of  upon  mortgage  preferring  cred- 
itors.— See   37  L.   465. 

Insurance — On  mortgaged  premises,  application  of  proceeds 
of.— See  118  A.  S.  968. 

Same — Secured  by  mortgagee  to  protect  his  own  interests, 
interest  of  mortgagor  in. — See  11  L.  N.  S.  143. 

Same — Proceeds  of,  where  loss  occurs  after  foreclosure  sale 
but  during  period  of  redemption. — See   6  L.  N.  S.   448. 

Interest  of  mortgagor  in  insurance  secured  by  mortgagee  to 
protect   his   own   interests. — See   11   L.   N.   S.    143. 

Is  debt  upon  property  purchased  by  municipality  without 
assuming  payment,  is  it  part  of  a  municipal  indebtedness. — 
See    3    L.   N.    S.    684. 

Junior  lien,  waiver  by  failure  to  assert  in  foreclosure  pro- 
ceedings.— See  68  L.   323. 

Lease  assigned  as  security. — See  Kerr's  Cyc.  C.  C.  §  2947  and 
note  par.  10. 

Lien  accessory  to  obligation  to  be  performed. — See  Kerr's 
Cyc.  C.  C.   §  2909  and  note. 

Lien  of.— See  4  A.  C.  314;  5  A.  C.  899. 

Same — Continuing  lien  after  payment  to  secure  another  debt. 
—See   4   A.   C.   316. 

Same— Effect  on  of  sale  under  the  mortgage. — See  58  A.  D.  569. 

Liens  generally. — See  Kerr's  Cyc.  C.  C.  ,§§  2872-2813  and  notes; 
also  note   §  2872,  ante. 

Limitation  of  action  to  foreclosure. — See  10  L.  507. 

Limitations,  statute  of,  effect  of  upon. — See  95  A.  S.  664. 

Married  woman,  right  to  redeem  mortgaged  premises  during 
life   of  husband.— See  6  A.   C.   475. 

Merger  of  in  the  fee. — See  99  A.  S.  160. 

Mistake,  discharge  of  mortgage  by,  right  to  reinstatement. — 
See  55  L.  788. 

Mortgagee — Actions  by  against  third  persons. — See  109  A.  S. 
430. 

Same — Duty  of  to  hold  proceeds  of  insurance  and  apply  to 
indebtedness  as  it  falls  due. — See  10  L.  N.  S.  1166. 

1460 


Tit.XIV,ch.II,art.I.] 


MORTGAGES.  §  2920 


Same— Ejectment  by.— See  18  L.  788.  „   .     974-   T?  L    290 

Same— Entitled  to  possession   when.— See  7   L.   274     13  L.   290. 
Same-Injunction   in  favor  of  against  execution   sale.-See  30 

"^'sime-ln  possession-Attornment  of  tenant  tc-See   8  K  568. 
Same— Same— Duties  and  liabilities  of.— See   4  A.  S.   69. 
Same— Same— Rights  of.— See  7  L.  276    277 
Same-Limitation  of.-See  1  L.  397;  6  L.  610. 
Same— Protection   of  rights  of. — See  7  L.   bil. 
Same— Remedy  for  injury  to  security.— See  1  L-  366 
Same— Right  of  on  condemnation  of  premises.— See  18  U  lid. 
Same-Right  of  to  benefit  of  insurance  to  take  in  mortgagors 

name.— See  25  L.  305.  o  t     fi78 

Same— Senior,  rights  to  disbursements.— See  9  L.   678^ 
Same-Subrogation    of    junior    to    rights    of    prior.-See    5    L. 

''skm'e-Who  has  paid  taxes,  right  to  maintain  independent 
acUo"  against  mortgagor  for  reimbursement  before  or  after 
foreclosure  of  mortgage.— See  10  L.  N.  S.  6<9.  ..^li^itv 

Mortgages  to  secure  future  advances-Requisites  and  ^alidiU 
of See   20  A.  D.   658-663. 

Mortgagor-Effect  of  stipulation  that  he  shall  become  tenant. 

—See  49  L.  435.  .  t     fi^n 

Same— In  possession— Rights  of.-See  ,  L.  630. 
Same— Of  mining   claim,    right   to   relocate   same    for   his   own 

'Zlt-ll'^ll  o,  "'sale  o.  contract  w,t„  re,e.e„c,  to  ,n„r.- 
p-ae-in°-  nronertv    free  from  mortgage. — See  8  L,.  M.  b-  *"*• 
^tameruight'o   engage   in   competing   business   after   sale   of 
business  and  good-will  on  foreclosure.-See  19  K  N.  S.  ^6d 

Name  of  instrument   inimaterial.-See  Kerr  s  Cyc.  C.  C.   §  -948 

'"Naturr;:i-iii\y  and  effect  of  --tgage-As  to  generally,  see 
4  L   427-  7  L.  273,  275;  9  L.  544;  14  L.  55;  38  L.  562;  <0  L.  317. 

Necessity  for  sales  under  powers  to  be  for  reasonable  price.- 

See  103  A.  S.  51.  .  . 

New,  when  may  be  enforced  as  a  continuation   of  the  Hen  ot 

prior  mortgages. — See  5  A.  S.  705.  ^    .    ,      +•    „    t^    ov<»rrise 

Notice    of    mortgagee    to    mortgagor    of    nitention    to    exercise 

power  of  sale  in  mortgage,  necessity  of.-See  11  A.  C.  170 

Of    after-acquired    property    and    of    property    having    only    a 

potential  existence.-See  46  A.  D.  712;  109  A.  S.  510 

Of  railways,  subsequent  claims  which  take  precedence  of.— See 

^Vtrol  evidence  to  show  absolute  deeds  to  be.-See  15  A    D.  47 
Partner— Assumption  of  individual  debts  of  partner  b>    mort 

gage  of  partnership  property.— See  29  L.  692 

lame— Power   to   give   on   partnership   real   estate.-See   28   L. 

95. 

146X 


§  2920  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Surviving-,  power  to  give  on  real  estate. — See  28  L.  134. 

Payment,  discharge,  and  extinction,  as  to  generally,  see  9 
A.  C.  1193;  10  A.  C.  278;  1  L.  346;  5  L.  289;  5  L.  520;  7  L.  279;  10 
L.  537;  13  L.  298;  21  L.  550;  23  L>.  131;  29  L.  120;  35  L.  294;  57  L. 
333,   340. 

Same — By  extension  of  time  when. — See  55  L.  673-688. 

Same — By   tender,   unaccepted. — See   33   L.    231-235. 

Same — Right  to  reinstatement  of  mortgage  released  or  dis- 
charged by  mistake.— See   58  L.   788-807. 

Payment  extinguishes. — See  9  A.  C.  1193;  10  A.  C.  278;  also 
"Payment,  discharge  and  extinction,"  this  note. 

Payment  of  illegal  bonus  for  discharge  of,  pending  foreclosure, 
as  duress.— See   2  L.  N.  S.   574. 

Person  improperly  omitted  as  party  to  foreclosure  proceed- 
ings, right  to  redeem. — See  4  A.  C.  848. 

Personal  liability  for  indebtedness — As  to,  generally,  see  6 
A.  C.   549;   7  A.  C.  364;   9  A.  C.   255. 

Same — By  extension  of  time  to  grantee  who  has  assumed 
mortgage  debt. — See  9  A.  C.  259. 

Same^ — Effect  on,  of  release  by  mortgag-ee  of  mortg-aged 
premises  to  grantee  or  mortgag-or. — See  6  A.  C.  550. 

Personal  property  which  may  be  mortgaged. — See  Kerr's  Cyc. 
C.  C.  §  2955  and  note. 

Pledge  in  case  possession  is  transferred. — See  Kerr's  Cyc. 
C.  C.   §  2924  and  note 

Pledges.— See  Kerr's  Cyc.  C.  C.  §§  29S6-3011  and  notes;  also 
note  §  2986,  post. 

Possession — ^Mortgagee,  by,  authorized  if  he  deems  himself 
unsafe. — See  51  A.  R.   805,  809. 

Same — Mortgagee  not  entitled  to. — See  Kerr's  Cyc.  C.  C.  §  2927 
and  note. 

Power  of  trustee  to  mortgage  trust  property. — See  9  A.  C. 
643;   10  A.  C.  255. 

Pre-existing'  debt  as  consideration  for  mortgage  as  against 
other  creditors  or  equities. — See  33  L.  305-311. 

Preference  by,  as  an  assignment  for  creditors. — See   37  L.   337. 

Priority — Between  included  mortgage — And  judgment. — See 
10   L.   411. 

Same — Included  mortgage — As  against  purchaser  at  judicial 
sale. — See  21  L.  38. 

Same — Of  claims  for  labor  over,  under  statutory  provision. — 
See  2  L.  N.  S.  615. 

Same — Of  railroad  mortgage  over  other  liens. — See  9  L.  143. 

Same- — Subsequent  mechanic's  lien. — See  14  L.  305. 

Purchase  at  tax  sale  by  or  in  the  interest  of  mortgagor, 
guarantor  of  mortgage  indebtedness,  or  purchaser  of  equity 
of  redemption,  effect  of. — See  16  L.  N.  S.  121. 

Purchaser  of  property  subject  to — -When  becomes  liable  for 
the  payment  of  the  mortgage  debt. — See  62  A.  D.  141. 

1462 


Tit.XIV,ch.II,art.I.]  MORTGAGES.  §  2920 

Same — When  may  not  contest  validity  of. — See  22  A.  R.  290. 

Question  of  fact  as  to  what  constitutes  mortgage. — See  Kerr's 
Cyc.  C.  C.  §  2924  and  note  pars.  40,  41. 

Railroad  mortgage — As  to  what  property  included  in. — See 
9  L.   140,   142, 

Same — After-acquired  property  which  passes  by. — See  99  A. 
S.  252. 

Same — Lands,  income  and  earnings  under. — See  6  L.  566;  9  L. 
142. 

Same — Priority  of  over  other  liens. — See  9  L.  143. 

Same — Rails  and  other  permanent  fixtures  annexed  after  exe- 
cution of. — See  66  L.  44. 

Railway,  after-acquired  property  which  passes  by  mortgage. 
— See  99  A.  S.  252;  also  "Railroad  mortgage,"  this  note. 

Real  property  which  may  be  mortgaged. — See  Kerr's  Cyc. 
C.  C.  §  2947  and  note. 

Receiver — Appointment  of  on  foreclosure  of  mortgage. — See  1 
L.  397. 

Same — Mortgagee,  when  entitled  to  collect  rents. — See  27  A. 
S.  793. 

Same — to  take  charge  of  mortgaged  property,  when  may  be 
appointed. — See  72  A.  S.  74. 

Redemption — Allowance  for  improvements  upon. — See  9  L.  676. 

Same — Equity  of. — See  "Equity  of  redemption,"  this  note. 

Same — Impairment  of  obligation  of  contract  by  change  of  law 
as  to. — See  31  L.  721. 

Same— From  Hen. — See  Kerr's  Cyc.  C.  C.  U  2903-2905  and  notes. 

Same — Proceedings  on. — See  9  L.  676. 

Same — Right  of  junior  incumbrancer  to  redeem. — See  9  L.  677. 

Same — Right  to  redeem. — See  37  L.  752. 

Same — Statute  of  limitations,  applicability  to  suit  to  redeem. 
— See  10  L.  511. 

Same — Time  allowed  for. — See  9  L.   677. 

Remedies  of  mortgagee  to  reach  surplus  proceeds  after 
judicial  or  other  sale. — See  88  A.  S.  359. 

Remedy  of  one  improperly  omitted  as  party  to  foroclo.sure 
proceedings. — See  4  A.  C.  848. 

Removal  of  mortgaged  proix-rty  into  another  state. — See  70 
A.  D.  67. 

Rents  an  income,  after  foreclosure  decree  and  before  pur- 
chaser's title  is  perfected,  right  to. — See  1  L.  N.  S.  1079. 

Rents,  mortgagee,   when   entitled  to. — See  27  A.  S.   793. 

Revival  of — Or  subrogation  to,  discharged  mortgage  in  favor 
of  assignee  in  equity  of  redemption,  who  pays  it,  as  against 
junior  lien.— See  16  L.  N.  S.  470;  also  12  A.  D.  222. 

Same — When  satisfied  by  mistake. — See  5  A.  S.  703. 

Revivor  of.— Sec  12  A.  D.  222;  16  L.  N.  S.  470. 

Right  of  assignee  as  against  subsequent  bona  fide  purchasers 

1463 


§  2920  CIVIL  CODE.  [Div.III.Pt.IV. 

or  incorporators  relying  upon  apparent  discharge  of  the  mort- 
gage by  mortgagee. — See  15  L.  N.  S.  1025. 

Right  of  foreclosure  barred  when. — See  7  A.  C.  189;  8  A.  C. 
1160;  8  A.  C.  1173. 

Same — Absence  of  mortgagor  from  state  suspends  running  of 
statute. — See  8  A.   C.   1179. 

Same — Injunction  against  sale  of  property  under  mortgage  on 
ground  that  debt  secured  is  barred  by  statute. — See  7  A.  C. 
1189. 

Righi  of  married  woman  to  redeem  mortgaged  premises  dur- 
ing life  of  husband. — See  6  A.  D.  475. 

Right  of  one  cotenant  who  pays  mortgage  to  be  subrogated 
to  the  rights  of  mortgagee  as  against  other  cotenants  or  his 
privies. — See  8  L.  N.  S..  559. 

Right  of  subsequent  creditors,  to  question  corporate  mortgage 
in  favor  of,  or  for  the  benefit  of,  director,  in  absence  of  fraud. — 
See  12  L.  N.  S.  825. 

Right  of  tenant  for  years  to  redeem  premises  from  mortgage. 
— See  4  A.  C.  807. 

Right  to  cut  timber  on  mortgaged  land. — See  3  L.  607. 

Right  to  mortgage  privilege  to  use  streets  for  quasi-public 
purposes. — See   47  L.   87. 

Rights  and  liabilities  of  mortgagee. — See  3  A.  C.  1128. 

Same— Application  of  rents  and  profits  in  hands  of,  in  posses- 
sion.—See  3  A.  C.  1132. 

Rights  and  liabilities  of  parties,  as  to,  generally,  see  1  L.  N.  S. 
1036;  8  L.  N.  S.  404;  10  L.  N.  S.  679;  10  L.  N.  S.  1166;  11  L.  N.  S. 
143;  14  L.  N.  S.  459;  16  L.  N.  S.  121;  18  L.  N.  S.  197. 

Sale  by  mortgagor — Assumption  of  payment,  effect  of  to  create 
personal  liability. — See  6  L.   611. 

Same — Contingency  of  liability  as  affecting  presentation  of 
claim  against  decedent's  estate. — See  58  L.  89. 

Same — Debt  of  personal  obligation  of  grantee. — See  8  L.  316. 

Same — ^Grantee  estopped  to  deny  validity  of  mortgage. — See  8 
L.  316. 

Same — Land  liable  to  mortgage  debt,  inverse  order  of  aliena- 
tion.—See  5  L.  282,  286. 

Same — Liability  of  purchaser  for  mortgage  debt. — See  5  L.  276, 
281;   6  L.  612;  7  L.  33;  8  L.  315. 

Same — Mortgagee  as  purchaser. — See  7  L.  279. 

Same — Obligations  of  and  remedies  against  grantee  assuming 
payment  of  mortgage. — See  5  L.  279;  8  L.  315. 

Same — Release  of  grantee  by  mortgagor. — See  6  L.  612. 

Same — Right  of  mortgagee  to  maintain  personal  action  against 
grantee  assuming  payment. — See  6  L.   611;   25  L.  275. 

Same — Subrogation  of  mortgagor  on  payment  of  debt  after 
conveyance. — See  2  L.  289. 

Sale  of  personal  property — Lien  for  price. — See  Kerr's  Cyc.  C. 
C.  §  3049  and  note. 

1464     ^ 


TitXIV.ch.II.art.I.]  MORTGAGES.  §  2920 

Sale  on  foreclosure — Of  property  and  good-will,  right  of  mort- 
gagor after,  to  engage  in  competing  business. — See  19  L.  N.  S. 
765. 

Same — Validity  and  effect  of. — See  37  L.  751. 

Sale  under  foreclosure  of — Does  water-right  used  in  connec- 
tion with  premises  prior  to  its  acquirement  pass  on  foreclosure. 
—See  15  L.  N.  S.  359. 

Same — En  masse  by  sheriff  of  directed  to  sale  in  parcels, 
separately  mortgaged,   effect   of. — See   15   L.  N.   S.   549. 

Same — Right  of  redemption  as  affected  by  deed  delivered  in 
escrow  as  further  security  for  debt. — See  2  L.  N.  S.  628. 

Same — Right  of  wife  during  husband's  lifetime  to  redeem 
from  mortgage  on   his  real  property. — See   3  L.  N.  S.   1068. 

Same — Right  to  proceeds  of  insurance  where  loss  occurs 
after  foreclosure  sale  but  during  period  of  redemption. — See 
6  L.  N.  S.  448. 

Same — Right  to  rents  or  income  after  foreclosure  decree  and 
before  title  perfected. — See  1  L.  N.  S.  1079. 

Same — Widow's  right  to  redeem,  because  of  her  dower  inter- 
est.—See   4   L.   N.   S.    1039. 

Sale  under  mortgage  containing  power  of  sale  "at  court- 
house," proper  place  of  sale  under,  where  courthouse  is  removed 
or  destroyed  or  there  is  more  than  one. — See  11  A.  C.  166. 

Set-off  in  foreclosure. — See  21  L.   321. 

Special  lien  of  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2923  and 
note. 

Specific  performance  of  contract  to  give. — See  6  L.  N.  S.  585. 

Statute  of  limitations,  absence  from  the  state  of  the  mort- 
gagor, effect  of  upon. — See  60  A.  S.  205. 

Strict  foreclosure,  as  to  generally,  see  8  L.  50;  20  L.  370;  70 
L.  135-145. 

Subrogation  to  benefits  of  superior  lien. — See  Kerr's  Cyc. 
C.   C.   §  2904  and  note  par.   2. 

Subsequent  creditors,  riglit  of  to  question  corporate  mortgage 
in  favor  of,  or  for  the  benefit  of,  directors,  in  absence  of  fraud. 
—See  12  L.  N.  S.  821. 

Sufficiency  of  description  in. — See  12  L.   177. 

Surplus  or  foreclosure  sale,  after  mortgagor's  death,  is  it 
to  bo  deemed  real  or  personal  property. — See  19  L.  N.  S.  723. 

Tacking  taxes  to  debt. — See  5  L.  293. 

Taxation  of,  as  to  generally,  see  2  I...  350;  2  L.  801;  16  L.  59, 
60:   16  L.  730;  60  L.  102. 

Taxes  paid  by  mortgagee,  right  to  maintain  independent 
action  against  mortgagor  for  reimbursement  before  or  after 
foreclosure   of   mortgage. — See   10   L.   N.   S.   679. 

Tenant  for  years,  riglit  to  redeem  premises  from  mortgage. — 
See  4  A.  C.  807. 

1465 


§  2920  CIVIL  CODE.  [Div.III,Pt.IV. 

Tenant  in  common,  rig'ht  of,  who  pays  mortgage  debt  to 
enforce  mortgage  against  cotenant. — See' 10  A.  C.   822. 

Tender  extinguishes  when. — See  7  A.  C.  116;  8  A.  C.  361;  10 
A.   C.    278. 

Same — After  maturity  and  before  foreclosure,  effect  on  mort- 
gage lien. — See   8  A.   C.   363. 

Same — By  whom  must  be  made  in  order  to  extinguish  lien. — 
See  7  A.  C.   1065. 

Tendor  or  payment  after  breach  of  condition. — See  29  A. 
R.   41. 

Terms  of  redemption,  as  to,  generally,  see  6  A.  C.  471. 

Title  not  conveyed  by  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2924 
and  note  pars.   45-50. 

To  secure  future  accounts. — See  10  A.  D.   108. 

To  secure  future  advances. — See  20  A.  D.  658;  116  A.  D.  690. 

To  secure  several  notes,  which  entitled  to  precedence  of  pay- 
ment.— See  38  A.  D.  440. 

Transactions,  mortgages  or  sales,  which. — See  3  A.  C.  407. 

Transfer  in  trust. — See  Kerr's  Cyc.  C.  C.  §  2924  and  note 
par.  53. 

Trustee,  power  of  to  mortgage  trust  estate  for  purpose  of 
making  improveinents  so  as  to  render  it  productive. — See  7 
L.   N.   S.   263. 

Validity  of— As  to  generally,  see  6  L.  565;  11  L.  846;  14  L. 
359;  24  L.  328;  28  L.  95;  28  L.  134;  29  L.  692;  33  L.  761;  37  L. 
337;   37  L.  465;   39  L.  423;  47  L.   87;   67  L.  122. 

Same — Agreement  to  mortgage  crops  to  be  planted. — See 
5  A.  C.  400. 

Same — Upon  public  land  executed  by  claimant  under  the 
homestead  act  prior  to  patent  or  final  proof. — See  6  L.  N.  S.  934. 

Same — Within  four  months  before  bankruptcy,  pursuant  to 
executor's  agreement  antedating  that  period. — See  17  L.  N.  S. 
939. 

Vendee  of  mortgagee  assuming  mortgage  debt,  rights  and 
liabilities  of.— See  4  L.  N.  S.  666;  7  L.  N.  S.  1120;  10  L.  N.  S.  857. 

Water-right  used  in  connection  with  land  mortgaged  prior 
to  its  acquirement  under  sale  on  foreclosure,  does  it  pass  with 
the  land. — See   15  L.  N.   S.   359. 

What  constitutes  and  validity  of. — See  2  L.  N.  S.  628;  6  L.  N. 
S.  934;  7  L.  N.  S.  263;  12  L.  N.  S.  825;  13  L.  N.  S.  298;  13  L.  N.  S. 
725;   17  L.  N.  S.  939;  5  W.  &  P.  4596. 

Widow,  right  to  redeem  from  mortgage  because  of  her  inter- 
est in  estate. — See  4  L.  N.  S.   1029. 

Wife,  right  of  to  redeem  from  mortgage  on  husband's  real 
property,  during  his  lifetime. — See  3  L.  N.  S.  1068. 

Writing  and  other  formalities  required. — See  Kerr's  Cyc.  C.  C. 
§  2922  and  note. 

1466 


Tit.XIV,ch.II,art.I.]       TO  be  IN  writing.  §§2921,2922 

§  2921.  PROPERTY  ADVERSELY  HELD  MAY  RE  MORT- 
GAGED. A  mortgage  may  be  created  upon  propertj^  held 
adversely  to  the  mortgager. 

History:     Enacted  March -21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  mortg-ages,  see  note 
§  2920,  ante. 

Owner  ousted  of  possession  may  transfer. — See  Kerr's  Cyc. 
C.  C.  §  1047  and  notes. 

Real  property  which  may  be  mortgaged. — See  Kerr's  Cyc. 
C.  C.   §  2947  and   notes. 

§  2922.  TO  BE  IN  WRITING.  A  mortgage  can  be  created, 
renewed,  or  extended,  only  by  writing",  executed  with  the 
formalities  required  in  the  case  of  a  grant  of  real  property. 

Hi,Titory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  31  pars,  annotation. 

53  C.  677,  680,  65  C.  512,  516,  4  P.  531  (applied);  5  P.  101 
(cited — agreement  for  lien  on  real  estate  must  be  in  writing:); 
56  C.'342,  344  (applied);  57  C.  467,  471  (construed);  58  C.  147. 
152  (referred  to  erroneously);  68  C.  52,  53,  8  P.  627  (applied): 
74  C.  345,  350,  16  P.  189,  191  (referred  to);  75  C.  464.  488,  17  P. 
246  (applied);  84  C.  201;  205,  23  P.  1081,  1082  (referred  to  as 
inapplicable);  85  C.  280,  288,  24  P.  743,  745  (referred  to  as 
inapplicable);  112  C.  355,  366,  44  P.  729  (cited);  117  C.  412,  415. 
49  P.  414  (cited);  120  C.  220,  223,  224,  65  A.  S.  179,  52  P.  583 
(construed);  52  P.  836,  837  (what  letter  does  not  renew  or 
extend  mortgage  lien);  122  C.  413,  418,  419,  420,  55  P.  145 
(cited);  126  C.  467,  469,  77  A.  S.  192,  58  P.  907  (cited);  128  C. 
549,  551,  61  P.  666  (cited);  129  C.  415,  417,  79  A.  S.  123,  61  P. 
1107  (construed);  134  C.  599,  600,  66  P.  869  (cited);  137  C.  384. 
389,  70  P.  223  (applied);  140  C.  687,  689,  74  P.  291  (applied); 
144  C.  776,  783,  78  P.  254  (cited);  147  C.  384,  388,  81  P.  1077 
(referred  to);  151  C.  723,  727,  91  P.  616  (what  instruments 
constitute   renewal   of   note   and  mortgage). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  mortgagee's  riglit  to  possession,  see  Kerr's  Cyc.  C.  C. 
§  2927  and  note. 

Equitable  mortgages. — See  4  A.  S.   696-708. 

Form  of  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2948  and  note. 

Frauds,  statute  of. — See  Kerr's  Cyc.  C.  C.  §  1624  and  note. 

Limitations,  statute  of — Extinguishment  of  lien. — See  Kerr's 
Cyc.  C.  C.  §  2911  and  note. 

1467 


§§  2923, 2924  CIVIL  CODE.  [Div.III.Pt.IV. 

Oral  mortg-ag-es. — See  1  A.  S.  236,  237. 

"Specific  property." — See  Kerr's  Cyc.  C.  C.  §  2920  and  note 
par.  50. 

§2923.    LIEN  OF  jf  MORTGAGE,  WHEN  SPECIAL.     The 

lien  of  a  mortgage  is  special,  unless  otherwise  expressly 
agreed,  and  is  independent  of  possession. 

Hista.ry:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.   C.  for  3  pars,  annotation. 

11  F.   253,  259    (cited). 

As  to  many  miscellaneotis  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Accessory  to  obligation  to  be  performed. — See  Kerr's  Cyc. 
C.  C.  §  2909  and  note. 

Chattel  interest  of  mortgagee.- — See  Kerr's  Cyc.  C.  C.  §2924 
and   note  par.    46. 

Effect  of  sale  under  mortgage  upon  lien. — See  58  A.  D.  569- 
571. 

Extinction  of  liens. — See  Kerr's  Cyc.  C.  C.  §§  2909-2913  and 
notes. 

Growing  crop — Lien  of  mortgage  on. — See  Kerr's  Cyc.  C.  C. 
§  2972  and  note. 

Liens  generally. — See  Kerr's  Cyc.  C.  C.   §§  2872-2913  and  notes. 

Mortgager  may  give  mortgagee  right  of  possession. — See 
Kerr's  Cyc.  C.  C.   §  2927  and  note. 

Possession — Mortgagee  not  entitled  to. — See  Kerr's  Cyc.  C.  C. 
§  2927   and   note. 

Primary  purpose  of  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2920 
and  note  par.   43. 

Prior  lien — Right  of  holder  of  special  lien  upon  payment  of. 
— ^See  Kerr's  Cyc.  C.  C.   §  2876   and  note. 

Property  to  which  lien  attaches. — See  Kerr's  Cyc.  C.  C.  §  2926 
and  note. 

Redemption  from  lien.- — See  Kerr's  Cyc.  C.  C.  §§  2903-2905  and 
notes. 

Special   lien — What   is. — See   Kerr's   Cyc.  C.  C.   §  2875  and  note. 

Special  security  is  obtained  by  possession. — See  Kerr's  Cyc. 
C.  C.   §  2927  and  note  par.  18. 

Waste  impairing  lien. — See  Kerr's  Cyc.  C.  C.  §  2929  and  note. 

§  2924.  TRANSFER,  WHEN  MORTGAGE,  WHEN  PLEDGE. 

Every  transfer  of  an  interest  in  property,  other  than  in  trust, 
made  only  as  a  security  for  the  performance  of  another  act, 
is   to   be   deemed   a   mortgage,    except   when   in    the   case   of 

1468 


Tit.XIV,ch.II,art.r.]    TRANSFER.  CHARACTER.  §  2924 

personal  property  it  is  accompanied  by  actual  chan.^e  of  pos- 
session, in  which  case  it  is  to  be  deemed  a  pledge. 

Hlmtory:     Enacted   March    21,    1872;    amended   Marcli    30,    1874, 
Code  Amdts.  1873-4.  p.  260. 

See  Kerr's  Cyc.  C.  C.  for  .53  pars,  annotation. 

58  C.  11,  15  (cited):  59  C.  107,  112  (applied  (;  0  1  C.  513,  514. 
2  P.  399,  400  (cited):  5  P.  101  (cited — agreement  for  lien  on 
real  estate  must  be  in  writing):  71  C.  407,  411.  12  P.  410,  412 
(cited);  74  C.  250,  254,  5  A.  S.  435,  14  P.  369.  371,  15  P.  773 
(cited):  80  C.  348,  352.  22  P.  200  (cited);  91  C.  458,  461,  27  P. 
763,  764  (cited);  100  C.  250,  254.  34  P.  696  (cited):  105  C.  467.  469. 
470,  38  P.  1107,  1109  (construed  with  §2955);  106  C.  673.  680. 
39  P.  1071  (cited);  107  C.  144,  148,  40  P.  37  (cited);  121  C.  379. 
384,  53  P.  813  (cited);  121  C.  539.  542,  54  P.  83  (cited);  123  C.  689. 
694.  56  P.  604  (cited);  126  C.  600,  604,  59  P.  130  (applied);  127 
C.  254,  256,  59  P.  597  (cited):  128  C.  293,  300,  60  P.  769  (cited) ;' 
129  C.  160.  163.  61  P.  785  (cited);  135  C.  277,  279.  67  P.  129 
(applied):  144  C.  776.  7S3.  78  P.  254  (cited);  147  C.  384.  389.  81 
P.  1077  (exception  refers  only  to  what  trusts);  148  C.  650,  653. 
655,  84  P.  186  (what  is  more  than  a  mortgage);  150  C.  185,  190, 
88  P.  825  (reliance  upon  possession  as  pledge  negatives  con- 
ception  of  chattel   mortgage). 

As  to  many  miscellaneous  ni;itter.«!  as  to  mortgages,  st-e  note 
«  2920,  ante. 

Agreement  to  rcconvey. — See   17  A.  D.  300. 

.\ssignment  of  contract  of  purchase  as  erjultable  mortgage. — 
See   4   A.  S.   703.  704. 

Rurden  of  proof. — See  50  A.   D.   196.  197. 

Deed    absolute    construed    .-is    mortgage,    when. — See    65    A.    S. 
186. 

Deed   absolute,    when    not    <'onstrued    as    mortgage. — See    1    1*. 
240,  241. 

Defeasance  may  be   proved. — See   Kerr's  Cyc.   C.  C.   S  2925  and 
note. 

D.'fectlve  execution  of  mortgage. — See  Kerr's  Cyc.  C.  C.  |  2922 
and   note  par.  7. 

Delivery     of    defeasance     necessary. — See     Kerr's    Cyc.     C     C. 
S  2925  and  note  par.  7. 

Distinction    between   deed   of   trust  and   moriirnire. — .<>.■.•    Kerr's 
Cyc.  C.  C.  i  2932  and  note  pars.  5.  6. 

Equitable  mortgages. — See  4   A.  S.  696-70S. 

Kstoppel    to    Insist    upon    defeasance. — See    Kerr's    *^y.-.    •'.    C 
$  2925  and  note  par.  9. 

Fi)rm   of   instrument    immaterl.il. — See   Kerr's  Cyc.   C.   C.   {  2948 
and  note  par.  7. 

Form  of  mortgage. — See  Kerr's  Cyc.  C.  C.   5  294S  and  note. 

1469 


§  2925  CIVIL  CODE.  [Div.III,Pt.IV. 

Intent  of  parties  to  be  considered. — See  42  A.  S.  273. 

Law  and  equity  have  same  rule. — See  17  A.  D.  302,  303. 

Lease  assigned  as  security. — See  Kerr's  Cyc.  C.  C.  §  2947  and 
note  par.   10. 

Lien  or  contract  for  lien  transfers  no  title. — See  Kerr's  Cyc. 
C.  C.  §  2888  and  note. 

Merger  of  mortgage  in  judgment  of  foreclosure. — See  32  A. 
R.  133,   134. 

Morte-agee  cannot  recover  in   ejectment. ^See   34   A.   D.    213. 

"Mortgage"  does  not  include  pledge.— See  Kerr's  Cyc.  C.  C. 
§  2920  and  note  par.  37. 

Mortgagee  may  purchase  from  mortgager. — See  44  A.  S.  699, 
700. 

Name  of  instrument  immaterial. — See  Kerr's  Cyc.  C.  C.  §  2920 
note  par.  38;  §  2948  note  par.  7. 

Parol  evidence  to  show  that  deed  absolute  is  mortgage. — See 
Kerr's  Cyc.  C.  C.  §  2924,  note  pars.  23,  36. 

Specific  performance  of  contract  to  reconvey. — See  Kerr's 
Cyc.  C.  C.  §  2925  and  note  par.  15. 

§2925.  TRANSFER  MADE  SUBJECT  TO  DEFEASANCE 
MAY  BE  PROVED.  The  fact  that  a  transfer  was  made  sub- 
ject to  defeasance  on  a  condition,  may,  for  the  purpose  of 
showing  such  transfer  to  be  a  mortgage,  be  proved  (except 
as  against  a  subsequent  purchaser  or  encumbrancer  for  value 
and  without  notice),  though  the  fact  does  not  appear  by  the 
terms  of  the  instrument. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

58  C.  11,  16  (cited);  64  C.  513,  514,  2  P.  399,  400  (cited);  71  C. 
407,  411,  12  P.  410,  412  (cited);  88  C.  319,  325,  26  P.  180,  181 
(cited);  91  C.  468,  461,  27  P.  763,  764  (cited);  119  C.  18,  21,  50  P. 
925  (referred  to);  123  C.  689,  694,  56  P.  604  (cited);  127  C.  254, 
256,  59  P.  597   (cited);  144  C.  130,  132,  77  P.  831   (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Cognate   section. — See   Kerr's  Cyc.  C.  C.    §  2924   and  note. 

Deed  absolute  and  contemporaneous  defeasance  constitute 
mortgage. — See  42  A.  S.   272. 

Deed  absolute  intended  as  mortgage. — See  Kerr's  Cyc.  C.  C. 
§  2924  and  note  par.   5. 

Evidence  to  show  that  deed  absolute  is  mortgage. — See  Kerr's 
Cyc.  C.  C.  §  2924  and  note  pars.  23-36. 

Question  of  fact  as  to  what  constitutes  mortgage. — See  Kerr's 
Cyc.  C.  C.  §  2924  and  note  pars.   40,   41. 

1470 


Tit.XIV.ch.II.art.L]        LIEN  ON  WHAT.  §  2926 

Recordation  of  defeasance  necessary,  wlien. — See  Kerr's  Cyc. 
C.  C.  §  2950  and  note. 

Requisites  of  defeasance. — See  17  A.  D.  303,  306. 

Several  contracts  taken  together,  when. — See  Kerr's  Cyc.  C.  C. 
§  1642  and  note. 

Title  not  conveyed  by  deed  absolute  intended  as  mortgage. — 
See  Kerr's  Cyc.  C.  C.  §  2924  and  note  pars.   45-50. 


§2926.  M()I{T(iJA(;E,  OX  WHAT  A  LIEN.  A  mortgage  is  a 
lien  upon  everything  that  would  pass  by  a  grant  of  the 
property. 

HLstory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  21  pars,  annotation. 

80  C.  245,  252,  13  A.  S.  147.  22  P.  184,  186  (applied):  80  C.  348, 
352,  22  P.  200,  201   (cited);  126  C.  600,  605,  59  P.  130  (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Accessory  to  obligation  to  be  performed. — See  Kerr's  Cyc. 
C.  C.  §  2909  and  note. 

Appurtenances. — See  Kerr's  Cyc.  C.  C.  §  662  and  note. 

Effect  of  sale  under  mortgage  upon  lien. — See  58  A.  D.  569- 
571. 

Extinction  of  liens. — See  Kerr's  Cyc.  C.  C.  §§2909-2913  and 
notes. 

Growing  crop — Lien  of  mortgage  on. — See  Kerr's  Cyc.  C.  C. 
§  2972  and  note. 

Liens  generally. — See  Kerr's  Cyc.  C.  C.   §§  2872-2913  and  notes. 

Limitations,  statute  of — Extinguishment  of  lien. — See  Kerr's 
Cyc.  C.  C.  §  2911  and  note. 

Marshaling  assets — Order  of  resort  to  different  funds. — Sec 
Kerr's  Cyc.  C.  C.  §  2899  and  note,  §  3433  and  note. 

Mortgages  upon  buildings  on  leased  premises. — See  21  L.  347. 
349. 

Possession  by  mortgagee  authorized  if  he  deems  liimself 
unsafe,   etc. — See   51   A.   R.   805,   809. 

Possession — Mortgagee  not  entitled  to. — Soo  Kerr's  Cyc  C.  C. 
§  2927  and  note. 

Primary  purpose  of  mortgage. — See  Kerr's  Cyc.  C.  C.  S  2920 
and  note  par.  43. 

Prior  lien — Riglit  of  liolder  of^sperial  liiii  upon  payment  of. — 
See  Kerr's  Cyc.  C.  C.  §  2876  and  note. 

Redemption  from  lien. — See  Kerr's  Cyc.  C.  C.  §§  2903-2905  and 
notes. 

Waste  impairing  lien. — See  Kerr's  Cyc.  C.  C.   §  2929  and   note. 

1471 


§§  2927,  2928  CIVIL  CODE.  [Div.III,Pt.IV. 

§2927.    MORTGAGE   DOES   NOT   ENTITLE   MORTGAGEE 

TO  POSSESSION.  A  mortgage  does  not  entitle  the  mortgagee 
to  the  possession  of  the  property,  unless  authorized  by  the 
express  terms  of  the  mortgage;  but  after  the  execution  of  the 
mortgage  the  mortgager  may  agree  to  such  change  of  pos- 
session without  a  new  consideration. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

72  C.  307,  309,  13  P.  866  (cited);  80  C.  323,  326,  21  P.  4,  5,  22 
P.  186,  549  (cited);  80  C.  348,  353  (applied  but  erroneously  cited 
as  §  292),  22  P.  200,  201  (correct  citation);  88  C.  437,  440,  22  A.  S. 
314,  26  P.  203,  204,  13  L.  137  (cited);  96  C.  21,  32,  30  P.  957 
(applied);  106  C.  673,  680,  39  P.  1071,  1072  (applied);  109  C.  360, 
362,  365,  42  P.  35  (cited);  112  C.  180,  187,  53  A.  S.  201,  40  P.  104; 
44  P.  484  (cited);  117  C.  412,  416,  49  P.  414  (cited);  121  C.  543, 
544,  54  P.  85  (cited);  127  C.  648,  652,  60  P.  434  (cited);  128  C. 
489,  491,  61  P.  84  (cited);  11  F.  253,  260  (cited);  6  C.  A.  455,  458, 
92  P.  393  (construed  with  §  2920 — ^effect  of  mortg-age  as  to  title 
or  possession). 

As  to  construing  deed  absolute  to  be  mortgage,  see  Kerr's 
Cyc.  C.  C.  §  2924  and  note  par.  5. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  mortgagee  having  no  title,  see  Kerr's  Cyc.  C.  C.  §  2924 
and  note  par.  45. 

Common-law  vadium  vivum. — See  Kerr's  Cyc.  C.  C.  §  2920  and 
note  par.  8. 

Compensation  of  lienor  for  trouble  and  expense. — See  Kerr's 
Cyc.  C.  C.  §  2892  and  note. 

Duties  and  liabilities  of  mortgagee  in  possession. — See  31  A. 
S.   180,  181. 

Ejectment  is  not  maintainable  by  inortgagee. — See  Kerr's  Cyc. 
C.  C.   §  2924  and  note  pars.  51,  52. 

Growing  crops. — See  Kerr's  Cyc.  C.  C.   §  2926  and  note  par.   10. 

Hypothecation  and  mortgage  of  land  distinguished. — See 
Kerr's  Cyc.  C.  C.  §  2920  and  note  par.  32. 

Possession  of  mortgagee  authorized  if  he  deems  himself  un- 
safe, etc. — See  51  A.  S.  805,  809. 

Rights  and  liabilities  of  mortgagee  in  possession. — See  64 
A.  S.  289. 

Special  lien   of  mortgage. — See  ante   §  2923. 

§2928.    MORTGAGE    NOT    A    PERSONAL    OBLIGATION. 

A  mortgage  does  not  bind  the  mortgager  personally  to  per- 

1472 


1 


Tit.XlV,ch.II,art.I.]      SUBSEQUENT    TITLE.  §§2929,2930 

form  the  act  for  the  performance  of  which  it  is  a  security, 
unless  there  is  an  express  covenant  therein  to  that  effect. 

Hlwtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

57  C.  641,  642  (construed);  66  C.  97,  98,  4  P.  1062  (cited);  101 
C.  415,  419,  35  P.  1027  (applied);  127  C.  202,  204,  59  P.  585  (cited); 
137  C.   253,  255,  70  P.  89   (applied). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Amount  for  which  mortgage  given. — See  Kerr's  Cyc.  C.  C. 
§  2920  and  note  par.  4. 

Cognate  section  with  reference  to  liens  generally. — See  Kerr's 
Cyc.  C.  C.  §  2890  and  note. 

Creditor  entitled  to  benefit  of  securities  held  by  surety. — See 
Kerr's  Cyc.  C.  C.  §  2854  and  note. 

Enforcement  of  contract  for  benefit  of  third  person. — See 
Kerr's  Cyc.  C.  C.  §  1559  and  note. 

Independent  action  at  law  to  recover  debt  not  maintainable. 
— See  Kerr's  Cyc.  C.  C.  P.  §  726  and  note. 

Lien  accessory  to  obligation  to  be  performed. — See  Kerr's 
Cyc.  C.  C.   §  2909  and  note. 


§  29*29.  WASTE.  No  person  whose  interest  is  subject  to 
the  lien  of  a  mortgage  may  do  any  act  which  will  substan- 
tially impair  the  mortgagee's  security. 

HiNtory:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

80  C.   245,  246,  13  A.  S.   147,   22   P.   184   (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Damages  for  injuries  done  after  foreclosure  sale  and  before 
delivery  of  deed. — See  Kerr'n  Pocket  C.  C.  P.  $  746. 

Injunction  pendente  lite. — See  Kerr's  Cyc.  C.  C.  P.  5  74')  and 
note. 

Rights  or  remedies  of  mortgagee  against  Inipnirment  of 
security.— See   43  A.  S.   432-436. 

§29.10.  SIBSEQIEMLY  A(yilKEI)  TITLE  IMKKS  TO 
MORTGAGEE.  Title  acquired  by  the  mortgager  subsequent 
to  the  execution  of  the  mortgage,  inures  to  the  mortgagee  as 

K.-rr's    C.    C— 47  1473 


§  2931  CIVIL  CODE.  [Div.III,Pt.IV. 

security  for  the   debt,  in   like  manner  as  if  acquired  before 
the  execution. 

History:  Enacted  March  21,  1872;  amended  March  30,  1S74, 
Code   Amdts.    1873-4,    p.    260. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

52  C.  334,  335,  336  (applied);  67  C.  275,  279,  7  P.  693  (applied); 
98  C.  514,  518,  33  P.  486,  487,  488  (cited);  138  C.  682,  683,  72  P.  343 
(title  to  homestead,  acquired  by  wife,  after  void  mortgage  by 
her,  and  subsequent  to  mortgage,  does  not  inure  to  mortgagee 
as  security  for  debt);  144  C.  144,  146,  77  P.  885   (applied). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

After-acquired  property. — See  Kerr's  Cyc.  C.  C.  §  2926  and 
note  par.   2. 

After-acquired  title. — See  76  A.  D.  458;  79  A.  D.  192;  89  A.  D. 
206,   207. 

Cognate  section  with  reference  to  transfers  generally. — See 
Kerr's  Cyc.  C.  C.  §  1106  and  note. 

Encumbrances  by  pre-emptors  and  other  claimants  of  public 
land. — See  52  A.  S.  248,  254. 

Mortgage  of  after-acquired  property. — See  46  A.  D.  712. 

Parol  evidence  to  indemnify  after-acquired  property  mort- 
gaged.— See  Kerr's  Cyc.  C.  C.  §  2947  and  note. 


§  2931.  FOEECLOSURE.  A  mortgagee  may  foreclose  the 
right  of  redemption  of  the  mortgager  in  the  manner  pre- 
scribed by  the  code  of  civil  procedure. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

144  C.  329,  333,  77  P.  937   (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Actions  for  foreclosure  of  mortgages. — See  Kerr's  Cyc.  C.  C. 
P.   §§  726-729  and  notes. 

Appeal  bond  when  judgment  is  for  sale  of  mortgaged  prem- 
ises.— See  Kerr's  Cyc.  C.  C.  P.  §  945  and  note. 

Decedent's  estate — Actions  against. — See  Kerr's  Cyc.  C.  C.  P. 
§  1500  and  note. 

Effect  of  sale  under  mortgage  upon  lien. — See  58  A.  D.  569-571. 

Injunction  pendente  lite. — See  Kerr's  Cyc.  C.  C.  P.  §  745  and 
note. 

Marshaling  assets — Order  of  resort  to  different  funds. — See 
Kerr's  Cyc.   C.   C.   §  2889  and  note  and  post   §  3433  and  note. 

1474 


Tit.XIV.ch.II.art.L]  POWER  OF  sale.  §§2932,2933 

Merger  of  mortgage  in  judgment  of  foreclosure. — See  38  A.  R. 
133,  134. 

Necessity  for  foreclosure  and  sale  to  entitle  mortgagee  to 
recover  possession. — See  Kerr's  Cyc.  C.  C.  P.  §  744  and  note. 

Receiver — Appointment  in  action  to  foreclose  mortgage. — See 
Kerr's  Cyc.  C.  C.  P.  §  564  subd.  2  and  note. 

Reciprocal   rights  to  foreclose  and   redeem. — See   94   A.   D.    742. 

Redemption  from  lien. — See  Kerr's  Cyc.  C.  C.  §§  2903-2905  and 
notes. 

Right  of  bondholder  to  sue  for  enforcement  of  corporate 
trust  deed.— See   20  L.   535-537. 

Subrogation  to  benefits  of  superior  lien. — See  Kerr's  Cyc.  C.  C. 
§  2904  subd.  2  and  note. 

Venue  in  action  to  foreclose  mortgage. — See  Kerr's  Cyc.  C.  C. 
P.  §  392  and  note  par.  3. 

§2932.  POWER  OF  SALE.  A  power  of  sale  may  be  con- 
ferred by  a  mortgage  upon  the  mortgagee  or  any  other  per- 
son, to  be  exercised  after  a  breach  of  the  obligation  for 
which  the  mortgage  is  a  security. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

57  C.  480,  482  (cited);  101  C.  224,  227,  35  P.  761  (cited);  68 
P.  1020,  1021  (cited);  138  C.  682,  683,  72  P.  343  (cited);  11  F. 
253,  260   (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Forfeiture — Validity  of  contract  providing  for. — See  Kerr's 
Cyc.  C.  C.  §  2889  and  note. 

Power  of  sale  in  mortgage. — See  14  A.  D.  473,  474. 

Sales  and  conveyances  by  trustees. — See  19  A.  S.  266-297. 

Vesting  of  mortgage  powers. — See  Kerr's  Cyc.  C.  C.  §  858  and 
note. 

§2933.  POWER  OF  ATTORNEY  TO  EXEt I'TE.  A  power 
of  attorney  to  execute  a  mortgage  must  be  in  writing,  sub- 
scribed, acknowledged,  or  proved,  certified,  and  recorded  in 
like  manner  as  powers  of  attorney  for  grants  of  real  prop- 
erty. 

History:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 
144  C.   19,  35,  77  P.   712    (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

1475 


§§  2934,  2935  CIVIL  CODE.  [Div.III,Pt.IV. 

Cognate  section  as  to  agency,  generally. — See  Kerr's  Cyc.  C.  C. 
§  2309  and  note. 

Estoppel  to  deny  authority  in  writing. — See  Kerr's  Cyc.  C.  C. 
§  2922  and  note  par.   9. 

Testamentary  power  to  sell  and  dispose  of  property. — See  38 
A.  R.  343. 


§2934.    RECORDING      ASSIGNMENT      OF      MORTGAGE. 

An  assignment  of  a  mortgage  maj^  be  recorded  in  like  man- 
ner as  a  mortgage,  and  such  record  operates  as  notice  to 
all  persons  subsequently  deriving  title  to  the  mortgage  from 
the   assignor. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.    1873-4,   p.    261. 

'    See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

109  C.  42,  49,  41  P.  799  (construed);  120  C.  238,  241,  242,  52  P. 
483   (construed). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Assignment  of  mortgage,  record  of. — See  14  A.   D.   513. 

Assignment  of  mortgage,  when  subject  to  equities. — See  14 
A.  D.  513,   514. 

Inseparability  of  debt  and  security. — See  Kerr's  Cyc.  C.  C. 
§  2936  and  note  par.  6. 

Severance  of  debt  and  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2936 
and  note  par.  12. 

Statutory  requirements  as  to  chattel  mortgages. — See  Kerr's 
Cyc.  C.  C.  §  2936  and  note  par.  13. 

Subsequent  payments  by  mortgager. — See  65  A.   S.   576. 

Third  persons  are  affected  by  assignment  of  debt.- — See  Kerr's 
Cyc.  C.  C.  §  2936  and  note  par.  15. 

§  2935.  NOT  NOTICE  TO  MORTGAGER.  When  the  mort- 
gage is  executed  as  security  for  money  due,  or  to  become 
due,  on  a  promissory  note,  bond,  or  other  instrument,  desig- 
nated in  the  mortgage,  the  record  of  the  assignment  of  the 
mortgage  is  not,  of  itself,  notice  to  a  mortgager,  his  heirs, 
or  personal  representatives,  so  as  to  invalidate  any  payment 
made  by  them,  or  either  of  them,  to  the  person  holding  such 
note,  bond,  or  other  instrument. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,   p.    261. 

1476 


Tit.XIV,ch.II,art.I.]    ASSIGNMENT— DISCHARGE.    §§  2936-2938 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

120  C.  238,  241,  242,  52  P.  483  (construed);  136  C.  313,  316,  68 
P.    975    (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Inseparability  of  debt  and  security. — See  Kerr's  Cyc.  C.  C. 
§  2936  and  note  par.   6. 

§2986.    MORTGAGE  PASSES  BY  ASSIG>ME>T  OF  DEIJT. 

The  assignment  of  a  debt  secured  by  mortgage  carries  with 

it  the   security. 

History:  Enacted  March  21,  1872;  amended  by  Code  Commis- 
sion, Act  Marcli  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417,  held 
unconstitutional,   see  history,   §  4   ante. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

88  C.  319,  327,  26  P.  180,  182  (cited);  93  C.  114,  117,  28  P.  855, 
856   (cited);  109  C.  42,  48,  41  P.  799   (applied). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  record  of  assignment,  see  Kerr's  Cyc.  C.  C.  §  2934  and 
note. 

Assignment  of  mortgage,  notice  of. — See  14  A.  D.  513. 

Negotiability  of  note  secured  by  mortgage  as  affected  by  pro- 
visions in  mortgage. — See  35  L.  536,   537. 

Non-negotiable  instruments  may  be  transferred. — See  Kerr's 
Cyc.  C.  C.  §  1459  and  note. 

Rights  of  assignee  of  mortgage  note. — See  20  A.  S.  442.  443. 

§2937.    TIME   ALLOWED  FOR  FILING  MORTGAGE   F(Ml 

RECORD   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1S74. 
Code  Amdts.    1873-4,  p.    261. 

46  C.  603,  607,  608,  609  (cited);  127  C.  290,  309,  53  P.  911,  59  P. 
827,  46  L.  371   (cited  in  dis.  op.). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2938.  M()RTGAGE,  HOW  DISlHARCiED.  A  recorded 
mortgage  may  be  discharged  by  an  entry  in  the  margin  of  the 
record  thereof,  signed  by  the  mortgagee,  or  his  personal  rep- 
resentative   or    assignee,    acknowledging    the    satisfaction    of 

1477 


§§2939, 29391^  CIVIL  CODE.  [Div.III.Pt.IV. 

the  mortgage  in  the  presence  of  the  recorder,  who  must  cer- 
tify  the   acknowledgment  in   form   substantially   as   follows: 

"Signed  and  acknowledged  before  me,  this   day  of 

,  in  the  year A  B,  Recorder." 

History:     Enacted  March   21,  1S72. 

See  Kerr's  Cyc.   C.  C.   for  15  pars,  annotation. 

72  C.  451,  457,  14  P.  186,  188  (construed);  119  C.  283,  297,  63  A. 
S.   108,  51-  P.   2    (construed). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Extinction  of  lien. — See  Kerr's  Cyc.  C.  C.  §§  2909-2913  and 
notes. 

Power' to  release  mortgage  need  not  be  recorded. — See  Kerr's 
Cyc.  C.  C.  §  2933  and  note  par.  4. 

Redemption  from  lien. — See  Kerr's  Cyc.  C.  C.  §§  2903-2905  and 
notes. 

Right  to  reinstatement  of  mortgage  when  released  or  dis- 
charged bj''  mistake. — See  58  L.   788-807. 

Subrogation  to  benefits  of  superior  lien.^See  Kerr's  Cyc.  C.  C. 
§  2904  subd.   2  and  note. 

Substitution  of  one  mortgage  for  another. — See  Kerr's  Cyc. 
C.   C.   §  2941  and  note  par.   13. 

Transfer  of  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2935  and  note 
par.  6. 

§  2939.  SAME.  [ON  CERTIFICATE.]  A  recorded  mortgage, 
if  not  discharged  as  provided  in  the  preceding  section,  must  be 
discharged  upon  the  record  by  the  officer  having  custody 
thereof,  on  the  presentation  to  him  of  a  certificate  signed 
by  the  mortgagee,  his  personal  representatives  or  assigns, 
acknowledged  or  proved  and  certified  as  prescribed  by  the 
chapter  on  "recording  transfers,"  stating  that  the  mortgage 
has  been  paid,  satisfied,  or  discharged. 

History:     Enacted  March   21,  1872. 

As  to  discharge  of  mortgage  by  oral  agreement,  see  Kerr's 
Cyc.  C.  C.  §  2939,  note. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§  2939^^.  SAME— HOW  FOREIGN  EXECUTORS  AND  AD- 
MINISTRATORS MAY  SATISFY  MORTGAGES.  Foreign 
executors  and  administrators  may  satisfy  mortgages  upon  the 

1478 


Tit.XIV,ch.II,art.I.]    SATISFACTION— duty   on.     §§  2940,  2941 

records  of  any  county  in  this  state,  upon  producing  and 
recording  in  the  office  of  the  county  recorder  of  the  county 
in  which  such  mortgage  is  recorded,  a  duly  certified  and 
authenticated  copy  of  their  letters  testamentary  or  of  admin- 
istration, and  which  certificate  shall  also  recite  that  said 
letters  have  not  been  revoked. 

HlHtory:     Enacted  March  8,  1895,  Stats,  and  Amdts.  1895,  p.  28. 

§2940.  SAME.  [RECORD  A>'P  REFERENCE.]  A  certifi- 
cate of  the  discharge  of  a  mortgage,  and  the  proof  or 
acknowledgment  thereof,  must  be  recorded  at  length,  and  a 
reference  made  in  the  record  to  the  book  and  page  where 
the  mortgage  is  recorded,  and  in  the  minute  of  the  discharge 
made  upon  the  record  of  the  mortgage  to  the  book  and  page 
where  the  discharge  is  recorded. 

Uidtory:     Enacted  March  21,  1872. 

§2941.  DUTY  OF  MORTGAGEE  ON  SATISFACTION  OF 
MORTGAGE.  When  any  mortgage  has  been  satisfied,  the 
mortgagee  or  his  assignee  must  immediately,  on  the  demand 
of  the  mortgager,  execute,  acknowledge,  and  deliver  to  him 
a  certificate  of  the  discharge  thereof,  so  as  to  entitle  it  to 
be  recorded,  or  he  must  enter  satisfaction,  or  cause  satisfac- 
tion of  such  mortgage  to  be  entered  of  record;  and  any 
mortgagee,  or  assignee  of  such  mortgagee,  who  refuses  to 
execute,  acknowledge,  and  deliver  to  the  mortgager  the 
certificate  of  discharge,  or  to  enter  satisfaction,  or  cause 
satisfaction  of  the  mortgage  to  be  entered,  as  provided  in 
this  chapter,  is  liable  to  the  mortgager,  or  his  grantee  or 
heirs,  for  all  damages  which  he  or  they  may  sustain  by 
reason  of  such  refusal,  and  shall  also  forfeit  to  him  or  them 
the  sum  of  one  hundred  dollars. 

HiNtory:  Enacted  Martli  21,  1S72:  amended  Marcli  30,  1874. 
Code  Amdts.  1S7S-4,  p.  201 :  Ai)ril  15,  1880,  Code  Amdts.  1880 
(C.  C.   pt.),  p.    11. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 
fi4  C.   273,   274    (applied  hut   erroneously  cited  as   §  2951),   30   P. 
818   (same  error);  106  C.  199,  2Mn.  201.  39  P.  533   (cited). 

1479 


§  2942  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Cancelation  of  release.— See  Kerr's  Cyc.  C.  C.  §  2938  and  note 
pars.  2-4. 

Redemption  from  lien. — See  Kerr's  Cyc.  C.  C.  §§  2903-2905  and 
notes. 

Subrogation  to  benefits  of  superior  lien. — See  Kerr's  Cyc.  C.  C. 
§  2904  subd.  2  and  note. 

§2942.    PROVISIONS  OF  THIS   CHAPTER  DO   NOT  AF- 
FECT  BOTTOMRY  OR  RESPONDENTIA.     Contracts  of  bot- 
tomry or  respondentia,  although  in  the  nature  of  mortgages, 
are  not  affected  by  any  of  the  provisions  of  this  chapter. 
History:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Bottomry. — See  Kerr's  Cyc.  C.  C.  §§3017-3029  and  notes;  also 
note   §  3017,  post. 

Respondentia. — See  Kerr's  Cyc.  C.  C.  §§  3036-3040  and  notes: 
also  note  §  3036,  post. 


1480 


Tit.XIV.ch.II.art.II.]     PROPERTY  THAT  MAY  BE.  §  2947 

ARTICLE   II. 

MORTGAGES  OF  REAL  PROPERTY. 

§  2947.     What  real  property  may  be  mortgaged. 

§  2948.     Form  of  mortgage. 

§  2949.     What  must  be  recorded  as  a  mortgage   [repealed]. 

§  2950.     Defeasance,   to  affect  grant  absolute   on   its   face,   must 

be  recorded. 
§  2951.     By  whom  paid  after  property  passes  by  succession   or- 

will   [repealed]. 
§  2952.     May  be  recorded. 

§  2947.    WHAT  REAL  PROPERTY  MAY  BE  .^lORTGAGED. 

Any  interest  in  real  property  which  is  capable  of  being  trans- 
ferred may  be  mortgaged. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

75  C.  102,  106,  16  P.  532  (cited  in  dis.  op.);  14  P.  641,  642  (cited 
in  dept.  op.);  99  C.  546,  548,  34  P.  113  (cited);  122  C.  626,  627, 
55  P.  595  (cited);  124  C.  321,  324,  329,  71  A.  S.  68,  57  P.  76 
(referred  to);  131  C.  605,  606,  63  P.  924  (applied);  82  F.  138,  139 
(cited). 

As  to  effect  of  subsoquontly  acquired  title,  see  Kerr's  Cyc. 
C.  C.  §  2930  and  note. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Adverse  possession  of  another  does  not  preclude  mortgage. — 
See  Kerr's  Cyc.  C.  C.   §  2921  and  note. 

Corporate  property  mortgaged. — See  note  6  L.  565,  566. 

Encumbrances  by  pre-emptors  and  other  claimants  of  pulilic 
land.— See  52  A.  S.  249,  254. 

Growing  crop — Lien  of  mortgage  on. — See  Kerr's  Cyc.  C.  C. 
§  2972  and  note. 

Personal  property  which  may  be  mortgaged. — Sec  Kerr's 
Cyc.  C.  C.  §  2955  and  note. 

Possibility — Transfer  of. — See  Kerr's  Cyc.  C.  C.  §  1045  and 
note. 

Purchaser  procuring  deed  to  third  person. — See  Kerr's  Cyc. 
C.  C.  §  2924  and  note  par.  39. 

Right  to  mortgage  property. — See  Kerr's  Cyc.  C.  C.  §  2920  and 
note  par.   47. 

Street  railroad. — See  Kerr's  Cyc.  C.  C.  §  2920  and  note  par.  51. 

Title  in  United  States — Pre-emptor  as  mortgager. — See  Kerr's 
Cyc.  C.  C.  §  2930  and  note  pars.  12-14. 

1481 


§§  2948,  2949  CIVIL  CODE.  [Div.III,Pt.IV. 

§  2948.  FORM  OF  MORTGAGE.  A  mortgage  of  real  prop- 
erty may  be  made  in  substantially  the  following  form: 

This  mortgage,  made  the   day  of  ,  in  the  year 

,  by  A  B,  of ,  mortgager,  to  C  D,  of ,  mort- 
gagee, witnesseth: 

That  the  mortgager  mortgages  to  the  mortgagee  [here 
describe  the  property],  as   security  for  the  payment  to  him 

of    dollars,  on    [or  before]    the    day  of   , 

in  the  year ,  with  interest  thereon  [or  as  security  for 

the  payment  of  an  obligation,  describing  it,  etc.].  A.  B. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

67  C.  275,  7  P.  693  (referred  to);  124  C.  321,  329,  71  A.  S.  68, 
57  P.  76   (referred  to). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

Charges  not  included  in  mortgage. — See  Kerr's  Cyc.  C.  C. 
§  2920  and  note  pars.  5,   6. 

Condition  of  mortgage  deed  must  give  reasonable  notice. — See 
35   A.   D.   86,   87. 

Consideration  for  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2920  and 
note  pars.   9-11. 

Defective  execution  of  mortgage. — See  Kerr's  Cyc.  C.  C.  §  2922 
and  note  par.   7. 

Description  of  indebtedness  in  mortgage. — See  49  A.  S.  207- 
209. 

Executory  agreement. — See  Kerr's  Cyc.  C.  C.  §  2922  and  note 
pars.   10,  11. 

Fictitious  naine  as  affecting  validity  of  instrument. — See  39 
L.   423-425. 

"Specific  property."^See  Kerr's  Cyc.  C.  C.  §  2920  and  note 
par.  50. 

Sufficiency  of  description  of  mortgaged  premises. — See  12  L. 
177. 

Writing  and  other  formalities  required. — See  Kerr's  Cyc.  C.  C. 
§  2922  and  note. 


§  2949.    WHAT  MUST  BE  RECORDED  AS  A  MORTGAGE 

(repealed). 

History:      Enacted    March    21,    1872;    repealed    March    30,    1874. 
Code  Amdts.   1873-4,  p.   262. 

1482 


Tit.XIV,ch.II,art.II.]    DEFEASANCE,  RECORD  OF.  §§  2950,  2951 

124  C.  321,  329,  71  A.  S.  68,  57  P.  76  (referred  to). 
As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 


§2950.  DEFEASANCE,  TO  AFFECT  GRAM  ABSOLUTE 
OX  ITS  FACE,  MUST  BE  RECORDED.  When  a  grant  of  real 
property  purports  to  be  an  absolute  conveyance,  but  is  in- 
tended to  be  defeasable  on  the  performance  of  certain  con- 
ditions, such  grant  is  not  defeated  or  affected  as  against  any 
person  other  than  the  grantee  or  his  heirs  or  devisees,  or 
persons  having  actual  notice,  unless  an  instrument  of  defeas- 
ance, duly  executed  and  acknowledged,  shall  have  been 
recorded  in  the  office  of  the  county  recorder  of  the  county 
where  the  property  is  situated. 

Hi»itory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

119  C.  18,  21,  50  P.  925  (applied);  124  C.  321,  327,  329,  71  A.  S. 
68,  57  P.  76  (referred  to);  144  C.  130,  132,  77  P.  831  (cited). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  between  parties  recordation  unnecessary. — See  Kerr's  Cyc. 
C.  C.  §  1217  and  note. 

Constructive  notice. — See  Korr's  Cyc.  C.  C.  §  19  and  note. 

Notice  from  circumstances  putting  one  on  inquiry. — See  23 
A.  D.  47-53. 

Question  of  fact  as  to  what  constitutes  mortgage. — See  Kerr's 
Cyc.  C.  C.  §  2924  and  note. 

Recording  deed  intended  as  mortgage. — See  14  A.  D.  513. 

Secret  trust — Right  of  bona  fide  purchaser. — See  16  A.  D.  512. 
513. 


§29.">1.  BY  >Vll0.n  I'AID  AFTER  PROrEIM  V  TASSES 
BY  SUCCESSK^N  (HI  WILL   (repealed). 

HiMtory:  Enacted  March  21,  1872;  ropoaliMl  M.nnh  ;?".  ls74, 
Code    Amdts.    1873-4,   p.    262. 

64  C.  273,  274  (erroneously  cited  for  §2941).  30  P.  818  (same 
error);  124  C.  321,  327,  329,  71  A.  S.  68.  57  P.  76  (referred  to);  65 
P.  896   (referred  to  as  inapplicable). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

1483 


§  2952  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2952.  MAY  BE  RECORDED.  Mortgages  of  real  property 
may  be  acknowledged  or  proved,  certified  and  recorded,  in 
like  manner  and  with  like  effect,  as  grants  thereof. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.   262. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

46  C.  ^.03,  607,  608  (cited  with  §2937);  109  C.  42,  49,  41  P.  799 
(referred  to);  124  C.  321,  327,  329,  71  A.  S.  68,  57  P.  76  (referred 
to). 

As  between  parties  recordation  unnecessary. — See  Kerr's  Cyc. 
C.  C.   §  1217  and  note. 

As  to  many  miscellaneous  matters  as  to  inortgages,  see  note 
§  2920,  ante. 

Certified  copies — Recordation  in  various  counties. — See  Kerr's 
Cyc.  C.  C.  §  1213  and  note. 

Constructive  notice. — See  Kerr's  Cyc.  C.  C.   §  1213  and  note. 

Defeasance  must  be  recorded,  when. — See  Kerr's  Cyc.  C.  C. 
§  2950  and  note. 

Inforination  to  junior  creditor  inust  be  given.- — See  Kerr's 
Cyc.  C.  C.  §  2948  and  note  par.  9. 

Marshaling  assets — Order  of  resort  to  different  funds. — See 
Kerr's  Cyc.  C.  C.  §  2889  and  note;  §  3433  and  note. 

Notice  from  circumstances  putting  one  on  inquiry. — See  23 
A.    D.   47-53. 

Office  in  which  to  record  mortgages. — See  Kerr's  Cyc.  C.  C. 
§  1169  and  note. 

Power  to  release  mortgage  need  not  be  recorded. — See  Kerr's 
Cyc.  C.  C.  §  2933  and  note  par.  4. 

Prior  lien — Right  of  holder  of  special  lien  upon  payment  of. 
— See  Kerr's  Cyc.  C.  C.  §  2876  and  note. 

Separate  book  for  recordation  of  mortgages. — See  Kerr's  Cyc. 
C.   C.  §  1171  and  note. 

What  may  be  recorded. — See  Kerr's  Cyc.  C.  C.  §  1158  and  note. 


1484 


Tit.XIV,ch.II,art.III.]     MORTGAGE,  PERSONALTY.  §  2955 

ARTICLE   III. 

MORTGAGE  OF  PERSONAL  PROPERTY. 

§  2955.  What  personal  property  may  be  mortgaged. 

§  2956.  Form  of  personal  mortgage. 

§  2957.  When  void  as  to   third  persons. 

§  2958.  Mortgage  of  ships,  when  void  as  to  third  persons. 

§  2959.  Where   recorded. 

§  2960.  Property  in  transit,  where  to  be  recorded. 

§  2961.  Property  of  a  common  carrier,  where  to  be  recorded. 

§  2962.  Recorded  in   different  places. 

§  2963.  Personal   mortgage  may  be  recorded. 

§  2964.  Certified  copies  may  be  recorded,  when. 

§  2965.  Property  exempt  from  effect  of  mortgage,  when. 

§  2966.  May  be  taken  by  mortgagee  as  a  pledge,  when. 

§  2967.  How  foreclosed. 

§  2968.  Mortgaged  property  may  be  levied  upon. 

§  2969.  Limitations  on  right  of  levy. 

§  2970.  Distribution  of  proceeds  of  sale  under  process. 

§  2971.  Certain   sections  not  applicable  to  mortgage   of  certain 

ships. 

§  2972.  Continuance  of  lien  of  mortgage  on  corps. 

§  2973.  Mortgages  on  personal  property,  validity  of  certain. 

§2955.  WHAT  PERSONAL  PROPERTY  MAY  BE  MORT- 
GAGED.  Mortgages  may  be  made  upon  all  growing  crops, 
including  grapes  and  fruit,  and  upon  any  and  all  kinds  of 
personal  property,  except  the  following: 

1.  Personal  property  not  capable  of  manual  delivery; 

2.  Articles  of  wearing  apparel  and  personal  adornment; 

3.  The  stock  in  trade  of  a  merchant. 

History:  Enacted  March  21,  1872;  amended  April  3.  1876, 
Code  Amdts.  1875-6,  p.  79;  April  1,  1S78,  Code  Amdts.  1R77-8.  p. 
88;  February  28,  1887,  Stats,  and  Amdts.  1887,  p.  5;  March  7, 
1893,  Stats,  and  Amdts.  1893,  p.  84;  March  16.  1895.  Stats,  and 
Amdts.  1895,  p.  57;  March  9,  1897.  Stats,  and  Amdts.  1897.  p. 
95;  March  3,  1903,  Stats,  and  Amdts.  1903,  p.  78;  March  3.  1905. 
Stats,  and  Amdts.  1905,  p.  36;  March  22,  1907,  Stats.  ;ind  Amdts. 
1907,  p.  886,  Kerr's  Stats,  and  Amdts.  1906-7,  p.  427;  February 
20,  1909,  Stats,  and  Amdts.   1909,  p.  84. 

See  Kerr's  Cyc.  C.  C.  for  97  pars,  annotation. 
56  C.   631    (construed  and  applied);   57   C.   254,   255    (construed 

1485 


§  2955  CIVIL  CODE.  [Div.III.Pt.IV. 

and  applied);  63  C  3,  4  (construed  and  applied  with  other  sec- 
tions); 63  C.  332,  333  (construed  and  applied);  71  C.  331,  334, 
12  P.  228,  229  (construed  and  applied);  84  C.  201,  206,  23  P. 
1081,  1082  (construed  and  applied);  91  C.  285,  286,  25  A.  S.  178, 
27  P.  656  (construed  and  applied);  91  C.  636,  639,  27  P.  1088, 
1089  (construed  and  applied  with  other  sections) ;  94  C.  523,  525, 
29  P.  961  (construed  and  applied);  101  C.  9,  10,  35  P.  641  (con- 
strued and  applied);  104  C.  420,  426,  38  P.  92  (construed  and 
applied);  105  C.  467,  469,  470,  38  P.  1109  (construed  and  applied 
with  §  2924);  39  P.  1069,  1070,  1071,  1072  (construed  and  applied); 
106  C.  673,  679,  39  P.  1071  (construed  and  applied);  107  C.  144, 
147,  40  P.  37  (cited);  109  C.  197,  199,  201,  41  P.  1008  (construed 
and  applied);  112  C.  180,  184,  53  A.  S.  201,  44  P.  484  (construed 
and  applied);  115  C.  89,  93,  47  P.  45  (construed  and  applied); 
116  C.  81,  83,  58  A.  S.  133,  47  P.  926  (construed  and  applied) ;  53  P. 
911,  913  (construed  with  §  2957 — in  case  of  articles  enumerated  in 
§  2955,  recordation  is  substitute  for  delivery  and  change  of  pos- 
session);  123  C.  231,  236,  55  P.  993  (construed  and  applied);  124 
C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied  with 
other  sections);  126  C.  201,  204,  58  P.  460  (construed  and  ap- 
plied); 127  C.  290,  296,  297,  53  P.  911,  59  P.  827,  46  L.  371  (referred 
to);  131  C.  605,  606,  607,  63  P.  924  (construed  and  applied);  133 
C.  496,  498,  65  P.  1030  (construed  and  applied);  148  C.  262,  268, 
113  A.  S.  236,  82  P.  956,  2  L.  N.  S.  813,  7  A.  C.  477  (improper 
discrimination  as  to  fixing-  rates  of  interest  and  charges  in 
chattel  mortgages  on  specified  kinds  of  personal  property  is 
violative  of  the  constitution);  152  C.  488,  493,  92  P.  1017  (recorda- 
tion is  substitute  for  delivery  and  change  of  possession) ;  4 
C.  A.  630,  633,  89  P.  360,  361  (validity  of  mortgage  upon  water 
stock);  51  F.  840,  851  (validity  of  chattel  mortgage  upon  rolling 
stock  of  railroad);  64  F.  450,  451  (validity  of  chattel  mortgage 
upon  rolling  stock  of  railroad  under  special  provision,  without 
complying  with  §§2955,  2959 — modifying  51  F.  840,  851);  83  F. 
965,  973   (effect  of  chattel  mortgage  on  sheep — increase). 

As  to  chattel  mortgage  on  stock  of  goods,  see  13  L.  390. 

As  to  effect  of  chattel  mortgage  on  fixtures,  see  15  L.  56-63. 

As  to  effect  of  mortgage  of  future  crops  as  against  creditors, 
purchasers,  and  others,  see  23  L.  465-467. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  mortgage  on  chattels  to  be  manufactured  or  acquired 
as  independent  articles  and  not  as  increase  or  fruits  of  existing 
property,  see  18  L.   298-303. 

As  to  mortgage  on  crops  generally,  see  10  L.   490. 

As  to  property  on  which  chattel  mortgage  may  be  given,  see 
3  L.   795. 

As  to  sale  or  mortgage  of  future  crops,  see  23  L.  449-477. 

As  to  what  constitutes  chattel  mortgage,  see  6  L.  641. 

1486 


Tit.XIV,ch.II,art.III.]      FORM— VOID,  WHEN.         §§2956,2957 

§2956.  FORM  OF  PERSONAL  MORTGAGE.  A  mortgage 
of  personal  property  may  be  made  in  substantially  the  fol- 
lowing form: 

This  mortgage,  made  the   day  of   ,  in  the 

year   ,  by  A  B,  of   ,  by  occupation  a   

mortgager,   to   C   D,   of    ,   by   occupation    a    

mortgagee,  witnesseth: 

That  the  mortgager  mortgages  to  the  mortgagee  [here 
describe  the  property],  as  security  for  the  payment  to  him  of 

dollars,  on  [or  before]  the day  of 

in  the  year ,  with  interest  thereon  [or,  as  security  for 

the  payment  of  a  note  or  obligation,  describing  it,  etc.]. 

A  B. 
History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  IS  pars,  annotation. 

63  C.  550,  551  (construed  and  applied  with  other  sections):  91 
C.  636,  639,  27  P.  1088,  1089  (construed  and  applied);  106  C.  673, 
678,  39  P.  1071  (construed  and  applied);  40  P.  104,  105  (construed 
and  applied);  124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (con- 
strued and  applied  with  other  sections);  4  C.  A.  630,  633,  89  P. 
360,  361  (validity  of  mortgage  upon  water  stock);  83  F.  964,  973 
(invalidity  of  chattel  mortgage  upon  growing  crop  unless 
executed  as  prescribed  by  this  section). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  conveying  and  encumbering  property  by  general  descrip- 
tion, see  66  A.  S.   59-62. 

As  to  indefinite  description  of  goods  in  chattel  mortgage,  see 
72  A.  D.  483. 

As  to  sufficiency  of  description  of  property  in  chattel  mort- 
gage,  see   14   A.   S.    239-217. 

§2957.  WHEN  VOID  AS  TO  THIRD  PERSONS.  A  mort- 
gage of  personal  property  is  void  as  against  creditors  of  the 
mortgager  and  subsequent  purchasers  and  encumbrancers  of 
the  property  in  good  faith  and  for  value,  unless: 

1.  It  is  accompanied  by  the  affidavit  of  all  the  parties  thereto 
that  it  is  made  in  good  faith  and  without  any  design  to  hinder, 
delay,  or  defraud  creditors; 

2.  It  is  acknowledged  or  proved,  certified,  and  recorded  in 
like  manner  as  grants  of  real  property. 

Hiiitory:     Enacted  March   21,   1872. 
1487 


§  2958  CIVIL  CODE.  [Div.III,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  72  pars,  annotation. 

63  C.  550,  551,  552  (construed  and  applied);  67  C.  32,  34,  7  P. 
50,  51  (construed  and  applied);  67  C.  57,  58,  7  P.  47,  48  (con- 
strued and  applied);  84  C.  554,  556,  557,  24  P.  169,  170  (construed 
and  applied);  91  C.  636,  638,  639,  27  P.  1088,  1089  (construed  and 
applied  with  other  sections);  94  C.  494,  496,  29  P.  858  (construed 
and  applied);  104  C.  420,  427,  38  P.  92  (construed  and  applied); 
105  C.  327,  330,  332,  38  P.  889  (construed  and  applied);  105  C. 
467,  470,  38  P.  1109  (construed  and  applied);  39  P.  783,  785  (con- 
strued and  applied);  39  P.  1069,  1070,  1071  (construed  and 
applied);  106  C.  673,  679,  680  (e»roneously  cited  as  §1957),  39  P. 
1071,  1073  (correct  citation);  108  C.  250,  253,  257,  49  A.  S.  84,  41 
P.  472,  39  P.  783  (construed  and  applied);  115  C.  316,  319,  325, 
47  P.  47,  1095,  36  L.  505  (construed  and  applied  with  other  sec- 
tions);  121  C.  272,  274,  53  P.  801  (construed  and  applied);  53  P. 
911,  913  (construed  with  §  2955 — in  case  of  articles  enumerated 
in  §  2955,  recordation  is  substituted  for  delivery  and  change  of 
possession);  124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed 
and  applied);  127  C.  290,  296,  304,  306,  308,  309,  53  P.  911,  59  P. 
827,  46  L.  371  (construed  and  applied);  128  C.  103,  105,  60  P. 
675  (construed  and  applied);  130  C.  474,  477,  62  P.  735  (construed 
and  applied);  131  C.  605,  607,  63  P.  924  (construed  and  applied) ;  143 
C.  4,  6,  76  P.  647  (construed  and  applied) ;  152  C.  488,  492,  92  P.  1017 
(applied  with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361 
(validity  of  mortgage  upon  water  stock);  51  P.  840,  851  (validity 
of  chattel  mortgage  upon  rolling  stock  of  railroad). 

As  to  chattel  mortgages,  registration  and  filing,  etc.,  of,  see 
13  L.  388-390;  and  note  21  A.  S.  282. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  sufficiency  of  pre-existing  debt  as  consideration  for 
chattel  mortgage  to  give  right  as  to  bona  fide  purchaser  of  the 
mortgagee,  see  19  L.  590,  and  33  L.  305,  311. 

As  to  when  chattel  mortgage  deemed  fraudulent,  see  5  L.  137. 

§2958.  MORTGAGE  OF  SHIPS,  WHEN  VOID  AS  TO 
THIRD  PERSONS.  A  mortgage  of  any  vessel  or  part  of  any 
vessel  under  the  flag  of  the  United  States  is  void  as  against 
any  person  (other  than  the  mortgager,  his  heirs,  and  devisee, 
and  persons  having  actual  notice  thereof),  unless  the  mortgage 
is  recorded  in  the  office  of  the  collector  of  customs  where  such 
vessel  is  registered  or  enrolled. 

History:     Enacted  March   2l",  1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon  water  stock). 

1488 


Tit.XIV,ch.II,art.III.]     RECORDING— trust.  §§  2959,  2960 

As  to  foreclosure  of  mortgage  on  ship,  and  application  of 
proceeds,  see  Kerr's  Cyc.  C.  C.  §  2958,  note  par.  2. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2959.  WHERE  RECORDED.  A  mortgage  of  personal 
property  must  be  recorded  in  the  office  of  the  county  recorder 
of  the  county  in  which  the  mortgager  resides,  if  the  mort- 
gager be  a  resident  of  this  state,  and  it  shall  also  be  recorded 
in  the  county  in  which  the  property  mortgaged  is  situated, 
or  to  which  it  may  be  removed. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417, 
held  unconstitutional,  see  history,  §  4  ante;  amended  March  22, 
1907,  Stats,  and  Amdts.   1907,  p.  853.     In  effect  immediately. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

63  C.  550,  551  (construed  and  applied);  115  C.  316,  319,  321,  322, 
323,  47  P.  47,  1095,  36  L.  505  (construed  and  applied);  124  C.  321, 
327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied  with  other 
sections);  127  C.  290,  298,  53  P.  911,  59  P.  S27,  46  L.  371  (referred 
to);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of  mortgage  upon 
water  stock);  64  F.  450,  451  (validity  of  chattel  mortgage  upon 
rolling  stock  of  railroad  under  special  provision,  without  com- 
plying with  §§2955,  2959 — modifying  51  P.  840,  851);  118  P.  668, 
669  (construed  and  applied  with  §  2962 — invalidity  of  mortgage 
covering  property  in  two  counties,  but  recorded  only  in  one). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante, 

§2960.  PROPERTY  IN  TRANSIT,  WHERE  TO  BE  RE- 
CORDED.  For  the  purposes  of  this  article,  property  in  transit 
from  the  possession  of  the  mortgagee  to  the  county  of  the 
residence  of  the  mortgager,  or  to  a  location  for  use,  is,  dur- 
ing a  reasonable  time  for  such  transportation,  to  be  taken  as 
situated  in  the  county  in  which  the  mortgager  resides,  or 
where  it  is  intended  to  be  used. 

History:     Enacted  March   21,   1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity 
of  mortgage  upon  water  stock). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

1489 


§§  2961-2963  CIVIL  CODE.  [Div.III.Pt.IV. 

§2961.  PROPERTY  OF  A  COMHON  CARRIER,  WHERE 
TO  BE  RECORDED.  For  a  like  purpose,  personal  property- 
used  in  conducting  the  business  of  a  common  carrier  is  to  be 
taken  as  situated  in  the  county  in  which  the  principal  office 
or  place  of  business  of  the  carrier  is  located. 

History:     Enacted  March  21,   1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon  water  stock). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2962.  RECORDED  IN  DIFFERENT  PLACES.  A  single 
mortgage  of  personal  property,  embracing  several  things  of 
such  character  or  so  situated  that  by  the  provisions  of  this 
article  separate  mortgages  upon  them  would  be  required  to 
be  recorded  in  different  places,  is  only  valid  in  respect  to 
the  things  as  to  which  it  is  duly  recorded. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  127  C.  290,  310,  53  P.  911,  59  P.  827,  46  L. 
371  (construed  and  applied  in  dis.  op.);  4  C.  A.  630,  633,  89  P. 
360,  361  (validity  of  mortgage  upon  water  stock);  118  F.  668, 
669  (construed  and  applied  with  §  2959 — invalidity  of  mortgage 
covering  property  in  two  counties,  but  recorded  only  in  one). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2963.    PERSONAL    MORTGAGE    MAT    BE    RECORDED. 

Except  as  it  is  otherwise  in  this  article  provided,  mortgages 
of  personal  property  may  be  acknowledged,  or  proved  and 
certified,  recorded  in  like  manner  and  with  like  effect  as 
grants  of  real  property;  but  they  must  be  recorded  in  books 
kept  for  personal  mortgages  exclusively. 

History:     Enacted  March  21,   1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
With  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon  water  stock). 

1490 


Tit.XIV,ch.II,art.III.]    PROPERTY  EXEMPT.  §§2964,2965 

As  to  effect  of  recording  or  want  thereof,  see  Kerr's  Cyc.  C.  C. 
§§  1213-1218  and  notes. 

As  to  many  miscellaneous  matters  as  to  mortg'ages,  see  note 
§  2920,  ante. 

As  to  mode  of  recording,  see  Kerr's  Cyc.  C.  C.  §§  1169-1173  and 
notes;  §  2957  and  note  pars.  19-25. 

§  2964.     CERTIFIED  (  OPIES  MAY  BE  RECORDED,  WHE\. 

A  certified  copy  of  a  mortgage  of  personal  property  once 
recorded  may  be  recorded  in  any  other  county,  and  when  so 
recorded  the  record  thereof  has  the  same  force  and  effect  as 
though  it  was  of  the  original  mortgage. 

History:     Enacted  March   21,  1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon   water  stock). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2965.  PROPERTY  EXEMPT  FROM  EFFECT  OF  MORT- 
GAGE, WHEN.  When  personal  property  mortgaged  is  there- 
after removed  from  the  county  in  which  it  is  situated,  the 
lien  of  the  mortgage  shall  not  be  affected  thereliy  for  thirty 
days  after  such  removal;  but,  after  the  expiration  of  such 
thirty  days,  the  property  mortgaged  is  exempted  from  the 
operation  of  the  mortgage,  except  as  between  the  parties 
thereto,  until  either: 

1.  The  mortgagee  causes  the  mortgage  to  be  recorded  in  the 
county  to  which  the  property  has  been  removed;  or 

2.  The  mortgagee  takes  possession  of  the  property  as  pre- 
scribed in  the  next  section. 

History:  Enacted  March  21,  1872;  amended  February  22, 
1909,   Stats,   and  Amdts.   1909,  p.   44. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

115  C.  316,  319,  320,  323,  324,  47  P.  47,  1095,  36  K  505  (con- 
strued and  applied);  124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76 
(construed  and  applied  with  other  sections);  127  C.  290.  298,  53 
P.  911,  59  P.  827,  46  L.  371  (referred  to):  151  C.  520,  521,  522, 
523,  525,  91  P.  327  (construed — unless  one  of  two  steps  specified 
in  this  section  is  taken  during  thirty  days  after  removal, 
validity    of    mortgage    ceases,    except    as    between    parties,    at 

1491 


§§  2966,  2967  CIVIL  CODE.  [Div.III,Pt.IV. 

expiration  of  thirty  days);  152  C.  488,  495,  497.  92  P.  1017  (con- 
strued— time  limit  clause  cannot  be  disregarded — -failure  to 
record — loss  of  lien);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon  water  stock). 

As  to  effect  of  removal  of  mortgaged  property  into  anotlier 
state,  see  70  A.  D.  66-72. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  3inte. 


§  2966.    MAY  BE  TAKEN  BY  MORTGAGEE  AS  A  PLEDGE, 

WHEIV.  If  the  mortgager  voluntarily  removes  or  permits 
the  removal  of  the  mortgaged  property  from  the  county  in 
which  it  was  situated  at  the  time  it  was  mortgaged,  the  mort- 
gagee may  take  possession  and  dispose  of  the  property  as  a 
pledge  for  the  payment  of  the  debt,  though  the  debt  is  not 
due. 

History:     Enacted  March  21,   1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon   water  stock). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 


§2967.  HOW  FORECLOSED.  A  mortgagee  of  personal 
property,  when  the  debt  to  secure  which  the  mortgage  was 
executed  becomes  due,  may  foreclose  the  mortgager's  right  of 
redemption  by  a  sale  of  the  property,  made  in  the  manner 
and  upon  the  notice  prescribed  by  the  title  on  "pledge,"  or 
by  proceedings  under  the  code  of  civil  procedure. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

124  C.  321,  327,  330,  71  A.  S.  28,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon   water  stock). 

As  to  foreclosure  of  mortgages,  see  Kerr's  Cyc.  C.  C.  P.  §§  726- 
728,  note. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  rights  and  remedies  of  chattel  mortgagers  where  prop- 
erty has  been  wrongfully  sold,  see  16  A.  S.  499-503. 

1492 


Tit.XlV,ch.II,art.III.]     LIMITATION  ON  LEVY.  §§  2968,  2969 

§  2968.    3I0KTGAGE  PKOPERTY  MAY  BE  LEVIED  UPON. 

Personal  property  mortgaged  may  be  taken  under  attachment 
or  execution  issued  at  the  suit  of  a  creditor  of  the  mortgager. 

History:      Enacted    March    21,    1872;    amended    by    Code    Com- 
I      mission,   Act   March    16,    1901,   Stats,   and   Amdts.    1900-1,   p.    417, 
held  unconstitutional,  see  history,  §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

56  C.  217,  218  (construed  and  applied);  67  C.  57,  59,  7  P.  47 
(construed  and  applied);  71  C.  6.8,  70,  11  P.  847,  848  (referred  to); 
91  C.  119,  121,  27  P.  601,  602  (construed  and  applied  with  other 
sections);  111  C.  233,  234,  43  P.  619  (construed  and  applied): 
124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of 
mortgage  upon  water  stock). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 


§  2969.  LIMITATIONS  ON  RIGHT  OF  LEVY.  Before  the 
property  is  so  taken,  the  officer  must  pay  or  tender  to  the 
mortgagee  the  amount  of  the  mortgage  debt  and  interest,  or 
must  deposit  the  amount  thereof  with  the  -county  clerk  or 
treasurer,  payable  to  the  order  of  the  mortgagee. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission. Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  417, 
held  unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

56  C.  217,  218  (construed  and  applied  with  §2968);  63  C.  550, 
551,  552  (construed  and  applied  with  other  sections);  67  C.  57, 
59,  7  P.  47  (construed  and  applied  with  §2968);  71  C.  68.  70.  11 
P.  847,  848  (construed  and  applied  with  other  sections);  91  C. 
119,  121,  122,  27  P.  601,  602  (construed  and  applied  with  other 
sections);  111  C.  233,  234,  43  P.  619  (construed  and  applied  witli 
§2968);  124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and 
applied  with  other  sections);  126  C.  288,  289.  290,  58  P.  691  (con- 
strued and  applied  with  other  sections);  131  C.  552,  556,  82  A.  S. 
391,  63  P.  844  (referred  to);  4  C.  A.  630,  633,  89  P.  360,  361 
(validity  of  mortgage  upon  water  stock);  7  C.  A.  465,  4fifi.  467. 
94  P.  372,  373  (construed  and  applied  with  §  2970,  where  property 
secured  by  chattel  mortgage  was  attached). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

1493 


§§  2970-2972  CIVIL  CODE.  [Div.III.Pt.IV. 

§  2970.  DISTRIBUTION  OF  PROCEEDS  OF  SALE  UNDER 
PROCESS.  When  the  property  thus  taken  is  sold  under  pro- 
cess, the  officer  must  apply  the  proceeds  of  the  sale  as  fol- 
lows: 

1.  To  the  repayment  of  the  sum  paid  to  the  mortgagee,  with 
interest  from  the  date  of  such  payment;  and, 

2.  The  balance,  if  any,  in  like  manner  as  the  proceeds  of 
sales  under  execution  are  applied  in  other  cases. 

History:     Enacted  March  21,   1872. 

63  C.  550,  552  (construed  and  applied  with  §2969);  124  C.  321, 
327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied  with  other 
sections);  4  C.  A.  630,  633,  89  P.  360,  361  (validity  of  mortgage 
upon  water  stock);  7  C.  A.  465,  467,  468,  94  P.  372,  373  (con- 
strued and  applied  with  §  2969 — attachment  of  property  secured 
by  chattel  mortgage — rights  and  remedies   of  mortgagee). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2971.  CERTAIN  SECTIONS  NOT  APPLICABLE  TO 
MORTGAGE  OF  CERTAIN  SHIPS.  Sections  twenty-nine  hun- 
dred and  fifty-seven,  twenty-nine  hundred  and  fifty-nine, 
twenty-nine  hundred  and  sixty,  twenty-nine  hundred  and  sixty- 
one,  twenty-nine  hundred  and  sixty-two,  twenty-nine  hundred 
and  sixty-three,  twenty-nine  hundred  and  sixty-four,  twenty- 
nine  hundred  and  sixty-five,  and  twenty-nine  hundred  and 
sixty-six  do  not  apply  to  any  mortgage  of  a  ship  or  part  of  a 
ship  under  the  flag  of  the  United  States. 

History:     Enacted  March   21,   1872. 

124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections);  4  C.  A.  680,  633,  89  P.  360,  361  (validity  of 
mortgage   upon   water   stock). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

§2972.     CONTINUANCE     OF    LIEN    OF    MORTGAGE     ON 

CROP.  The  lien  of  a  mortgage  on  a  growing  crop  continues 
on  the  crop  after  severance,  whether  remaining  in  its  original 
state  or  converted  into  another  product,  so  long  as  the  same 
remains  on  the  land  of  mortgager. 

History:     Enacted  April  1,  1878,  Code  Amdts.  1877-8,  p.  89. 

1494 


Tit.XIV,ch.II,art.III.]     validity  of  certain.  §  2973 

See  Kerr's  Cyc.  C.  C.  for  28  pars,  annotation. 

59  C.  142  (construed  and  applied);  63  C.  3,  4  (construed  and 
applied);  70  C.  196,  197,  11  P.  608  (construed  and  applied);  77 
C.  241,  244,  19  P.  482,  483  (construed  and  applied);  107  C.  27,  29, 
40  P.  22  (construed  and  applied);  109  C.  197,  201,  41  P.  1008 
(referred  to  in  dis.  op.);  117  C.  412,  416,  417,  49  P.  414  (construed 
and  applied);  124  C.  321,  327,  330,  71  A.  S.  68,  57  P.  76  (construed 
and  applied  with  other  sections);  142  C.  529,  544,  76  P.  243,  244 
(construed  and  applied);  3  C.  A.  443,  445,  446,  85  P.  662  (lien  on 
crop  ceases  upon  removal  of  crop  from  land  on  which  it  grew); 
4  C.  A.  630,  633,  89  P.  360,  361  (validity  of  mortgage  upon  water 
stock). 

As  to  continuance  of  lien  after  severance-  of  growing  crops, 
see   18  A.  S.   770;   30  A.   S.   324. 

As  to  effect  of  removal  of  property  to  another  state  on  lien, 
see  30  A.  S.  324. 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 

As  to  sufficiency  of  description  of  property  in  chattel  mort- 
gage, see  14  A.  S.   239,  and  3  L.  95. 

As  to  title  and  right  of  mortgagee  after  condition  broken,  see 
96  A.  S.  682. 

As  to  whether  lien  on  growing  crops  exists  after  severance, 
see  18  A.  S.  770. 

§  2973.  MORTGAGES  OX  PERSONAL  PROPERTY,  VALID- 
ITY OF  CERTAIN.  Mortgages  of  personal  property,  other 
than  that  mentioned  in  section  twenty-nine  hundred  and  fifty- 
five,  and  mortgages  not  made  in  conformity  with  the  provi- 
sions of  this  article,  are  nevertheless  valid  between  the  par- 
ties, their  heirs,  legatees,  and  personal  representatives,  and 
persons  who,  before  parting  with  value,  have  actual  notice 
thereof. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  418,  held  unconstitutional,  see  his- 
tory, §  4  ante;  amendment  re-enacted  March  21,  1905,  Stats,  and 
Amdts.    1905,   p.    617. 

124  C.  321,  330,  71  A.  S.  68,  57  P.  76  (construed  and  applied 
with  other  sections  of  this  section  as  enacted  by  Code  Commis- 
sion in  1901,  which  act  is  verbatim  et  literatim  that  of  the  re- 
enactment  of  1905). 

As  to  many  miscellaneous  matters  as  to  mortgages,  see  note 
§  2920,  ante. 


1495 


§  2986  CIVIL  CODE.  [Div.III,Pt.IV. 

CHAPTER  III. 

PLEDGE. 

§  2986.  Pledg-e,  what. 

§  2987.  When  contract  is  to  be  deemed  a  pledge. 

§  2988.  Delivery  essential  to  validity  of  pledge. 

§  2989.  Increase   of   thing. 

§  2990.  Lienor  may  pledge  property  to  extent  of  his  lien. 

§  2991.  Real  owner  cannot  defeat  pledge  of  property  transferred 

to  apparent  owner  for  purpose  of  pledge. 

§  2992.  Pledge-lender,   what. 

§  2993.  Pledge-holder,  what. 

§  2994.  When  pledge-lender  may  withdraw  property  pledged. 

§  2995.  Obligations   of  pledge-holder. 

§  2996.  Pledge-holder  must  enforce  rights  of  pledgee. 

§  2997.  Obligation   of  pledgee  and  pledge-holder,  for  reward. 

§  2998.  Gratuitous  pledge-holder. 

§  2999.  Debtor's  misrepresentation   of  value   of  pledge. 

§  3000.  When  pledgee  may  sell. 

§  3001.  When  pledgee  must  demand  performance. 

§  3002.  Notice  of  sale  to  pledgeor. 

§  3003.  Waiver  of  notice  of  sale. 

§  3004.  Waiver  of  demand. 

§  3005.  Sale  must  be  by  auction. 

§  3006.  Pledgee's  sale  of  securities. 

§  3007.  Sale   on   the    demand   of   the   pledgeor. 

§  3008.  Surplus  to  be  paid  to  pledgeor. 

§  3009.  Pledgee  may  retain. 

§  3010.  Pledgee's  purchase  of  property  pledged. 

§  3011.  Pledgee  may  foreclose  right  of  redemption. 

§  2986.  PLEDGE,  IVHAT.  Pledge  is  a  deposit  of  personal 
property  by  way  of  security  for  the  performance  of  another 
act. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  32  pars,  annotation. 

76  C.  171,  172,  18  P.  260  (applied);  113  C.  463,  466,  45  P.  840 
(applied);  121  C.  515,  519,  53  P.  1119  (applied);  123  C.  643,  648 
(applied  but  erroneously  cited  as  §  2986  C.  C.  P.),  56  P.  468,  470 
(correct  citation);  125  C.  183,  187,  57  P.  897  (applied);  133  C. 
191,  195,  65  P.  381  (applied);  144  C.  631,  633,  78  P.  22  (applied); 
6  C.  A.  88,  91,  91  P.  532  (what  agreement  is  pledge  of  property 
as  collateral  security). 

1496 


Tit.XIV.ch.III.]        PLEDGES,  GENERALLY.        §2986 

PLEDGES. 

As  to  definition  and  nature  of  pledges,  see  49  A.  D.  730;  6  W. 
&    P.    5412. 

As  to  extinguishment  of  lien  of  pledge  by  tender  or  other- 
wise, see  Kerr's  Cyc.  C.  C.  §  3000,  note. 

As  to  law  of  collateral  securities,  see  32  A.  S.  711. 

As  to  pledge  as  distinguished  from  chattel  mortgage;  con- 
sideration   redemption,   see   4   L.   305. 

As  to  pledge   of  stock,   see   12  L.   781. 

As  to  right  of  surety  to  control  pledge,  see   21  L.   131. 

As  to  validity  of  pledge  by  agent  of  principal's  property,  see 
14    L.    235. 

As  to  waiver  of  pledge  by  attachment  or  execution,  see  50  L. 
719. 

Assignment  of  pledged  property. — See   3  A.   C.   723. 

By  agent,  of  principal's  property. — See  14  L.  234. 

Care    required    of   pledgees. — See    83    A.    S.    392. 

Collateral  securities — Diligence  required  of  one  who  hold.s 
negotiable   papers  as. — See   34   A.   D.   451. 

Same — Rights  and  remedies  of  parties  thereto. — Sef  32  A.  S. 
711. 

Same — The  law  of. — See  32  A.  S.   711. 

Consideration  for. — See  4  L.  305. 

Defintion  and  nature  of. — See  49  A.  D.  730;  6  W.  &  P.  5412. 

Delivery,  necessity  of  and  possession. — See  4  L.  306. 

Distinguished  from  chattel  mortgage. — See  4  L.  305. 

Dividends,  right  of  pledgee  of  stock  to  collect. — See  7  A.  C. 
725. 

Does  assignee  or  mortgage  as  collateral  security,  who  fore- 
closes the  same  and  purchases  the  property,  hold  the  title  sub- 
ject to  a  trust  in  favor  of  the  assignor. — See  7  L.  N.  S.   1094. 

Duties  and  liabilities  of  pledgee — As  to,  generally,  see  fi  A.  C. 
106;  7  A.  C.  394;  7  A.  C.   690. 

Same — Liability  of  pledgee  for  loss  due  to  depreciation  in 
value  of  valuation  after  maturity  of  debt. — See  7  A.  C.  395. 

Same — Of  stock  to  soli  at  maturity  of  debt. — See  3  L.  N.  S. 
1199. 

Effect — Of  payment  on  security  held  as  collateral  to  st.iy 
running  of  statute  against  principal  obligation. — See  12  L.  N.  S. 
1032. 

Same — Of  taking  ri>llateral  security  upon  maritime  lien. — 
See    70   L.    408. 

Same — Of  unautiiorized  sale  or  disposal  of  pledge  by  pl<  <lgee 
to  dispense  with  tender  as  a  condition  to  trover  against  him. — 
See   6  L.   N.  S.   298. 

Garnishment  of  claim  to  surplus  on  pledge. — See  59  L.  368. 

How  far  pledge  effectual  of  which  the  pledgeor's  agent  Is 
made  depository. — See  25  L.  577. 

1497 


§  2986  CIVIL  CODE.  [Div.III,Pt.IV. 

Interpleader  between  pledgeor  and  pledgee. — See  10  L.  N.  S. 
757. 

Issuance  and  delivery  by  warehouseman  of  receipt  for  his 
own  property  as  a  constructive  transfer  of  possession  essen- 
tial   to   valid   pledge. — See    19   L.    N.    S.    227. 

Liability  as  stockholder  of  pledgee  of  stock. — See  10  A.  C. 
770,    783. 

Liability  of  pledgee — For  loss  due  to  depreciation  in  value 
of  pledge  after  maturity  of  debt. — See  7  A.  C.  395. 

Same — Of  stock  as  a  shareholder. — See  19  L.  N.  S.  249. 

Measure  of  damages  for  conversion  by  pledgee. — See  43  L. 
768. 

Of  corporate  stock^ — As  to,  generally,  see  12  L.  781;  13  L.  139; 
43  L.  439-472;   45  L.  394;   67  L.   656. 

Same — Dividends,  right  to  on  pledged  stock. — See  12  L.  783; 
45   L.   394. 

Same — Implied  authority  to   sell. — See   43   L.   742. 

Same — Right  to  dividends  on. — See  12  L.  783;  45  L.   394. 

Same — Sale  of,  when  amounts  to  conversion. — See  43  L.  739. 

Pledgee's  conversion  of  pledged  property  by  invalid  sale.— 
See    43   L.    737-771. 

Pledgeor  or  pledgee  as  real  party  in  interest  by  whom  ac- 
tion  must   be   brought. — See    64   L.    617. 

Recourse  against  pledge  after  bar  of  principal  obligation. — 
See    2    A.    C.    271. 

Redemption   of  pledged  property. — See   4   L.   306. 

Remedies   of  pledgees. — See   79    A.   S.    136. 

Right   of  surety   to   control   of  thing  pledged. — See   12   L.    131. 

Right  to  have  trust  property  wrongfully  pledged  by  a  trus- 
tee for  his  individual  benefit  redeemed  by  money  belonging 
to  his   insolvent   estate. — See   6   L.   N.   S.    487. 

Rights  and  duties  of  pledgee — As  to,  generally,  see  4  L.  587; 
17  L.   193;    44   L.   243;    68   L.    482. 

Same — In  respect  to  sale  of  collateral  bonds  or  commercial 
paper. — See    53    L.    857. 

Rights  and  powers  of  pledgee. — See  2  A.  C.  269;  3  A.  C. 
723,    725. 

Rights  of  pledgee — In  respect  to  sale  of  collateral  bonds  or 
commercial    paper. — See    53   L.    857. 

Same — Of  corporate  stock  to  maintain  action  to  preserve 
corporate   assets. — See    12    A.    C.    620. 

Same — Of  stock  to  collect  dividends. — See  3  A.  C.  725. 

Sale  of  pledged  property — As  to,  generally,  see  4  A.  C.  1163, 
7    A.    C.    690. 

Same — Recourse  against  pledge  after  bar  of  principal  obliga- 
tion.—See   2   A.   C.    271. 

Same — ^Validity  of  private  sale  of  pledged  property  by  pledgee. 
— See  4  A.  C.   1166. 

1498 


TitXIV.ch.IIL]  DELIVERY  ESSENTIAL.  §§  2987,  2988 

Stock,  corporate,  right  of  pledgee  of  to  maintain  action  to 
preserve  corporate  assets.— See  12  A.  C.   620. 

Tender,   unaccepted,    effect   of. — See    33    L.    237. 

Transactions    constituting-   a    pledge. — See    6    A.    C.    106. 

Validity — Of  assignment  of  life  policy  as  collateral  security 
to  one  paying  the  premiums. — See  3  L.  N.  S.  951. 

Same — -Of  pledge  without  delivery  as  against  pledgeor  or 
person   claiming   through   him. — See   11   A.   C.   793. 

Same — Of  private  sale  of  pledged  property  by  pledgee. — See 
4    A.   C.    1166. 

Waiver  of  pledge  by  attachment  or  execution. — See  50  L.  719. 

§  2987.    WHEN  CONTRACT  IS  TO  BE  DEEMED  A  PLEDGE. 

Every  contract  by  which  the  possession  of  personal  property 
is  transferred,  as  security  only,  is  to  be  deemed  a  pledge. 

History:     Enacted  March  21,  1872. 

See    Kerr's    Cyc.    C.    C.    for    4    pars,    annotation. 

99  C.  516,  518,  33  P.  1081,  1082  (applied);  34  P.  708,  709  (con- 
strued); 112  C.  598,  602,  53  A.  S.  228,  44  P.  1063,  32  L.  479  (ap- 
plied); 113  C.  463,  467,  45  P.  840  (applied);  123  C.  643,  648  (ap- 
plied but  erroneously  cited  as  §2987  C.  C.  P.),  56  P.  468,  470 
(correct  citation);  133  C.  191,  195,  65  P.  381  (applied);  144  C. 
631,  633,  78  P.  22  (applied);  150  C.  185,  190,  88  P.  825  (applied- 
one  becomes  pawnbroker  when);  6  C.  A.  88,  91,  91  P.  532  (what 
agreement   is   pledge   of  property   as   collateral    security). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§2988.  DELIVERY  ESSENTIAL  TO  VALIDITY  OF 
PLEDGE.  The  lien  of  a  pledge  is  dependent  on  possession, 
and  no  pledge  is  valid  until  the  property  pledged  is  delivered 
to  the  pledgee,  or  to  a  pledge-holder,  as  hereafter  prescribed. 

History:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  37  pars,  annotation. 

59  C.  154,  158,  159  (construed),  168  (applied),  43  A.  R.  245;  61 
C.  405,  429  (applied);  71  C.  331,  334,  12  P.  228,  229  (construed); 
34  P.  708,  709  (construed);  101  C.  445,  453  (cited  erroneously  as 
§3988),  35  P.  1035,  1038  (correct  citation);  112  C.  8,  13.  53  A.  S. 
151,  44  P.  357  (construed);  122  C.  279,  283,  68  A.  S.  30,  54  P. 
844  (applied);  122  C.  468,  470,  68  A.  S.  47,  55  P.  253  (construed): 
125  C.  183,  187,  57  P.  897  (applied);  3  C.  A.  561,  569,  86  P.  820 
(no  lien,  legal   or  equitable,  exists  when). 

As  to  delivery  and  possession   r>f  pledge,   see   4   L.   305. 

1499 


§§  2989-2991  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  how  far  pledge  may  be  effectual  of  which  pledgeor's 
agent  is  made  depositary,   see   25   L.   577. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,   ante. 

§2989.  INCREASE  OF  THING.  The  increase  of  property 
pledged  is  pledged  with  the  property. 

History:     Enacted  March  21,   1872. 

As  to  dividend  on  stock  pledged,  see  Kerr's  Cyc.  C.  C.  §  2989, 
note. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,   ante. 

§  2990.     LIENOE  MAY  PLEDGE  PEOPERTY  TO  EXTENT 

OF  HIS  LIEN.    One  who  has  a  lien  upon  property  may  pledge 
it  to  the  extent  of  his  lien. 

Hi.story:     Enacted  March  21,   1872. 

As  to  lienor's  action  for  damages,  see  Kerr's  Cyc.  C.  C.  §  3338 
and    note. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§2991.  REAL  OWNER  CANNOT  DEFEAT  PLEDGE  OF 
PROPERTY  TRANSFERRED  TO  APPARENT  OWNER  FOR 
PURPOSE  OF  PLEDGE.  One  who  has  allowed  another  to 
assume  the  apparent  ownership  of  property  for  the  purpose 
of  making  any  transfer  of  it,  cannot  set  up  his  own  title,  to 
defeat  a  pledge  of  the  property,  made  by  the  other,  to  a 
pledgee  who  received  the  property  in  good  faith,  in  the  ordi- 
nary course  of  business,  and  for  value. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.   C.   C.  for   16  pars,  annotation. 

52  C.  611,  616,  28  A.  R.  647  (applied);  59  C.  154,  168,  43  A.  R. 
245  (construed);  90  C.  10,  13,  27  P.  159,  160  (applied);  121  C.  574, 
576,  54  P.  72  (construed);  124  C.  282,  289,  71  A.  S.  58,  57  P.  84 
(applied);  3  C.  A.  198,  200,  84  P.  778  (construed  with  subd.  2, 
§  2368 — purpose   of   §  2991   is   to   protect   pledgee). 

As  to  authority  of  factor  to  pledge,  see  Kerr's  Cyc.  C.  C. 
§  2368   and  note. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

1500 


TitXIV.Ch.III.]  PLEDGE— LENDER.  §§  2992-2995 

§2992.  PLEDGE-LENDER,  WHAT.  Property  may  be 
pledged  as  security  for  the  obligation  of  another  person  than 
the  owner,  and  in  so  doing  the  owner  has  all  the  rights  of  a 
pledgeor  for  himself,  except  as  hereinafter  stated. 

HiMtory:     Enacted  March  21,  1872. 

133  C.   191.   195,   6.5  P.   381    (applied). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  ni)l«- 
§  2986,  ante.  , 

§  2993.  FLEDGE-HOLDEK,  >VHAT.  A  pledgeor  and  pledgee 
may  agree  upon  a  third  person  with  whom  to  deposit  the 
property  pledged,  who,  if  he  accepts  the  deposit,  is  called  a 
pledge-holder. 

History:     Enacted  March   21,   1ST  J. 

61  C.  405,  429  (erroneously  cited  in  dis.  op.  as  §2903);  130  C. 
258,   262,   62   P.   463   (referred  to). 

As  to  many  miscellaneous  matters  as  to  pledtr'-fi.  s.i-  u<>io 
§  2986,  ante. 

§2994.  WHEN  PLEDGE-LE>DER  MAY  WITIIDHAW 
I'KOPEHTV  PLElXiEI).  One  who  pledges  property  as  secu- 
rity for  the  obligation  of  another,  cannot  withdraw  the  prop- 
erty pledged  otherwise  than  as  a  pledgeor  for  himself  might, 
and  if  he  receives  from  the  debtor  a  consideration  for  the 
pledge  he  cannot  withdraw  it  without  his  consent. 
History:     Enacted  March   21,   1872. 

For  commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §  2994,    note. 

As  to  many  miscellanootis  matters  as  to  pledgres,  see  note 
8  2986,  ante. 

§2995.  0BI.IGAT1(»S  OF  rLEDGK-HOLDEli.  A  pledge- 
holder for  reward  cannot  exonerate  himself  from  his  under- 
taking; and  a  gratuitous  pledge-holder  can  do  so  only  by  giv- 
ing reasonable  notice  to  the  pledgeor  and  pledgee  to  appoint 
a  new  pledge-bolder,  and  in  case  of  their  failure  to  agree,  by 
depositing  the  property  pledged  with  some  impartial   person, 

1501 


§§  2996-2998  CIVIL  CODE.  [Div.III.Pt.IV. 

who  will  then  be  entitled  to  a  reasonable  compensation  for  his 
care  of  the  same. 

History:     Enacted  March  21,   1872. 

For  commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §  2995,    note. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§2996.  PLEDGE-HOLDER  MUST  ENFORCE  RIGHTS  OF 
PLEDGEE.  A  pledge-holder  must  enforce  all  the  rights  of 
the  pledgee,  unless  authorized  by  him  to  waive  them. 

History:     Enacted  March  21,   1872. 

See   Kerr's  Cyc.   C.    C.   for   3   pars,   annotation. 

121  C.  515,  520,  53  P.  1119  (applied);  130  C.  258,  262,  62  P.  463 
(construed). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,   ante. 

§  2997.  OBLIGATION  OF  PLEDGEE  AND  PLEDGE-HOLD- 
ER,  FOR  REWARD.  A  pledgee,  or  a  pledge-holder  for  reward, 
assumes  the  duties  and  liabilities  of  a  depositary  for  reward. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  24  pars,  annotation. 

125  C.  596,  599  (applied  but  erroneously  cited  as  §2887),  58 
P.    186,    187    (correct   citation). 

As  to  care  required  of  pledgees,  see  83  A.  S.  392. 

As  to  depositary  for  reward,  see  ante   §  1852. 

As  to  diligence  required  of  one  who  holds  negotiable  paper 
as    collateral    security,    see    34    A.    D.    451. 

As  to  duty  of  pledgee  to  care  for  tiling  pledged,  see  17  L. 
193. 

As  to  liability   of  pledgee  as  shareholder,   see   36   L.    139. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,   ante. 

§2998.  GRATUITOUS  PLEDGE-HOLDER.  A  gratuitous 
pledge-holder  assumes  the  duties  and  liabilities  of  a  gratuitous 
depositary. 

History:     Enacted  March  21,   1872. 

125  C.   596,   599,   58   P.   186    (construed). 

As  to  gratuitous  depositary,  see  Kerr's  Cyc.  C.  C.  §§  1844-1847 
and   note. 

1502 


Tit.XIV.ch.III.]  MISREPRESENTATION.  §§  2999-3001 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

As  to  obligations  of  pledge-holder,  see  Kerr's  Cyc.  C.  C. 
§  2995   and    note. 

§  2999.    DEBTOR'S  MISKEPKESEMATIOX  OF  VALIE  OF 

PLEDGE.  Where  a  debtor  has  obtained  credit,  or  an  exten- 
sion of  time,  by  a  fraudulent  misrepresentation  of  the  valup 
of  property  pledged  by  or  for  him,  the  creditor  may  demand 
a  further  pledge  to  correspond  with  the  value  represented; 
and  in  default  thereof  may  recover  his  debt  immediately, 
though  it  be  not  actually  due. 

HiNtory:  Enacted  March  21,  1872,  founded  upon  Civ.  Code 
I^a.,  art.   3141. 

§3000.  WHEN  PLEDGEE  MAY  SELL.  When  performance 
of  the  act  for  which  a  pledge  is  given  is  due,  in  whole  or  in 
part,  the  pledgee  may  collect  what  is  due  to  him  by  a  sale 
of  property  pledged,  subject  to  the  rules  and  exceptions  here- 
inafter prescribed. 

Ili.storyi     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.  for  20  pars,  annotation. 

66  C.  97.  98,  4  P.  1062,  1063  (applied);  125  C.  59fi.  6on.  .-,s  P. 
ISO  (construed);  128  C.  202,  208.  60  P.  778  (applied  i;  IH  (\  32r>, 
333.  77   P.   937    (construed). 

As   to  effect  of  unaccepted   tender  upon    pledge,   s«e   33    L.   237. 

As  to  foreclosure  of  pU'dge,  see  Kerr's  Cyc.  C.  C.  §3011  and 
note. 

As  to  many  misc»llaneous  matters  as  to  pledges,  see  note 
8  29S6,  ante. 

As   to   remedies  of  pledgees,   see   79   A.    D.    499. 

As  to  rights  and  reinetlies  of  parties  to  collateral  securities, 
see    32    A.    S.    711. 

As   to   sale   of  pledpre,   see    I    T^.    305. 

§3001.  WHEN  PLEDCiEE  MIST  DE.>IA>D  PEKFOKM- 
A>'("E.  Hefore  property  pled.ged  can  be  sold,  and  after  per- 
formance of  the  act  for  which  it  is  security  is  due.  the  pledgee 
must  demand  performance  thereof  from  the  debtor,  If  the 
debtor  can  be  found. 

History:  Enacted  March  21.  1872;  amended  Mnrcli  .".o.  1ST1. 
Code  Amdts.  1873-4,  p.   262. 

1503 


/ 


§§  3002-3004  CIVIL  CODE.  [Div.III.Pt.IV. 

See   Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

62  C.  426,  439  (construed);  82  C.  199,  200,  22  P.  1112  (con- 
strued); 125  C.  596,  600,  58  P.  186  (construed);  128  C.  202,  208, 
60  P.  778  (applied);  123  F.  24,  26  (construed  and  applied  with 
§  3002 — effect  of  pledgeor's  death). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§  3002.  NOTICE  OF  SALE  TO  PLEDGEOR.  A  pledgee  must 
give  actual  notice  to  the  pledgeor  of  the  time  and  place  at 
which  the  property  pledged  will  be  sold,  at  such  a  reasonable 
time  before  the  sale  as  will  enable  the  pledgeor  to  attend. 

History:     Enacted  March   21,   1872. 

See   Kerr's   Cyc.  C.   C.  for  5   pars,  annotation. 

68  C.  522,  526,  9  P.  947  (referred  to);  82  C.  199,  200,  22  P.  1112 
(construed);  125  C.  596,  600,  58  P.  186  (construed);  128  C.  202, 
208,  60  P.  778  (applied);  3  C.  A.  387,  393,  86  P.  729  (applied  with 
other  sections);  123  F.  24,  26  (construed  and  applied  with 
§  3001 — effect  of  pledgeor's  death). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§3003.  WAIVER  OF  NOTICE  OF  SALE.  Notice  of  sale 
may  be  waived  by  a  pledgeor  at  any  time;  but  is  not  waived 
bj"  a  mere  waiver  of  demand  of  performance. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

68  C.  522,  526,  9  P.  947  (referred  to);  82  C.  199,  201,  22  P. 
1112  (construed);  125  C.  593,  600,  58  P.  186  (construed);  3  C.  A. 
387,    393,   86   P.   729    (applied  with   other   sections). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§3004.  WAIVER  OF  DEMAND.  A  debtor  or  pledgeor 
waives  a  demand  of  performance  as  a  condition  precedent  to 
a  sale  of  the  property  pledged,  by  a  positive  refusal  to  per- 
form, after  performance  is  due;  but  cannot  waive  it  in  any 
other  manner  except  by  contract. 

History:     Enacted  March  21,  1872. 

82  C.  199,  201,  22  P.  1112  (construed);  125  C.  596,  600,  58  P. 
186    (construed). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

1504 


Tit.XIV.Ch.III.]  PLEDGEE'S  SALE.  §§3005-3007 

§3005.  SALE  MUST  BE  BY  AUCTION.  The  sale  by 
pledgee,  of  property  pledged,  must  be  made  by  public  auction, 
in  the  manner  and  upon  the  notice  of  sale  of  personal  prop- 
erty under  execution. 

HIMoryt  Enacted  March  21.  1872;  amended  April  Ifi.  1909. 
Stats,   and   Amdts.    1909,   p.    972. 

See   Kerr's  Cyc.   C.   C.   for  3   pars,   annotation. 

66  C.  97.  98,  4  P.  1062  (applied);  68  C.  522.  526,  9  P.  947  (re- 
ferred to);  82  C.  199,  200.  22  P.  1112  (applied);  113  C.  475.  478, 
45  P.  815  (referred  to);  125  C.  596,  600.  58  P.  186  (construed); 
3  C.   A.   387,   393,   86   P.   729    (applied   with   other  sections). 

As  to  many  miscellaneous  matters  as  to  pkilges,  see  note 
§  2986,  ante. 

As  to  pledgee's  conversion  of  pledged  projxrty  hy  invalid 
sale,    see    43    L.    737. 

§3(M)«.  PLEDGEE'S  SALE  OF  SECURITIES.  A  pledgee 
cannot  sell  any  evidence  of  debt  pledged  to  him.  e.\cei)t  the 
obligations  of  governments,  states,  or  corporations;  but  he 
may  collect  the  same  when  due. 

Hlfttorr:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for   11   pars,  annotation. 

85  C.  122.  129.  24  P.  642,  643  (construed);  114  C.  126,  129.  45  P. 
1068  (construed);  121  C.  515,  520.  53  P.  1119  (applied);  125  C. 
596.  600.  58  P.  186  (con.«trued) :  127  C.  171.  175,  59  P.  587  (ap- 
plied); 134  C.  287.  289.  66  P.  324  (applied);  152  C.  419.  425.  93 
r.  114  (pledgee  of  life  Insurance  policy  may  collect  It  when 
due);  4  C.  A.  400.  402,  88  P.  373  (pledgee  may  sue  to  collect 
note). 

As  to  extent  of  recovery  by  pledgee  on   note,   see   44   L.   243. 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
i  2986.  ante. 

As  to  right  of  pli'dgoe  to  soil  securities;  negotiable  Instrti- 
ments  held  as  collateral;  obllg.Ttlons  nf  pledgee;  d«-mand  and 
notice,  see    4   L.   586. 

§3007.     SALE    (>>    THE    IIE.M  VM)    OF    THE    IMKIK.EOK. 

Whenever  i)ro|)tMty  |)l»Ml^(>d  can  l)e  sohl  for  a  price  .sufTicient 
to  .satisfy  the  claim  of  the  pledgee,  the  pledgeor  may  require 
it  to  be  sold,  and  its  proceeds  to  be  applied  to  such  satisfac- 
tion,  when  due. 

Illntory:     Enact.. I   March   21,   1872. 
Kerr's    C.    C— 48  1505 


§§  3008-3010  CIVIL  CODE.  [Div.TII,Pt.IV. 

See  Kerr's  Cyc.   C.   C.  for  2  pars,  annotation. 
125  C.  596,   600,   58  P.   186    (construed). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§  3008.  SURPLUS  TO  BE  PAID  TO  PLEDGEOR.  After  a 
pledgee  has  lawfully  sold  property  pledged,  or  otherwise  col- 
lected its  proceeds,  he  may  deduct  therefrom  the  amount  due 
under  the  principal  obligation,  and  the  necessary  expenses 
of  sale  and  collection,  and  must  pay  the  surplus  to  the 
pledgeor,  on  demand. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.  C.   C.   for   7   pars,   annotation. 

101  C.  445,  453,  35  P.  1035  (cited — transfer  of  note  by  way  of 
pledge);   125  C.  596,  600,   58  P.   186    (construed). 

As  to  many  miscellaneous  inatters  as  to  pledges,  see  note 
§  2986,  ante. 

§  3009.  PLEDGEE  MAY  RETAIN.  When  property  pledged 
is  sold  by  order  of  the  pledgeor  before  the  claim  of  the 
pledgee  is  due,  the  latter  may  retain  out  of  the  proceeds  all 
that  can  possibly  become  due  under  his  claim  until  it  becomes 
due. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   262. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
125   C.    596,   600,   58  P.    186    (construed). 

As  to  many  miscellaneous  matters  as  to  pledges,  see  note 
§  2986,  ante. 

§3010.  PLEDGEE'S  PURCHASE  OF  PROPERTY 
PLEDGED.  Whenever  property  pledged  is  sold  at  public  auc- 
tion, in  the  manner  provided  by  section  three  thousand  and 
five  of  this  code,  the  pledgee  or  pledge-holder  may  purchase 
•said  property  at  such  sale. 

History:  Enacted  March  21,  1872;  amended  March  8,  1895, 
Stats,  and  Amdts.  1895,  p.  26. 

See   Kerr's   Cyc.   C.   C.   for   6   pars,   annotation. 
62  C.  426,  439   (applied);  125  C.  596,  600,  58  P.   186    (construed); 
3  C.  A.  387,  393,  86  P.  729    (applied  with  other  sections). 

1506 


Tit.XIV.ch.IIIl      FORECLOSING  REDRMPTIOX.  §3011 

As  to  many  inisc-i.llaiu'ous  inattt-rs  as  to  pli-dges,  see  note 
I  2986,  ante. 

§3011.    PLEIXJKK  MAY  FOKEt'LOSE  RKJHT  (►F  KEDE.Ml'- 

TION.  Instead  of  sellins  property  pledged,  as  hereinbefore 
provided,  a  pledgee  may  foreclose  the  right  of  redemption  by 
a  judicial  sale,  imder  the  direction  of  a  competent  court;  and 
in  that  case  may  be  authorized  by  the  court  to  purchase  at  the 
sale. 

Ili.slor.v:     Enacted  March   21,   1S72. 

See   Kerr's   Cye.    C.   C.    for   11    pars,   annotation. 

66  C.  97,  98,  4  P.  1062  (applied):  85  C.  122.  129,  24  V.  642. 
643  (applied);  125  C.  596,  60n,  58  P.  186  (construed);  127  C.  171. 
175,    58   P.    587    (applied);    134   C.    287,   289,    66   P.    324    (construed). 

As    to    many    miscfllaneoii.s    matters    as    to    pleilges,    si'o    note' 
!  2986.    ante. 


1507 


§  3017  CIVIL  CODE.  [Div.III.Pt.IV. 

CHAPTER  IV. 

BOTTOMRY. 

§  3017.  Bottomry,   what. 

§  3018.  Owner  of  ship  may  hypothecate. 

§  3019.  When  master  may  hypothecate  ship. 

§  3020.  Same.      [When  owner  cannot  be  readied,  etc.] 

§  3021.  When  master  may  hypothecate  freight  money. 

§  3022.  Rate  of  interest. 

§  3023.  Rights    of     lender,     when     no     necessity     for     bottomry 

existed. 

§  3024.  Stipulation  for  personal  liability  void. 

§  3025.  When    money    loaned    is    to    be    repaid. 

§  3026.  When  bottomry  loan   becomes  due. 

§  3027.  Bottomry  lien,  how  lost. 

§  3028.  Preference   of  bottomry   lien    over   other  liens. 

§  3029.  Priority   of  bottomry   liens. 

§3017.  BOTTOMRY,  WHAT.  Bottomry  is  a  contract  by 
which  a  ship  or  its  freightage  is  hypothecated  as  security  for 
a  loan,  which  is  to  be  repaid  only  in  case  the  ship  survives  a 
particular  risk,  voyage,  or  period. 

History:     Enacted  March  21,   1872. 

See   Kerr's  Cyc.   C.   C.   for   40   pars,   annotation. 

BOTTOMRY    AND    RESPONDENTIA. 

As  to  bottomry  bond. — See   19  L.   ed.   651;    1   W.   &  P.   849. 

Same — As  a  negotiable  instrument. — See  5  W.  &  P.  4768. 

Same — Circumstances  justifying  giving  of. — See  2  Obiter  Dig. 
197. 

Same — Definition  of  bottomry  bond. — See  2  Obiter  Dig.  196;  1 
W.    &    P.    849. 

Same — 'Distinguished  from  implied  liens. — See  2  Obiter  Dig. 
196. 

Same — Good  in  part  and  bad  in  part. — See  2  Obiter  Dig.  198. 

Same — Liberally  regarded  by  admiralty  courts. — See  2  Obiter 
Dig.    196. 

Same — Personal   liability    of    owner. — See    2    Obiter   Dig.    197. 

Same — Property  to  which   attaches. — See   2   Obiter  Dig.    197. 

Same — Rules  of  law  as  to  abandonment  inapplicable  to. — See 
2  Obiter  Dig.   198. 

Same — "Vests  no  indefeasible  interest. — See  2  Obiter  Dig.  197. 

As  to   bottomry   by   owner. — See   4   Encyc.    L.    740. 

1508 


Tit.XIV,Ch.IV.]  HVPOTHECATION.  §§  3018. 3019 

As  to  capacity  or  authority  of  master  to  liypotliecate  or  make 
bond. — See  44  Cent.   Dig.  col.   384,  §362;   4   Encyc.   L.   741. 

Same — Interest  in  cargo  or  vessel. — See  44  Cent.  Dig.  col.  388, 
§363. 

Same — Necessity  of  communicating  witli  owner. — See  44  Cent. 
Dig.    col.    388,    §  364. 

As  to  capacity  or  autliority   to   talte  bond. — See   44   Cent.  Dig. 
col.    389,    §  365. 

As   to  definition   of    bottomry. — Sec   5   A.    D.    404;    XH   A.    I).    34lt; 
15  L.  ed.  267;  4  Encyc.  L.  376;   1  W.  &  P.  849. 

As   to   duty   of   lendor   to   ascertain   and   sliow    necessity. — See 
44  Cent.  Dig.  col.   393,  §368;   4   Encyc.  L.   745. 

As   to  laches. — See   4   Encyc.   L.    749. 

As  to  loss  of  vessel   or  cargo  and  lien   on    salvage  and  other 
proceeds. — See   44   Cent.  Dig.  col.   395,   §371. 

As  to  nature  of  the  contract. — See  44  Cent.  Dig.  col.  3S4.  §361;. 
4    Encyc.   L.    737. 

As  to  the  nature  of  the  lien. — See  4  Encyc.  L.  749. 

As  to  necessity  for  hypothecation  and  consideration  for  bond 
in  general. — See  44  Cent.   Dig.  col.   384.   S8  362-364;   col.  390,  §366. 

As    to    payment   and   satisfaction. — See    44    Cent.    Dig.    col.    VM. 
§372. 

As  to  payment  of  advances. — See  4  Encyc.   I>.   7  48. 

As   to   right   of   master   to   hypothecate   vessel   anil    freight  and 
cargo. — See   63   A.   D.    638. 

As   to   rights   of   Indorsee. — See    44   Cent.    Dig.   col.    39T>.    (  370. 

As    to   security    for    pre-exrstlng    debt. — See    44    C>Mit.    Dig.    <ol. 
392,   §  367. 

As   to   time  of   the   loan. — So.-   4   Encyc.    L.    7  4  1. 

As    to    waiver    of    right    to    bond. — See    4  1    C«nt      1  "Ik.    lol.    3'.»5. 
§  369;  4  Encyc.  L.  749. 


§3018.     <>\VM-;K    of    .ship    .M.VV     HVIMHUKC.VTK.      The 

owner  of  a  ship  may  hypothecate  it  or  It.s  freightage,   upon 
bottomry,  for  any  lawful  purpf).se.  and  at  any  lime  and  i)Iaee. 

IliMtoryi      Enact-(l  March   21,    1872. 

See   Kerr's  Cyc.   C.   C.   for   15   pars,  annotation. 

As  to  bottomry  and   respondentia,  ace  note   §3017.  .into. 


§301J).     >VHK>   MASIKK  }\  \\    IH  roTIIFC.VTK  SHIT.   The 

master  of  a  ship  may  hypothecate  it  upon  bottomry  only  for 
the  purpose  of  procuring  repairs  or  supplies  which  are  neces- 

1509 


§§3020-3023  CIVIL  CODE.  [Div.III.Pt.IV. 

sary  for  accomplishing  the  objects  of  the  voyage,  or  for  secur- 
ing the  safety  of  the  ship. 

History:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  64  pars,  annotation. 

As  to   bottomry  and  respondentia,  see  note   §  3017,   ante. 

§  3020.     SAME.     [WHEN  OWNER  CANNOT  BE  REACHED, 

ETC.]  The  master  of  a  ship  can  hypothecate  it  upon  bottomry 
only  when  he  cannot  otherwise  relieve  the  necessities  of  the 
ship,  and  is  unable  to  reach  adequate  funds  of  the  owner,  or 
to  obtain  any  upon  the  personal  credit  of  the  owner,  and  when 
previous  communication  with  him  is  precluded  by  the  urgent 
necessity  of  the  case. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.   C.   §  3019   and  note. 

As  to  bottomry  and  respondentia,  see  note  §  3017,  ante. 

§  3021.     WHEN  MASTER  MAY  HYPOTHECATE  FREIGHT 
MONEY.     The  master  of  a  ship  may  hypothecate  freightage 
upon  bottomry,  under  the  same  circumstances  as  those  which 
authorize  an  hypothecation  of  the" ship  by  him. 
History:     Enacted  March  23,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  bottomry  and  respondentia,  see  note   §  3017,   ante. 

§3022.  RATE  OF  INTEREST.  Upon  a  contract  of  bot- 
tomry, the  parties  may  lawfully  stipulate  for  a  rate  of  interest 
higher  than  that  allowed  by  the  law  upon  other  contracts. 
But  a  competent  court  may  reduce  the  rate  stipulated  when 
it  appears  unjustifiable  and  exorbitant. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

As  to   bottomry  and  respondentia,   see  note   §  3017,   ante. 

§  3023.  RIGHTS  OF  LENDER,  WHEN  NO  NECESSITY  FOR 
BOTTOMRY  EXISTED.    A  lender  upon  a  contract  of  bottomry, 

1510 


1 


Tit.XI  V.ch.IV.]  RETURN  OF  LOAN— Dl'E  WHEN.      §g  3024-3026 

made  by  the  master  of  a  ship,  as  such,  may  enforce  the  con- 
tract, though  the  circumstances  necessary  to  authorize  the 
master  to  hypothecate  the  ship  did  not  in  fact  exist,  if.  after 
due  diligence  and  inquiry,  the  lender  had  reasonable  Krounds 
to  believe,  and  did  in  pood  faith  believe,  in  the  existence  of 
such  circumstances. 

IIlMturyt     Enacted  March   21,   187:;. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

A8  to   bottomry  anil   respondentia,  see  note   i  3017,  ante. 

As   to    owner's    liability    for    niastt^r's    contracts,    sue    16    A.    D. 

440. 


§8024.     STIPULATION'  FOR  PERSONAL  LIAHILITV  VOIO. 

A   stipulation    in    a   contract    of   bottomry,   imposing   any    lia- 
bility for  the  loan  independent  of  the  maritime  rislvs,  is  void. 

IliHioryt     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  para,  annotation. 

A«    f,,    l,,.ti..iiirv    Mil.!    r.sp..>ii|.i>i  i'l     «•■.■    n..fo    5?.iilT     mito 

§:{(H».-).     >V1IK>    MONKV   LOANKU  IS  TO  liK    KKPAIO.     In 

ca.so  of  a  total  loss  of  the  thing  hypothecated,  from  a  ri.-^k  to 
which  the  loan  was  subject,  the  lender  upon  bottomry  can 
recover  nothlnp:;  in  case  of  a  partial  loss,  he  can  recover  only 
to  the  extent  of  the  net  value  to  the  owner  of  the  part  saved. 
lllMlorv:     Enacted  March   21.   1872. 

See   Kerr's  Cyc.  C.   C.   for   8   pars,  annotation. 

As   to   Ixittomry  and   r>j«p"ndentln.   nee  note   f  3017.   ftnt«». 

§30l»«.  >VHK>  BOTTO.MKY  L(»A>  HL(OMKS  IH  K.  I  nless 
It  is  oIluMwI.se  expressly  agreed,  a  bottomry  loan  becomes  due 
immediately  upon  the  termination  of  the  risk,  although  a  term 
of  credit  Is  specified   in  the  contract 

Ilii«i>r>i     Enacted  March  21,  1872. 

See    Kerr's  Cyc.  C.  C.   for  8   pars,  annotation. 
As   »■>   i...ii.>inry  and   respondentia,  see  note   |T"''     •nto. 

1511 


§§  3027-3029  CIVIL  CODE.  [Div.III,Pt.IV. 

§3027.  BOTTOMRY  LIEN,  HOW  LOST.  A  bottomry  lien 
is  independent  of  possession,  and  is  lost  by  omission  to  en- 
force it  within  a  reasonable  time. 

History:     Enacted  March   21,   1872. 

See   Kerr's  Cyc.   C.   C.   for   10   pars,   annotation. 

As  to   bottomry  and   respondentia,  see  note   §  3017,   ante. 

§3028.  PREFERENCE  OF  BOTTOMRY  LIEN  OVER 
OTHER  LIENS.  A  bottomry  lien,  if  created  out  of  a  real  or 
apparent  necessity,  in  good  faith,  is  preferred  to  every  other 
lien  or  claim  upon  the  same  thing,  excepting  only  a  lien  for 
seamen's  wages,  a  subsequent  lien  of  materialmen  for  supplies 
or  repairs  indispensable  to  the  safety  of  the  ship,  and  a  subse- 
quent lien  for  salvage. 

Hi-story:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As   to   bottomry  and   respondentia,   see   note   §  3017,   ante. 

§  3029.  PRIORITY  OF  BOTTOMRY  LIEN.  Of  two  or  more 
bottomry  liens  on  the  same  subject,  the  latter  in  date  has 
preference,  if  created  out  of  necessity. 

History:     Enacted  March  21,   1872. 

As  to  bottomry  and  respondentia,  see  note   §  3017,  ante. 
As  to  second  bottomry  bond,  see  Kerr's  Cyc.  C.  C.  §  3029,  note; 
also  note   §  317,   ante. 


1512 


Tit.XIV.ch.V.l  HKSPONDENTIA.  §§3036-3038 


CHAPTER  V. 

RESPONDENTIA. 

i  3036.  Hfspondontla,   what. 

8  3037.  lit'spondontia   by   owner. 

§  3038.  }i<spon(Jentia   by   master. 

S  3039.  Rate  of  Intorest. 

I  3040.  Obligratlons  of  ship-owner. 

§30:{(J.  KESIM)M)E>TI.V,  WH.VT.  Respondentia  is  a  con- 
tract ])}•  which  a  cargo,  or  some  part  thereof,  is  hypothecated 
as  security  for  a  loan,  the  repayment  of  which  is  dependent 
on  maritime  risks. 

IllNtory:      Enact. d   March   21,    1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

As   to   bottomry  and   respondentia,  see   note    5  3017,   ante. 

§  8037.  RESPO>'DEMI.i  HY  OWNER.  The  owner  of  cargo 
may  hypothecate  it  ui)on  respondentia,  at  any  time  and  place, 
and  for  any  lawful  purpose. 

Hlatoryi     Enacted  March   21,   1872. 

As  to   bottomry  and   respondentia,  see  note   ji  3017,  ante. 
As   to   owner's   rlRlits.  see    Kt-rr's   Cyc.  C   C.   |301S  ami   note. 

§.30.3S.  KESIM»M)E>TI.V  BV  .MA.STEK.  The  master  of  a 
ship  may  hypothecate  it.s  cargo  ui)i)n  resp«)ndentia  only  in  a 
case  in  which  he  would  be  authorized  to  hypothecate  the  ship 
and  freightage,  but  is  unable  to  borrow  sufficient  money 
thereon  for  repairs  or  supplies  which  are  necessary  for  the 
successful  accomplishment  of  the  voyage:  and  he  cannot  do 
so,  even  in  such  case,  if  there  is  no  reasonable  prospect  of 
benefiting  the  cargo  thereby. 

Hiatorys      Enacted   March   21,    IST.'. 

As   to   bottomr>    and   respondentia,  see   note   I  3017.   ante. 
As   to   master's   authority,   see   Kerr's  Cyc.   C.   C.    If  3019,  S03C 
and  notes. 

1513 


§§  3039, 3040  CIVIL  CODE.  [Div.III,Pt.IV. 

§  3039.  RATE  OF  INTEREST.  The  provisions  of  sections 
three  thousand  and  twenty-two  to  three  thousand  and  twenty- 
nine  apply  equally  to  loans  on  respondentia. 

History:     Enacted  March  21,   1872. 

As  to  bottomry  and  respondentia,  see  note   §  3017,  ante. 

As  to  priority,   see  Kerr's  Cyc.  C.   C.   §  3029   and  note. 

As  to  rate  of  interest,  see  Kerr's  Cyc.  C.  C.  §  3022  and  note. 

§  3040.  OBLIGATIONS  OF  SHIP-OWNER.  The  owner  of  a 
ship  is  bound  to  repay  to  the  owner  of  its  cargo  all  which 
the  latter  is  compelled  to  pay,  under  a  contract  of  respondentia 
made  by  the  master,  in  order  to  discharge  its  lien. 

History:     Enacted  March  21,   1872. 

As  to  bottomry  and  respondentia,  see  note  §  3017,  ante. 

As  to  obligations  of  ship-owner  to  owner  of  cargo  sold,  see 
Kerr's  Cyc.  C.  C.   §  2385  and  note. 

As  to  personal  responsibility  of  master,  see  Kerr's  Cyc.  C.  C. 
§  2383  and  note. 


1514 


Tit.XIV.ch.VI.]  VENFxurs  LIEN.  §3046 

CHAPTER  VI. 

OTHER  LIENS. 

S  3046.  Lien   of  seller  of  real   property. 

I  3047.  When   transfer  of  contract  waives  lien. 

§  3048.  Extent  of  seller's  lien. 

S  3049.  Lien  of  seller  of  personal  property. 

g  3050.  Purchaser's  lien   on   real  property. 

§  3051.  Lien  upon   personal   property  for  services  performed. 

§  3052.  Liens  on   personal   property.     [Lienholder  may  sell.] 

i  3053.  Lien   of  factor. 

§  3054.  Banker's  lien. 

I  3055.  Shipmaster's   lien. 

§  3056.  Seamen's   lien. 

S  3057.  Officer's   lion. 

S  3058.  Judg-ment  lien. 

S  3059.  Mechanic's   Hen. 

13060.  Lien    on    ships. 

I  3061.  Lien   of  workmen   on   thre.>iliiniQr  machines,  etc. 

I  3062.  Lien   of  person    in   charge  of  stallion,   etc. 

§  3063.  Claimant  of  lien   must   (lie  verified  claim.     Such  claim  a 

notice  to  suhsefiuent  purchasers. 

8  3064.  Action   to  enforce  lien. 

S  3065.  "Logger's    lien.      T'pon    what    lien    suhsists.      Lion    ceases, 

when. 

§  S04«.     MEN  OF  SELLER  OV  KEAL  PRCJPEKTY.  Ono  who 

sella  real  property  has  a  vendor's  Hen  thereon,  independent 
of  possession,  for  so  much  of  the  price  as  remains  unpaid 
and  unsecured  otherwise  than  by  the  personal  obllRation  of 
the  buyer. 

IllMtiTM      EiiiHf.d   March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

57  C.  467,  471  (applied);  87  C.  619.  625,  22  A.  S.  272,  25  V.  91?. 
920  (construed  and  applied) :  89  C.  89.  93,  24  P.  608.  13  I*  187 
(construed):  98  C.  30,  33,  32  P.  807  (con.^trued) :  116  C  264.  259. 
48  P.  73  (referred  to);  119  C.  364.  372.  373.  51  P.  549.  955  (ap- 
plied); 123  C.  208.  212.  65  P.  791  (applied);  125  C.  357.  S60.  7S  A. 
S.  47.  58  P.  16  (applied — purpose  of  15  3046.  3047.  and  3018  wnn 
to  make  equity  rule  as  to  vendors'  lions  more  clear  and  defi- 
nite). 

As  to  distinction  between  vendor's  lien  In  executory  con- 
tract of  sale  and  after  title  has  passed,  sec  1  A.  S.  256. 

1516 


§  3047  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  effect  of  execution  sale  of  vendee's  interest  in  land 
under  contract  of  purchase,  see  89  A.  D.  370. 

As   to   enforcement  of  vendor's  lien,   see   77  A.   D.   101;   7   L.   35. 

As  to  execution  of  vendor's  lien  by  statute  of  limitations,  see 
ante  §  2911;  also  73  A.  D.   469;  31  A.  S.   41;   95  A.  S.   663. 

As  to  priority  of  vendor's  lien  on  property  of  insolvent  cor- 
poration, see  71  A.  S.   384. 

As  to  priority  of  vendor's  lien  over  dower,  see  46  A.  D.  69; 
note    4    L.    606. 

As  to  priority  of  vendor's  lien  over  mortgage,  see  73  A.  D. 
203. 

As  to  rig-ht  of  purchaser  at  sale  under  vendor's  judgment  for 
purchase  money,  see   62   A.  D.   368. 

As  to  right  of  vendor  to  maintain  an  ejectment,  see  50  A.  D. 
232. 

As  to  sale  on  execution  of  lien  reserved  for  purchase  money, 
see    brief    6   L.    708. 

As  to  vendor's  lien  in  favor  of  third  person,  see  56  A.  S.  227; 
86  A.  S.   178;  9  L.  173. 

As  to  vendor's  lien  on  homestead,  see  86  A.  S.  174. 

As  to  waiver  of  vendor's  lien,  see  12  A.  D.  263;  28  A.  D.  199; 
39  A.  D.   202;  60  A.  D.  559;  81  A.  D.  156. 

As  to  waiver  of  vendor's  lien  by  married  woman,  see  brief 
9    L.    97. 

As  to  waiver  of  vendor's  lien  by  reserving  title,  see  73  A.  D. 
196. 

As  to  waiver  of  vendor's  lien  by  taking  note,  see  77  A.  D. 
101;   13  L.   187. 

As  to  waiver  of  vendor's  lien  by  taking  personal  security,  see 
17  A.   D.   157;   77  A.   D.   101;    81   A.   D.   241. 

§  3047.    WHEIV  TRANSFER  OF  CONTRACT  WAIVES  LIE?f. 

Where  a  buyer  of  real  property  gives  to  the  seller  a  written 
contract  for  payment  of  all  or  part  of  the  price,  an  absolute 
transfer  of  such  contract  by  the  seller  waives  his  lien  to  the 
extent  of  the  sum  payable  under  the  contract,  but  a  transfer 
of  such  contract  in  trust  to  pay  debts,  and  return  the  surplus, 
is  not  a  waiver  of  the  lien. 

Historys     Enacted  March  21,   1872. 

See  Kerr's  Cyc.   C.   C.  for   15  pars,  annotation. 

74  C.  583,  585,  16  P.  504,  505  (construed);  87  C.  619,  625,  22  A. 
S.  272,  25  P.  919,  920  (construed  and  applied);  89  C.  89,  93,  24 
P.  608,  13  L.  187  (construed);  123  C.  208,  212,  55  P.  791  (referred 
to  in  discussing  lien  of  vendor  of  real  property);  125  C.  357, 
360,    73   A.   S.    47,    58  P.    16    (construed — purpose   of    §§  3046,    3047, 

1516 


Tit.XlV.ch.Vl.]  LIEX  OX   PERSONALTY.  §§3048.3049 

and  3048  was  to  make  equity  rule  as  to  venrlors'  liens  more  clear 
and  definite). 

As  to  assignment  of  note  for  purchase  price  of  land  where 
vendor  reserves  title,  see  65  A.  S.  548;  brief  58  L.  700. 

As  to  assignment  of  vendor's  lien,  see  12  A.  D.  263;  28  A.  D. 
199;  60  A.  D.  559:  81  A.  D.  156;  90  A.  D.  300;  13  L.  188. 

As  to  assignment  of  vendor's  lien  by  assignment  of  note,  see 
43  A.  D.  153;  52  A.  D.  435;   81  A.  D.  241. 

As  to  right  of  assignee  to  vendor's  lien,  see  33  A.  D.  130. 


§  3048.  EXTEM  OF  SELLER'S  LIEN.  The  liens  defined  in 
sections  three  thousand  forty-six  and  three  thousand  and  fifty 
are  valid  against  every  one  claiming  under  the  debtor,  except 
a  purchaser  or  encumbrancer  in  good  faith  and  for  value. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.   C.   C.  for  7  pars,  annotation. 

125  C.  357,  360,  73  A.  S.  47,  58  P.  16  (construed — purpose  of 
§§  3046,  3047,  and  3048  was  to  make  equity  rule  as  to  vendors' 
liens  more  clear  and   definite. 

As  to  notice  of  vendors'  lien,  see  60  A.  D.  560. 

As  to  validity  of  vendor's  lien  against  bona  fide  purchaser, 
see  17  A.  D.  157;  17  A.  D.  808:   43  A.  D.   152. 

S3049.  LIEN  OF  SELLER  OF  PERSONAL  PROPERTY. 

One  who  sells  personal  property  has  a  special  lieu  thereon, 
dependent  on  possession,  for  its  price,  if  it  is  in  his  possession 
when  the  price  becomes  payable,  and  may  enforce  his  lien  in 
like  manner  as  if  the  property  was  pledged  to  him  for  the 
price. 

HlHtory:     Enacted  March   21,   1872. 

See  Kerr's  C.vc.  C.  C.  for  6  pars,  annotation. 

77  C.  139,  144,  19  P.  260  (referred  to  in  applying  8  3311t:  94 
C.  5,  17,  29  P.  406,  409  (referred  to  in  applying  §3311);  106  C. 
441,  445,  39  P.  853  (construed):  121  C.  244,  246,  53  P.  656  (con- 
strued); 143  C.  436.  438.  77  P.  144  (applied);  3  C.  A.  561.  569.  86 
P.  820   (referred  to — no  lien,  legal   or  equitable,  exists  whenK 

As  to  lien  of  vendor  of  personalty,  see  83  A.  S.   451. 

As  to  lien  on  personalty,  against  purchaser  without  notice, 
see  59  L.  738. 

As  to  waiver  of  lien  upon  personal  property  by  attachment 
or  execution,  see  50  L.  714. 

As  to  waiver  of  vendor's  Hen  on  personalty,  see  50  A.  D.  760. 

1517 


§§3050,3051  CIVIL.  CODE.  [Div.III,Pt.IV. 

§  3050.     PURCHASER'S  LIEN  OIV  REAL  PROPERTY.   One 

who  pays  to  the  owner  any  part  of  the  price  of  real  property, 
under  an  agreement  for  the  sale  thereof,  has  a  special  lien 
upon  the  property,  independent  of  possession,  for  such  part 
of  the  amount  paid  as  he  may  be  entitled  to  recover  back,  in 
case  of  a  failure  of  consideration. 

HLstory:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

87  C.  49,  55,  25  P.  249,  250  (applied);  103  C.  287,  289,  293,  35 
P.  768,  37  P.  392  (construed);  113  C.  656,  664,  45  P.  872  (con- 
strued); 125  C.  357,  360,  58  P.  16,  73  A.  S.  47  (referred  to  in 
§  3048,    quoted). 

As  to  vendee's  lien  for  money  paid  on  contract,  see  4  L.  247. 

As  to  vendee's  lien  for  reimbursement,  see   12   A.   D.   313. 


§  3051.  LIEX  UPON  PERSONAL  PROPERTY  FOR  SERV- 
ICES PERFORMED.  Every  person  who,  while  lawfully  in 
possession  of  an  article  of  personal  property,  renders  any 
service  to  the  owner  thereof,  by  labor  or  skill,  employed  for 
the  protection,  improvement,  safe-keeping,  or  carriage  thereof, 
has  a  special  lien  thereon,  dependent  on  possession,  for  the 
compensation,  if  any,  which  is  due  to  him  from  the  owner 
for  such  service;  a  person  who  makes,  alters,  or  repairs  any 
article  of  personal  property,  at  the  request  of  the  owner,  or 
legal  possessor  of  the  property,  has  a  lien  on  the  same  for  his 
reasonable  charges  for  work  done  and  materials  furnished, 
and  may  retain  possession  of  the  same  until  the  charges  are 
paid;  and  livery  or  boarding  or  feed-stable  proprietors,  and 
persons  pasturing  horses  or  stock,  have  a  lien,  dependent  on 
possession,  for  their  compensation  in  caring  for,  boarding, 
feeding,  or  pasturing  such  horses  or  stock;  and  laundry  pro- 
prietors and  persons  conducting  a  laundry  business  have  a 
general  lien,  dependent  on  possession,  upon  all  personal  prop- 
erty in  their  hands  belonging  to  a  customer,  for  the  balance 
due  them  from  such  customer  for  laundry  work;  and  veteri- 
nary proprietors  and  veterinary  surgeons  shall  have  a  lien, 
dependent  on  possession  for  their  compensation  in  caring  for, 
boarding,  feeding  and  medical  treatment  of  animals. 

1518 


Tit.XIV.Ch.VI.]  LIEN-HOLDER'S  SALE.  §  3052 

HiMtorj-:  Enacted  March  21,  1872;  amended  March  29.  1878. 
Code  Amdts.  1877-8,  p.  89;  amended  March  1,  1907.  Stats,  and 
Amdts.   1907,  p.  85. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

53  C.  351,  353  (construed);  22  P.  973,  974  (applied);  100  C.  408. 
410,  38  A.  S.  301.  34  P.  959  (construed);  121  C.  8,  9,  66  A.  S.  17. 
53  P.  404,  43  L.  524  (applied);  148  C.  61.  62.  82  P.  845  (con- 
strued— what  cannot  be  judicially  inserted  into  section);  1  C. 
A.  79,  81  (construed);  1  C.  A.  116,  119.  81  P.  661,  662  (applied- 
lien  for  unpaid  labor  on  personal  property). 

As*  to  existence  of  agister's  Hen,  see  6  L.  82;  brief  44  L.  456. 

As  to  lien  on  personalty  for  services  rendered,  see  37  A.  D. 
522;  38  A.  D.  668;  60  A.  S.  191;   69  A.  S.  300;  69  A.  S.  127. 

As  to  priority  of  agister's  lien  over  chattel  mortgage,  see 
17   L.   792. 

As  to  priority  of  lien  for  services  on  chattels,  see  brii-f,  40 
L.  761,  762. 

As  to  statute  giving  lien  for  damages  done  by  estrays  dam- 
age feasant,  see  Hen.  G.  L.,  p.  21. 

As  to  waiver  of  bailee  lien,  see  ante  §  2910;  also  63  A.  D.  413. 

As  to  waiver  of  agister's  lien,  see  ante  §  2910. 

As  to  waiver  of  agister's  lien  by  attachment  or  execution,  see 
50  L.   720;  brief  44   L.   461. 

As  to   who  are  laborers,  see  32  A.  R.   264;  58  A.  S.   303. 


§  3052.  LIE>S  ON  PEKS(»  AL  PK(H»KUTY.  [LIE>.1H>LI>- 
EK  MAY  SELL.]  If  the  person  entitled  to  the  lien  provided 
for  in  section  three  thousand  and  fifty-one  of  this  code  be  not 
paid  the  amount  due  and  for  which  said  lien  is  given,  within 
twenty  days  after  the  same  shall  have  become  due,  then  such 
lien-holder  may  proceed  to  sell  said  property,  or  so  much 
thereof  as  may  be  necessary  to  satisfy  said  lien  and  costs  of 
sale,  at  public  auctif)n, 

[Xoti'co  of  sale.]  .And  by  Riving,  at  least  ten  days'  previous 
notice  of  such  sale  l)y  advertising  is  some  newspapor  pub- 
lished in  the  county  in  which  such  iiroperty  is  situated;  or.  if 
there  be  no  newspaper  published  in  such  county,  then  by  post- 
ing notices  of  the  sale  In  three  of  the  most  public  places  In 
the  town  or  place  where  such  property  is  to  be  sold,  for  ten 
days  previous  to  the  date  of  sale. 

The  proceeds  of  the  sale  niusl  be  applied  to  the  disrharge 

1519 


§§  3053-3055  CIVIL  CODE.  [Div.III.Pt.IV. 

of  the  lien  and  the  cost  of  keeping  and  selling  the  property; 
the  remainder,  if  any,  must  be  paid  over  to  the  owner  thereof. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  418, 
held  unconstitutional,  see  history,  §  4  ante;  amended  March  1, 
1807,   Stats,  and  Amdts.    1907,  p.   86. 

See  'Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

92  C.  656,  658,   28  P.  687,   688    (applied);   121  C.  8,  9,  66  A.  S.   17, 

53  P.  404,  43  L.  524  (applied);  1  C.  A.  79,  81  (construed) ;  .1  C. 
A.  116,  119,  81  P.  661,  662  (applied— lien  for  unpaid  labor  on 
personal   property). 

§3053.  LIEN  OF  FACTOR.  A  factor  has  a  general  lien, 
dependent  on  possession,  for  all  that  is  due  to  him  as  such, 
upon  all  articles  of  commercial  value  that  are  intrusted  to 
him  by  the  same  principal. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3   pars,  annotation. 

22  P.   973,   974    (applied). 

As  to  factor's  lien,  see  13  A.  D.  299;  58  A.  D.  167;   49  A.  S.  781; 

54  A.   S.   100. 

As  to  waiver  of  lien  by  refusal  to  deliver,  see  Kerr's  Cyc.  C. 
C.   §  2910   and  note. 

§3054.  BANKER'S  LIEN.  A  banker  has  a  general  lien, 
dependent  on  possession,  upon  all  property  in  his  hands 
belonging  to  a  customer,  for  the  balance  due  to  him  from  such 
customer  in  the  course  of  the  business. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

63  C.  359,  364  (construed);  4  C.  A.  201,  204,  87  P.  467  (applied — 
lien  of  bank  upon  policy  of  insurance). 

As  to  banker's  lien  bills  indorsed  to  them  for  collection,  see 
88   A.    D.    174. 

As  to  banker's  lien  on  deposit,  see  42  A.  R.  168;  4  A.  S.  202. 

As  to  liens  of  corporation  on  stock,  see  ante  §303;  also  57 
A.   S.   393. 

§3055.  SHIPMASTER'S  LIEN.  The  master  of  a  ship  has 
a  general  lien,  independent  of  possession,  upon  the  ship  and 

1520 


Tit.XIV.ch.VI.]  OFFICER'S  LIEN.  §§3056-3059 

freightage,  for  advances  necessarily  made  or  liabilities  neces- 
sarily incurred  by  him  for  the  benefit  of  the  ship,  but  has  no 
lien  for  his  wages. 

HiNtory:     Enacted  March  21,   1872. 

52  F.  652,  653,  G54,  655,  656  (cffnstrued — maritiiii.>  lion  for 
master's  wages — §  813  C.  C.  P.  controls — case  revir.sed  in  57  F. 
845);  57  F.  845,  847,  848,  849,  850  (construed — master  has  no 
lien  for  wages — effect  given  to  both  §  813  C.  C.  P.  and  S  3055 
C.  C,   the  latter  prevailing — reversing  52   F.   652). 

As  to  Hen  of  master  on  freight  for  advances,  see  22  A.  D.  556. 

As  to  master's  lien  on  freight  for  freiglitage,  see  Kerr's  Cyc. 
C.  C.   §  2144  and  note. 

§  3056.  SEAMEN'S  LIEX.  The  mate  and  seamen  of  a  ship 
have  a  general  lien,  independent  of  possession,  upon  the  ship 
and  freightage,  for  their  wages,  which  is  superior  to  every 
other   lien. 

IliNtory:     Enacted  March  21,   1872. 

As  to  liens  of  seamen   on  sl.ips,  see  Kerr's  Cyr.  C.  C.  P.  §813. 

§  3057.  OFFICER'S  LIEN.  An  officer  who  levies  an  attach- 
ment or  execution  upon  personal  property  acquires  a  sj>ecial 
lien,  dependent  on  possession,  upon  such  property,  which 
authorizes  him  to  hold  it  until  the  process  is  discharged  or 
satisfied,  or  a  judicial  sale  of  the  property  Is  had. 

lliNtt^ryt     Enacted  Marcli   21,   1ST2. 

As  to  attachment  and  executinn,  see  Ki^rr's  Cy- ,  <'  ''  P. 
88  542.    682,    6SS,    690    and    notes. 

S305S.  Jl'Dii.MKNT  LIEN.  The  lien  of  a  judgment  is  regu- 
lated by  the  code  of  civil  procedure. 

IliNtory:     Enacted  March  21,  1872. 
As  to  lien  of  judgment,  sec  Kerr's  Cyc.  C.  C.  P.  |  671  and  note. 

§3059.  MECIIAMC'S  LIEN.  The  liens  of  mechanics,  for 
materials  and  services  upon  real  property,  am  regulated  by 
the  code  of  civil  procedure. 

1521 


§§3060,3061  CIVIL  CODE.  [Div.III.Pt.IV. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  418, 
held  unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

As  to  lien  of  laborer  on  street  railroad,  see  brief  11  L.   693. 

As  to  mechanic's  lien,  see,  Kerr's  Cyc.  C.  C.  P.  §§  1183-1203  and 
notes. 

As  to  priority  of  liens  of  laborers  on  property  of  railroad 
corporation,   see   54  A.  S.    423. 

§  3060.  LIEJf  ON  SHIPS.  Debts  amounting  to  at  least  fifty 
dollars,  contracted  for  the  benefit  of  ships,  are  liens  in  the 
cases  provided  by  the  code  of  civil  procedure. 

History:  Enacted  March  21,  1872;  repealed  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  418, 
held  unconstitutional,  see  history,  §   4  ante. 

As  to  liens  on  ships,  see  Kerr's  Cyc.  C.  C.  P.  §§  813  et  seq.  and 
notes. 

§  3061.  LIEN  OF  WORKMEN  ON  THRESHING  MACHINES, 
ETC.  Every  person  performing  work  or  labor  in,  with,  about, 
or  upon  any  barley  crusher,  threshing  machine  or  engine, 
horsepower,  wagon,  or  other  appliance  thereof,  while  engaged 
in  crushing  or  threshing,  has  a  lien  thereon  to  the  extent  of 
the  value  of  his  services.  Such  lien  extends  for  ten  days  after 
any  such  person  ceases  such  work  or  labor;  provided,  within 
that  time,  an  action  is  brought  to  recover  the  amount  of  the 
claim.  If  judgment  is  given  in  favor  of  the  plaintiff  in  any 
such  action,  and  it  is  further  found  that  he  is  entitled  to  a  lien 
under  the  provisions  of  this  section,  property  subject  thereto, 
or  so  much  thereof  as  may  be  necessary,  may  be  sold  to  satisfy 
such  judgment;  but  if  several  judgments  have  been  recovered 
against  the  same  property  for  the  enforcement  of  such  liens, 
the  proceeds  of  the  sale  must  be  divided  pro  rata  among  the 
judgment  creditors. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  418,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  618;  founded  upon  Act  March  12,  1885,  Stats,  and  Amdts. 
1885,   p.    109. 

1522 


Tit.XIV.Ch.VI.]         FILING  CLAIM  OF  LIEN.  §§  3062.  :im:'. 

See  Kerr's  Cyc.  C.   C.  for  7   pars,  annotation. 

75  C.  199,  201,  16  P.  885  (Stats.  1885.  p.  109.  construed);  104  C. 
10.  11.  37  P.  626  (Stats.  1885,  p.  109.  constriud);  1 1 6  C.  292.  293. 
48  P.  123  (construed);  125  C.  171,.  173,  57  P.  775  (Stats.  188."..  p. 
109,  construed  and  applied);  141  C.  93.  94.  74  P.  548  (Stats.  1885, 
p.    109,  construed). 

§3062.  LIEN  OF  PERSON  IX  ('n.VR(iE  OF  STALLION, 
ETC.  Every  owner  or  person  having  in  charge  any  stallion, 
jack,  or  bull,  used  for  propagating  purposes,  has  a  lien  for 
the  agreed  price  of  its  service  upon  any  mare  or  cow  and 
upon  the  offspring  of  such  service,  unless  some  wilfully  false 
representation  concerning  the  breeding  or  pedigree  of  such 
stallion,  jack,  or  bull  has  been  made  or  published  by  the 
owner  or  person  in  charge  thereof,  or  by  some  other  person., 
at  the  request  or  instigation  of  such  owner  or  person  in 
charge. 

IliNtory:  Enacted  by  Code  Commission,  Act  Maroli  16.  1901. 
Stats,  and  Amdts.  1900-1,  p.  419;  hold  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21.  1905.  p.  617;  a  codlflcatlon 
of  §    ],  Act  March  11.  ISOl.  St.its.  and  Amdts.   1801,  p.  90. 

§30(53.  CLAI.U.VNT  iiV  LIEN  .MIST  HIK  VEHIFIEI) 
CLAI.n.  SITH  CLAOI  A  NOTICE  TO  SIBSEQIENT  WW- 
CHASERS.  Every  claimant  of  a  lien  provided  for  in  the  |>ro- 
ceding  section  must,  within  ninety  days  after  the  service  on 
account  of  which  the  lien  is  claimed,  file  in  the  office  of  the 
county  recorder  of  the  county  where  the  mare  or  cow  subject 
thereto  is  kei)t.  a  verified  claim  containin.g  a  particular 
description  of  the  mare  or  cow.  the  date  and  place  of  service, 
the  name  of  the  owner  or  reputed  owner  of  such  mare  or  cow. 
a  description  by  name,  or  otherwise,  of  the  stallion,  jack,  or 
bull  performin.g  the  service,  the  name  of  the  owner  or  person 
in  charge  thereof,  and  the  amount  of  the  lien  claimed.  Such 
claim,  so  filed,  is  notice  to  subsequent  purchasers  and  encum- 
brancers of  such  mare  or  cow  and  of  the  offspring  of  such 
service  for  one  year  after  such  filing. 

IIlMtftry:  Eiiarttd  by  Code  Commission.  Act  March  16.  1901. 
Stats,  and  Amdts.  1900-1.  p.  419.  held  unconstitiitlonnl.  s«^e 
history,  |  4  ante;  re-enacted  March   21,  1905,  State,  and  Amdts. 

1523 


§§3064,3065  CIVIL  CODE.  [Div.III.Pt.IV. 

1905,  p.  618;  a  codification  of  §   2,  Act  March  11,   1891,  Stats,  and 
Amdts.    1891,   p.    91. 


§  3064.  ACTIOIV  TO  ENFORCE  LIEN.  An  action  to  enforce 
any  lien  created  under  section  thirty  hundred  and  sixty-two 
may  be  brought  in  any  county  wherein  any  of  the  property 
subject  thereto  may  be  found,  and  the  plaintiff  is  entitled  to 
the  remedies  provided  in  sections  thirty  hundred  and  forty- 
four  and  thirty  hundred  and  sixty-five  upon  complying  with 
such  sections,  both  of  which  are  hereby  made  applicable  to 
the  proceedings  in  such  action. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  419,  held  unconstitutional,  see  liis- 
tory,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  619;  founded  upon  §§  3,  4,  Act  March  11,  1891,  Stats, 
and  Amdts.   1891,  p.   91. 

§  3065.    LOGGER'S  LIEN.    UPON  WHAT  LIEN  SUBSISTS. 

LIEN  CEASES,  WHEN.  A  person  who  labors  at  cutting,  haul- 
ing, rafting,  or  drawing  logs,  bolts,  or  other  timber,  has  a  lien 
thereon  for  the  amount  due  for  his  personal  services,  which 
takes  precedence  of  all  other  claims,  to  continue  for  thirty 
days  after  the  logs,  bolts,  or  other  timber  arrive  at  the  place 
of  destination  for  sale  or  manufacture,  while  such  logs,  bolts, 
or  other  timber  are  in  the  county  in  which  such  labor  was 
performed.  The  lien  hereby  created  ceases  and  determines 
unless  the  claimant  thereof,  within  twenty  days  from  the 
time  such  labor  is  completed,  brings  suit  to  foreclose  the 
same.  The  plaintiff  in  any  such  suit,  at  the  time  of  issuing 
the  summons  or  at  any  time  afterwards,  may  have  the  logs, 
bolts,  or  other  timber  upon  which  such  lien  subsists  attached, 
as  provided  in  this  code,  upon  delivering  to  the  clerk  an  affi- 
davit by  or  on  behalf  of  the  plaintiff,  showing  that  defendant 
is  indebted  to  the  plaintiff  upon  a  demand  for  labor  performed, 
either  in  the  cutting,  hauling,  rafting,  or  drawing  such  logs, 
bolts,  or  other  timber,  and  that  the  sum  for  which  the  attach- 
ment is  asked  is  an  actual  bona  fide  existing  debt,  due  and 
owing  from  the  defendant  to  the  plaintiff,  and  that  the  attach- 

1524 


-1 


|i         Tit.XlV.ch.VlI.]         STOPPAUK  IN  TRANSITU.  §3076 

ment  is  not  sought,  and  the  action  is  not  brought,  to  hinder, 
delay,  or  defraud  any  creditor  or  creditors  of  the  defendant. 

History:  Enacted  by  Code  Commission,  Act  Marcli  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  419;  held  unconstitutionaJ,  see  Jiis- 
tory,  §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  619;  founded  upon  Act  March  30,  1878,  Stats.  1877-8.  p. 
747,  as  amended  April  12,  1880,  Stats.  1880,  p.  38,  and  Marcli  8, 
1887,   Stats,  and  Amdts.    1887,   p.    53. 

See  Kerr's  Cyc.  C.  C.  for  4   pars,  annotation. 

62  C.  483,  484   (construed);   67  C.  422,  423,  7  P.  845    (construed). 

As  to  lien  on  logs  for  value  of  work  of  horse  or  team,  see  69 
A.  S.  510. 

As  to  validity  of  statute  making-  purcliaser  of  logs  subject 
to  lien  personally  liable  therefor,  see  brief  59  L.  738,  740. 


CHAPTER  VII. 

STOPPAGE    IN    TRANSIT. 

§  3076.  When   consignor  may   stop   goods. 

§  3077.  What  Is  insolvency  of  consignee. 

§  3078.  Transit,   when   ended. 

§  3079.  Stoppage,   how   effected. 

§  3080.  Effect   of   stoppage. 

§3076.  WHEN  CO>SI(ii>OR  MAY  STOP  (J<MmS.  A  seller 
or  consignor  of  property,  whose  claim  for  its  price  or  proceeds 
has  not  been  extinguished,  may,  upon  the  insolvency  of  the 
buyer  or  consignee  becoming  known  to  him  after  parting  with 
the  property,  stop  it  while  on  its  transit  to  the  buyer  or  con- 
signee, and  resume  possession  thereof. 

HiHtor.v:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  (;.   for  44   pars,  annotation. 
3  C.  A.  519.  522,  86  V.  615    (applied   with   other  soctlonn  ' 
306,  309    (cited). 

STOITAGE    IN    TRANSITl'. 

As  to,  generally,  see  n«)ti>  §  2114  ante;  nlso  3  L.  647;  4  \,.  732: 
11   L.   347;    26    Encyc.   L.    1079. 

As  to  actual  possession  by  vendee  necessary  t»  defeat  right, 
see   60  A.   R.   52. 

As  to  attachment  during  transit,  effect  of,  see   19  A.  R.  91. 

1525 


§  3076  CIVIL  CODE.  tDiv.III,Pt.IV. 

As.  to  attachment,  execution,  or  other  lien  against  purchaser 
not  defeating   right,   see   29   A.   D.   393. 

As  to  bill  of  lading  in  hands  of  holder  as  evidence  of  own- 
ership, see  Kerr's  Cyc.  C.  C.  §2126  and  note  par.  3;  29  A.  D. 
392,   393;   19  A.  R.   91,   92. 

As  to  carrier,  when  agent  of  vendee,  see  29  A.  D.  391. 

As  to  consignor's  lien  for  unpaid  purchase  price  of  goods,  see 
Kerr's  Cyc.  C.  C.   §  2118  and  note  par.   11. 

As  to  effect  of  vendor's  taking  note  as  security,  see  29  A.  D. 
387. 

As  to  exercise  of  right  by  factor,   see   29  A.  D.   385. 

As  to  exercise  of  right  of  stoppage  in  transitu,  who  entitled 
to,  see   29  A.  D.  385;   19  A.   R.   87,   88. 

As  to  note,  taking  of,  as  security,  part  payment,  etc.,  see  29 
A.    D.    387. 

As  to  origin  of  right  of  stoppage  in  transitu,  see  29  A.  D.  388. 

As  to  part  payment  not  defeating  right,  see   29  A.  D.  387. 

As  to  right  of  consignor  being  favored,  see  19  A.  R.  87. 

As  to  right  of  stoppage  in  transitu,  origin  of,  etc.,  see  29  A. 
D.    384. 

As  to  rights  and  equities  of  bona  flde  assignee  of  bill  of 
lading,  see  Kerr's  Cyc.  C.  C.  §  2127  and  note. 

As  to  rights  of  vendee  after  stoppage  in  transitu,  see  19  A. 
R.   87. 

As  to  stoppage  in  transitu  against  assignee  of  bill  of  lading 
in  good  faith  and  in  usual  course  of  business,  see  Kerr's  Cyc. 
C.    C.    §  2118    and    note    par.    10. 

As  to  stoppage   in  transitu  in   general,  see  3  L.   647;   11  L.   347. 

As  to  surety  not  entitled  to  exercise  right,  see  29  A.  D.  385. 

As  to  time  in  which  right  of  stoppage  in  transitu  may  be  ex- 
ercised, see  Kerr's  Cyc.  C.  C.  §  2118  and  note  par.  13. 

As  to  transit,  when  begins,  see   29  A.  D.   387. 

As  to  transit,  when  ends,  see  Kerr's  Cyc.  C.  C.  §  3078  and 
note. 

As  to  vendor  or  quasi  vendor  being  only  person  who  may 
exercise  right,   see   29   A.   D.    385,   386. 

As  to  waiver  of  right  by  attachment  or  execution,  see  Kerr's 
Cyc.  C.  C.   §  3079;   50  L.   721. 

As  to  warehouse  receipt,  delivery  or  sufficient  prima  facie 
to   pass  title,   see   Kerr's  Cyc.   C.   C.    §  2128   and   note   par.    4. 

Accrual   of  right  of— As  to,  generally,   see   26   Encyc.  L.   1084. 

Same — Buyer   must   be    insolvent. — See    26    Encyc.    L.    1089. 

Same — Goods  must   be   in   transit. — See    26  Encyc.   L.    1086. 

Same — Goods   must   be   unpaid   for. — See    26    Encyc.   L.    1084. 

Definition  of.— See  23  A.  D.  607;  77  A.  D.  284;  22  A.  S.  711;  75 
A.  S.  26;  11  L.  347;  26  Encyc.  L.  1079;  7  W.  &  P.  6669. 

Effect  of  exercise  of  right  of. — See  34  A.  S.  531;  26  Encyc.  L. 
1117. 

1526 


Tit.XIV.Ch.Vir.]    INSOLVENCY    OF    CONSIGNEE.  §  3077 

Exercise  of  right  of. — See  77  A.  D.  284;  26  Encyc.  L.  1114- 
1117. 

In   consig-nment  for  sale. — See  43  Cent.  Dig.   col.   1137,  §826. 

In  insolvency  of  buyer — As  to,  generally,  see  43  Cent.  Dig. 
col.    1138,   §  827. 

Same — Evidence  of  insolvency. — See  43  Cent.  Dig.  col.  1139, 
§  830. 

Same — Knowledge  by  seller  of  insolvency. — See  43  Cent.  Dig. 
col.   1139,   §  829. 

Same — Where  sale  is  on  credit. — See  43  Cent.  Dig.  col.  1138. 
§  826. 

In  sale  on  credit  and  non-payment  of  price. — See  43  Cent. 
Dig.    col.    1137,    §  825. 

Liability  of  carrier — For  refusal  or  failure  to  stop  goods  In 
transitu. — See   9   Cent.   Dig.   col.    198,   §  246. 

Same — To  consignee  or  purchaser  from  consignee. — See  9 
Cent.   Dig.  col.   201,  §  250. 

Limitation   of  right  of. — See  26  Encyc.   L.   1083. 

Loss  of  right  of. — See  2  Obiter  Dig.  755. 

Power  of  consignor  to  stop  delivery. — See  9  Cent.  Dig.  col. 
198,   §245;   4  Decen.  Dig.   p.   125,  §74. 

Right  of  carrier  to  retain  goods  for  charges  due  by  con- 
signee.— See   9   Cent.   Dig.   col.    199.   §  247. 

Right  of  stoppage  in  transitu — As  between  seller  and  buyer. — 
See  43  Cent.  Dig.  col.  1136,  §§824  et  seq.;  Decen.  Dig.  tit. 
"Sales."    §§  289-299. 

Same — Nature  of  right  of,  in  general,  see  41  A.  R.  247:  43 
Cent.  Dig.  col.   1136,   §824;   26  Encyc.  L.   1079;   48  L.   50. 

Same — When  and  by  whom  may  be  exercised. — See  29  A.  D. 
384;    19   A.  R.   87;    1   A.S.   312. 

Same — When   terminates. — See   60   A.   R.    51. 

Right  of,   waiver  of  by  attachment,  etc. — See  50   L.   721. 

Termination  of  right  of — As  to  generally,  see  29  A.  D.  489;  60 
A.  D.   188;  75  A.  S.  26:  26  Encyc.  L.  1091-1114;  7  W.  &  P.  6671. 

Same — Where  there  has  been  constructive  delivery  only. — See 
33   A.   D.    617. 

When   right  exists. — See   2  Obiter  Dig.   754. 

§8077.  WHAT  IS  INSOLVENCY  OF  CONSIGNEE.  A  per- 
son is  insolvent,  within  the  meaning  of  the  last  secti<in,  when 
he  ceases  to  pay  his  debts  in  the  manner  usual  with  persons 
of  his  business,  or  when  he  declares  his  Inability  or  unwilling- 
ness to  do  so. 

HiNtoryt     Enacted  March  21,  1S7J. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 
54   F.  306,  309    (cited). 

1527 


§  3078  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  insolvency,   what  constitutes,  etc.,   see   29  A.   D.   386,   387. 
As  to  many  miscellaneous  matters  as  to  stoppage  in  transitu, 
see    note    §  3076,    ante. 

§  3078.  TRANSIT,  WHEJT  ENDED.  The  transit  of  property 
is  at  an  end  when  it  comes  into  the  possession  of  the  consignee, 
or  into  that  of  his  agent,  unless  such  agent  is  employed  merely 
to  forward  the  property  to  the  consignee. 

HLstory;     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  37  pars,   annotation. 

3  C.  A.  519,  522,  86  P.  615  (applied  with  other  sections);  54 
F.    306,    309     (cited). 

As  to  many  miscellaneous  matters  as  to  stoppage  in  transitu, 
see   note    §  3076,    ante. 

As  to  acts  of  ownership  as  evidence  of  delivery  and  posses- 
sion,  see   29   A.   D.    391,   392. 

As  to  bill  of  lading-  as  symbol  of  property  respecting  delivery, 
see  Kerr's  Cyc.  C.  C.   §  2126  and  note  par.   2. 

As  to  capacity  in  which  carrier  receives  goods  as  determin- 
ing when  transit  ends,  see  60  A.  R.  51-55. 

As  to  carrier  exonerated  by  delivery  according  to  bill  of 
lading,  see  Kerr's  Cyc.  C.  C.   §  2131  and  note. 

As  to  consignee  allowing  goods  to  remain  in  carrier's  hands, 
effect  of,   etc.,   see   60  A.   R.   51. 

As  to  constructive  delivery  defeating  right,  see   60  A.  R.   52. 

As  to  delivery   ending  transitus,  see   29  A.   D.   389,   390. 

As  to  delivery  of  bill  of  lading,  effect  of,  see  Kerr's  Cyc.  C. 
C.    §  2128   and   note   par.    2   and   §  3076   and   note   pars.    37-44. 

As  to  delivery  on  board  vessel  or  other  vehicle  of  vendee,  see 
29  A.  D.   388. 

As   to   delivery,   what   constitutes,   etc.,   see   60   A.   R.    52. 

As  to  goods  awaiting  vendee's  further  orders,  see  29  A.  D. 
390. 

As  to  goods  in  warehouse,  relative  rights  of  consignor  and 
consignee,  etc.,  see  29  A.  D.  388. 

As  to  many  miscellaneous  matters  as  to  stoppage  in  tran- 
situ,  see  note    §  3076,  ante. 

As  to  non-delivery  being  essential  ground  of  right,  see  60 
A.   R.    52. 

As  to  part  delivery,   see   29  A.   D.   391. 

As  to  right  of  stoppage  in  transitu,  delivery,  etc.,  see  19 
A.    R.    84. 

As  to  right  of  stoppage  in  transitu,  how  long  right  con- 
tinues,  see   1  A.  S.   312. 

As  to  transit,  beginning  and  end  of,  etc.,  see  29  A.  D.  387- 
391;   19  A.  R.  90,   91;   60  A.  R.  57. 

As  to  vendee's  refusal  to  receive  goods,   see  29  A.  D.   392. 

1528 


Tit.XIV.ch.VII.]        EFFECT  OF  STOPPAGE.  g  3Qj^g 

§3079.    STOPPAGE,  HOAV  EFFECTED.   Stoppage  ii 
can   be  effected  only  by   notice   to   the  carrier  or  depo. 
of  the  property,  or  by  taking  actual  possession  thereof. 

HiNtory:     Enacted  March   21,   1S72.  ' 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

3  C.  A.  519,  522,  86  P.  615  (applied  with  other  sections):  54 
F.  306,  309   (cited). 

As  to  bill  in  equity  to  enforce  right  of  stoppage  in  transitu, 
see    29   A.   D.    284. 

As  to  deliverj'  after  notice  of  stoppage,  see   29  A.   D.   394. 

As  to  injunction  to  aid  right,  see  19  A.  R.  92. 

As  to  many  miscellaneous  matters  as  to  stoppage  in  transitu, 
see  note   §  3076,  ante. 

As  to  notice  to  carrier,  see  1  A.  S.  313. 

As  to   notice  to  agent  of  carrier  being   notice   to   carrier,   see  . 
Kerr's  Cyc.  C.  C.  §  2118  and  note  par.  12. 

As  to  stoppage,  how  effected,  see  29  A.  D.  393,  394. 

As  to  stoppage  in  transitu,  how  exorcised,  see  1  A.  S.  312, 
314. 

As  to  sufficiency  of  exercise  of  right  of  stoppage  in  tmnsitu, 
see   77  A.  D.   288. 

As  to  suing  for  price   of  goods,  see   29  A.   D.   387. 

§  3080.  EFFECT  OF  STOPPAGE.  Stoppage  in  transit  does 
not,  of  itself,  rescind  a  sale,  but  is  a  means  of  enforcing  the 
lien  of  the  seller. 

HlNtory:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for   7   pars,  annotation. 
As  to  many  miscellaneous  matters  as  t<>  stoppage  in   tr.ansitu, 
see    note    §  3076,    ante. 


1629 


As  to 

ir 

As  to 

--' 

i-t- 

see    no3 

P 
0 

M_ 

'< 

§  3078  CIVIL,  CODE.  CDiv.III,Pt.IV. 

TITLE  XV. 

riABLE  INSTRUMENTS. 

e  Instruments  in  General,  §§  3086-3165. 
Ixchange,  §§  3171-3238. 
T  Notes,  §§  3244-3248. 
§  3254,  3255. 
V.     Bank  Notes,  and   Certificates  of  Deposit,   §§  3261, 
3262. 


CHAPTER  I. 

NEGOTIABLE  INSTRUMENTS  IN  GENERAL. 

Article    I.  General  Definitions,  §§  3086-3095. 

II.  Interpretation,  §§  3099-3104. 

III.  Indorsement,  §§  3108-3125. 

IV.  Presentment  for  Payment,  §§  3130-3137. 
V.  Dishonor,  §§  3141-3151. 

VI.     Excuse  of  Presentment  and  Notice,  §§3155-3160. 
VII.     Extinction,  §§  3164,  3165. 


ARTICLE  I. 

GENERAL   DEFINITIONS. 

§  3086.  To  what  instruments  this  title  is  applicable. 

§  3087.  Negotiable    insti'ument,    what. 

§  3088.  Must    be    for    unconditional    payment    of   money.      Attor- 
ney's fees  and  costs. 

§  3089.  Payee. 

§  3090.  Instrument  may    be   in   alternative. 

§  3091.  Date,   etc. 

§  3092.  May   contain   a  pledge,   etc. 

§  3093.  What  it  must  not  contain. 

§  3094.  Date. 

§3095.  Different  classes  of  negotiable   instruments. 

§  3086.  TO  WHAT  INSTRUMENTS  THIS  TITLE  IS  APPLI- 
CABLE. The  provisions  of  this  title  apply  only  to  negotiable 
instruments,  as  defined  in  this  article. 

History:     Enacted  March  21,   1872. 
1530 


I 


Tit.XV,ch.I,art.I.]       BILLS,  BONDS.  NOTES.  ETC.  §3086 

See  Kerr's  Cyc.  C.  C.   for  3  pars,  annotation. 
94  C.   141,    145,  29  P.   866    (construed). 

NEGOTIABLE    INSTRUMENTS — GENERALLY. 

As  to  bills  of  excliang-e,  see  Kerr's  Cyc.  C.  C.  §§3095,  3171  i-i 
seq.  and  notes;  also  note  §  3171,  post. 

As  to  bonds,  bank  notes,  and  certificates  of  deposit,  see  Kerr's 
Cyc.  C.  C.   §§  3261  et  seq.  and  notes. 

As  to  checks,  see  Kerr's  Cyc.  C.  C.  §§  3254  et  seq.  and  notes; 
also    note    §  3254,    post. 

As  to  dislionor  of  negotiable  instruments,  see  Kerr's  Cyc.  C. 
C.   §§  3141   et  seq.  and  notes. 

As  to  excuse  of  presentment  and  notice,  see  Kerr's  Cyc.  C.  C. 
§§  3155    et    seq.    and   notes. 

As  to  extinction  of  negotiable  instruments,  see  Kerr's  Cyc. 
C.   C.    §§  3164   et   seq.   and   notes. 

As  to  indorsement  of  negotiable  instruments,  see  Kerr's  Cyc. 
C.   C.   §§  3108   et   seq.   and   notes. 

As  to  interpretation  of  negotiable  instruments,  etc.,  see  Kerr's 
Cyc.  C.  C.  §§  3099  et  seq.  and  notes. 

As  to  presentment  of  negotiable  instruments  for  payment,  see 
Kerr's  Cyc.  C.  C.  §§  3130  et  seq.  and  notes. 

As  to  promissory  notes  in  general,  see  Kerr's  Cyc.  C.  C.  §§  3244 
et  seq.  and   notes;   also   note   §  3244,  post. 

As  to  what  instruments  in  form  negotiable  by  additional  pro- 
visions become  non-negotiable. — See  25  L.  363;  5  W.  &  P.  4768. 

Bill  of  lading  as. — See  note  §  2126,  ante;  32  A.  D.  541;  93  A.  I). 
208;  9  A.  S.  504;  27  A.  S.  861;  54  A.  S.  672;  82  A.  S.  771;  1  L. 
650;  50  L.  235;  20  L.  ed.  779;  25  L.  ed.  892;  38  L.  ed.  944;  1  \V. 
&  P.   791. 

Bonds  issued  by  railroad  company  as. — See  1  L.   299. 

Bottomry   bond  as  a. — See   note   §3007,  ante;   5   W.   &   P.   4768. 

Certificate  of  deposit  as  a. — See  2  W.  &  P.  1030. 

Certificate  of  stock  as  a. — See  2  W.  &  P.  1032. 

Commercial   law,   in   general. — See   2  Obiter  Dig.   317. 

County  of  school  warrant  as  a. — See  11  A.  S.  327;  ."i  \V.  AL-  V. 
4768. 

Coupons  detached  from   bond  as. — See   1  L.   299. 

Definition  of.— See  49  A.  R.  705;  74  A.  S.  582;  80  -V.  i^.  •1»U  . 
21  Encyc.  L.  525;  8  L.  393;  25  L.  363;  52  L.  363;  5  W.  &  P.  4767. 

Draft 'or  order  as  a. — See  51  A.  S.  402;  32  L.  590;  5  W.  &  P. 
4768. 

Execution,  delivery  and  transfer — Consideration. — See  2  Obiter 
Dig.    320. 

Same— Delivery.— See  2   Obiter  Dig.   320. 

Same — Negotiation  and  transfer — As  to  generally,  see  2  Obiter 
Dig.  320. 

Same — Same — Bona  fide  purchaser,  who  is. — See  2  Obiter  Dig. 
321-324. 

1531 


§  3086  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — -Same — Presumption   as  to  bona   fide  holding  and   when 
burden  of  proof  shifts. — See   2  Obiter  Dig.  324-326. 

Same — Parties. — See    2    Obiter   Dig.    319. 

Form  of  action  on. — See   14  Encyc.  P.   369. 

Joinder    of    cause    of    actions    in    suits    on. — See    14    Encyc.    P. 
585. 

Joinder    of    party    plaintiff    in    actions    on. — See    14    Encyc.    P. 
442-445. 

Letter   of   credit  as  a. — See   5   W.   &   P.   4768. 

Municipal  bonds  as. — ^See  25  A.  R.  273;  28  L.  ed.  938;  5  W.  •&  P. 
4768. 

Nature  of  instrument. — See   2  Obiter  Dig.   317-319. 

Negotiable  words. — See   21  Encyc.  L.   525. 

Parties  defendant  in  actions  on. — See  14  Encyc.  P.  445-461. 

Parties   plaintiff   in   actions   on.- — See    14    Encyc.    P.    380-441. 

Pleading    and    practice. — See    14    Encyc.    P.    462-582;    2    Obiter 
Dig.    348. 

Pleading   or  answer  in  actions   on. — See   14  Encyc.   P.   588-686. 

Proceedings  in  actions  on  after  issue  joinder. — See   14  Encyc. 
P.    690-706. 

Promissory   notes   as. — .See   note    §  3244,   post. 

Railroad    bond    as. — See    5    W.    &    P.    4769. 

Rights,    duties    and    liabilities    of    parties — In    general,    see    2 
Obiter   Dig.    326. 

Same — As  to  payment  or  discharge.— See   2   Obiter  Dig.   326. 

Same — Acceptance,   relation   and   liability   of  party   on. — See   2 
Obiter    Dig.    327-329. 

Same — Accommodation    paper    and    discounting.— See    2    Obiter 
Dig.    332. 

Same — Defenses  as   between    immediate   parties. — See    2   Obiter 
Dig.   348. 

Same — Effect  of  negotiation  and  defenses. — See   2  Obiter  Dig. 
343-346. 

Same — ^On    indorsement. — See    2    Obiter   Dig.    329-332. 

Same — Papers    stolen    fraudulently    diverted    and    forged. — See 
2   Obiter   Dig.    346-348. 

Same — Presentment,    demand     and      notice — Evidence. — See     2 
Obiter  Dig.   342. 

Same — Same— Method    and    sufficiency    of. — See    2    Obiter    Dig. 
336-342. 

Same — Same — Necessity    in    general. — See    2    Obiter    Dig.    333- 
336. 

Savings   bank    deposit  pass   book   as. — See   45   A.    R.    653;    5   W. 
&    P.    4769. 

Simultaneous  and   successive   suits   on. — See   14   Encyc.    P.    367. 

Six  classes  of. — See  40  A.  R.   705;   5  W.  &  P.   4767. 

United  States  bonds  or  notes  as. — See  22  L.  ed.   609;  5  W.  &  P. 
4769. 

1532 


> 


Tit.XV,ch.I,ait.[.]  DEFINITION.  §3087 

Venue  in  actions  on. — See   14  Encyc.   P.   377. 
Warehouse   receipts  as. — See   note   §  2986,  ante;    89   A.    D.    350; 
50  A.  R.   475;   5  W.   &  P.   4770. 


§3087.  NEGOTIABLE  INSTRUMENT,  WHAT.  A  nego- 
tiable instrument  is  a  written  promise  or  request  for  the  pay- 
ment of  a  certain  sum  of  money  to  order  or  bearer,  in  con- 
formity to  the  provisions  of  this  article. 

History:     Enacted  March  21,  lS7i'. 

See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what):  64  C.  388,  391,  49  A.  R.  705.  1  P.  349,  351  (construed  and 
applied);  68  C.  545,  548,  9  P.  942,  944  (provision  in  note,  for  pay- 
ment of  reasonable  attorney's  fee,  destroys  its  uegotialtility ) :  81 
C.  303,  327,  22  P.  665,  673  (construed  as  not  applying):  82  C. 
636.  639,  23  P.  53,  54,  7  L.  224  (construed  and  applied  witli 
post  §  3093) ;  103  C.  319,  324,  42  A.  S.  117,  37  P.  401  (construed  as  not 
applying);  131  C.  385,  386,  63  P.  694.  695  (construed  as  not  ap- 
plying); 51  F.  840,  848  (what  does  not  deprive  bond  of  ne- 
gotiable  quality). 

As  to  alterations  in  negotiable  instruments,  see  17  A.  R. 
97-106;    79    A.    D.    754. 

As  to  attorney's  fee,  provision  for  in  instrument,  as  affect- 
ing question  of  negotiability,  see  Kerr's  Cyc.  C.  C.  §  3088  and 
note  par.   2. 

As  to  condition  not  certain  of  fulfilment  destroying  nego- 
tiability, see  Kerr's  Cyc.  C.  C.   §  3088  and  note. 

As  to  fictitious  payees,  see  Kerr's  Cyc.  C.  C.  §§  3102,  3103 
and   notes. 

As  to  indorsement  in  general,  see  Kerr's  Cyc.  C.  C.  ii  31  OS 
et  seq.   and   notes. 

As  to  indorsement,  etc.,  when  persumed  to  be  made  for  valu- 
able consideration,  see  Kerr's  Cyc.  C.  C.  §  3104  and  note. 

As  to  indorsements  of  negotiable  instruments.  In  due  course 
for  value,  and  before  maturity,  etc.,  see  Kerr's  Cyc.  C.  C.  |  3123 
and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante. 

As  to  negotiable  Instruments  given  for  accommodation,  see 
31   A.  S.   745-757. 

As  to  negotiable  Instruments  in   general,  see   14   A.   D.   421-427. 

As  to  negotiable  Inslrximent  In  blank,  see  Kerr's  Cyc.  C.  C. 
§  3125  and  note. 

As  to  negotiable  Instrument  made  payable  to  order  of  ficti- 
tious person,  effect  of,  see   Kerr's  Cyc.  C.   C.   $  31">3   and   note. 

1533 


§§  3088, 3089  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  negotiable  instruments  procured  through  fraud  and 
misrepresentation,   see   41   A.   R.   607-611. 

As  to  non-negotiable  notes,  see  Kerr's  Cyc.  C.  C.  §  1459  and 
note. 

As  to  notes  written  in  pencil,  see  41  A.  D.   755. 

As  to  rights  of  indorsee  of  negotiable  instrument  in  due 
course,  see  Kerr's  Cyc.  C.  C.   §  3124  and  note. 

As  to  words  "to  order"  and  "to  bearer,"  see  Kerr's  Cyc.  C.  C. 
§  3101  and  note. 

§3088.  MUST  BE  FOR  UNCOJfDITIONAL  PAYMENT  OF 
MONEY.  ATTORNEY'S  FEES  AND  COSTS.  A  negotiable 
instrument  must  be  made  payable  in  money  only  and  without 
any  condition  not  certain  of  fulfilment,  except  that  it  may  pro- 
vide for  the  payment  of  attorney's  fees  and  costs  of  suit,  in 
case  suit  be  brought  thereon  to  compel  the  payment  thereof. 

History:  Enacted  March  21,  1872;  amended  March  10,  1905, 
Stats,  and  Amdts.  1905,  p.  96,  by  adding  exception  as  to  attor- 
neys'  fees   and   costs. 

See  Kerr's  Cyc.  C.  C.  for  26  pars,  annotation. 

74  C.  593,  596,  16  P.  505,  506  (applied);  82  C.  636,  639,  23  P. 
53,  54,  7  L.  224  (construed  and  applied);  133  C.  681,  685,  65  P. 
1110  (construed  and  applied);  51  F.  840,  848  (what  does  not 
deprive  bond  of  negotiable  quality). 

As  to  action  upon  negotiable  promissory  note  or  bill  of  ex- 
change transferred  in  good  faith,  etc.,  before  maturity,  not  being 
subject  to  set-off  or  other  defense,  see  Kerr's  Cyc.  C.  C.  P.  §  368 
and  note. 

As  to  assignment  and  transfer  of  note  and  mortgage  and 
right  of  set-off  or  defense  of  assignee  on  non-negotiable  in- 
struments, see  Kerr's  Cyc.  C.  C.  P.  §  368  and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§  3089.  PAYEE.  The  person  to  whose  order  a  negotiable 
instrument  is  made  payable  must  be  ascertainable  at  the  time 
the  instrument  is  made. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8   pars,  annotation. 

51  F.  840,  848  (what  does  not  deprive  bond  of  negotiable 
quality). 

As  to  indorsement  in  general,  see  Kerr's  Cyc.  C.  C.  §§  3108 
et   seq.   and  notes. 

1534 


i 


Tit.XV,ch.I,art.I.]       INALTERNATIVE— DATE.  §§  3090.  3091 

As  to  indorsement  wholly  or  partly  blank,  effect  of,  see 
Kerr's   Cyc.   C.   C.    §  3125   and   note. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante. 

As  to  negotiable  instrument  made  payable  to  order  of 
maker,  or  of  fictitious  person,  see  Kerr's  Cyc.  C.  C.  §  3102  and 
note. 

As  to  negotiable  instruments  executed  in  blank,  seo  2  A.  R. 
341.    342;    11   A.   S.    316-318. 

As  to  wrongfully  filling  blank  in  negotiable  instrument,  see 
11    A.    S.    316-318. 

§3090.    INSTRUMENT    MAY    BE    IN    ALTERNATIVE.     A 

negotiable  instrument  may  give  to  the  payee  an  option  between 
the  payment  of  the  sum  specified  therein  and  the  performance 
of  another  act;  but  as  to  the  latter,  the  instrument  is  not 
within  the  provisions  of  this  title. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.   C.   C.   for  3   pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante. 

As  to  negotiable  instrument,  requirement  that  same  must 
be  made  payable  in  money  only,  see  Kerr's  Cyc.  C.  C.  §  3088  and 
note. 

§  3091.  DATE,  ETC.  A  negotiable  instrument  may  be  with 
or  without  date,  and  with  or  without  designation  of  the  time 
or  place  of  payment. 

HIiHfory:     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

51  F.  840,  848  (what  does  not  deprive  bond  of  n.prntlMble 
quality). 

As  to  antedating  nc-gotialilo  Instrument,  soe  Kerr's  Cyc.  C.  C. 
§  3094    and    note. 

As  to  date  of  negotiable  instrument,  whether  past,  pn^sont. 
or   future,  sec   Kerr's  Cyc.   C.   C.   §  3094  and   note. 

As  to  indorsement,  liability  of  indorsers,  etc.,  see  Kerr's 
Cyc.  C.  C.  U  3108  et  seq.  and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  S  30S6,  ante. 

As  to  negotiable  instrument  not  specifying  time  of  payment 
being  payable  Immediately,  see  Korr's  Cyc.  C.  C.  §  3099  and 
note. 

1535 


§§  3092, 3093  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  place  of  payment,  see  Kerr's  Cyc.  C.  C.  §§  3100,  3130, 
3131   subd.   4  and  notes. 

As  to  place  of  payment  of  negotiable  instruments  in  general, 
see  Kerr's  Cyc.   C.   C.   §§  3100,   3130,   3131   subd.    4  and  notes. 

As  to  time  of  payment,  see  Kerr's  Cyc.  C.  C.   §  3248  and  note. 

§3092.  MAT  CONTAIJf  A  PLEDGE,  ETC.  A  negotiable 
instrument  may  contain  a  pledge  of  collateral  security,  with 
authority  to  dispose  thereof. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  diligence  required  for  collection  upon  collateral  se- 
curity given   with  negotiable  paper,   see   34  A.  D.   451,   452. 

As  to  foreclosure  of  redemption  by  judicial  sale  of  pledged 
property,  see  Kerr's  Cyc.  C.  C.  §  3011  and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

As  to  pledgee's  authority  to  sell  property  pledged,  see  Kerr's 
Cyc.  C.  C.  §§  3000-3007  and  notes. 

As  to  pledgee's  riglit  to  purchase  property  pledged,  see  Kerr's 
Cyc.  C.   C.    §  3010  and  note. 

As  to  power  of  sale  conferred  by  mortgage  upon  mortgagee 
or  any  other  person,  and  exercise  thereof,  see  Kerr's  Cyc.  C.  C. 
§  2932  and  note. 

As  to  sale  by  order  of  pledgeor  of  pledged  property  before 
claim   of  pledgee   is  due,  see  Kerr's  Cyc.   C.   C.   §  3009  and  note. 

As  to  surplus  upon  sale  of  pledged  property,  disposition  of, 
see  Kerr's  Cyc.   C.   C.    §  3008   and   note. 

As  to  title  of  pledged  property,  see  Kerr's  Cyc.  C.  C.  §§  2888 
and    2986    and    notes. 

§  3093.  WHAT  IT  MUST  NOT  CONTAIN.  A  negotiable  in- 
strument must  not  contain  any  other  contract  than  such  as  is 
specified  in  this  article. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.   C.   for   8   pars,   annotation. 

64  C.  388,  391,  49  A.  R.  705,  1  P.  349,  351  (cited);  68  C.  545, 
548,  9  P.  942,  944  (provision  in  note,  for  payment  of  reasonable 
attorney's  fee,  destroys  its  negotiability);  82  C.  636,  639,  23  P. 
53,  54,  7  L.  224  (construed  and  applied  with  §3087);  131  C. 
385,  386,  63  P.  694  (construed  and  applied  with  §3087);  133  C. 
681,  685,  65  P.  1110  (applied);  51  F.  840,  848  (what  does  not  de- 
prive bond  of  negotiable  quality). 

1536 


Tit.XV,ch.I,art.I.]  DATE— CLASSES.  §§  3094. 3095 

As  to  attorney's  fees,  stipulations  in  note  for,  etc.,  see  Kerr's 
Cyc.  C.  C.  §  3088  and  note  par.  2. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  8  3086,  ante. 

As  to  negotiable  Instruments  giving  payee  option  between 
payment  and  performance  of  another  act,  see  Kerr's  Cyc.  C.  C. 
§  3090  and  note. 


§  3094.  DATE.  Any  date  may  be  inserted  by  the  maker  of 
a  negotiable  instrument,  whether  past,  present,  or  future,  and 
the  instrument  is  not  invalidated  by  his  death  or  incapacity 
at  the  time  of  the  nominal  date. 

HlMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 
145  C.   82,   84,  78  P.   340    (construed). 

As  to  many  nil.scfllaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§  3005.     PIFFEREM  (LASSES  {)¥  >E(J<rHAHI,E  INSTHl. 

MENTS.     There    are    six    classes   of   negotiable    instruments, 
namely: 

1.  Bills  of  exchange; 

2.  Promissory  notes; 

3.  Bank  notes; 

4.  Checks; 
0.  Bonds; 

fi.  Certificates  of  deposit. 

IliHtoryi     Enacted  March   21,   1S72. 

.Si'c  Kerr's  Cyc.  C.  C.  for  6  par."?,  annotation. 

64  C.  388,  391,  49  A.  R.  705.  1  P.  349.  351  (clt.>d»:  77  C.  63R. 
641.  11  A.  S.  327.  20  P.  294.  295  (construed  and  applied);  130  C. 
542,   548,  62  P.   1059    (construed  and  applied). 

As  to   b.nnk-notes,  see   Kerr's  Cyc.  C.   C.   f  3261   and   note. 

A.s  to  bills  of  exchange,  see  Kerr's  Cyc.  C.  C.  H  3171  el  neq. 
and    notes. 

As  to  bills  of  lading,  negotiability  of,  sec  K«rr's  «'>.-.  C.  C. 
§  21  27  and  note. 

As  to  bonds,  see   K<rr".'«  Cyc.  C.  C.  I  3261   and  note. 

As  to  certiflcntes  of  deposit,  see  Kerr's  Cyc.  C.  C.  I  3261  and 
note. 

As  to  checks,  sec  Kerr's  Cyc.  C.  C.  II  32^4  ot   str<\.  And   notes. 
Kerr's    C.    C. — 49  1537 


§§  3099,  3100  CIVIL.  CODE.  [Div.III.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments,  see  note   §  3086,  ante. 

As  to  negotiable  instrument,  definition  of,  see  Kerr's  Cyc.  C. 
C.    §§  3087   and   3088   and  notes. 

As  to  promissory  notes,  see  Kerr's  Cyc.  C.  C.  §§  3244  et  seq. 
and   notes. 

As  to  unindorsed  note  payable  to  maker  or  fictitious  person, 
when  deemed  negotiable  in  effect,  see  Kerr's  Cyc.  C.  C.  §  3102 
and  note. 


ARTICLE  II. 

INTERPRETATION  OF  NEGOTIABLE   INSTRUMENTS. 

§  3099.  Time   and   place   of   payment. 

§  3100.  Place  of  payment  not  specified. 

§  3101.  Instruments    payable    to    a    person    or    his    order,    how 

construed. 

§  3102.  Unindorsed  note,   when   negotiable. 

§  3103.  Fictitious  payee. 

§  3104.  Presumption   of   consideration. 

§3099.  TIME  AND  PLACE  OF  PAYMENT.  A  negotiable 
instrument  which  does  not  specify  the  time  of  payment,  is 
payable   immediately. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

130  C.    542,    548,   62   P.   1059    (construed  and  applied). 

As  to  date  of  negotiable  instrument,  actual  or  noininal,  see 
Kerr's   Cyc.   C.   C.    §  3094   and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

As  to  time  of  payment,  see  Kerr's  Cyc.   C.  C.   §  3091   and   note. 

§  3100.  PLACE  OF  PAYMENT  NOT  SPECIFIED.  A  nego- 
tiable instrument  which  does  not  specify  a  place  of  payment, 
is  payable  at  the  residence  or  place  of  business  of  the  maker, 
or  wherever  he  may  be  found. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  262. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,   annotation. 
113   C.   21,   24,   45   P.   12    (construed  and   applied   with   §  1489). 
As    to    many    miscellaneous    matters    as    to    negotiable    instru- 
ments,  see  note  §  3086,  ante. 

1538 


Tit.XV.ch.r.art.ir.l         UNINDORSED  NOTE.  §5  3101-3103 

S.'MOl.  INSTHl  .MK>TS  rVYAHKE  TU  A  rEHSO>  OK  HIS 
OKDKH,  HOW  (  ONSTIU'KH.  An  iiisu-uineiit.  otherwise  neRo- 
tiable  in  form,  payable  to  a  person  named,  but  with  the  words 
added,  "or  to  his  order,"  or  "to  bearer,"  or  words  equivalent 
thereto,  is  in  the  former  case  payable  to  the  written  order  of 
such  i)erson,  and  in  the  latter  case  payable  to  the  bearer. 

MiNtcTy:     Enuctod  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
61   C.   346.   347,    44   A.    R.    553    (construed). 

As  to  many  miscellaneous  matters  as  to  Tugotlahk-  instru- 
ments, see  note  §  3086,  ante. 


§3102.     IMNDOHSED    >OTE,    WHEN    NEGOTIABLE.     A 

negotiable  instrument,  made  jtayable  to  the  order  of  the 
maker,  or  of  a  fictitious  person,  if  issued  by  the  maker  for 
a  valid  consideration,  without  indorsement,  has  the  same 
effect  against  him  and  all  other  persons  having  notice  of 
the  facts  as  if  payable  to  the  bearer. 

IIiNll^ry:      Kiiacti-.l    Mar.  li    21,    1S72. 

See  Kerr's  Cyc.  C.  C.  for  3  pur.s.  annotation. 

54   C.    110    (construed  and   api'lled). 

As  to  many  miscellaneous  matters  as  to  negotlalOe  Instru- 
ments,  see   note   S  3086,   ante. 

As  to  negotiable  instrum<'nt  pnyahlo  to  order  of  fU-tltious 
person,   efTect    of,   sei-    K<-rr's   t'yi-.   C   C    |  310:5   and    note. 

As  to  payee  of  ni-Kot  lal>l«'  l?i«i  iiini.-'ii  <i  ir..i\..i-i  n  v  <.-..  K..rr"M 
Cyc.   C.   C.    S  3089   and    not.. 


§:no:{.     FICHTIOIS     TA^EE.       a    negotiable    instrument, 
made  payable  to  the  order  of  a  person   obviously   flctitious. 

Is  payable  to  the  bearer. 

Illnloryi      Enacted   March   21,    1872. 

See   Kerr's  Cyc.  C.   C   for  2   pars,  annotation. 
As  to  fictitious  payees  In  >f"'*ral.  see  65  A.  It.  472.  4V4. 
As    to    many    miscellaneous    matters    as    to    nefcutiable    Instru- 
ments, see   note  ji  3086,  ante. 

As  to  payee  In   general,  see   Kerr's  Cyc.  C.  C.   i  3089  and   not*. 

IB.*?!* 


§  3104  CIVIL  CODE.  [Div.III.PtlV. 

§  3104.  PRESUMPTION  OF  CONSIDERATION.  The  signa- 
ture of  every  drawer,  acceptor,  and  indorser  of  a  negotiable 
instrument  is  presumed  to  have  been  made  for  a  valuable 
consideration,  before  the  maturity  of  the  instrument,  and 
in  the  ordinary  course  of  business. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

64  C.  410,  413,  415,  1  P.  495,  874  (construed  and  applied);  106 
C.  651,  655,  40  P.  8  (applied  with  other  sections);  139  C.  665, 
667,  73  P.  543  (construed  and  applied);  6  C.  A.  88,  92,  91  P. 
532  (it  is  presumed  that  notes  were  indorsed  before  maturity 
and  for  valuable   consideration). 

As  to  consideration  of  written  instruments  in  general  being 
presumed,  see  Kerr's  Cyc.  C.  C.  §  1614  and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

As  to  want  of  consideration  for  undertaking  of  maker,  etc., 
effect  of,  etc.,  see  Kerr's  Cyc.  C.  C.   §  3122  and  note. 


1540 


Tit.XV.ch.I.art.ITI.]  INDORSEMENT.  §3108 

ARTICLE  III. 

INDORSEMENT. 

§3108.  Indorsement,    what. 

§  3109.  Agreement  to  indorse. 

S  3110.  When  may  be  made  on  separate  paper. 

§3111.  Kinds    of    indorsement. 

§  3112.  General   indorsement,  wliat. 

§  3113.  Special    indorsement,  what. 

S  3114.  General   indorsement,  how  made  special. 

§  3115.  Destruction    of   negotiability    by    Indorser. 

§3110.  Implied   warranties  of   indorser. 

§3117.  Indorser,  when  lial)le  to  payee. 

§3118.  Indorsement    witliout   recourse. 

§  3119.  Same.      [Effect   of.] 

§  3120.  Indorsee  privy,  to  contract. 

§3121.  Riglits   of  accommodation    indor.«tr    (i-.j..   1 1..]  > 

§  3122.  Effect   of   want   of  consideration. 

§3123.  Indorsee   in   due  course,   wliat. 

§  3124.  Riglits  of  Indorsee  in  due  course. 

§3125.  Instrument    left    blank. 

§310S.  INDORSEMENT,  WHAT.  One  who  writes  his  name 
upon  a  negotiable  instrument,  otherwise  than  as  a  maker 
or  acceptor,  and  delivers  it,  with  his  name  thereon,  to  an- 
other person,  is  called  an  indorser,  and  his  act  is  called 
indorsement. 

IliNtory:     Enacted  March   21,  1872. 

S<e  Kt-rr's  Cyc.  C.  C.  for  9  pars,  annotation. 

5G  C.  442,  445  (cited);  G2  C.  484.  487  (applied);  77  C.  I7fi.  178. 
19  P.  882,  883.  (cited);  87  C-  616,  617.  25  P.  918  (referred  to); 
94  C.  96,  104,  28  A.  S.  94,  29  P.  415.  416  (refirr.-d  lo);  106  C. 
208,  211,  39  P.  606  (referred  to);  123  C.  208.  217.  55  P.  791 
(cited);  44  P.  482.  483   (cited). 

As  to  indorsers  and  Indorsements,  see   14   A.  .^.   703,  794. 

As  to  many  miscellaneous  matters  as  to  ncRotlahlo  Instru- 
ments, see  note  §  308C,  ante. 

Form   of  indorsement. — See  Kerr's  Cyc.  C.  C.   j  3109  an>l   note. 

Indorser  before  delivery,  liability  to  payee. — See  Kerr's  Cyc. 
C.    C.    §  3117    and    note. 

Maker  and  indorser  of  note  as  Joint  debtors. — See  66  A.  S. 
690. 

1541 


§§3109-3112  CIVID  CODE.  [Div.III.Pt.IV. 

Parol  testimony  respecting  negotiable  instruments. — See  15 
A.    S.    287;    56   A.    S.    668. 

Same — To  vary  contract  of  indorsement. — See  39  A.  R.  116;  9 
A.   D.    381-385;   7  A.   S.    366. 

§3109.  AGKEEMEJiT  TO  INDORSE.  One  who  agrees  to 
indorse  a  negotiable  instrument  is  bound  to  write  his  signa- 
ture upon  the  back  of  tlie  instrument,  if  tliere  is  sufficient 
space  thereon  for  that  purpose. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 
87  C.   616,   617,   25  P.   918    (referred  to). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§3110.     WHEN  MAY   BE  MADE   ON   SEPARATE   PAPER. 

When  there  is  not  room  for  a  signature  upon  the  back  of 
a  negotiable  instrument,  a  signature  equivalent  to  an  indorse- 
ment thereof  may  be  made  upon  a  paper  annexed  thereto. 

History:     Enacted  March  21,  1872. 

See   Kerr's   Cyc.   C.   C.   for   2   pars,   annotation. 

87  C.  616,  617  (referred  to),  25  P.  918;  126  C.  107,  110,  77  A.  S. 
153,    58   P.    447    (cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§  3111.  KINDS  OF  INDORSEMENT.  An  indorsement  may 
be  general  or  special. 

History:     Enacted  March  21,  1872. 

§3112.  GENERAL  INDORSEMENT,  WHAT.  A  general 
indorsement  is  one  by  which  no  indorsee  is  named. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  indorsement  of  negotiable  paper  by  one  not  holder  or 
payee,  see  29   A.   D.   297-299;   56  A.  D.   358,   359. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Indorsement  in  blank  of  non-negotiable  note.^ — See  13  A.  D. 
55-57. 

1542 


Tit.XV.ch.I.art.ITI.]  INDORSEMENT— WARRANTY.  §§  3113-3116 

§3113.  SPKdAL  IXDOKSEMENT,  WHAT.  A  special  in- 
dorsement specifies  the  indorsee. 

HiMtory:     Enacted  March  21,  1872. 

See   Kerr's  Cyc.   C.   C.   for  5   pars,  annotation. 
139  C.  564,  580,  96  A.  S.   169,  73  P.  456   (cltedV 
As   to   many   miscellaneous   matters   as   to   negotla>)le    Instru- 
ments, see  note  §  3086,  ante. 

§3114.  GENERAL  INDORSEIFEM,  HOW  MADE  SPE- 
CI.VL.  A  negotiable  instrument  bearing  a  general  indorse- 
ment cannot  be  afterwards  sj)ecially  indorsed;  but  any  lawful 
holder  may  turn  a  general  indorsement  into  a  special  one,  by 
writing  above  it  a  direction  for  payment  to  a  particular  per- 
son. 

III.H<orj:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments,  see  note   §  3086,  ante. 

§3115.  DESTRr(TI(>\  OF  XEGOTIAHILITY  HV  IN- 
DORSE R.  A  special  indorsement  may,  by  express  words  for 
that  purpose,  but  not  otherwise,  be  so  made  as  to  render  the 
instrument  not  negotiable. 

HiNtory:     Enacted  Marrli   21.   1S72. 

Sop  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

139  C.  564,  580.  96  A.  S.  169.  73  P.  456  (citod  wifli  Hji  311.1. 
3115). 

As  to  many  misicllaneinis  matters  as  to  nogotialilo  Inntru- 
monts.   see   note   8  3086.   ant.-. 

§3110.  l.nrUEH  »AKRA.M1E.S  OF  l.NDOR.SFH.  IJvery 
iiidorser  of  a  negotiable  instrument,  unless  his  Indorsement 
is  qualified,  warrants  to  every  subsequent  holder  t hereof . 
who  is  not  liable  thereon  to  him: 

1.  That  it  is  in  all  respects  what  it  purports  to  be. 

2.  That  he  has  a  good  title  to  it. 

3.  That  the  signatures  of  all  prior  i)arties  are  binding 
upon   them. 

1543 


§  3116  .  CIVIL  CODE.  [Div.III.Pt.IV. 

4.  That  if  the  instrument  is  dishonored,  the  indorser  will, 
upon  notice  thereof  duly  given  to  him,  or  without  notice, 
where  it  is  excused  by  law,  pay  the  same  with  interest,  unless 
exonerated  under  the  provisions  of  sections  thirty-one  hun- 
dred and  eighty-nine,  thirty-two  hundred  and  thirteen,  thirty- 
two  hundred  and  forty-eight,  or  thirty-two  hundred  and 
fifty-five. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    263. 

See  Kerr's  Cyc.  C.  C.  for  36  pars,  annotation. 

56  C.  442,  445  (referred  to);  81  C.  507,  510,  22  P.  883,  884  (con- 
strued); 103  C.  319,  324,  42  A.  S.  117,  37  P.  401  (construed); 
132  C.  480,  482,  64  P.  853  (cited);  134  C.  237,  242,  66  P.  326 
(cited);  139  C.  564,  574,  580,  584,  96  A.  S.  169,  73  P.  456,  457 
(cited);  147  C.  166,  170,  81  P.  402,  404  (cited);  151  C.  723,  729, 
91  P.  616  (one  who  is  at  all  times  bound  to  pay  a  note  is 
not  entitled  to  recourse  against  one  who  is  liable  only  to  sub- 
sequent holders);  151  C.  754,  759,  81  P.  620  (cited);  1  C.  A.  516. 
520,    82   P.   560    (cited). 

As  to  exoneration  of  guarantors,  see  Kerr's  Cyc.  C.  C.   §  2819. 

As  to  implied  warranty  under  indorsement  "without  recourse," 
see  Kerr's  Cyc.  C.  C.  §  3118,  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments,  see  note   §  3086,  ante. 

Acceptance  of  bill  of  exchange  admits  signature  of  drawer. — 
See  Kerr's  Cyc.  C.  C.  §  3199  and  note. 

Excuse  of  presentment  and  notice. — See  Kerr's  Cyc.  C.  C. 
§§  3155-3160  and  notes. 

Forgery  of  note  or  indorsement. — See  49  A.  D.  315,  316. 

Indorsement — Admits  and  guarantees  genuineness  of  signa- 
tures.— See  49  A.  D.  315. 

Same — After  maturity. — See  12  A.  D.  611. 

Same — Procured  by  fraud. — See  4  A.  R.  240-243. 

Same — "Without  recourse,"  duties  and  liabilities  of  indorser. 
—See  7  A.  S.  365. 

Rights  and  obligations  of  drawer  of  bill  of  exchange. — See 
Kerr's  Cyc.  C.  C.  §  3177  and  note. 

That  contract  of  indorser  is  conditional,  being  contingent  upon 
true  presentment  at  maturity,  and  due  notice  in  case  of  non- 
payment, see  Kerr's  Cyc.  C.  C.  §§  3141-3151  and  notes. 

That  contract  of  principal  debtor  is  absolute  to  pay  at  ma- 
turity, and  that  no  presentment  is  necessary  to  charge  him,  see 
Kerr's  Cyc.  C.  C.  §  3130  and  note.  ' 

Want  or  failure  of  consideration,  effect  of. — See  Kerr's  Cyc. 
C.   C.   §  3122  and   note. 

1544 


Tlt.XV,ch.I,art.III.]        indorsement.  §§3117-3119 

§3117.    INDORSEE,  WHEN  LIABLE  TO  PAYEE.    One  who 

indorses    a   negotiable    instrument   before    it    is    delivered    to 
the  payee,  is  liable  to  the  payee  thereon,  as  an  indorser. 

History:     Enacted  March  21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

62  C.  484,  487  (applied);  77  C.  476,  478,  19  P.  882,  883  (construed 
with  other  sections);  87  C.  616,  617,  25  P.  918  (applied);  94  C. 
96,  104,  28  A.  S.  94,  29  P.  415  (construed);  120  C.  688,  689.  690. 
691,  53  P.  258  (construed);  125  C.  684,  685  (applied  to  joinder  of 
Indorsers  as  co-defendants,  but  erroneously  cited  as  §  2117),  58 
P.  297,  298  (correct  citation);  132  C.  480,  482,  64  P.  853  (cited); 
133  C.  574,  576,  65  P.  1094  (cited);  44  P.  482  (cited):  147  C.  166, 
170,  81  P.  402  (applied). 

As  to  guaranty,  in  general,  see  Kerr's  Cyc.  C.  C.  §§  2787  et 
seq.  and  notes. 

As  to  liability  upon  guaranty  of  conditional  obligation,  see 
Kerr's  Cyc.  C.  C.  §  2808  and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see   note   §  3086,  ante. 

Indorsement,  before  delivery,  by  one  not  a  party — Evidence  to 
define  liability.— See  2  A.  R.  475;  27  A.  R.  580-582;  29  A.  D.  297- 
299;   72  A.  S.  676-684. 

Indorsc-r  and  indorsement  defined. — See  Kerr's  Cyc.  C.  C.  $  3108 
and  note. 

§3118.  IXDOKSEAIEM  WITHOLI  KECOLKSE.  An  in- 
dorser may  qualify  his  indorsement  with  the  words,  "with- 
out recourse,"  or  equivalent  words;  and  upon  such  indorse- 
ment, he  is  responsible  only  to  the  same  extent  as  in  the 
case  of  a  transfer  without  indorsement. 

IIIMoryt     Enacted  March   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  indorsement  "without  recourse,"  see  87  A.  D.  389-391;  7 
A.  S.  365. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see   note   5  3086,  ante. 

§3119.  SAME.  [EFFECT  OF.]  Except  as  otherwise  pre- 
scribed by  the  last  section,  an  ipdorsement.  without  recourse, 
has  the  same  effect  as  any  other  indorsement. 

Hlntoryi     Enacted  March   21.   1872. 
1545 


§§  3120-3123  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  many  niiscellaneous  matters  as  to  negotiable  instru- 
ments,  see   note   §  3086,   ante. 

See  Kerr's  Cyc.  C.  C.  §  3118  and  note. 

§3120.  INDORSEE  PKIVY  TO  CONTRACT.  An  indorsee 
of  a  negotiable  instrument  has  the  same  rights  against  every 
prior  party  thereto  that  he  would  Tiave  had  if  the  contract 
had  been  made  directly  between  them  in  the  first  instance. 

History:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note   §  3086,  ante. 

Collateral  security  to  indorser  inures  to  benefit  of  creditor. — • 
See  27  A,  D.  720. 

Memorandum  upon  bills  or  notes,  effect  of. — See  14  A.  D.  232, 
234. 

That  collateral  security  passes  with  transfer  of  bill  or  note, 
see  Kerr's  Cyc.   C.  C.   §  2936  and  note. 

§3121.  RIGHTS  OF  ACCOMMODATION  INDORSER  (re- 
pealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,   p.   263. 

§3122.     EFFECT    OF    WANT    OF    CONSIDERATION.     The 

want  of  consideration  for  the  undertaking  of  a  maker, 
acceptor,  or  indorser  of  a  negotiable  instrument  does  not 
exonerate  him  from  liability  thereon  to  an  indorsee  in  good 
faith  for  a  consideration. 

Htstory:     Enacted  March  21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

64  C.  410,  413,  1  P.  495,  874  (cited);  83  C.  173,  175,  23  P.  286, 
287  (referred  to);  106  C.  651,  655,  40  P.  8  (cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments,  see   note   §  3086,   ante. 

§  3123.  INDORSEE  IN  DUE  COURSE,  WHAT.  An  indorsee 
in  due  course  is  one  who,  in  good  faith,  in  the  ordinary 
course  of  business,  and  for  value,  before  its  apparent  matur- 
rity  or  presumptive  dishonor,  and  without  knowledge  of  its 

1546 


Tit.XV,ch.I,art.III.]     indorsement  in  course.  §.3124 

actual    dishonor,   acquires   a   negotiable   instrument   duly    in- 
dorsed to  him,  or  indorsed  generally,  or  payable  to  the  bearer. 

HLsfory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

54  C.  107.  109  (referred  to);  68  C.  545,  548.  9  P.  942.  944  (cited); 
69  C.  142.  144,  10  P.  331.  332  (cited):  83  C.  173.  175,  23  P.  286. 
287  (cited);  106  C.  651,  655,  40  P.  8  (qited);  128  C.  313,  320,  60 
P.  933   (referred  to);  71  P.  87.  89   ("cited). 

As  to  apparent  maturity,  see  ICerr's  Cyc.  C.  C.  $  3132  and  note. 

As  to  demand  and  notice,  see  Kerr's  Cyc.  C.  C.  §3116  and  note. 

As  to  many  miscellaneous  matters  as  to  negptlable  instru- 
ments, see   note   §  3086,   ante. 

As  to  presumptive  dislionor,  see  Kerr's  Cyc.  C.  C.  §  ."^ISS  and 
note. 

As  to  rule  of  apparent  maturity,  concerning  du-i-k-s.  compare 
this  section  witli   §§  3134,  3255. 

Bona  fide  holders,  and  their  rislits. — Sec  9  A.  D.  272.  273;  26 
A.  D.  156-158;  35  A.  R.  688-691. 

Dilig-ence  as  to  collection  required  of  holder  of  nejarotiable 
paper  taken  as  collateral  security. — See  34  A.  D.  451.  452. 

Rights  of  holder  wlio  has  received  Instrument  merely  as  col- 
l.Ttoral  security. — See  47  A.  D.  182;  71   A.  D.  499. 

Uulo  applical)Ie  to  checks. — See  post  §  3255. 

Tiiat  taking  of  negotial)le  paper,  liefore  maturity,  in  payment 
of,  or  as  collateral  security  for  pre-existing  debt,  is  taking  it 
for  value,  see  cases  collected  in  89  A.  D.  411. 

Writing  Imports  consideration. — See  Kerrs  Cyc.  C.  C.  §3122 
and  note. 


ssiiM.    ]{n;Mis  OF  indouskk  in  Dli:   (OntSK.    .\n 

indorsee  of  a  negotial)le  instrument,  in  due  course,  acquires 
;in  absolute  title  thereto,  so  that  it  is  valid  in  bis  hands,  not- 
withstanding any  provision  of  law  making  it  generally  void 
or  voidal)le.  and  notwithstanding  any  defect  in  the  title  of 
the  i)erson  from  whom  bo  acquired  it. 

IIlNtory;     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  <^.  for  35  par.«».  annotation. 

68  C.  545,  548  (applied  I>ut  erroneously  cited  as  1(3134).  9  P. 
942,  944  (correct  citation);  69  C.  142.  144,  10  P.  331.  332  (cited); 
106  C.  651.  655,  40  P.  8  (cited);  128  C.  313.  320.  58  P.  322,  60  P. 
933   (referred  to). 

As  to  actions  by  asslgrnee  or  indorsee,  see  Kerrs  Cyc.  C.  C.  P. 
§  368  and  note. 

1547 


§  3125  CIVIL  CODE.  [Div.III.Pt.IV. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note   §  3086,  ante. 

As  to  transfer  of  non-negotiable  instruments,  see  ante  §  1459 
and  note. 

As  to  wiietlier  any  defenses  exist  against  holder  in  due  course, 
see  Kerr's  Cyc.  C.  C.  §  1459,  and  Kerr's  Cyc.  C.  C.  P.  §  3368  and 
notes. 

§3125.  INSTRUMENT  LEFT  BLANK.  One  who  makes 
himself  a  party  to  an  instrument  intended  to  be  negotiable, 
but  which  is  left  wholly  or  partly  in  blank,  for  the  purpose 
of  filling  afterwards,  is  liable  upon  the  instrument  to  an 
indorsee  thereof  in  due  course,  in  whatever  manner  and  at 
whatever  time  it  may  be  filled,  so  long  as  it  remains  nego- 
tiable in  form. 

HLstory:     Enacted  Marcli  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  ascertaining  name  of  payee,  see  Kerr's  Cyc.  C.  C.  §  3089 
and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 


1548 


Tit.XV.ch.I.art.IV.]   demand  OF  payment.  §§3130,3131 

ARTICLE   IV. 

PRESENTMENT    FOR   PAYMENT. 

i  3130.  Effect  of  want  of  demand   on   principal   debtor. 

S  3131.  Presentment  for  payment,   how  made. 

S  3132.  Apparent   maturity,   when. 

i  3133.  Presumptive  dishonor  of  bill,   payable  after  sight. 

I  3134.  Apparent   maturity   of  bill,   payable   at   sigrht. 

Ji  3135.  Apparent   maturity    of    note. 

i  3136.  Same.      [After  .sipht  or  demand.] 

S  3137.  Surrender  of  In.strument,  when  a  condition   of  payment. 

§3130.  EFFKCr  OF  AVAM  OF  DEM.\>D  ON  VUIM  I  I'M, 
DKBTOK.  It  Is  not  necessary  to  make  a  demand  of  payment 
upon  the  principal  debtor  in  a  negotiable  Instrument  in  order 
to  charge  him;  but  if  the  instrument  Is  by  its  terms  payable 
at  a  specified  place,  and  lio  is  able  and  willing  to  pay  It  there 
at  maturity,  such  ability  aiul  willingness  arc  equivalent  to 
an  offer  of  payment  upon  his  part. 

HiNtoryi     Enacted  March   21,   ISrr. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

79  C.  224,  229.  21  P.  745.  746  (cited);  82  C.  32.  33,  22  P.  87S 
(construed  with  {  3131.  which  section  applies  to  Indorsor  and 
not  to  maker  of  note>:  131  C.  187,  191,  82  A.  S.  341,  f.3  P.  4fi2. 
463    (cited). 

As  to  Implied  warranty  nf  Indorser,  aoo  Kerr'f  C\  <-.  r*.  f.  p. 
fl  311f>  and  note. 

As  to  Mjany  mlscelljineous  matters  as  to  negotlablo  instru- 
ments, SCO  note  I  3086.  ante. 

Presentment — In  case  of  acceptance  for  honor. — Sec  Korr'« 
Cyc.  C.  C.  P.  SI  3206.  3207  and  notes. 

Same — Not  necessary  to  charjfc  drawer  In  a  bill  drawn  upon 
himself. — See  K.rr's  Cyc.  C.  C.   P.   i  3I.''i.'>  subd.  3  and  note. 

Same — Of  bill  of  exchange  for  acceptance. — See  Kcrr't  Cyc.  C. 
C.  P.  H  3186  et  seq.  and  notes. 

Same — Of  bill  of  exchange  for  payment. — See  Kerr's  Cyc  C  C 
P.  in  3211   ct  seq,  and  notes. 

Presentment  ami  demand  where  note  is  paynM''  ^'  <  pnrll<-nl«r 
time  and  place. — See  25  A.  D.  340;  28  A.  D.  335. 

§3131.    PRESENT.MKVT    FOR    PAYMENT.    IIO>>     .MAOE. 

Presentment  of  a  negotiable   instrument  for  payment,  when 

1549 


§  3131  CIVIL  CODE.  [Div.III,Pt.IV. 

necessary,  must  be  made  as  follows,  as  nearly  as  by  reason- 
able diligence  it  is  practicable: 

1.  The  instrument  must  be  presented  by  the  holder,  or  his 
agent; 

2.  The  instrument  must  be  presented  to  the  principal 
debtor,  if  he  can  be  found  at  the  place  where  presentment 
should  be  made;  and  if  not,  then  it  must  be  presented  to 
some  other  person  having  charge  thereof,  or  employed  therein, 
if  one  can  be  found  there; 

3.  An  instrument  which  specifies  a  place  for  its  payment 
must  be  presented  there;  and  if  the  place  specified  includes 
more  than  one  house,  then  at  the  place  of  residence,  or  busi- 
ness, of  the  principal  debtor,  if  it  can  be  found  therein; 

4.  An  instrument  which  does  not  specify  a  place  for  its 
payment  must  be  presented  at  the  place  of  residence,  or  busi- 
ness, of  the  principal  debtor,  or  wherever  he  may  be  found, 
at  the  option  of  the  presenter; 

5.  The  instrument  must  be  presented  upon  the  day  of  its 
maturity,  or,  if  it  is  payable  on  demand,  it  may  be  pre- 
sented upon  any  day.  It  must  be  presented  within  reason- 
able hours;  and  if  it  is  payable  at  a  banking  house,  within 
the  usual  banking  hours  of  the  vicinity,  but,  by  the  consent 
of  the  person  to  whom  it  should  be  presented,  it  may  be 
presented  at  any  hour  of  the  day; 

6.  If  the  principal  debtor  has  no  place  of  business,  or  if  his 
place  of  business,  or  residence,  cannot,  with  reasonable  dili- 
gence, be  ascertained,  presentment  for  payment  is  excused. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  263;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  420,  held  uncon- 
stitutional, see  history,  §  4  ante;  amendment  re-enacted  March 
21,   1905,   Stats,  and  Amdts.   1905,  p.   620. 

See  Kerr's  Cyc.   C.  C.   for  20  pars,  annotation. 

64  C.  410,  422,  1  P.  495,  496,  874  (applied  in  main  opinion,  and 
construed  on  p.  422,  dis.  op.);  79  C.  224,  229,  21  P.  745,  746  (cited); 
82  C.  32,  33,  34,  22  P.  878  (construed  with  other  sections — §  3131 
applies  to  indorser  and  not  to  maker,  of  note);  107  C.  282,  285, 
40  P.  430   (applied);  151  C.  754,  758,  759,  91  P.  620   (subd.  5  cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

1550 


Tit.XV.ch.I.art.IV.]  dishonor.  §§  3132-3134 

As  to  place  of  presentment,  see  15  A.  D.  C43,  644;  25  A.  D.  340. 

As  to  reasonable  diligence,  see  Kerr's  Cyc.  C.  C.  {§3155,  3158, 
3213  and   notes. 

Bills  of  exchange,  where  payable. — See  Kerr's  Cyc.  C.  C.  {  3176, 

Plac#  of  presentment,  what  sufficient. — See  24  A.  R.  160,  161; 
15  A.   U.   643.   644. 

Presentment  of  liills  of  exchange  for  acceptance. — See  Kerr's 
Cyc.  C.  C.  §§  3185  et  seq.  and  notes. 

Same — For  payment. — See  Kerr's  Cyc.  C.  C.  §  3211  et  seq.  and 
notes. 

§3132.  APP.VKENT  3I.\TriUTY,  >VHE>.  The  apparent 
maturity  of  a  ne^otialile  iiistniineiit,  i)ayal)le  at  a  particMilar 
time,  is  the  daj'  on  which,  by  its  terms,  it  becomes  due.  or 
when  that  is  a  holiday,  the  next  business  day. 

IliMtory:     Enacted  MarrJi   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 
64  C.  410,  412,   1   V.  495,  874    (referred  to). 

As  to  due  diligence  in  malting  demand,  see   11  A.  D.  217.  218. 
As    to    many    misct-llaneou.s    malti-r.s    .-i.s    tti    n.oroi  hiMf    instru- 
ments, see  note  g  3086.  ante. 

SSirW.  PHKSr.Ml'TIVE  DISIIOXHt  OF  HILL,  PAY.VBLE 
AFTEK  SUillT.  A  bill  of  exchange,  i)ayable  at  a  certain  time 
after  sight,  which  is  not  accepted  within  ten  days  after  its 
date,  in  addition  to  the  time  which  would  siifhce,  with  ordi- 
nary diligence,  to  forward  it  for  acceptance,  1.^  iiresumed  to 
have  been  dishonored. 

Hiwtory:      Knactod  March   21.   1S72. 

See   Kerr's  Cyc.  C.  <'.  tnr  6  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  negotinblo  Iniitru- 
ments.  see  imte  §  30St',.  ante. 

S31.'{1.  .U'PAHF.NT  .MATrUITY  (M  HIM..  r.V\Alll.l.  Ai 
SKilIT.  The  apparent  maturity  of  a  bill  of  exchange,  pay- 
able at  sight  or  on  demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or. 

L*.  If  it  does  not  bear  Interest,  ten  days  after  its  date,  in 
addition  to  the  time  which  would  sufTlce,  with  Drdlnary  dili- 
gence, to  forward  it  for  acceptance. 

Illntory:     Knactod  March   21.   1872. 
1551 


§§  3135-3137  CIVIL  CODE.  [Div.III,Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

68  C.  545,  548  (erroneously  cited  for  §  3124),  9  P.  942,  944  (cor- 
rect citation). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante.  • 

Presentment — Where  delay  in  does  not  exonerate. — See  Kerr's 
Cyc.  C.  C.  §  3214  and  note. 

Same — Rule  as  to  checks. — See  Kerr's  Cyc.  C.  C.  §  3255  subd.  1 
and  note. 

Promissory  notes  payable  on  demand. — See  80  A.  D.  250-254. 

§  3135.  APPARENT  MATURITY  OF  NOTE.  The  apparent 
maturity  of  a  promissory  note,  payable  at  sight  or  on 
demand,  is: 

1.  If  it  bears  interest,  one  year  after  its  date;  or, 

2.  If  it  does  not  bear  interest,  six  rnonths  after  its  date. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

74  C.  362,  363,  364,  16  P.  19,  20  (referred  to);  79  C.  224,  229,  21 
P.  745,  746  (construed  with  other  sections);  22  P.  673,  675  (in- 
dorser  is  entitled  to  waive  notice  of  dishonor  when);  82  C.  32, 
34,  22  P.  878  (construed  with  other  sections — §  3135  applies  to 
indorser  and  not  to  maker  of  note);  98  C.  323,  326,  35  A.  S.  172, 
33  P.  204,  206,  20  L.  580  (referred  to);  6  C.  A.  197,  201,  91  P.  759 
(cited — what   is   necessary   to   charge   indorsers). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Presentment  not  made  in  time,  and  not  excused,  exonerates 
indorsers. — See  Kerr's  Cyc.  C.   C.    §  3248  and  note. 

§  3136.  SAME.  [AFTER  SIGHT  OR  DEMAND.]  Where  a 
promissory  note  is  payable  at  a  certain  time  after  sight  or 
demand,  such  time  is  to  be  added  to  the  periods  mentioned 
in  the  last  section. 

History:     Enacted  March  21,  1872. 

§  3137.  SURRENDER  OF  INSTRUMENT,  WHEN  A  CONDI- 
TION  OF  PAYMENT.  A  party  to  a  negotiable  instrument  may 
require,  as  a  condition  concurrent  to  its  payment  by  him: 

1.  That  the  instrument  be  surrendered  to  him,  unless  it  is 
lost  or  destroyed,  or  the  holder  has  other  claims  upon  it;  or, 

2.  If  the  holder  has  a  right  to  retain  the  instrument  and 

1552 


Tit.XV,ch.I.art.V.]        DISHONOR,  what  is.  5  3141 

does  retain  it,  then  that  a  receipt  for  the  amount  paul,  or  an 
exoneration  of  the  party  payinc:,  be  written  thereon;   or, 

3.  If  the  instrument  is  lost  or  destroyed,  then  that  the 
holder  Rive  to  him  a  bond,  executed  by  himself  and  two 
Bufflcient  sureties,  to  indemnify  him  against  any  lawful  claim 
tliereon. 

IliMtory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 
82  C.  550,  557,  22  P.  1115,  1117.  1118   (applied;. 
As    to    many    misoellanfous    niallt-rs    as    to    negotiable    instru- 
ments, see  note  (  3086,  ante. 


ARTICLK  V. 

DISHONOR  OF   NEGOTIABLE    INSTRUMENTS. 

I  3141.  Dishonor,  what. 

I  3142.  Notice,    by    whom    jflven. 

§3143.  Form  of  notice. 

I  3144.  Notice,  Jiow  servod. 

13145.  Notice,   bow   scrvtd  after   Indorscr's  death. 

13146.  Notice  given    in    Ignorance   of  death,   valid. 
f  3147.  Notice,   when    to    \>e   glv«n. 

I  3148.  Notice    of    dishonor,    when    to    \>o    ni.ill'<| 

I  3149.  Notice,    how    given    by   agent. 

13150.  Additional   time   f<ir  notice  by   indoriK'r. 

f  3151.  EfTvct   of   notice   of  dlsliunor. 

§.tI4I.     DISIiONOH,    »n.VT.      A    negotiable    InKtrument    is 

(llsbonori'd.  wln-ii  It  i.s  cilber  not  paid,  or  not  acc<«pled. 
arcordlnK  to  Its  tenor,  on  presentment  for  the  pur|>oiM».  or 
without  presentment,  where  that  i8  excused. 

Illaturri     Enacted  March  31.  Ifl72. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

161    C.   754.   759.   91    P.    620    (cited). 

As   to  many    misrelJaneotis   matterr> 
inonts.  SCO  note  f  3086.  ante. 

Dishonor — By  non-payment  of  Interest. — Sec  30  A.   It.   :u|-;*»J. 
100   A.   D.   196-199. 

Same — Of     hill     by     nnn-acceptnnre.— S<  ■ 
SI  3187.  3188,  8194  and  notes. 

15B3 


§§  3142-3144  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Of  foreign  bills  of  exchange,  damages  allowed. — See 
Kerr's  Cyc.  C.  C.  §§  3234,  3238  and  notes. 

Same — Payment  or  acceptance  to  prevent.— See  92  A.  D.  578- 
580. 


§3142.  NOTICE,  BY  WHOM  GIVEN.  Notice  of  the  dis- 
honor of  a  negotiable  instrument  may  be  given: 

1.  By  a  holder  thereof;    or, 

2.  By  any  party  to  the  instrument  who  might  be  compelled 
to  pay  it  to  the  holder,  and  who  would,  upon  taking  it  up, 
have  a  right  to  reimbursement  from  the  party  to  whom  the 
notice  is  given. 

Hijstory:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

55   C.   406,   407    (construed   with   otlier   sections). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Bill  of  exchange,  protest  of. — See  post  §  3228. 

Notice — Of  dislionor  to  acceptor  for  honor. — See  post  §§  3206, 
3207. 

Same — Of   protest. — See   post   §  3225. 

§  3143.  FORM  OF  NOTICE.  A  notice  of  dishonor  may  be 
given  in  any  form  which  describes  the  instrument  with  rea- 
sonable certainty,  and  substantially  informs  the  party  receiv- 
ing it  that  the  instrtiment  has  been  dishonored. 

Hi-story:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

55  C.  406,  407  (construed  with  other  sections);  57  C.  327,  330 
(cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Dishonor  of  foreign  bills  of  exchange — Notice  of. — See  post 
§  3225. 

§  3144.  NOTICE,  HOW  SERVED.  A  notice  of  dishonor  may 
be  given : 

1.  By  delivering  it  to  the  party  to  be  charged,  personally, 
at  any  place;   or, 

2.  By  delivering  it  to  some  person  of  discretion  at  the  place 

1554 


»     Tit.XV.ch.I.art.V.]       NoTlCH.   SKliVlci-:   of.  §j}  .'{HG.  3146 

of  residence  or  business  of  such  party.  ai>i)arently  acting  for 
him;  or, 

3,  By  properly  folding  tlie  notice,  directing  it  to  tlie  party 
to  be  charged,  at  his  i)lace  of  residence,  according  to  the  best 
information  that  the  person  giving  the  notice  can  obtain, 
depositing  it  in  the  post  office  most  conveniently  accessible 
from  the  place  where  the  presentment  was  made,  and  paying 
the  postage  thereon. 

IIlNtury:     Knacted  Manh   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

T,7  C.  327.  330  (rcforred  to);  62  C.  26<>.  2fi2  (r.-f.-rrcl  to).  f,3 
C.  367.  368   (cited):  86  C.  449,  456.  25  P.  16.  17.  10  L.  ^A'y  (cited). 

As  to  personal    notice,   see  38  A.   D.   607. 

As  to  many  niiaci-llaneous  matters  as  to  nf(^ollald<-  ln.'<tru- 
ments,  see  note  §  3086.  ante. 

Foreign  bills  of  exclian^e.  notice  of  dislionor,  how  btIvom. — 
See  Kerr's  Cyc.  C.  C.   §  3231  and  note. 

Notary's  protest  as  evidence. — See  Kerr's  Cyc.  Pol.  C.  |  795  and 
note. 

Notice  of  dishonor,  siifflclency  of.  and  how  served. — See  38 
A.  D.   607-616:  26  A.   K.   .'■|(i.'.-r)O.S. 

Srni.K  \OTI(K,  HOW  .SKHVKU  AFTEK  IMHUiSKH'S 
DK.VTII.  In  case  of  the  death  of  a  luirty  to  whom  notice  of 
dishonor  should  otherwise  be  given,  the  notice  must  be 
given  to  one  of  his  personal  representatives;  or,  if  there'  are 
none,  then  to  any  member  of  his  family  who  resided  with  him 
at  his  death;  or,  if  there  is  none,  then  it  must  be  mailed  to 
his  last  place  of  residence,  as  prescribed  by  subdivision  three 
of  the  last  sectlrjii. 

iIlnlor.>:      Hnacli-d  March   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 
99  C.    143.    144.   33   P.   773    (r.'ferre<l   t.i). 

As  to  many  ml8cellani-ou.s  mattt-rs  as  to  negotiable  Instru- 
ments, see  noto  j|  30S6,  .'inte. 

§3140.  NOTirK  (;IVK>  IN  K.NonVMi;  Ol  Iii.AIII. 
V.VLIl).  A  notice  of  dishonor  sent  to  a  i)arty  after  his  death, 
but  in  ignorance  thereof,  and  in  good  faith.  Is  valid. 

Hlatoryi     Ennctod  March  21,  1872. 
1555 


§§  3147-3150  CIVIL  CODE.  [Div.III,Pt.IV. 

§3147.  NOTICE,  WHEN  TO  BE  GITEN.  Notice  of  dis- 
honor, when  given  by  the  holder  of  an  instrument  or  his 
agent,  otherwise  than  by  mail,  must  be  given  on  the  day  of 
dishonor,  or  on  the  next  business  day  thereafter. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

147;- C.  166,  170,  81  P.  402,  404  (cited);  151  C.  754,  759,  91  P. 
620    (cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§  3148.    NOTICE  OF  DISHONOR,  WHEN  TO  BE  MAILED. 

When  notice  of  dishonor  is  given  by  mail,  it  must  be  depos- 
ited in  the  post  office  in  time  for  the  first  mail  which  closes 
after  noon  of  the  first  business  day  succeeding  the  dishonor, 
and  which  leaves  the  place  where  the  instrument  was  dis- 
honored, for  the  place  to  which  the  notice  should  be  sent. 

History:     Enacted  March   21,   1872. 

151   C.   754,   759,   91   P.   620    (cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§3149.  NOTICE,  HOW  GIVEN  BY  AGENT.  When  the 
holder  of  a  negotiable  instrument,  at  the  time  of  its  dishonor, 
is  a  mere  agent  for  the  owner,  it  is  sufficient  for  him  to  give 
notice  to  his  principal  in  the  same  manner  as  to  an  indorser, 
and  his  principal  may  give  notice  to  any  other  party  to  be 
charged,  as  if  he  were  himself  an  indorser.  And  if  an  agent 
of  the  owner  employs  a  subagent,  it  is  sufficient  for  each 
successive  agent  or  subagent  to  give  notice  in  like  manner 
to  his  own  principal. 

History:     Enacted  March   21,   1872. 

§  3150.    ADDITIONAL  TIME  FOR  NOTICE  BY  INDORSER. 

Every  party  to  a  negotiable  instrument,  receiving  notice  of  its 
dishonor,  has  the  like  time  thereafter  to  give  similar  notice 
to  prior  parties  as  the  original  holder  had  after  its  dishonor, 

1556 


Tit.XV,ch.I,art.VI.]     NOTICE   OF  DISHONOR.  §§3151,3155 

Rut  this  additional   time   is   available   only   to   the   particular 
party  entitled  thereto. 

History:     Enacted  Marcli    21,   1872. 

§  3151.  EFFECT  OF  NOTICE  OF  DISHOXOR.  A  notice  of 
the  dishonor  of  a  negotiable  instrument,  if  valid  in  favor  of 
the  party  giving  it,  inures  to  the  benefit  of  all  other  parties 
thereto  whose  right  to  give  the  like  notice  has  not  then  been 
lost. 

History:     Enacted  March   21,   1872. 


ARTICLE  VI. 

EXCUSE    OF    PRESENTMENT    AND    NOTICE. 

§  SIS!}.  Notice  of  dishonor,  when  excused. 

§  3156.  Presentment  and  notice,  when  excused. 

§  3157.  Same.      [Full    security   being   received.] 

§3158.  Delay,   when    excused. 

§3159.  Waiver   of   presentment   and    notice. 

§  3160.  Waiver  of  protest. 

§3165.  NOTICE  OF  DISHOXOK,  WHEN  EX(  ISED.  Notice 
of  dishonor  is  excused: 

1.  When  the  party  by  whom  it  should  be  given  cannot,  with 
reasonable  diligence,  ascertain  either  the  jilace  of  residence 
or  business  of  the  party  to  be  charged;  or, 

2.  When  there  is  no  post-office  communication  between  the 
town  of  the  party  by  whom  the  notice  should  be  given  and 
the  town  in  which  the  place  of  residence  or  business  of  the 
party  to  be  charged  is  situated;  or, 

?,.  When  the  party  to  be  charged  is  the  same  person  who 
dishonors  the  instrument;  or, 

4.  When  the  notice  is  waived  l)y  the  party  entitled  thereto. 

HiMtory:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 
86  C.  449,  457,  25  P.  16.   17.   10  L.  545   (cited). 

As   to   diligence,  and   excuse   of   presentment    fur   iiaynient.   see 
Kerr's  Cyc.  C.  C.  §  3131  and  note. 
As  to  notice  by  mall,  see  Kerr's  Cyc,  C.  C.  }  3144  and  note. 

1557 


§§  3156-3158  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

As  to  waiving-  protest  of  foreign  bill,  see  Kerr's  Cyc.  C.  C. 
§  3232  and  note. 

Presentment  of  bill,  and  notice  of  dishonor,  when  excused.— 
See  Kerr's  Cyc.  C.  C.  §  3220  and  note. 

Protest  of  foreign  bill,  waiver  of. — See  Kerr's  Cyc.  C.  C.  §  3232 
and  note. 

§  3156.     PRESEjVTMENT  AND  NOTICE,  WHEN  EXCUSED. 

Presentment  and  notice  are  excused  as  to  any  party  to  a 
negotiable  instrument  who  informs  the  holder,  within  ten  days 
before  Its  maturity,  that  it  will  be  dishonored. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  420, 
held  unconstitutional,  see  history,  §    4  ante. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

64  C.  459,  460,  2  P.  43,  44  (applied);  101  C.  478,  482,  36  P.  197 
(construed). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§3157.     SAME.     [FILL    SECURITY    BEING    RECEIVED.] 

If,  before  or  after  the  maturity  of  an  instrument,  an  indorser 
has  received  full  security  for  the  amount  thereof,  or  the 
maker  has  assigned  all  his  estate  to  him  as  such  security, 
presentment  and  notice  to  him  are  excused. 

History:     Enacted  March   21,   1872. 

See  'Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  negotiable  in.stru- 
ments,  see  note  §  3086,  ante. 

As  to  waiver  of  demand  and  notice  by  taking  security,  see 
4  A.  D.  49,  50;  11  A.  D.  67;  39  A.  D.  95-99. 

§  3158.  DELAY,  WHEN  EXCUSED.  Delay  in  presentment, 
or  in  giving  notice  of  dishonor,  is  excused  when  caused  by 
circumstances  which  the  party  delaying  could  not  have 
avoided  by  the  exercise  of  reasonable  care  and  diligence. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 
As  to  diligence — In  presentment  of  bills,  see  Kerr's  Cyc.  C.  C. 
§  3213  and  note. 

1558 


TitXV.ch.I.art.VI.]    waivkk  ok  PROTEST.  §§3159.3160 

Same — In  presentinent  of  notes,  see  Kerr's  Cyc.  C.  C.  {  3131 
and  note. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante. 

Presentment  of  bill — Delay  In,  and  Its  effect. — See  Kerr's  Cyc. 
C.  C.  §§3213,  3214  and  notes. 

Same — For  acceptance,  delay  in,  when  excused. — See  Kerr's 
Cyc.  C.  C.  §§  3219,  3220  and  notes. 

*     §3159.     WAIVER    i)V   PRESENTMENT    AM)    NOTICE.     A 

waiver  of  presentment  waives  notice  nf  dishonor  also,  unless 
the  contrary  is  expressly  stipulated;  but  a  waiver  of  notice 
does  not  waive  presentment. 

IliNtoryt     Enacted  March    21,    1S72. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

As  to  many  miscellaneous  niatti'rs  as  tn  ni-i;i)ti.iiii<-  insuu- 
ments,  see  note  §  3086,  ante. 

That  waiver  of  right  to  demand  and  notice  on  part  of  indoracr 
may  be  proved  by  parol  testimony,  see  57  A.  D.  665-667. 

§31«0.  WAIVER  OF  PROTEST.  A  waiver  of  protest  on 
any  negotiable  instrument  otlier  than  a  foreign  bill  of  ex- 
change waives  presentment  and  notice. 

IliMiory:     Enacted  March   21,    1872. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante.  x  .     /  ■    i 

Notice  of  dishonor  of  foreign  bill,  how  given. — See  Kerr's  Cyc. 
C.  C.  §  3225  and  note. 

Notice  of  protest  of  foreign  lilll. — See  Kerr-  '"■••  ''  '""  '  '  '  ' '■ 
and  note. 


1559 


§§  3164, 3165  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  VII. 

EXTINCTION    OF    NEGOTIABLE    INSTRUMENTS. 

§  3164.     Obligation   of  party,    wlien   extinguished. 
§  3165.     Revival   of  obligation    [repealed]. 

§  3164.    OBLIGATION  OF  PARTY,  WHEN  EXTINGUISHED/ 

The  obligation  of  a  party  to  a  negotiable  instrument  is  extin- 
guished: 

1.  In  like  manner  with  that  of  parties  to  contracts  in  gen- 
eral ;   or, 

2.  By  payment  of  the  amount  due  upon  the  instrument,  at 
or  after  its  maturity,  in  good  faith  and  in  the  ordinary  course 
of  business,  to  any  person  having  actual  possession  thereof, 
and  entitled  by  its  terms  to  payment. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  29  pars,  annotation. 

1  C.  A.  659,  665,  82  P.  1075  (applied  with  other  sections). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Obligations,  extinction  of,  in  general. — See  Kerr's  Cyc.  C.  C. 
§§  1473  et  seq.  and  notes. 

§3165.    REVIVAL  OF  OBLIGATION  (repealed). 

HLstory:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.   1873-4,  p.   264. 


1560 


Tit.XV.ch.ir.art.r.]      BILLS.   FORM.   ETC.  §3171 


CHAPTER   IT. 

BILLS   OF   EXCHANGE. 

Article    I.  Form  and  Interpretation,  §§3171-3177. 

II.  Days  of  Grace,  §  3181. 

III.  Presentment  for  Acceptance,  §§3185-3189. 

IV.  Acceptance,  §§  3193-3199. 

V.  Acceptance  or  Payment  for  Honor,  §§  3203-3207. 

VI.  Presentment  for  Payment,  §§  3211-3214. 

VII.  Excuse  of  Presentment  and  Notice,  §§3218-3220. 

VIII.  Foreign  Bills,  §§3224-3238. 


ARTICLE  I. 

FORM    AND    INTERPRETATION    OF    A    HILL. 

§  3171.  Bill    of    exchange,    what. 

{  3172.  Drawee,   In   case  of  need. 

{  3173.  Bin   In  parts  of  a  set. 

I  3174.  When  must  be  In  a  set. 

i  3175.  Presentment,    etc.,   of   part   of   set. 

ft  3176.  Bill,   where  payable. 

{  3177.  Rl(?lits  and  oblierations  of  drawer. 

§:{I7L  Itll.L  OF  EX('H.V>'GE,  WHAT.  A  bill  of  exchanRp 
is  an  instrument,  negotiablo  in  form,  by  which  one.  who  Ih 
called  the  drawer,  requests  auother,  calbMl  ilio  diawfc.  to  n.iv 
a  specified  sum  of  money. 

IIlNtorj-t     Enacted  March    Zl,   Hi',.:. 

.Sec  Korr's  Cyc.  C  C.  for  9  pars,  annotation. 

As  to  many  nil.Tellanoons  mutters  as  to  n<>Kotlnb1e  Instru- 
mi-nts.  see  noto  j)  30S6,  ante. 

lllLi.s  oi'  i',\4  II  \\(;k. 

Acceptance  of — As  to.  g'enorally.  see  4   Knr>- 
Same — By   parol. — See   44    A.    D.    2B3. 

Same — Tmpllfd  and  constructive. — Se<»  4  Enry(      i,    .  i .' 
."^ame — Promise  to  accept. — See  4   Kncyc.   I>.   233. 
Same — Qunllfled  and  conditional. — See  4  Encyc.  L.  22  4. 

1561 


§  3171  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Supra  protest  or  for  honor. — See  4  Bncyc.  L.   232. 

Same — Verbal  acceptance  and  promise  to  accept  as  affected  by 
the  statute  of  frauds. — See  4  Encyc.  L.  244. 

Same — Written  and  verbal. — See  4  Encyc.  L.   213. 

Acceptor,  defenses  available  to. — See  1  A.  S.  135. 

As  a  bank  check. — See  23  L.  173;  19  L.  ed.  1008;  21  L.  ed.  947; 
35  L.  ed.  481;  1  W.  &  P.  786. 

As  an  equitable  assignment. — See  42  A.  S.  921;  25  L.  523;  31  L. 
ed.  42-4-;  1  W.  &  P.  787;  3  W.  &  P.  2435. 

As  order  for  payment  of  goods. — See  42  A.  R.  799;  1  W.  &  P. 
787. 

As  payable  out  of  general  fund. — See  1  W.  &  P.  787. 

Bill   and  bank  check  distinguished. — See   2   Obiter  Dig.   317. 

Bills  drawn  in  sets. — See  2  Obiter  Dig.  317. 

Bona  fide  holder  of — Extent  of  right  and  protection  of. — See 
6  L.  502;  16  L.  45;  35  L.  161;  35  L.  464-470;  36  L.  434;  54  L.  451; 
61  L.  206;  10  L.  N.  S.  482;  13  L.  N.  S.  426. 

Same— Who  is.— See  9  A.  D.  272;  44  A.  D.  698;  35  A.  R.  688;  10 
L.  677;  12  L.  41;  61  L.  202;  5  L.  N.  S.  628;  17  L.  N.  S.  747. 

Capacity  and  autliority  of  parties. — See  4  Encyc.  L.  162. 

Consideration  for.- — See  4  Encyc.  L.   186. 

Same — Imported. — See  1  W.  &  P.  787. 

Definition  of. — See  14  A.  D.  419;  80  A.  D.  83;  21  A.  R.  209;  39 
A.  R.  308;  46  A.  S.  613;  57  A.  S.  245,  266;  27  L.  222;  12  L.  ed.  993; 
2  Obiter  Dig.  317;  1  W.  &  P.  317. 

Detention  of  by  drawee  as  acceptance  thereof. — See  17  L.  N.  S. 
1266. 

Execution  and  delivery — As  to  generally,  see  3  A.  C.  559;  4 
A.  C.   639. 

Same — Parol  evidence  in  conditional  delivery. — See  3  A.  C. 
560. 

Foreign  and  inland  bills. — See  2  Obiter  Dig.  317. 

Formal  essentials  of.— See  4  Encyc.  L.  81. 

Implied  warranty  of  genuineness  upon  sale  of. — See  36  L.  92. 

Liability  of  person  signing  as  officer  of  corporation. — See  6  A. 
C.  1000. 

Lost  or  destroyed,  right  of  action  at  law  upon. — See  16  L.  205. 

Necessity  of  notice  of  dishonor  of. — See   6  A.  C.   280. 

Object  and  elfect  of  marginal  figures  on. — See  1  A.  C.  611. 

Orderly  parts  and  special   clauses  of. — ^See   4  Encyc.  L.   128. 

Partial  failure  of  consideration  as  a  defense. — See  2  A.  C.   430. 

Power  of  president  and  secretary  of  corporation  to  execute. — 
See  2  A.  C.  520. 

Presentment  and  demanded  place  named  as  condition  prece- 
dent to  suit  against  maker. — See  7  A.  C.  693;  13  L.  N.  S.  303. 

Presumption — And  burden  of  proof  in  action  by  purchaser.- — • 
See   17  L.   326. 

Same — As  to  place  of  indorsement  of. — See  5  A.  C.  160. 

1562 


I 


Tit.XV.ch.Tr.art.I]       DRAWER— BTT.T.  IN   PARTS.    §§3172.3173 

Release  of  drawor  or  indorser  by  rertiflmtlon  of  check. — Sco 
9  L.  N.  S.   698. 

Retention  of,  or  refusal  to  return,  as  acceptance  thereof. — Seo 
8  A.  C.  612. 

Rigrht  of  action  of  nominal  holder. — See  1  A-  C.  833. 

Rights    of   holder    of,    transferred    after   niaturity.- 
753-812. 

Subject  to  legal  construction. — See  2  Obiter  Dig.  31.S. 

Synonymous   with   draft. — See   3   W.   &   P.    2195. 

Time  and  notice  of  dishonor — Waiver  of  by  taking  security. — 
See  39  A.  D.  95. 

Same — What  excuses. — See   1   A.  C.   99. 

Title  acquired  by  payee  of,  fraudulently  procured  from  m.iker. 
as  subject  to  other  defenses,  by  purchase  after  transfer  to 
innocent  third  person. — See   8  A.  C.    626. 

Validity — And  effect  of  executed  or  indorsed  lunatic. — See  4 
A.  C.  539. 

Same — Of  in  hand.s  of  bona  fide  holder  where  void  by  statute 
between  original  parties. — See   4  A.  C.   353. 

Same — Of  oral  guaranty  by  transferer  of. — See  2  A.  C.  TtOti. 

Written  instrument  imported. — See  82  A.  S.  546;  1  W.  &  I". 
787. 

§:n7-->.  l)ia»l-t;,  J.\  (  VSt  of  need,  a  l)ill  of  excUanp* 
may  sive  the  name  of  any  person  in  addition  to  tlie  drawee, 
to  be  resorted  to  in  case  of  need. 

IliMtory!     Knacleil  March   21.    1872. 

.•\s  to  many  mlscellane<iu.s  malter.s  as  (o  bills  i>f  ••\cb:ini,'' 
note  $  3121,  ante. 

Ah  to  many  miscellaneous  matter.-^  as  to  negotiable  instru- 
ments, see  note  §  3080,  ante. 

Acceptance    or     paynn-nt     fur     honor. — Se<' 
H  .12(13-3207  and  notes. 

Time  of  presentment  to  druwee  in  case  of  n<'<»d.— S*e  Korr'S 
Cyc.  C.  r.  5  :?l.s.S  an.l   umI.  . 

§317».  Jill, I,  1>  TAIMS  OF  \  Si;r.  A  bill  of  e.TchBnKO 
may  be  drawn  in  any  number  of  parts,  each  part  stating  the 
existence  of  tlio  others,  and  all  forming  one  set. 

illntorM     Knncted   March    21,    1S72. 

As  to  many  miscellaneous  mnttfTs  ns  to  billn  «>f  oxchnngv,  •ec 
note  i  3121,  ante. 

.\s  to  many  mlscellnneoiis  mnttors  nn  to  nogotlnhle  instru- 
ments, see  note  {  30S6,  ante. 

1663 


§§3174-3176  CIVIL  CODE.  [Div.III,Pt.IV. 

Damages  allowed  on  dishonor  of  foreign  bill. — See  Kerr's  Cyc. 
C.  C.  §  3234  and  note. 

§3174.  WHEN  MUST  BE  IN  A  SET.  An  agreement  to 
draw  a  bill  of  exchange  binds  the  drawer  to  execute  it  in 
three  parts,  if  the  other  party  to  the  agreement  desires  it. 

Hi-story:     Enacted  March   21,  1872. 

§3175.  PRESENTMENT,  ETC.,  OF  PART  OF  SET.  Pre- 
sentment, acceptance,  or  payment,  of  a  single  part  in  a  set 
of  a  bill  of  exchange,  is  sufficient  for  the  whole. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Presentment — How  made. — See  Kerr's  Cyc.  C.  C.  §§  31S6,  3187 
and  notes. 

§3176.  BILL,  WHERE  PAYABLE.  A  bill  of  exchange  is 
payable: 

1.  At  the  place  where,  by  its  terms,  it  is  made  payable. 

2.  If  it  specifies  no  place  of  payment,  then  at  the  place  to 
which  it  is  addressed. 

3.  If  it  is  not  addressed  to  any  place,  then  at  the  pld,ce  of 
residence  or  business  of  the  drawee,  or  wherever  he  may 
be  found.  If  the  drawee  has  no  place  of  business,  or  if  his 
place  of  business  or  residence  cannot,  with  reasonable  dili- 
gence, be  ascertained,  presentment  for  payment  is  excused, 
and  the  bill  may  be  protested  for  non-payment. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  264;  amended  by  Code  Commission,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  420,  held  unconsti- 
tutional, see  history,  §  4  ante;  amendment  re-enacted  March  21, 
1905,  Stats,  and  Amdts.  1905,  p.   620. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneovis  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

1564 


I 


Tit.XV,ch.II,art.II.]       DAYS   OF   GRACE. 


3177,3181 


Instrument  in  terms  payable  at  specified  place. — See  Kerr's 
Cyc.  C.  C.  §  3130  and  note. 

§3177.    RIGHTS  A>D  OBLIGATIONS  OF  DRAWER.     The 

rights  and  obligations  of  the  drawer  of  a  bill  of  exchange 
are  the  same  as  those  of  the  first  indorser  of  any  other 
negotiable  instrument. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

134  C.  237,  242,  66  P.   326    (applied). 

As  to  many  miscellaneous  matters  as  to  bills  of  excliange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Implied  warranty  of  indorser. — See  Kerr's  Cyc.  C.  C.  §3116 
and  note. 

Indorsement — What  constitutes. — See  Kerr's  Cyc.  C.  C.  S  3108 
and  note. 

ARTICLE  II. 
DATS  OF  GRACE. 
§  3181.     Days   of   grace. 

§.3181.    DAYS  OF  GRACE.    Days  of  grace  are  not  allowed. 

IliMtory:     Enacted  March   21.  1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

74  C.  362,  364,  16  P.  19  (referred  to);  107  C.  282,  284.  4<i  P.  430 
(applied). 

As  to  many  miscellantous  matters  as  to  bills  of  ^•xcl^:lnK^^  sco 

note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Grace  not  allowed  on  checks. — See  Kerr's  Cyc.  C.  C.  $  32.^4  and 
note  par.  9. 


1565 


§§  3185, 3186  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  III. 

PRESENTMENT   FOR   ACCEPTANCE. 

§  3185.     When  a  bill  may  be  presented. 

§  3186.     Presentment,   how  made. 

§  3187:     Presentment   to   joint  drawees. 

§  3188.     When    presentment    to    be    made    to    drawee    in    case    of 

need. 
§  3189.     Presentment,   wlien  must  be  made. 

§3185.     WHEN   A   BILL   MAY   BE    PRESENTED.     At   any 

time  before  a  bill  of  exchange  is  payable,  the  holder  may 
present  it  to  the  drawee  for  acceptance,  and  if  acceptance 
is  refused,  the  bill  is  dishonored. 

Hiistory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  excliange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Dishonor — Presentment  in  case  of. — See  Kerr's  Cyc.  C.  C. 
§§  3206,  3207  and  notes. 

Presentment — How  made. — See  Kerr's  Cyc.  C.  C.  §  3186  and 
note. 

§3186.  PRESENTMENT,  HOW  MADE.  Presentment  for 
acceptance  must  be  made  in  the  following  manner,  as  nearly 
as  by  reasonable  diligence  it  is  practicable: 

1.  The  bill  must  be  presented  by  the  holder  or  his  agent. 

2.  It  must  be  presented  on  a  business  day,  and  within  rea- 
sonable hours. 

3.  It  must  be  presented  to  the  drawee,  or,  if  he  be  absent 
from  his  place  of  residence  or  business,  to  some  person 
having  charge  thereof,  or  employed  therein;   and, 

4.  The  drawee,  on  such  presentment,  may  postpone  his 
acceptance  or  refusal  until  the  next  day.  If  the  drawee  have 
no  place  of  business,  or  if  his  place  of  business  or  residence 
cannot,    with    reasonable    diligence,    be   ascertained,    present- 

1566 


Tit.XV.ch.II.ait.TII.l       PRESENTMENT.  88  3187-3189 

nient  for  accpi)tance  is  excused,  and  the  bill,  may  be  protested 
for  uon-acceijtance. 

HlMtoryt  Enacted  March  21.  1872;  anioiulfd  Marrh  30.  1874. 
Code   Amdts.    1873-4,   p.    265. 

As  to  many  mlscellamous  luallors  a.s  tn  t)llls  of  excbanKo.  «ec 
note  §  3121,  ante. 

A.s  to  many  mlscellaneovis  matt^-rs  as  to  negotiable  instru- 
ments, see  note  |  3086,  ante. 

Hill  of  exchange — Presentment  of. — St-e  Kt-rr'a  Cyr.  C  C. 
S  3211  and  note. 

General  rules  as  to  jjresentmrnt  for  jiaymi-nt, — P<>e  TCprr'*  f  y**. 
<".  C.  ji  3130  and  note. 

Presentment   of  part   of  set. — See    Kerr's 
Tiote. 

§:ns7.     1»I{K.SK> TMEM    TO   .lOIM    IH{A»tK.S.     Prpsent- 

ment    for    acrp])taiu'e    to   one    of    sevt>ial    joint    drnwoe.s.    and 
refusal  Ijv  him,  dispenses  with  presontment  to  the  others. 
Illatorrt     Enacted  March   21.   1872. 

As  to  many  miscellaneous  matters  as  to  l)IIls  of  exchui..,    .  . 
note  H  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  noipotlnbic  Instru- 
ments, see  note  (  3086,  ante. 

§31SS.  WHFN  IMIKSKM'MKNT  T(>  KF  MADF  TO 
I>H.V>VFE  !>■  r.VSF  OF  .NFFI).  A  l)ill  of  t-xchanp'  which 
.s|)ocifies  a  drawee  in  case  of  need,  must  be  presented  to  him 
for  acceptance  or  payment,  as  tlie  case  may  he,  liefore  It  can 
l»e  treated  as  dishonored. 

IlUtor.i  !      Knaetrd   March   21.    IK72. 

As    to   hill    of    exchaiiKe    naming   drawei- 
Kerr's  Cyc.  C.  C  J  3172  anil  note. 

As  to  many  miscellaneous  nuitt  >-<j*i 

tujte  I  3121.  ante. 

As    t<»    nmtiy    miscellnneous    mnll>  r 
ments.  see  note  |  3086.  ante. 

s:n**!».    ri{i:sr,N  I  Ml  N  I.  \niiin  mini  hi    >i\i>i.    \vh«»n 

a  Itill  of  exrliaime   i.s   payablt'  at   a  speriHetl   litn-  :hl. 

the  drawer  and  indorsers  are  exonerated  if  it  is  !■  •    .ted 

1667 


§§  3193,  3194  CIVIL  CODE.  [Div.III.Pt.IV. 

for  acceptance  within  ten  days  after  tlie  time  which  would 
sufhce,  with  ordinary  diligence,  to  forward  it  for  acceptance, 
unless  presentment  is  excused. 

History:     Enacted  March   21,  1872. 

ARTICLE  IV. 

ACCEPTANCE. 

§  3193.  Acceptance,  how  made. 

§  3194.  Holder  entitled  to  acceptance  on   face   of  bill. 

§  3195.  What  acceptance  sufflcient  with  consent  of  holder. 

§  3196.  Acceptance  by  separate  instrument. 

§  3197.  Promise  to  accept,  when  equivalent  to  acceptance. 

§  3198.  Cancelation  of  acceptance. 

§  3199.  What   is   admitted   by  acceptance. 

§  3193.  ACCEPTANCE,  HOW  MADE.  An  acceptance  of  a 
bill  must  be  made  in  writing,  by  the  drawee  or  by  an  acceptor 
for  honor,  and  may  be  made  by  the  acceptor  writing  his  name 
across  the  face  of  the  bill,  with  or  without  other  words. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  12  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

As  to  necessity  to  give  notice  of  acceptance,  see  39  A.  R.  221- 
227. 

Acceptance  of  negotiable  instruments. — See  1  A.  S.   135-138. 

Honor — Acceptance  or  payment  for. — See  Kerr's  Cyc.  C.  C. 
§  3203  and  note. 

§  3194.  HOLDER  ENTITLED  TO  ACCEPTANCE  ON  FACE 
OF  BILL.  The  holder  of  a  bill  of  exchange,  if  entitled  to  an 
acceptance  thereof,  may  treat  the  bill  as  dishonored  if  the 
drawee  refuses  to  write  across  its  face  an  unqualified  accept- 
ance. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

1568 


Tit.XV,ch.II,art.IV.]         acckftance.  §{3195.3196 

As  to  many  miscellaneous  matters  as  tu  nogotiablo  Instru- 
ments, see  note  §  3086,  ante. 

Acceptance — Sufflciency  of. — See  Kerr's  Cyr.  C.  C.  {  3195  and 
note. 

Conditional  acceptance. — Sec  Kerr's  Cyc.  C.  C.  i  2193  and  note 
par.   12. 

Separate  instrument — Acceptance  in. — See  Kerr's  Cyc.  C  C. 
S  3196  and  note. 


§31J)o.  >VliAT  ACCEPTAXE  SUFFK  lEM  >\  IIH  (ON- 
SENT  OF  HOLDER.     The  holder  of  a  bill  of  exchange  ina.v, 

without  prejudice  to  his  rights  against  prior  p;i!fi<>s.  rer-.-iv.' 
and  treat  as  a  sufficient  acceptance: 

1.  An  acceptance  written  upon  any  part  of  the  bill,  or 
upon  a  separate  paper; 

2.  An  acceptance  qualified  so  far  only  as  to  make  the  bill 
payable  at  a  particular  place  within  the  city  or  town  In 
which,  if  the  acceptance  was  unqualified.  It  would  be  pay- 
able; or, 

3.  A  refusal  by  the  drawee  to  return  the  bill  to  the  holder 
after  presentment,  in  which  case  the  bill  is  payable  imme- 
diately, without  regard  to  its  terms. 

History:     Enacted  March   21,   1S72. 

As  III  m.iny  inlscellan<M>n.><  inatl«'r«  as  t<>  lillls  of  (>xchanRr<>,  ■«• 
note  S  3121.  ante. 

As  to  many  mlHcellaneous  matters  as  to  noffotiable  Inntru- 
monts,  see  note  |  3086,  ante. 

Conditional  acceptance. — See  Kerr's  Cyc.  C.  C.  13193  and  not« 
par.   12. 

Indorsement  of  pint  payment. — See  Kerr's  Cyc  C.  C  |  >19J 
and   note. 

Sfpar.ite  In.strvmient — Acceptance  may  be  on. — See  Kerr's  Cjrc 
r.  r.  J  3196  and   note. 

V\VM\.     ACrEFTAXF  BY  SK1V\H\TK  I>STHrHF>T.  Tho 

actH'ptunce  of  a  bill  of  oxchango,  by  a  separate  instrument, 
bind.s  the  acceptor  to  one.  who.  upon  the  faith  thereof,  haa 
the  bill  for  value  or  other  good  consideration. 

IlUlorx     En.Tf-l  March   21,  1872. 
K.rrs    C.    C. — 50  1^69 


§§  3197-3199  CIVIL  CODE.  [Div.III.Pt.IV. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 


§  3197.  PROMISE  TO  ACCEPT,  WHEX  EQUIYALENT  TO 
ACCEPTANCE.  An  unconditional  promise,  in  writing,  to 
accept  a  bill  of  exchange,  is  a  sufficient  acceptance  thereof, 
in  favor  of  every  person  who  upon  the  faith  thereof  has  taken 
the  bill  for  value. 

History;  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  621. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

134  C.  189,  191,  193,  196,  66  P.  210  (applied);  147  C.  69,  75,  81  P. 
275    (applied — unconditional  promise  to  accept  drafts). 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  inatters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Acceptance — How  made. — See  Kerr's  Cyc.  C.  C.  §  3193  and  note. 

§3198.  CANCELATION  OF  ACCEPTANCE.  The  acceptor 
of  a  bill  of  exchange  may  cancel  his  acceptance  at  any  time 
before  delivering  the  bill  to  the  holder,  and  before  the  holder 
has,  with  the  consent  of  the  acceptor,  transferred  his  title  to 
another  person  who  has  given  value  for  it  upon  the  faith 
of  such  acceptance. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

113  C.  692,  695,  45  P.  985   (cited). 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§3199.     WHAT    IS    ADMITTED    BY    ACCEPTANCE.     The 

acceptance  of  a  bill  of  exchange  admits  the  signature  of  the 

1570 


Tit.XV.ch.II.art.V.]  ACCEPTED  for  iioxoit.  §3203 

drawer,  but  does  not  admit  the  signature  of  any  indorser  to 
be  genuine. 

HiMtory:  Enacted  Marcli  21,  1872;  amended  March  3'i.  1ST4, 
Code  Amdts.    1873-4,  p.    265. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneou.s  matters  as  to  bills  of  t-xcliange,  seo 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negottablf  Ijistru- 
ments.  see  note  §  3086,  ante. 

Implied  warranty  of  indorser. — See  K.rrs  Cyc.  C.  C.  iSHC 
and  note. 


ARTICLE  V. 

ACCEPTANCE    OR    PAYMENT    FOR    HONOR. 

S  3203.     When  bin  may  be  accepted  or  paid  for  honor. 

S  3204.      Holder    of    hill    of    exchange    hound    to    aectpt    payment 

for  honor. 
S  3203.     Acceptance  for   honor,  liow  made. 
§  3206.      How    enforced. 
§  3207.     Notice  of  dishonor  not  excused  by  acceptance  for  honor. 

§3-'03.  >VIIEN  BILL  3I.VV  HK  Ar(  El'TED  OK  l'AM»  H>K 
HONOH.  On  the  dishonor  of  a  bill  of  exchange  by  the  drawee, 
and,  in  case  of  a  foreign  bill,  after  It  has  been  duly  protested, 
it  may  be  accepted  or  paid  by  any  person,  for  the  honor  of 
any  party  thereto. 

lilntory:      lOnacted  March   21,   1S72. 

As  t(}  arcommodation   paper  taken  .-ifler  iiKitiii; 
335.  336. 

As  to  many  mlscellaneon.'^  mattera  n.s  to  hills  >>t  oxPhan^,  see 
note  i  3121,  ante. 

As  to  many  ml.scellaneous  matter.^  as  to  neffutiable  Inalru- 
nients,  see  note  {  3086,  ante. 

Rill  of  exchange  after  acceptance  eijuivalont  tr<  promissory 
note. — See  Kerr's  Cyc.  C.  C.  |  8246  and  note. 

Declar.ntlon  before  pnyment  for  honor. — See  Kerr's  Cyc.  C  C. 
§  3233  and  note. 

Drawee  In  case  of  need. — See  Kerr's  Cyc.  C.  C.  |  S172  and  nOt«. 

Payment  or  acceptance  to  prevent  dishonor. — ^»*e  92  A.  D. 
57S-5SO. 

1571 


§§  3204-3206  CIVIL  CODE.  [Div.III,Pt.IV. 

§3204.  HOLDER  OF  BILL  OF  EXCHANGE  BOUND  TO 
ACCEPT  PAYMENT  FOR  HONOR.  The  holder  of  a  bill  of 
exchange  is  not  bound  to  allow  it  to  be  accepted  for  honor, 
but  is  bound  to  accept  payment  for  honor. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §S121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Acceptance — How  made. — See  Kerr's  Cyc.  C.  C.  §.3193  and  note. 

Honor — Acceptance  for. — See  Kerr's  Cyc.  C.  C.  §  3205  and  note. 

§3205.    ACCEPTANCE    FOR    HONOR,    HOW    MADE.     An 

acceptor  or  payer  for  honor  must  write  a  memorandum  upon 
the  bill,  stating  therein  for  whose  honor  he  accepts  or  pays, 
and  must  give  notice  to  such  parties,  with,  reasonable  dili- 
gence, of  the  fact  of  such  acceptance  or  payment.  Having 
done  so,  he  is  entitled  to  reimbursement  from  such  parties, 
and  from  all  parties  prior  to  them. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Declaration  before  payment  for  honor.— See  Kerr's  Cyc.  C.  C. 
§  3233  and  note. 

General  principles  as  to  acceptance. — See  Kerr's  Cyc.  C.  C. 
§  3193  and  note. 

§3206.  HOW  ENFORCED.  A  bill  of  exchange  which  has 
been  accepted  for  honor  must  be  presented  at  its  maturity 
to  the  drawee  for  payment,  and  notice  of  its  dishonor  by 
him  must  be  given  to  the  acceptor  for  honor,  in  like  manner 
as  to  an  indorser;  after  which  the  acceptor  for  honor  must 
pay  the  bill. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

1572 


Tit.XV.ch.ir.art.V.]  NOTICE  OP  DISHONOR.  §  3207 

Effect  of  want  of  demand  on  principal  debtor. — S.-c  K»rr"s 
Cyc.  C.  C.  §  3130  and  note. 

Notice — By  wiiom  given. — See  Kerr's  Cyc.  C.  C.  {  3142  and  note. 

Presentment — How  made. — See  Kerr's  Cyc.  C.  C.  {  3186  and 
note;  §  3211  and  note. 

Protest — Necessity  for. — See  Kerr's  Cyc.  C.  C.  $  3225  and  note. 

§3207.  NOTICE  OF  DISHONOR  NOT  EXCl'SKI)  HV  A(  . 
CEPTANCE  FOR  HONOR.  The  acceptance  of  a  bill  of  ex- 
change for  honor  does  not  excuse  the  holder  from  giving 
notice  of  its  dishonor  by  the  drawee. 

HiMtory:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  excliango,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante. 

Excuse  of  presentment  and  notice. — See  Kerr's  Cyc.  C.  C. 
§§  3218-3220  and  notes. 

Notice  of  dishonor — By  whom  given. — See  Kerr's  Cyc.  C.  C. 
§  3142  and  note. 

Same — When  excused. — See  Kerr's  Cyc.  C.  C.  §  3115  and  note. 

Protest — How  notice  given. — See  Kerr's  Cyc.  C.  C.  {  3231  and 
note. 


157.-? 


§§  3211, 3212  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE   VI. 

PRESENTMENT   FOR   PAYMENT. 

§  3211.  Presentment,    when    bill    not   accepted,    where    made. 

§  3212.  Presentment  of  bill,   payable  at  particular  place. 

§  3213,  Effect  of  delay  in  presentment,  in  certain  cases. 

§  3214.  Effect  in   other  cases. 

§3211.  PRESENTMENT,  WHEN  BILL  NOT  ACCEPTED, 
"WHERE  MADE.  If  a  bill  of  exchange  is  by  its  terms  payable 
at  a  particular  place,  and  is  not  accepted  on  presentment, 
it  must  be  presented  at  the  same  place  for  payment,  when 
presentment  for  payment  is  necessary. 

History:     Enacted  March   21,   1S72. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Demand  on  principal  debtor — Effect  of  failure  to  make. — See 
Kerr's  Cyc.   C.  C.   §  3130  and  note. 

Presentment — How  made.- — See  Kerr's  Cyc.  C.  C.  §  3186  and 
note. 

Protest  of  non-acceptance  and  non-payment — Upon  question 
wliether  protest  for  non-acceptance  and  non-payment  are  both 
necessary,  see  43  A.  D.  223. 

§3212.  PRESENTMENT  OF  BILL,  PAYABLE  AT  PAR- 
TICULAR PLACE.  A  bill  of  exchange,  accepted  payable  at  a 
particular  place,  must  be  presented  at  that  place  for  pay- 
ment, when  presentment  for  payment  is  necessary,  and  need 
not  be  presented  elsewhere. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Place  at  which  instrument  must  be  presented. — See  Kerr's 
Cyc.  C.  C.   §  3131,  subd.  3   and  note. 

1574 


Tit.XV,ch.II,art.VI.]      i>KLAY  IN  PRESENTING.       55  3213.3214 

§3213.  EFFECT  OF  DELAY  IN  PKESEMMENT,  I\  CER- 
TAIN  CASES.  If  a  bill  of  exchange,  payable  at  sight  or  on 
demand,  without  interest,  is  not  duly  presented  for  payment 
within  ten  days  after  the  time  in  which  it  could,  with  reason- 
able diligence,  be  transmitted  to  the  proper  place  for  such 
presentment,  the  drawer  and  indorsers  are  exonerated,  unless 
such  presentment  is  excused. 

Hldtory:     Enacted  March   21,   1S72. 

See  Kerr'B  Cyc.  C.  C.  for  6  pars,  annotation. 

5  C.  A.  39,  43,  89  P.  872  (is  construed  in  tonn.  .  ;  ...i,  ,mu.  »  .'{255 
— chocks  transmitted  to  anotiier  place  fur  pri-scntnient ). 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  sco 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments, see  note  §  3086,  ante. 

Apparent  maturity  of  lull  payable  at  sight. — See  Kerr's  Cyc. 
C.  C.  §  3134  and  note. 

Notice  of  dishonor — When  excu.sed. — See  Kerr's  Cyc.  C.  C. 
§  3155  and  note. 

Presentment — How  made. — See  Kerr's  Cyc.  C.  C.  J  3131  and 
note. 

§.3214.  EFFECT  1>  OTiIEK  (  AM  S.  Mere  delay  In  pre- 
senting a  bill  of  exchange  payablf  with  interest,  at  sight  or 
on  demand,  does  not  exonerate  any  party  thereto. 

HiMtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

74  C.   362,  364.   16  P.   19.  20   (construed  and  appli.-d>. 

As  to  many  niiscellanrou.*^  matters  aa  to  bills  of  cxolinngf,  aeo 
note  t  3121,  ante. 

As  to  many  miseellan<  ous  niatters  aa  to  negotiable  instru- 
ments,  see   note   {  3086.  anti'. 

Cognate  sections. — See  Kerr's  Cyc.  C.  C.  8  3247  and  n>ii.'. 


1575 


§§  3218-3220  CIVIL  CODE.  [Div.III.Pt.IV. 

ARTICLE  VII. 

EXCUSE    OF    PRESENTMENT    AND    NOTICE. 

§  3218.     Presentment,    when   excused. 

§  3219.     Delay,  when   excused. 

§  3220.     Presentment  and  notice,  when  excused. 

§  3218.  PRESENTMENT,  WHEN  EXCUSED.  The  present- 
ment of  a  bill  of  exchange  for  acceptance  is  excused  if  the 
drawee  has  not  capacity  to  accept  it. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Delay  in  presentment  of  check. — See  Kerr's  Cyc.  C.  C.  §  3255 
and  note. 

Notice  of  dishonor — When  excused. — See  Kerr's  Cyc.  C.  C. 
§  3155  and  note. 

§  3219.  DELAY,  WHEN  EXCUSED.  Delay  in  the  present- 
ment of  a  bill  of  exchange  for  acceptance  is  excused,  when 
caused  by  circumstances  over  which  the  holder  has  no  control. 

Hi.story:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  inatters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
inents,  see  note  §  3086,  ante. 

Delay — When  excused. — See  Kerr's  Cyc.  C.  C.  §§  3158,  3218  and 
notes. 

Exoneration  of  party  does  not  result  from  delay. — See  Kerr's 
Cyc.  C.  C.  §  3214  and  note. 

§  3220.     PRESENTMENT  AND  NOTICE,  WHEN  EXCUSED. 

Presentment  of  a  bill  of  exchange  for  acceptance  or  payment, 
and  notice  of  its  dishonor,  are  excused  as  to  the  drawer,  if 
he  forbids  the  drawee  to  accept,  or  the  acceptor  to  pay  the 

1576 


Tit.XV.ch.II.art.VIII.]     foukign  hills.  5  3224 

bill;  or  if,  at  the  time  of  drawing,  he  had  no  reason  to  believe 
that  the  drawee  would  accept  or  pay  the  same. 
IliNtf>r)i     Enaotod   March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  3  pars,  annotation. 

90  C.  297.  303,  27  P.  283,   285   (cited). 

As  to  many  miscellaneous  matters  as  to  Mils  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellant'ous  matters  as  to  neKottable  Instru- 
ments, see  note  §  3086,  ante. 

Presentment — When  excused. — See  Kerr's  Cyc.  C.  C.  |  3218  and 
note. 


ARTICLE  VI 11. 

forp:ign  hills. 

i  3224.  Definitions. 

$  3225.  Protest  necessary. 

i  3226.  Protest,   by    whom    niad"-. 

{  3227.  Protest,    how   made. 

iS  3228.  Protest,  where  made. 

H  3229.  Protest,   when   to   be  made. 

S  3230.  Protest,   when    excused. 

i  3231.  Notice  of   protest,   how   fflven. 

I  3232.  Waiver    of    protest. 

t  3233.  Declaration    before    payment    for    honor. 

I  3231.  Damages  allowed  <m  dishonor  of  forclKn  hill. 

I  3235.  Rate  of  damaKC"- 

I  3236.  Interest  on   amount   of  protested   bill. 

I  3237.  Damnsres.    how   ostlmnted. 

4  3238.  Same.      (In    foreign   money.] 


SS'J'JI.     DFFIMTIONS.     \n  Inland  hill  of  exd  'Oe 

drawn  and  payable  within  this  state.     All  others  a  ii. 

lli»(4>r.'>  I     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bllln  of  .V"  t.i 
note  I  3121,  anto. 

As    to    many   mlsr»llaneou«    matter*   aa    to  naffottaHl*    Instru- 
ments, see  note  |  30S6.  ante. 

Bill    of  exchanRe— What   Is. — See   Kerr's  Cy.  and 

note. 

1577 


§§  3225-3227  CIVIL  CODE.  [Div.III,Pt.TV. 

§  3225.  PROTEST  NECESSARY.  Notice  of  the  dishonor  of 
a  foreign  bill  of  exchange  can  be  given  only  by  notice  of  its 
protest. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note^l  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Definition  and  object  of  protest. — See  43  A.  D.   216,   217. 

Waiver  of  presentment  and  notice. — See  Kerr's  Cyc.  C.  C. 
§  3159  and  note. 

Wrongful  protest  of  commercial   paper.- — See  30  A.  S.   158,   159. 

§3226.  PROTEST,  BY  WHOM  MADE.  Protest  must  be 
made  by  a  notary  public,  if  with  reasonable  diligence  one  can 
be  obtained;  and  if  not,  then  by  any  reputable  person,  in 
the  presence  of  two  witnesses. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

§  3227.  PROTEST,  HOW  MADE.  Protest  must  be  made  by 
an  instrument  in  writing,  giving  a  literal  copy  of  the  bill  of 
exchange,  with  all  that  is  written  thereon,  or  annexing  the 
original;  stating  the  presentment,  and  the  manner  in  which 
it  was  made;  the  presence  or  absence  of  the  drawee  or 
acceptor,  as  the  case  may  be;  the  refusal  to  accept  or  to  pay, 
or  the  inability  of  the  drawee  to  give  a  binding  acceptance; 
and  in  case  of  refusal,  the  reason  assigned,  if  any;  and, 
finally,  protesting  against  all  the  parties  to  be  charged. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

1578 


d 


Tit.XV,ch.II,ait.VIII.]      PHOTEST.    NOTICE    OF.       §§3228-3231 

§3228.  PKOTEST.  WHKHK  MADE.  A  protest  for  non- 
acceptance  must  be  made  in  the  city  or  town  In  which  the 
bill  is  presented  for  acceptance,  and  a  protest  for  non-pay- 
ment in  the  city  or  town  in  which  it  is  presented  for  pay- 
ment. 

IliNtory:      FJnactod   March    21,    1872. 

Set'   Kerr's  Cye.  C.  C.  for  2  purs,  annotation. 

As  to  many  miscellaneous  matters  as  to  hills  of  exchange,  see 
note  $  3121,  ante. 

As  to  many  miscellaneous  m.ittirs  as  to  negotiable  Instru- 
ments,  Pee  note  §  3086,  ante. 

§3229.  PKOTEST,  >V1IE>  TO  HE  M.VDE.  A  prutosi  mu.^t 
be  noted  on  the  day  of  i)reseiitment,  or  on  the  next  busi- 
ness day;  but  it  may  be  written  out  at  any  time  thereafter. 

HlHtory:     Enaet.d  March   21,   1S72. 

See  K(;rr's  Cyc.  C.  C.  for  8  pars,  annotation. 

As  to  many  miscellaneous  nuittcrs  ns  to  hills  of  exchange.  Boo 
note  §  3121,  ante. 

As  to  many  miscellaneous  matt«rs  as  to  negotiable  Instru- 
ments, see  note  5  .TOSfi,  anti-. 

§3230.  PHOTEST,  >VIIE\  E.\(  ISEI).  Tiio  want  of  a  pro- 
test of  a  foreign  bill  of  e.vdiaiiK*'.  or  delay  in  mukiim  the 
same,  is  excused  in  lil\o  cases  with  flie  \v:mt  or  (l<>1rtv  of 
|)re8entment. 

Ili«l<>r>:      i;!..i.l.  .1   Al.i!.,.    .,,    .,.,.. 

A.s  to  many  miscellaneous  matters  as  to  bills  of  •  ^ 
note  I  3121,  ante. 

As    to    many    miscellaneous    mutters  ns    to    negotiabh 
ments.  see  note  I  30S6,  ante 

Presentment — Excuse  for  failure  or  delay. — See  K«rr*a  Cyc 
r.  C.   IS  3218-3220  and   n..t.s. 

§3231.     NOTICE   OF   PHOTEST.   HOW    <.|\KN.     .>.....    ...' 

protest  must  be  pivon  in  the  same  manner  as  notice  of  dis- 
honor, except  that  it  may  be  piven  by  the  ncitary  who  makes 
the  protest. 

Illxtoryi     Enacted  March  21,  187: 

As  to  many  miscellaneous  matters  as  to  bills  of  exohan^e,  so« 
note  {  3121,  ante. 

1579 


§§  3232-3234  CIVIL  CODE.  [Div.III,Pt.IV. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Form  of  notice  of  dishonor. — See  Kerr's  Cyc.  C.  C.  §  3143  and 
note. 

Service  of  notice. — See  Kerr's  Cyc.  C.  C.  §§  3144,  3145,  3146  and 
notes. 

Time  of  giving  notice. — See  Kerr's  Cyc.  C.  C.  §  3158  and  note. 

Who  may  give  notice. — See  Kerr's  Cyc.  C.  C.  §  3142  and  note. 

§3232.  WAIVER  OF  PROTEST.  If  a  foreign  bill  of  ex- 
change on  its  face  waives  protest,  notice  of  dishonor  may 
be  given  to  any  party  thereto,  in  like  manner  as  of  an 
inland  bill;  except  that  if  any  indorser  of  such  a  bill 
expressly  requires  protest  to  be  made,  by  a  direction  written 
on  the  bill  at  or  before  his  indorsement,  protest  must  be 
made,  and  notice  thereof  given  to  him  and  to  all  subsequent 
indorsers. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Notice  of  dishonor  waived. — See  Kerr's  Cyc.  C.  C.  §  3155  and 
note. 

§  3233.    DECLARATION  BEFORE  PAYMENT  FOR  HONOR. 

One  who  pays  a  foreign  bill  of  exchange  for  honor  must 
declare,  before  payment,  in  the  presence  of  a  person  author- 
ized to  make  protest,  for  whose  honor  he  pays  the  same, 
in  order  to  entitle  him  to  reimbursement. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  bills  of  exchange,  see 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note  §  3086,  ante. 

Acceptance  or  payment  for  honor. — See  Kerr's  Cyc.  C.  C.  §  3203 
and  note. 

§3234.  DAMAGES  ALLOWED  ON  DISHONOR  OF  FOR- 
EIGN  BILL.  Damages  are  allowed  as  hereinafter  prescribed, 
as   a   full   compensation   for   interest   accrued   before   notice 

1580 


Tit. XV.ch.IF.art. VIII.]  DAMAGKS.  55  3235-3237 

of  dishonor,  re-exchange,  expenses,  and  all  other  damages, 
in  favor  of  holders  for  value  only,  upon  bills  of  exchange 
drawn  or  negotiated  within  this  state,  and  protested  for 
non-acceptance  or  non-payment. 

HiMforyi     Enacted  March   21.   1S72. 

As  to  damagis  In  liou  of  Interest,  see  Kerr's  Cyc.  C.  C.  S  3234. 
note. 

As  to  many  miscellaneous  inattt-rs  as  to  Mils  of  exclianflre,  boo 
note  §  3121,  ante. 

As  to  many  miscellaneous  matters  as  to  negotiable  Instru- 
ments,  see  note  §  3086,  ant(\ 

§323.1.  I{.\TE  ()F  D.V.ir.VCiKS.  Damages  are  allowed  under 
the  last  section  ui»ou  bills  drawn  upon  any  person: 

1.  If  drawn  upon  a  person  in  this  state,  two  dollars  upon 
each  one  hundred  dollars  of  the  i)rincipal  sum  specified  in  the 
bill; 

2.  If  drawn   upon   a  person   out  of  this   state,   five  dollars 

upon    each    one    hundred    flullniv;    ,,f    the    ni-iiiein.-il     sum     sii.M-i- 

ficd  in   the  bill; 

;!.  If  drawn  upon  a  persuii  in  any  ttkne  in  a  fiirri-n  cuiin- 
try.  fifteen  dollars  upon  each  one  hundred  dollars  of  the 
principal   sum  specified  in   the  bill. 

IIIntorTt  Enacted  Marrli  21.  1872;  amended  by  Code  C^mmln- 
.«<i<Mi.  Art  March  16.  1901.  SUts.  and  Amdta.  1900-1.  p.  421.  hold 
unconstitutional,  see  history.  |  4  ante;  aniondinent  re-enacted 
March   21.  lOO.'i.  Stata.  and  Amdtn.   1906.  p.  621. 

S32:{(i.  INTEREST  O.N  .VMOl.M  01  I'HOlhMlH  HML. 
From  the  time  of  notice  of  dishonor  and  demand  of  p&,v- 
ment.  lawful  Interest  nnist  be  allowed  uiwm  the  aggregBte 
amount  of  the  principal  sum  Hi)ecllied  In  the  bill,  and  the 
(lainagos  mentioned   in   the  prpceding  section. 

III-.li>r>i      KiKi.  t.  ,1    M:ii.!i       '      '  '  "  " 


§  3_»n7.     I>A.MA(JF.S,  HOW   KSTIMATEH.     If  the  amount  of 
a  protested   bill  of  exchange   is  expressed   In   money  of  the 

1581 


§§  3238, 3244  CIVIL  CODE.  [Div.III,Pt.IV. 

United    States,    damages    are    estimated    upon    such    amount 
without  regard  to  the  rate  of  exchange. 

History:     Enacted  March   21,  1872. 

§3238.  SAME.  [IN  FOKEIGN  MONEY.]  If  the  amount 
of  a  protested  bill  of  exchange  is  expressed  in  foreign  money, 
damages  are  estimated  upon  the  value  of  a  similar  bill  at 
the  time  of  protest,  in  the  place  nearest  to  the  place  where 
the  bill  was  negotiated  and  where  such  bills  are  currently 
sold. 

History:     Enacted  March   21,   1872. 


CHAPTER   III. 

PROMISSORY  NOTES. 

§  3244.  Promissory  note,   what. 

§  3245.  Certain    instruments    promissory    notes. 

§  3246.  Bill  of  exchange,  when  converted  into  a  note. 

§  3247.  Certain    sections   applicable    to    notes. 

§  3248.  Effect    of   delay    in   presentment. 

§3244.  PROMISSORY  NOTE,  WHAT.  A  promissory  note 
is  an  instrument,  negotiable  in  form,  whereby  the  signer 
promises  to  pay  a  specified  sum  of  money. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 
103  C.  319,  324,  42  A.  S.   117,  37  P.  401    (applied). 
As    to    many    miscellaneous    matters    as    to    negotiable    instru- 
ments, see  note  §  3086,  ante. 

PROMISSORY  NOTES. 

As  to  form  of. — See  1  A.  C.  610;  7  A.  C.  802;  9  A.  C.  1193. 

As  to  what  constitutes  indorsement  of  negotiable  instrument, 
see  'Kerr's  Cyc.  C.  C.  §  3108  and  note. 

Accommodation — As  to  rights  of  parties  under,  see  2  A.  C. 
256. 

Same — Acquirer  of  after  maturity,  right  of. — See  36  A.  R.  335. 

Same — Indorsement  by  bank. — See  23  L.  836. 

Same — Liability  of  maker  and  endorser. — See  5  L.  698. 

Same — Power  of  corporation  to  issue, — See  9  L.  N.  S.  1193. 

1582 


Tit.XV.Ch.III.l  NOTES.    ORNKHAM.Y.  5  3244 


Same — RIplitH    and    llablHtioa    of    makers    imd    Indomom.' 
31  A.  S.  745. 

Actions  and  defences,  as  to.  f^encrally,  sec  4  L.  19S;  22  Ij.  686: 
61  L.  266. 

Admissibility  of  parol  evidence  to  show  delivery  of.  upon  con- 
dition.— See   18  I..  N.  S.   288. 

ApTont.  personal  liability  of  on. — See  9  L.  830. 

Agreement  or  memorandum   not  to  enforce. — See  38  A.   D.  346. 

Alteration  of — After  execution. — See  7  A.  R.  669. 

Sann — By  insertion  of  Interest  clause. — See  2  !>.  N.  S.  217. 

Amount  of  recovery  on,  as  to,  grenerally,  see  36  L.   441;   44  !>. 
243-250. 

Assignee  of  legal   title — As  to.  generally,  see   1    A.  C.   832. 

Same — Right  of  action  tliereon  of  nominal  holder. — See  1  A.  C 
833. 

Attorneys'  fees — Stipulation  In  note  for  payment  of.  effect  on 
negotiability.— See  4  A.  C.   263:  1   L.  547;  3  L.  Bl. 

Same — Validity   of   stipulation    In    note   for. — See    55    A.   S.    848: 
7  L.  445. 

Authority  and  capacity  of  parties — As  to.  generally,  see  4  A.  C 
537;  6  A.  C.  999. 

Same — Executed  or  Indorsed  by  lunatic,  validity  and  effect  of. 
— See  4  A.  C.  539. 

game — Ijlablllty  of  person  signing  as  officer  of  corporatb'i. 
See  6  A.  C.  1000. 

Same — Power    of    president    and    secretary    of    corpomtlon    to 
execute. — See   2  A.  C.   520. 

Hlank  in.  niling  of  after  execution. — See  13  A.  D.  S6'.' 

Bona  flde  holder,  who  Is.— Sep  3  A.  D.  235;  9  A.  P.  27 -'     u    \     i' 
698. 

Bona  fide  purchaser — As  to,  generally,  see   1    A.  C  21 Z .   2  A.  C. 
264:  2  A.  C.  604;  4  A.  C.  347;  5  A.  C.   158;  6  A.  C.  6SI. 

Same — Of  accommodation    note  after  nuiturlty,   right   of  —  "^■•^ 
2  A.  C.  256. 

Same — ()f  over-due  negoilable  paper  from  one  to  whom  n 
been  Intrusted. — See  5  A.  ('.  5M3. 

Samt — Transfer  of  In  payment  of  an  antecedent  debt,  wh«th*r 
Is  a. — See  36   A.   U.  688. 

Same — Validity    In    bunds   of,   of    negotiable  contmct   void   by 
statute  between  original  parties. — See  4  A.  C,  868. 

Hy  parent  to  chlUl.  may  It  be  th.>  subject  of  n  valid  Ctft  l>> 
former  to  the  latter. — See  7   I..   N.  S.   156. 

Contllct  of  laws — As  to  rights  and  llnbllltles  of  partle*  t- 
6  A.  C.  158;  61   !>.   193. 

Same — As   to   vallcllty    of    transfer   of   conun-r.  I.U    v  ii.or»     -S.^ 
2   A.  C.   706. 

Same — Concerning. — Seo  91    A.  8.  718,  733. 

Consideration   for — As   to.  generally,  see    :  ■ 

260     1  L.  594;   10  I.,.  676:   12  1*  845;  18  I*  86S:  2«  1*  Aw*;  4*  U  ',i*t. 

1683 


§  3244  CIVIL  CODE.  [Div.III,Pt.IV. 

Same — Partial  failure  of  as  defense  to  action  on. — See  2  A.  C. 
430. 

Same^ — Statute  requiring  giving-  for  patent  right  to  show,  con- 
stitutionality.— See  5  A.  C.  426. 

Construction  together  of  note  and  contemporaneous  written 
instrument  intended  to  control   note. — See   5  A.   C.   149. 

Contemporaneous  agreement  and  breach  as  to  defense  to  an 
action  on. — See  43  L.  449-469. 

Centjact  of  guaranty  of,  does  it  cover  renewals. — See  16  L.  N. 
S.  775;  also  note  §  2787,  ante. 

Corporations— Power  to  issue  accommodation  paper. — See  9 
L.  N.  S.  193. 

Delivery — Agreement  for  other  signatures  before. — See  45  L. 
343. 

Same — As  an  escrow.- — See  5  L.   697. 

Same — Conditional. — See  43  L.  480. 

Same — Necessity  of.- — See  6  L.  470. 

Same — Takes  effect  from. — See  6  L.  469;  13  L.  52. 

Demand  and  notice  of  dishonor— Waiver  of  by  taking  security. 
— See  39  A.  D.  95. 

Same — What  excuses. — See  1  A.  D.  99. 

Demand  required  where  payable  in  specific  articles. — See  46 
A.  R.  307. 

Demand  where  maker  is  out  of  the  state. — See  13  A.  D.  346. 

Discharge  and  payment — As  to,  generally,  see  5  A.  C.  296;  7 
A.  C.  364;  7  A.  C.  1000. 

Same — Failure  of  bank  to  apply  general  deposit  on  depositor's 
note  as  discharging  surety  or  indorser. — See  7  A.  C.  1007. 

Same — Payment  to  bank  where  note  is  made  payable  as  dis- 
charging maker.- — See  5  A.  C.  298. 

Duty  of  one  taking,  to  communicate  the  check  of  principal's 
insolvency  to  one  assuming  the  obligation  of  surety. — See  14 
L.  N.  S.  376. 

Effect  of  acceleration  provision  in  note  to  start  statute  of 
limitations  running.— See  12  L.  N.  S.   1190. 

Effect  of  setting  up  defects  in  articles  purchased  as  a  coun- 
terclaim on  one  of  a  series  of  notes  given  for,  or  for  an  instal- 
ment of,  the  purchase  price,  upon  the  right  to  set  up  like  coun- 
terclaim in  subsequent  actions. — See  10  L.  N.  S.  734. 

Executed  to  fictitious  payee,  effect  of. — See  55  A.  R.  472. 

Execution  and  delivery — As  to,  generally,  see  3  A.  C.  559;  4 
A.  C.  639. 

Same — Parol  evidence  of  conditional. — See  3  A.  C.  560. 

Extrinsic  evidence  to  show  who  is  liable  as  maker  of,  admis- 
sibility of. — See  20  L.  705. 

Fictitious  names — As  affecting  validity  of. — See  39  L.  425. 

Same — Rights  of  bona  fide  holder  of. — See  6  L.  625. 

Figures  in  margin  of,  object  and  effect  of. — See  1  A.  C.  611; 
44  A.  R.  690. 

1584 


Tit.XV.Ch.III.]  NOTES,    GENERAI.r.V.  §3244 

Forged — Liability  of  seller  of. — See  50  A.  D.  60G. 

Same — Liability  on. — Soe  3G  L.  539. 

Same — Right  of  recovery  of  persons  receiving  i-.i.- u>',>l  <>{. — 
See  17  A.  R.  313. 

I<"'orged  indorsement — As  to  generally,  see  49  A.  D.  315. 

Same — Estoppel  to  contest. — See  37  A.  R.  704. 

Form  of,  figures  in  the  margin  of,  effect  of. — See  44  A.  H.  690. 

Forms  of  indorsement — As  to,  generally,  see  1  L.  64S;  1  I^  712; 
6  L.  469;  12  L.  370. 

Same — For  collection. — See  2  L.  699;  7  L.  852:  8  L.  4  2. 

Same — Irregular  as  to. — See  18  L.  33;  61  L.  200. 

Fraud — In  inception  of  does  not  prejudice  a  bona  tide  holder. 
—See  11  A.  S.  309. 

Same — In  procuring  the  delivery  of,  when  available  ns  a 
defense. — See  37  A.  S.  458. 

Guaranty  of  collection  of — As  to,  see  note  §  2787,  ante. 

Same — Effect  of  and  how  enforced. — See  64  A.  S.  393. 

Guaranty  by  surety  of  other  signatures. — See  49  L.  315. 

How  far  wife  bound  by,  given  for  family  expenses. — See  3  L. 
N.  S.  145. 

Implied  warranty  of  genuineness. — See  12  L.  434;  36  L.  92-96; 
49  L.  415. 

Indorsement — Acknowledgment  by  payee,  in  Indorstinent,  of 
lial)ility  as  maker. — See   7   L.  N.   S.   400. 

Same — By  one  not  a  payee. — See  3  A.  D.  571. 

Same — By  one  of  two  joint  payees  or  indorsees. — See  18  I..  N. 
S.    630, 

Same — By  stranger  before  delivery. — See  72  A.  S.   676. 

Same — By    third    person    before   delivery. — See    39    A.    U.    5.'>7. 

Same — Failure  of  bank  to  apply  principal's  deposit  account 
upon    note,   effect    upon    indorser   or   surety. — See    8    I*    N.   S.   944. 

Same — In  blank  by  person  other  than  the  payee  or  holder. — 
See    29    A.    S.    297. 

Same — Liability  of  one  who,  after  receiving  relndorsement, 
transfers  the  note  for  value  without  cancelling  his  Indorse- 
ment.— See    10   L.   N.   S.    260. 

Same — Parol  evidence   to  vary   effect  of. — See  7   A.  S.   366. 

Same — Payment  voidable  under  l»ankruptcy  act  as  discharge 
of  surety,  guarantor  or  Indorser. — See  9  L,  N.  S.  681. 

Same — Right  to  show  by  parol  evidence,  unrestrlolcd  reform, 
was  for  purpose  of  collection  only. — See  17  L.  N.  8.  838. 

Same — "Without  recourse." — See   87   A.   D.   389. 

Indorsement  and  transfer — As  to.  generally,  see  13  I*  62;  23 
L.  836:   28  L.  577;  50  L.  75:   61    L.   220. 

Indorser — Before  delivery,  liability  of. — See  27  A.  R.  680. 

Same — Before  due,  competency  of  as  a  witness.- — See  22  A. 
R.   93. 

Infant's  note  for  necessary  supplies,  liability  on. — See  6  L. 
177;  12  L.  859. 

1585 


§  3244  CIVIL  CODE.  [Div.III.Pt.IV. 

Interpretation  of  negotiable  instrument. — See  Kerr's  Cyc.  C.  C. 
§§  3099-3104   and    notes. 

Irregular  indorsement,  as  to. — See  18  L.  34-36;   61  L.   200. 

Levy  on  and  seizure  under  attachment  or  execution. — See  14 
L.   N.   S.    1234. 

Lost  or  destroyed,  right  of  action  at  law  on. — See  16  L.  205. 

Lunatic,  validity  and  effect  of  negotiable  paper  signed  or  in- 
dorsed by. — See  4  A.  C.   539. 

Marginal  letters  or  figures  on,  otherwise  blank  as  to  amount, 
effect   of. — See   2  L.  N.   S.    879. 

Maturity  of — As  to,  generally,  see  1  L.  319;  3  L.  759;  12  L. 
120;    21   L.   440;    49  L.   207;    61   L.   195. 

Same — Bank  custom  as  to  days  of  grace. — See  21  L.  442. 

Same— Extension  of  time  when  next  day  follows  on  Sun- 
day.— See    14    L.    120. 

Same — Of  demand   note. — See   5   L.   533. 

Memorandum  on  back  of,  at  time  of  execution,  as  substan- 
tive part  thereof. — See   15  L.  N.  S.   612. 

Memorandum  upon,  what  deemed  a  part  of,  and  effect  of  alter- 
ation  of.— See   14  A.   D.   232. 

Negotiability  and  transfer  of — As  to,  generally,  see  1  A.  C. 
384;    2   A.   C.   504;    4   A.  C.   261. 

Same — Conflict  of  laws  as  to  validity  of  transfer  of  commer- 
cial paper. — See  2  A.  C.  706. 

Same — Of  note  containing  a  stipulation  for  attorney's  fees 
and    costs   of   collection. — -See    4   A.    C.    263. 

Same- — Of  note  payable  with  exchange. — See  1  A.  C.  385. 

Negotiability  of — As  to,  generally,  see  1  L.  299;  3  L.  50;  7  L. 
537;  8  L.  393;  11  L.  749;  12  L.  781;  20  L.  481;  26  L.  568;  35  L.  536; 
61  L.   205. 

Same — Attorney's  fee,  effect  on  of  provision  for  payment  of. — 
See   21  A.  R.  212. 

Same — Provision  permitting  extension  of  time,  as  affecting. — • 
See   16   L.   N.   S.    878. 

Same — Reference  to  account  or  fund  as  affecting. — See  8  L. 
N.    S.    231. 

Same — Uncertainty  as  to  time  of  maturity,  as  affecting. — See 
1    L.    N.    S.    1120. 

Negotiable — Bona  fide  holders,  right  to  recover  on. — See  26 
A.  D.   156. 

Same — Demand  and  notice  of  dishonor,  waiver  of  by  promise 
to  pay  made  after  maturity. — See  8  A.  D.  304. 

Same — Indorsement  of  by  one  not  a  holder  or  payee. — See  56 
A.    D.    359. 

Same — Indorsement,  parol  evidence  to  limit  or  vary  effect 
of.— See   9   A.   D.   381. 

Non-negotiable — Blank    indorsement   of. — See    13   A.   D.    55. 

Same — Liability  of  indorser  under. — See  97  A.  S.   985. 

1586 


t 


Tit.XV.ch.IIL] 


NOTES,    GENERALLY. 


§3244 


Non-trading  partners,  commercial  paper  executed  by. — See  11 
L.    238. 

Notice  of  dishonor,  how  waived. — See  38  A.  D.  607. 

Notice  of  non-acceptance,  necessity  of. — See  2  A.  D.  619. 

Object  and  effect  of  marginal  figures  at  bills  and  notes. — See 
1    A.    C.    611. 

Officer  of  corporation — Person  signing  as,  liability  of. — See  6 
A.   C.    1000. 

Same — Personal  liability  of  on  note. — See  19  L.  676. 

On  which  interest  is  passed  to,  whether  to  be  regarded  as  dis- 
honored and  subject  to  defenses  in  the  hands  of  bona  fide 
holders. — See    100   A.    D.    196. 

Partial  failure  of  consideration  as  a  defense. — See  2  A.  C.  430. 

Partner,  power  of  one  to  bind  firm  by,  under  seal. — See  17  L. 
N.   S.   969. 

Payable  on   demand. — See   80   A.   D.    250. 

Payee,  designation   of,   what  a  sufficient. — See   64  A.   D.    156. 

Payment  and  discharge — As  to  authority  of  bank  to  pay  where 
made  payable  at  the  bank. — See  9  L.   560. 

Same — By  maker,  which  provision  ineffectual  as  to  satisfac- 
tion, as  affecting  tlie  liability  of  a  surety  thereon. — See  13  L.  N. 
S.    204. 

Same — Effect  of  payment  by  volunteer. — See  2  L.  124. 

Same — Where   payable   in   foreign   money. — See    20   L.    4S1. 

Place  of  payment — Effect  of  failure  to  specify. — See  K>rr's 
Cyc.  C.  C.  §  3100  and  note. 

Power  of — Building  association  to  issue. — See  43  L.   419. 

Same — Partners  to  bind  firm  by,  under  seal. — See  17  I...  N.  S. 
969. 

Same — Transfer  or  indorser. — See  4  L.  857;  14  L.  35S;  23  L. 
711;  27  L.  401-407;   53  L.  857. 

Presentation  and  demand — As  to,  generally,  see  7  A.  C.  690; 
21    L.    441;    61   L.    216. 

Same — At  place  named  in  note  payable  on  demand  as  con- 
dition  precedent  to  suit  against  maker. — See   7  A.  C.   693. 

Same— Effect  of  failure  or  delay.— See  22  L.  785;  68  L.  482- 
491. 

Same — Necessity    of — As    to.    generally,    see    12    L.    727:    61    L. 

216,  217;    68    L.    487. 

Same — Same — Actual,  to  affect  its  dishonor. — See  13  L.  N.  S. 
303. 

Same — Same — New  consideration  to  support  failure  to  protest 
or  give  notice  of  non-payment. — See  3  L.  N.  S.  1079. 

Same — Release  of  indorser  l>y  failure  to  enforci-  liability  of 
maker. — See   18  L.  N.  S.   530. 

Same — Sufficiency    of — As    to,    generally,    see    12    L.    731;    61    L. 

217,  218. 

Same — Same — Banking  custom  as  to  demand  and  notice. — 
See  21  L.  441. 

1587 


§  3244  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — Same — In  case  of  death  of  prior  obligor. — See  23  L. 
711. 

Same — Same — Place    of. — See    12   L.    727. 

Same — Same — Service  of  notice  by  mail. — See  12  L.   731. 

Same — Same — Time  within  which  notice  must  be  given. — See 
12   L.   729. 

Same — Same — To  whom  notice  and  protest  to  be  given. — See 
61    L.    900. 

Same — Time  allowed  for. — See  4  L.  N.  S.  132. 

Same — Waiver. — See    29    L.    301-315;    53    L.    365;    68    L.    491. 

Presentment  of — For  payment,  what  a  sufficient. — See  24  A.  R. 
160. 

Same — Place  of. — See  50  A.  D.  643. 

President  and  secretary  of  corporation  are  to  execute. — See  2 
A.    C.    520. 

President  or  vice-president  of  a  corporation — Power  of  to 
make. — See    14   L.    357. 

Presumption — And  burden  of  proof  in  action  by  purchaser. — 
See    17    L.    326. 

Same — Of  place  of  indorsement  of  negotiable  instrument. — 
See  5  A.  C.  160. 

Procured  by  fraud,  rights  of  bona  fide  purchasers  of. — See 
41  A.  R.   607. 

Proof  of,  as  fixed  liability  under  bankruptcy  act. — See  54  L. 
373. 

Protest  and  notice — As  to,  generally,  see  4  A.  C.  639;  5  A.  C. 
476;    6  A.   C.   280;    6   A.  C.   408. 

Same — As  evidence. — See  96  A.   D.   602. 

Same — Necessity  of  new  consideration  to  support  waiver  of 
protest   of. — See   5   A.   C.   478. 

Same — Necessity  of  notice  of  dishonor,  to  fix  liability  of 
surety. — See  6  A.  C.  280. 

Same — Purpose,  mode  and  sufficiency  of. — See  43  A.  D.   216. 

Same — To  whom  to  be  given  when  indorser  is  insolvent  or 
bankrupt. — See   54  A.   R.   818. 

Same— Wrongful,    liability  for. — See    30   A.   S.    158. 

Provision  for  exchange,  as  affecting  negotiability. — See  27  L. 
222. 

Public  agents  executing,  personal  liability  of. — See  37  A.  R. 
142. 

Public   officer,   liability   on   negotiable  paper. — See   15   L.    512. 

Purchaser  of  after  default  in  tlie  payment  of  interest. — See 
30  A.   R.    701. 

Purchaser  with  notice — As  to  rights  of,  see  6  A.  C.  202;  8 
A.  C.  623;  9  A.  C.  339. 

Same— Purchaser  of  one  of  series  of  notes  having  notice  of 
defense  against  other  notes,  as  innocent  purchaser. — See  9  A.  C. 
340. 

1588 


Tit.XV.ch.III.]  NOTES.    GENERAT.LY.  §3244 

Recovery  back  of  payment — As  to,  generally,  see  I'l  I>.  N.  S. 
49-73. 

Reformation  of  In  eciuity. — See  65  A.  S.  519. 

Reissue  of — After  payment. — See  95  A.  D.  587. 

Same — Payment  or  acceptance  to  prevent. — See  92  A.  D.  575. 

Renewal  of  note  by  insane  person,  validity  of. — See  34  L. 
294. 

Replevin  or  detinue  for. — See  3  L.  N.  S.   138. 

Rights  and  liabilities  of  parties  to. — See  7  A.  C.  394. 

Right  of  action   on,  of  nominal   holder. — See  1   A.  C.   833 

Right  of  an  Innocent  payee  to  recover  on  a  note  slgn.-l  iu 
blank  and  intrusted  to  a  third  person  who  exceeds  his  author- 
ity in  filling  up  the  blanks  before  delivery  to  the  payee.— Sec 
13   L.   N.    S.    490. 

Rights  of  holder  where  transferred  after  maturity.— See  46 
L.    753-812. 

Right  of  transferee— As  to,  generally,  see  49  L.  679;  54  I.. 
673;   1  L.  N.   S.   242,  18  L.  N.   S.   1221. 

Same — Bona  fide  holders,  notice  of  equities. — See  1  I-  N.  S. 
188;   2  L.  N.  S.   525;'  5  L.  N.  S.   628;   17  L.  N.  S.  747. 

Same— Extent  of  rights  and  protection  of  bona  flde  purchas- 
ers—See 6  L.  502;  16  L.  45:  35  L.  161;  35  L.  464-470;  36  L.  434- 
441;  54  L.  451:  61  L.  202;  3  L.  N.  S.  212;  4  L.  N.  S.  1042:  10  L.  N. 
S.    842;    13    L.    N.    S.    426. 

Same— Transfer  after  maturity,  ottoH  of.— See  2  I..  N.  S.  767; 

11  L.  N.  S.   1034. 

Same — Transfer  without  indorsement. — See  10  L.  N.  S.  510- 
553;    17    L.    N.    S.    1105. 

Same— Who  protected  as  bona  nde  purchasers.— See  10  I>.  677; 

12  L.   41;   61   L.   212. 

Right  to  follow  as  a  trust. — See  34   L.  536. 

Right  to  maintain  trover  to  recover  pos.'ses.'^lon  of  paid.— S.-o 
16   L.   N.   S.    1043. 

Seal,   effect  of  attaching  to. — See   36   L.   605. 

Signature  of — As  surety  for  surety. — See  21   I...   247. 

Same — By   mark. — See   22   L.   372. 

Same — By   proxy. — See    22   L.    297. 

Same — Fictitious    names,   as  affecting    validity    of.-  S-  • 
425. 

Same— Guaranty  by  surety  of  other  signatures. — J^^  '  •'• 

Same— Use   of   Initials    In.   or   In   Indorsing. — See    14    U    r.y.1. 

Signed  through  belief  that  there  were  other  writings.  Induced 
by  false  represeiitatlon.«<.  effect  of  In  the  hands  of  bona  fldo 
holders. — See    4    A.    R.    240. 

Signed  through  fraudulent  representations  ns  to  character  of 
Instrument  signed. — See  11   A.   R.   449. 

Situs  of,  for  purposes  of  administration. — See  24  L.  689. 

1589 


§  3245  CIVIL,  CODE.  [Div.III,Pt.IV. 

Statute  of  limitations,  effect  of  acceleration  provision  in  note 
to  start  running-. — See  12  L.  N.  S.   1190. 

Title  acquired  by  payee  of  instrument  fraudulently  procured 
from  maker,  or  subject  to  other  defenses,  by  purchase  after 
transfer  to  innocent  third  party. — See  8  A.  C.   626. 

Transfer — In  violation  of  contract,  effect  of. — See  5  A.   C.   148. 

Same — Of  negotiable  note  as  security  for  antecedent  debt. — 
See    1  J^.    C.    275. 

Transferee  of  accommodated  party,  right  of  after  maturity 
as  against  accommodation  party. — See  2  A.  C.  256. 

Unconditional  promise  to  pay  is  essential  to. — See  42  A.  R. 
366. 

Validity  of- — Given  as  a  forfeit  or  as  collateral  to  an  invalid 
oral    agreement    within    statute    of    frauds. — See    18    L.    142. 

Same — Given   for  money   lost   at   play. — See    7   L.    705. 

Same — Given  for  patent  rights. — See  20  L.   605. 

Same — Note    renewed    by    insane    person. — See    34    L.    274. 

Same^ — -Of  stipulation   for  attorney's  fees. — See   7   L.   445. 

Validity  and  effect  of  negotiable  paper  signed  and  indorsed 
by   lunatic. — See    4   A.    C.    539. 

Validity  in  hands  of  bona  fide  holder  of  negotiable  contract 
void  by.  statute   between   original   parties. — See   4  A.   C.   353. 

Validity  of  oral  guaranty  by  transfer  of  negotiable  instru- 
ment.— See  2  A.  C.  506;  also  note  §2787  ante. 

Validity  of  statute  requiring  not  given  for  patent  rights  to 
show   consideration. — See   5   A.   C.    426. 

Waiver  of — Demand  and  notice  by  taking  security. — See  4 
A.    D.    49. 

Same — Right  to  demand  and  notice  on  part  of  indorser,  proof 
of  by  parol. — See  57  A.  D.   665. 

Where   taxable. — See   2   L.    801. 

Who  may  sue  on,  as  to,  generally,  see  12  L.  683;  61  L.  222; 
64    L.    599. 


§3245.    CERTAIIV  INSTRUx¥ENTS  PROMISSORY  XOTES. 

An  instrument  in  the  form  of  a  bill  of  exchange,  but  drawn 
upon  and  accepted  by  the  drawer  himself,  is  to  be  deemed 
a   promissory    note. 

History.:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421, 
held  unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments, see  note   §  3086,  ante. 

1590 


Tit.XV,ch.III.l  nilJ.S   of   EXCIIANr.i:.  §§3246-3248 

§3246.  HILL  (»F  KX("HA>(;E,  »HK\  ((nVKKTKI»  INTO 
A  >OTE.  A  bill  of  exchange,  if  accepted,  with  the  consent 
of  the  owner,  by  a  person  other  than  the  drawee,  or  an 
acceptor  for  honor,  becomes  in  effect  the  promissory  note 
of  such  person,  and  all  prior  parties  thereto  are  exonerated. 

liiNlory:      Eiuict.d   March    21.    1872. 

As  to  many  miscellaneous  matters  as  to  negfotlable  Instru- 
ments,  see   note    §  3086,   ante. 

Acceptance  or  payment  for  honor. — See  Kerr's  Cyc.  C.  C. 
8§  3203-3207    and    notes. 

§3247.     (EKT.VIN    SE(TI()\S    ATrLKAULK    TO    NOTES. 

Chapter  one  of  this  title,  and  sections  thirty-one  hundred 
and  eighty-one  and  thirty-two  hundred  and  fourteen  of  this 
code,  apply  to  promissory  notes. 

IllNt«>ryi      Knacted   March    21.    1S72. 

74  C.  362,  364.  16  P.   19,  20   (referred  to). 

As  to  many  miscellaneous  matters  as  to  negrotlable  Instru- 
ments,  see    note    §  3086.   ante. 

§:i24S.     EFFECT    OF    DELAY    IN    TKESENT.MENT.      If    a 

promissory  note,  payable  on  demand,  or  at  sight,  without 
interest,  is  not  duly  presented  for  payment  within  six  months 
from  its  date,  the  indorsers  thereof  are  exonerated,  unless 
such  i)resentment  is  excused. 

lIlMtoryt     lOnhcled   March   21.   1872. 

See  Kerr's  Cyc.   C.  C.   for   4   pars,   annotation. 

74  C.   362,  364,    16   1'.    10,  20   u-.-ferred  to). 

As  to  many  mlscellaneoUH  matters  as  to  nefrotinl>l<-  Instru- 
ments,  see    note    I  3(186.   ante. 

Apparent  maturity  of  note. — See  Korr*«  Cyo.  C.  C.  |  X1S6  and 
note. 

Excuse    of    presenlinent    and    notice. — 8e«    X«IT'«    <" 
SI  3155-3160   and   notes. 


1591 


§  3254  CIVIL  CODE.  [Div.III,Pt.IV. 

CHAPTER  IV. 

CHECKS. 

§  3254.      Check,    what. 

§  3255.      Rules   applicable    to    checks. 

§3254.  CHECK,  WHAT.  A  check  is  a  bill  of  exchange 
drawn  upon  a  bank  or  banker,  or  a  person  described  as  such 
upon  the  face  thereof,  and  payable  on  demand,  without  inter- 
est. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

134  C.  237,  241,  66  P.  326  (cited);  138  C.  183,  185,  94  A.  S.  28, 
71  P.  93  (cited);  4  C.  A.  201,  205,  87  P.  467  (nature  and  nego- 
tiability  of   check). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments,  see   note    §  3086,   ante. 

CHECKS. 

Acceptance  of — Binds  money  after  payment  when. — See  25  L. 
200. 

Same — Sufficiency  of  to  bind   drawee. — See   11   A.   C.    284. 

Agent,  power  to  indorse. — See  27  L.  401. 

As  an  appropriation  or  assignment  of  money. — See  64  A.  D. 
632;  27  A.  R.  55;  42  A.  S.  921;  81  A.  S.  72;  88  A.  S.  979;  94  A.  S. 
28;   21  L.  ed.  424;  41  L.  ed.   855;   1  W.  &  P.  692. 

As  an  assignment  pro  tanto.^ — See  5  A.  C.  183,  189;  5  A.  C. 
937. 

As  cash.— See  34  A.  D.  228;  1  "W.  &  P.  995. 

As  false  token. — See  72  A.  S.  758;  44  L.  266;  3  W.  &  P.  267. 

As  money.— See  20  L.  223;  45  W.  &  P.  4560. 

As  thing  of  value. — See  2  W.  &  P.  1112. 

Authority  of  agent  to  collect,  to  receive  in  payment. — See  9 
A.   C.   1193,    1198;    10   A.   C.   420. 

Banking  customs  as  to. — See  2  L.  443. 

Bank  note  distinguished. — See  1  W.   &  P.   692. 

Bill  of  exchange  distinguished. — See  2  A.  D.  126;  64  A.  D.  290; 
10  A.  R.  681;  45  A.  R.  129;  69  A.  S.  495;  81  A.  S.  72;  23  L.  173; 
31  L.  ed.  97;   35  L.  ed.   481;   2  W.  &  P.  1110. 

Cashier's  check  distinguished. — See  95  A.  S.  693;  57  L.  341;  2 
W.    &   P.    1112. 

Certification  of — As  release  of  drawer  or  indorser. — See  9  L. 
N.    S.    698. 

1592 


TitXV.ch.IV.]  CHECKS.   GENERai.lv.  J  3254 

Same — Effect  of. — See  12  L.  492. 

Same — Same — Liability  of  drawee  or  IndorBer. — See  11  A.  C 
245. 

Same — Same — On    liability    of    lndnr.«er. — See    IG   L.    510. 

Same — Parol. — See  7  L.  428. 

Corporation,  power  of  president  as  to  drawlnRT  or  payln»c. — 
See   14  L.   357. 

Creditor's  neglect  in  presontlnff  check  to  third  person  t->r 
payment  as  a  discharge  of  the  debtor. — See  5  A.  C.  871. 

Defenses  against,   transferred  after  maturity. — See  46   I*  808. 

Deposit  presumed. — See  2   W.  &  P.   1112. 

Drafts  on  bank  as. — See   23   L.    173. 

Drawee's  right  to  recover  money  paid  on  forged  check. — S«'o 
10  L.   N.   S.    49. 

Duty   of   bank   to   know   signature   upon. — S'>«»   27    L.    fi35. 

Effect  of.  as  to  generally,  see  7  L.  596:  9  L.  109;  11  L.  52S; 
19  L.   475;   20  L.   791. 

ICfTtct  of  acceptance  of  check  as  payment. — See   9  L.   26S. 

Effect  of  giving,  for  an  indebtedness  or  part  thereof  to  toll 
statute  of  limitations  upon  the  original  indobtednesa. — See  18 
L.  N.  S.  223. 

Forged — Holder,  wlun  antl  how  may  recover  of  drawer  or 
indorser. — Soc    17    A.    S.    807. 

Same — Liability  of  person  whose  name  is  forg«'d  t"  -  s.  ■•  ^a, 
L.    539. 

Same — Raised  checks,  as  to  generally,  see  5  A.  C.  77  i 

Same — Same — Liability  of  bank  to  dcposltur  for  paying.— 8«e 
5  A.  C.  774. 

Same — Right    to   recover   money    paid    on. — Sec    10   !>.    N.    S.    49. 

Same — Rights  and  remedies  of  the  several  parties  after  pay- 
ment of. — See   17   A.   S.   889. 

Same — Signature   forged. — S»-e   7   A.   C.    74  >. 

Same — Same — Unre.strlcted  Indornement  of  clieck  nn  wnrrnnly 
that   Instrument  Is   genuine. — See   7   A.  C.    746. 

Gift    of.— See    18    L.    S.".:,. 

Holder,  when  and  how  niav  recover  of  drawir  or  lni|i»r»er.- 
See    17    A.   S.   807. 

Impostor,  who  to  bt-ar  loss  where  check  l«»»ued  or  Indoracd 
to.— See    17   I>.   N.   S.    r.II. 

Indorsement   of   "for  deposit." — See   23   I>.    164. 

I.H.«ued  or  Indornetl  to  Impostor,  who  to  bear  1os». — f*<-e  S"  T* 
75:   17  L.  N.  S.  514. 

Liability    of — Bank    for    refusing.    wh«u    It    hnn    fiii- 
dorser. — See    15    L.    13  4. 

Same — Creditor  who  accepts  as  payment  from  debtor  checJi 
of  third  person  wlilrh  has  been  wrongfully  procured  by  debtor. 
—See   13   K   N.   S.   278. 

Same — Drawee  for  accepting,  from  agent  or  fldtirlary  In  pay- 
ment of  his  debt. — See  62  L.   790. 

1593 


§  3254  CIVIL  CODE.  [Div.III.Pt.IV. 

Same — One  to  whom  insolvent  bank  has  paid  a.— See  13  L.  N.  S. 
185. 

Same — Person  wliose  name  is  forged  to  check. — See  36  L.   539. 

Limitation   of   actions   on. — See   22   L.    110. 

Loss  of,  effect  of  upon  right  of  holder  to  recover  against 
maker  without  presentment. — See   14   L.   N.   S.   616. 

Lost,  liability  of  maker  who  makes  wrongful  payment. — See 
Kerr's  Cyc.  C.  C.  §  3177  and  note  pars.  4,  5. 

Mere  drawing  of  check  on  bank  in  which  drawer  has  no 
funds  or  credit  and  presenting  same  as  false  pretenses. — See  17 
L.    N.    S.    244. 

Nature  of. — See   7  L.   595. 

Negotiability   of— As   to,   generally,   see   25   L.    568-571. 

Ordinary  bank  check  as  an  assignment  of  funds  to  drawer. — 
See   5  A.  C.   189. 

Payable  on  demand  or  presentment. — See  61  A.  D.  433;  16 
A.  S.  718;  32  A.  S.  472;  16  L.  510;  2  W.  &  P.  1112. 

Payment  of  debt  by. — See  7  L.   442;   9  L.   263. 

Payment  by  mistake — As  to  effect  and  rights  of  parties. — See 
1    A.    C.    630. 

Same — Right  of  bank  to  recover  money  paid  by  mistake. — 
See  1  A.  C.  632. 

Power  of  agent  to  indorse. — See  27  L.  401. 

Presentation — Delay  in,  where  drawee  solvent,  effect  of. — 
See    53   L.    432. 

Same — Forwarding  for  collection,  as  to  generally,  see  5  A.  C. 
868. 

Same — Same — Discharge  of  debtor  by  creditor's  neglect  in. — 
See  5  A.  C.   871. 

Same — Mode   of. — See   13   L.    43. 

Same — Necessity  for  actual,  to  effect  its  dishonor. — See  13  L. 
N.   S.   303. 

Same — Necessity    of. — See    7    L.    490. 

Same — Party  residing  in  same  place,  as  to. — See  10  A.  C. 
1119. 

Same — Same — Reasonable  time  for  presentnaent. — See  10  A.  C. 
1121. 

Same — Release  of  indorser  by. — See  22  L.  785. 

Same — Time  for. — See  13  L.  43. 

Remedy  of  payee  of,  against  one  who  has  taken  it  on  in- 
dorsement of  unauthorized  agent.- — See  13  L.  N.  S.    211. 

Right  of  bank  as  against  holder  of,  to  set  off  unmatured 
claim  against  insolvent  depositor. — See  15  L.   711. 

Right  to  stop  payment  of. — See  30  L.  845. 

Transfer  of  on  time  allowed  for  presentment,  effect  of. — See 
10   L.    N.    S.    1153. 

Transfer  without  indorsement  of  worthless  check  to  third 
person,  effect  of. — See   10  L.  N.   S.   510,   536;   15  L.  N.  S.   510. 

1594 


Tit.XV.ch.IV.]  RULES  AS  TO  CHECKS.  §  325r> 

Transferred  after  maturity,  defense  against. — Sco  4t",  i.,.  SUS. 

What  are. — See   7  L.   489. 

Who  to  bear  loss  when  check  is  Issued  or  indorsed  by  im- 
postor.—See  17  L.  N.  S.  514. 

Wrongful  dishonor  of,  as  to  liability. — See  7  A.  C.  818:  10  A. 
C.  897. 

Same — Admissibility  in  action  for,  of  evidence  of  depositor's 
financial   credit  and  standing. — See  10  A.  C.  988. 

Same — Damages  recoverable  by  depositor  for. — Sot-  7  A.  C. 
819. 

§3255.     KULES   AITLK  VHLE    TO   (HECKS.     A   check   i8 

subject  to  all  the  provisions  of  tliis  codf  coiiciMniim  bills  of 
exchange,  except  that: 

1.  The   drawer  and   indorsers   are   f.xdin-i  iU'il    i..\    lielay    in 
presentment,    only   to   the    extent   of    the    injury    which    they 
suffer   thereby; 

2.  An  indorsee,  after  its  apparent  maturity,  but  withotit 
actual  notice  of  its  dishonor,  acquires  a  title  equal  to  that 
of  an  indorsee  before  such  period. 

]IiNtor>  !     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.   for  9  pars,  annotation. 

134  C.  237,  242,  66  P.  326  (cited);  5  C.  A.  39,  43.  89  P.  872 
(construed  in  connection  with  §  3213 — checlts  trnnsmiltod  to 
another   place    for    prt'scntment). 

As  to  many  miscellaneous  matters  as  to  negotiable  Inntrii- 
ments,   see   note   §  3086,   ante. 

Definition  of  check. — For  definition  of  chock  and  grcnerul 
rules  governing  same,  see  Kerr's  Cyc.  C.  C.  {  32,'»4  and  nolo: 
10  A.  S.  669;  56  A.  S.  228;  3  U  273;  35  L.  ed.  481;  2  W.  &  P.  1109. 

Excuse  of  presentment  and  notice. — See  ICerr'«»  Cyr.  C.  C 
U  3218-3220   and    notes. 

Grace  not  allowed  on  chocks. — See  Kerr'.s  t'y. .  ■  ^1  luul 

note. 

Indorsee   in  due  course — Who  Is. — See  Kerr's  >  3 

and  note.  • 


1595 


§§  3261-3268  CIVIL  CODE.  [Div.III.Pt.IV. 

CHAPTER    V. 

BONDS,    BANK    NOTES,    AND    CERTIFICATES    OF    DEPOSIT. 

§  3261.     Bank  note  negotiable  after  payment. 
§  3262.     Title  acquired  by  indorsee  [repealed]. 

§3261.    BANK    NOTE    NEGOTIABLE    AFTER    PAYMENT. 

A  bank  note  remains  negotiable,  even  after  it  has  been  paid 
by  the  maker. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments,  see   note    §  3086,   ante. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §  3261,    note. 

§3262.    TITLE  ACQUIRED  BY  INDORSEE    (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    265. 

TITLE  XVI. 

GENERAL,  PROVISIONS. 

§  3268.     Parties  may  waive  provisions  of  code. 

§3268.    PARTIES  MAY   WAIYE   PROYISIONS   OF   CODE. 

Except  where  it  is  otherwise  declared,  the  provisions  of  the 
foregoing  fifteen  titles  of  this  part,  in  respect  to  the  rights 
and  obligations  of  parties  to  contracts,  are  subordinate  to 
the  intention  of  the  parties,  when  ascertained  in  the  manner 
prescribed  by  the  chapter  on  the  interpretation  of  contracts; 
and  the  benefit  thereof  may  be  waived  by  any  party  entitled 
thereto,  unless  such  waiver  would  be  against  public  policy. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

101  C.  627,  641,  40  A.  S.  96,  36  P.  113   (cited). 

As  to  many  miscellaneous  matters  as  to  negotiable  instru- 
ments,  see   note   §  3086,   ante. 

Interpretation  of  contracts. — See  Kerr's  Cyc.  C.  C.  §§  1635-1661 
and  notes. 

1596 


DIVISION  FOUETH. 

Part  I.     Relief,  §§  3274-3423. 

II.     Special    Relations    of    Debtor  and  Creditor, 
§§  3429-3473. 

III.  Nuisance,  §§  3479-3503. 

IV.  Maxims  of  Jurisprudence,  §§  3509-3543. 


1597 


■::s 


h       Pt.I.Tit.L] 


RELIEF,    GENERALLY. 


§§3274,3275 


PART   I. 

RELIEF. 

Title  I.     Relief  in  General,  §§  3274,  3275. 
II.     Compensatory  Relief,   §§  3281-3360. 
III.     Specific  and  Preventive  Relief,  §§  3366-3423. 


TITLE  I. 

RELIEF  IN  GENERAL. 

§  3274.     Species  of  relief. 

§  3275.     Relief    in    case    of    forfeiture. 

'"'§3274.  SPECIES  OF  RELIEF.  As  a  general  rule,  com- 
pensation is  the  relief  or  remedy  provided  by  the  law  of 
this  state  for  the  violation  of  private  rights,  and  the  means 
of  securing  their  observance;  and  specific  and  preventive 
relief  jnay  be  given  in  .no  other  cases  than  those  specified  in 
this   part  of   the   civil   code. 

HLstory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

117  C.   377,  379,  49   P.   353    (construed  with   other  sections). 

§3275.  RELIEF  IN  CASE  OF  FORFEITURE.  Whenever, 
by  the  terms  of  an  obligation,  a  party  thereto  incurs  a  for- 
feiture, or  a  loss  in  the  nature  of  a  forfeiture,  by  reason  of 
his  failure  to  comply  with  its  provisions,  he  may  be  relieved 
therefrom,  upon  making  full  compensation  to  the  other  party, 
except  in  case  of  a  grossly  negligent,  wilful,  or  fraudulent 
breach  of  duty. 

Hi.Htory:     Enait.'d  Marcli   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  2  par.s.  annotation. 

84  C.  420,  422  (applied  to  forfeiture  of  lease,  l.iil  .noneously 
cited  as  §327),  24  P.  316,  317  (correct  citation);  97  C.  647.  654, 
32   P.    702,    704    (construed):    120   C.    416,   420,   52    P.    fifit>    (rit.d);    4 

1599 


§3281 


CIVIL  CODE. 


[Div.IV,Pt.I. 


C.  A.  361,  368,  88  P.  287  (equitable  relief  in  case  of  forfeiture 
for  breach  of  contract);  46  F.  355,  356  (scope  and  purpose  of 
section). 

Interpretation    of    condition    invoking    forfeiture. — See    Kerr's 
Cyc.   C.    C.    §  1442   and   note. 


TITLE   II. 

COMPENSATORY  RELIEF. 

Chapter  I.     Damages  in  General,  §§3281-3294. 
II.     Measure  of  Damages,  §§3300-3360. 

CHAPTER   I. 

DAMAGES  IN  GENERAL. 

Article    I.     General   Principles,   §§  3281-3283. 
II.     Interest  as  Damages,  §§  3287-3290. 
III.     Exemplary  Damages,  §  3294. 


ARTICLE  I.   • 

GENERAL  PRINCIPLES. 

§  3281.     Person  suffering  detriment  may  recover  damages. 

§  3282.      Detriment,   what. 

§  3283.     Injuries   resulting  or  probable  after   suit  brought. 

§3281.  PERSON  SUFFERING  DETRIMENT  MAT  RE- 
COVER  DAMAGES.  Every  person  who  suffers  detriment 
from  the  unlawful  act  or  omission  of  another,  may  recover 
from  the  person  in  fault  a  compensation  therefor  in  money, 
which  is  called  damages. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  11  pars,  annotation. 

110  C.  311,  316,  42  P.  811  (cited);  110  C.  374,  385,  42  P.  896 
(referred  to);  123  C.  42,  44,  45,  55  P.  706  (referred  to);  136  C. 
129,  131,  68  P.  476  (applied);  1  C.  A.  441,  444,  82  P.  640  (cited— 
damages  in  case  of  nuisance);  46  F.  355,  356  (scope  and  purpose 
of   section). 

1600 


Tit.IT,ch.I,art.I.]       DAMAGES,   GENERALLY.  §  3281 

DAMAGES — IN    GENERAL. 

As  to  damages  for  breach  of  contract,  see  Kerr's  Cyc.  C.  C. 
§§  3300   et   seq.   and   notes. 

As  to  damages  for  torts,  see  Kerr's  Cyc.  C.  C.  §§  3333  et  seq. 
and  notes. 

As  to  exemplary  damages,  see  Kerr's  Cyc.  C.  C.  §  3294  and 
note. 

As  to  libel,  see  Kerr's  Cyc.  C.  C.  §  45  and  note. 

As  to  limit  of  recovery  of  damages  for  breach  of  obligation, 
see  Kerr's  Cyc.  C.  C.  §§  3319,  3358  and  notes. 

As  to  new  trial  for  excessive  damages,  see  Kerr's  Cyc.  C.  C. 
P.   §  657   and   note. 

As  to  proxy  causing,  where  defendant  has  committed  tort. — 
See  Kerr's  Cyc.  C.  C.  §  3333  and  note. 

Actual  accrual  of  damages  after  commencement  of  action. — 
See  Kerr's  Cyc.  C.  C.   §  3283  and  note. 

Against  carrier — Amount  of  for  loss  of  goods. — See  2  L.  N.  S. 
773. 

Same — By  passenger  who  submits  to  ejection  to  let  founda- 
tion for  action. — See  9  L.  N.  S.  1060. 

Same — Damages  incident  to  intent  to  reach  destination  by 
other  means  as  an  element  of  recovery  for  failure  to  stop  train 
for  intending  passenger. — See  8  L..  N.  S.  880. 

Same — Expenses  incidental  to  loss  of,  or  delay  in  delivering, 
baggage. — See   7  L.  N.   S.   188. 

Same — Measure  of  liability  of  as  to,  see  note  §  3300,  post. 

Same — Shipper's  misrepresentation  of  value  of  goods  as  af- 
fecting extent  of  liability  of. — See  2  L.  N.  S.  773. 

Same — Time  of  notice  to  warrant  special  for  failure  of  car- 
rier to  deliver  propcrtj'. — See  3  L.  N.  S.  1111. 

Against  telegraph  company — As  to,  see  "Telegram,"  this  note. 

Same — For  continued  physical  suffering  of  sender  of  message 
because  of  negligence  in  transmission  and  delivery. — See  11  L. 
N.  S.   1149. 

Same — For  loss  of  opportunity  to  respond  to  a  call  for  pro- 
fessional services. — See  14  L.  N.  S.  533. 

Same — For  loss  sustained  iipon  commercial  transaction  In 
consequence  of  breach  of  duty. — See  4  L.  N.  S.  262. 

Same — For  refusal  to  pay  money  to  sendee  of  telegraphic 
message. — See  2  L.  N.  S.  1072. 

Agreement  purporting  to  liquidate. — See  108  A.  C.   4<>. 

Arbitration,  damages  for  revoking  submission  to. — See  Kerr's 
Cyc.  C.  C.   §  1290  and  note. 

Attorneys'  fees  as  element  of. — See  12  A.  R.  199,  200;  8  A.  S. 
158-161. 

Same — On  dissolution  of  injunction. — See  39  A.  R.  13:  S  A.  S. 
161. 

By  conditional  vendor  of  personalty  from  tliird  person  who 
Kerr's   C.   C— 51  1601 


§  3281  CIVIL  CODE.  [Div.IV,Pt.I. 

converts  the  same  after  partial  payment  of  the  purchase  price. — 
See   10  L.  N.  S.   458. 

Carrier — Default  or  delay  as  to  transportation  of  passenger. — 
See    32    L.,   345. 

Same — Failure  to  transport  goods. — See  9  L.  451. 

Compensatory — As  actual  damages. — See  80  A.  S.  1;  49  L.  475; 
2  W.   &  P.   1357. 

Same — As  affected  by  intent. — See  49  A.  R.  366;  16  A.  S.  422; 
2  W.   &  P.   1357. 

Same — Exemplary  damages  distinguished. — See  60  A.  S.  874; 
2    W.    &   P.    1357. 

Same — In  particular  torts. — See  39  A.  S.  672;  18  L.  385;  2 
W.  &  P.  1358. 

Same — Recovery  of. — See  27  A.  D.  684-689. 

Same — "What  are. — See  27  A.  R.  528;  45  A.  R.  112;  64  A.  S. 
676;  37  L.  ed.   463;   2  W.  &  P.  1357. 

Contingent.- — See  "Uncertain,  contingent  and  speculative,"  this 
note. 

Consequential — As  to  what  are,  see  12  A.  R.  147;  2  W.  &  P. 
1442. 

Same — Extent  of  trespasser's  liability  for. — See   53  L.   641. 

Same — Liability  for. — See  36  A.  R.  382. 

Same — Statute  of  limitations,  in  actions  for. — See  38  A.  D. 
270-272. 

Duty  of  person  whose  property  has  been  controverted  or 
destroyed  to  repurchase  like  property  to  mitigate. — See  6  A.  S. 
364. 

Elements  of,  recoverable  by  child  for  death  of  mother. — See 
19   L.  N.   S.   128. 

Eminent  domain,  what  recoverable  in  proceedings  in  exercise 
of  right  of — As  to,  generally,  see  31  A.  D.  373;  88  A.  D.  113;  9 
A.  S.  144;  19  A.  S.  459;  22  A.  S.  50;  85  A.  S.  291;  3  W.  &  P.  2365. 

Same — Adaptability  of  property  for  uses  other  than  that  to 
which  it  is  applied  as  an  element  in  assisting  damages. — See 
15  L.  N.  S.  679. 

Same — Consequential,  data  necessary  to  warrant. — See  3  L. 
N.   S.    333. 

Same — Danger  of  injury  to  owner  of  property  or  members 
of  his  family,  or  of  his  live  stock,  as  an  element  of  in  railway 
right  of  way. — See  11  L.  N.  S.  1003. 

Same — Injury  to  or  expense  of  removing  personalty  as  an  ele- 
ment of  damage. — See  4  L.  N.  S.   890. 

Same — Obstruction  of  surface  water  as  element  of. — See  13 
L.   N.   S.   237. 

Same — Setting  off  benefits  against  damage. — See  9  L.  N.  S. 
781-837. 

Same — Special  value  of  property  for  which  taken  as  an  ele- 
ment of  damages. — See   11  L.   N.   S.   996. 

1602 


Tit.II,ch.I,art.I.]      DAMAGES,  GENERALLY.  §3281 

Same — Value  of  property  as  a  part  of  a  natural  water  power, 
right  to  consideration  in  fixing-  compensation. — See  3  L.  N.  S. 
912. 

Evidence  admissible  to  show  mental  anguisli. — See  19  L.  N.  S. 
409. 

Evidence  of  domestic  relations  of  persons  seeking  to  recover 
for  personal   injuries. — See   85   A.   S.    835. 

Excessive  damages,  award  of. — See  Kerr's  Cyc.  C.  C.  §  3333 
and  note. 

Excessive  or  inadequate  damages  as  ground  for  new  trial. — 
See   5   A.   C.   303. 

Exemplary. — See  "Punitive,"  this  note. 

Same — Actual  damages  as  basis  for  award. — See   7   A.   C.   89G. 

Same — As   a  punishment. — See    1   A.   C.    191. 

Same — As  indeterminate  actual  damages. — See  3  W.  &  P. 
2579. 

Same — Carrier's  liability   for. — See   1    L.   682:   13   L.   600. 

Same — Compensatory  damages  distinguished. — See  69  A.  S. 
874;    3    W.      P.    2578. 

Same — Corporation's  liability  for. — See  59  A.  S.   589. 

Same — Expenses  of  litigation  as  element,  or  limit  of. — See  4 
L.    N.    S.    907. 

Same — For  act  punisliable  criminally. — See  9  A.  C.  638;  50 
A.   D.   771. 

Same — For  carrying  passenger  beyond  destination. — See  17  L. 
N.    S.    1226. 

Same — For  death  by  wrongful  act. — See  6  A.  C.  191,  194;  8 
A.   C.   746. 

Same — For  negligence,  generally,  see  11  L.  43;  11  L.  690;  17 
L.    72. 

Same — For  tort,  generally,  see  9  L.  445;  13  L.  600. 

Same — Same — Necessity  for  actual  malice  to  justify. — See  16 
L.   N.   S.    440. 

Same — In  action  by  passenger  against  carrier. — See  9  A.  C. 
1114. 

Same — In  action   of  replevin. — See   4  A.   C.  68,  71. 

Same — In  action  on  contract  other  than  contract  to  mari'y. — 
See    3    A.    C.    413. 

Same — In  cases  otlier  tlian  for  personal  injuries. — See  13  L. 
600. 

Same — Liability  for,  of  newspaper  proprietor  for  libel  pub- 
lished  without   his   knowledge   or   consent. — See    26   L.    779. 

Same — Liability  of  principal  or  master  for  act  of  his  servant 
or  agent. — See  62  A.  D.  379. 

Same — On  action  arising  out  of  a  breach  of  contract,  attended 
with  a  fraudulent  act. — See  3  A.  C.  407. 

Same — Persons  liable  for. — See  37  I.,,  ed.  97:  3  W.  &  P.  2579. 

Same — Rules  respecting  the  allowance  of. — See  50  A.   D.   767. 

1603 


§  3281  CIVIL  CODE.  [Div.IV,Pt.I. 

Same — Special  damages  distinguished. — See  3  W.  &  P.  2579. 

Same — Synonymous  with  punitive  or  vindictive  damages. — See 
74  A.  S.   406;   16  A.  R.   270;  49  A.  R.   366;   3  W.  &  P.   2579. 

Same — Synonymous  with  "smart  money."— See  37  L.  ed.  97; 
3  W.   &  P.   2579. 

Same — Under  statutory  provisions- — As  to,  generally,  see  9 
A.    C.    634. 

Same — Same — Where  act  punishable  as  crime. — See  9  A.  C. 
638. 

Same— What  are.— See  88  A.  D.  141;  16  A.  R.  270;  21  A.  R. 
757;  28  A.  R.  442;  45  A.  R.  12;  47  A.  R.  279;  49  A.  R.  366;  15  A.  S. 
923;  29  A.  S.  827;  54  A.  S.  327;  60  A.  S.  874;  4  L.  500;  14  L.  798; 
19  L.  710;  37  L.  ed.  97;  37  L.  ed.  463;  41  L>.  ed.  632;  3  W.  &  P. 
2587. 

Same — When  allowable. — See  27  A.  D.  684. 

Same — When  master  or  employer  is  liable  in,  for  the  act  of 
his  employee  or  servant. — See  101  A.  S.  730. 

Same — When  may  be  recovered. — See  28  A.  S.  870. 

Same— Where  land  conveyed  as  security  for  a  loan  is  wrong- 
fully sold  by  grantee. — See  3  A.  C.  407. 

Expenses  of  nursing  and  medical  attendance  as  an  element 
of   in   personal    injuries. — See    11   L.    46. 

Failure  to  perform  contract  not  valid  under  statute  of 
frauds,  right  to  recover  for. — See  6  A.  S.  495. 

Findings  of  court. — See   Kerr's  Cyc.   C.   C.   §  3304  and  note. 

For  breach  of  agreement  to  assume  debts  on  dissolution  of 
partnership.- — See   9   L.  N.   S.   113. 

For  breach  of  contract — For  sale  of  article  having  no  mar- 
ket price. — See    57   L.    193-206. 

Same — Of  employment. — See  3  L.  137;  5  L.  759;  35  L.  516;  69  L. 
126. 

Same — -To  loan  or  advance  money. — See  37  L.   233. 

For  breach  of  covenant — As  to,  generally,  see  3  L.  791;  13  L. 
723;    18    L.    385. 

Same — In  grant  of  water  power. — See  67  L.  405. 

Same — Recoupment  of  for  breach  of  warranty. — See  1  L.  339. 

For  breach  of  implied  warranty  on  contract  of  sale. — See  18 
L.   385. 

For  breach  of  promise  of  marriage. — See  10  L.  585. 

Same — Seduction  as  an  element  of. — See  10  L.  585. 

For  causing  death — ^As  to,  generally,  see  3  L.  327;  13  L.  860; 
15  L.  585;  17  L.  71-79;  18  L.  449;  56  L.  205;  56  L.  312;  67  L.  91. 

Same — Difference  as  to  amount  of  recovery  as  affecting  ac- 
tion for  based  on  statutes  of  another  state. — See  56  L.  205. 

Same — Who   may  maintain.— See   17  L.   76. 

For  conversion — As  to,  generally,  see  1  L.  306;  2  L.  449. 

Same — Loss  of  profits  as  element  of. — See  52  L.  51. 

Same — Of  property  by  invalid  sale  by  pledgee. — See  43  L.  768. 

1604 


Tit.II,ch.I,art.I.]       DAMAGES,   GENERATE. Y.  §3281 

For  delay  in  performance  of  contract  by  buyer. — See  Kerr's 
Cyc.  C.  C.  §  3308  and  note. 

For  dishonor   of   check. — See   15   L.    134. 

For  false   imprisonment. — See   1   A.   C.   924. 

For   injuries   by  animajs. — See   5   A.   C.    874. 

For  injuries  by  railroad  caused  by  frightening-  of  horses. — 
See   3  A.   C.    1065,   1070;    10   A.   C.   294,   302. 

F.or  injuries  or  destruction  to  trees. — See  2  A.  C.  G39,  642;  8 
A.  C.   812;   15  L.   612;   19   L.   653-659. 

For  injuries  to  animals. — See   5   A.   C.   414. 

For  injuries  to  crops. — See  1  A.  C.   761;   6  A.  C.   946,  949. 

For  injuries  to  infants — As  to,  generally,  see  4  A.  C.  248;  8 
A.    C.    1105. 

Same — Loss  of  time  or  earning  capacity  as  an  element  of. — 
See  8  A.  C.  1107. 

For  injuries  to  personal  property. — See  6  L.   454;   12  L.   595. 

For  libel  and  slander  by  wife. — See  30  L.  529. 

For  malicious  prosecution. — See  4  L.  255. 

For  mental  suffering  disconnected  from  physical  injury. — See 
36   A.   R.    306. 

For  miscarriage. — See  32  L.   142. 

Same — Off-set  against  damages  for  suffering  from,  of  suffer- 
ings which  would  have  resulted  from  natural  parturition. — See 
17  L.  N.  S.  398. 

For  misconduct  of  employee  toward  passenger. — See  3  L.   735. 

For  negligence  as  to  collection  of  check,  limitation  to  actual 
amount  lost. — See  1  L.  N.  S.   246. 

For  nuisance — By  whom  action  for  maintainable — As  to,  gen- 
erally, see  1  A.  C.   270;   6  A.  C.   146. 

Same — Same — By  other  than  property  owner. — See  1"  A.  C.  272. 

Same — Same — 'Right  of  landlord  to  recover  for,  existing  at 
commencement  of  tenancy. — See  6  A.  C.  150. 

Same — Persons  lialde  for — As  to.  generally,  see  1  A.  C.  961; 
10  A.  C.   767. 

Same — Samd — Municipality  for  failure  to  abate. — See  1  A.  C. 
964. 

For  personal  injuries — As  to. — See  10  L.  794;  11  L.  43;  11  L. 
45-50;  12  L.  698;  14  L.  677;  16  L>.  268;  32  L.  142;  34  L.  831;  53  L. 
631;    56   L.    312. 

Same — Husband's  right  at  common  law  to  rocovt,  r  for  loss  of 
time  and  funeral  expenses  occasioned  by  negligent  killing  of 
wife. — See    9   L.    N.    S.    1193. 

Same — Loss  of  services  or  diminished  earning  c;ii>a(it>-,  right 
of  infant  to  recover  for,  during  minority,  in  an  action  for  per- 
sonal   injuries. — See   6   L.   N.    S.    552. 

Same — Loss  of  time  as  affected  by  contingent  character  of 
compensation. — See    8   L.   N.   S.    1228. 

Same — Recovery  by  administrator  of  probable  accumulations 
of  deceased  as  damages  for  his  death. — See  15  L.  N.  S.  451. 

1605 


§  3281  CIVIL  CODE.  [Div.IV,Pt.I. 

/ 
Same — Recovery  by  collateral  kindred  for  negligent  killing. — 

See  11  L.  N.  S.  623. 

For  pollution  of  w^-ter  course.^ — ^See  9  A.  C.  430-434;   7  L.   457. 

For  refusal  of  benefit  society  to  levy  assessment. — See  2  L. 
786. 

For  refusing  to   carry   passenger. — See   8   A.   C.    218. 

For  torts  and  negligence — As  to,  generally,  see  3  L.  733;  4  L. 
255;   11   L,.   690;   30  L.   529;  .34  L.   589;   55  L.   774;    56  L.   312. 

For  trespass  on  realty — As  to,  generally,  see  4  A.  C.  187;  4 
A.    C.    340;    6   A.    C.    143. 

Same — ^Personal  wrong  as  aggravation  of. — See  19  L.  N.  S. 
1034. 

For  wrongful  cancellation  of  policy  issued  on  assessment 
plan.— See  7  L.  N.  S.   1163. 

For  wrongful  dishonor  of  check — As  to,  generally,  see  7  A. 
C.    818,    819;    10   A.   C.   897. 

Same — Admissibility,  in  action  by  depositor  for  damages  for 
wrongful  dishonor  of  check,  of  evidence  of  depositor's  financial 
credit  and  standing.— See   10  A.   C.   988. 

For  wrongful  ejection  from  car. — See  1  L.  667;  3  L.  733. 

For  wrongful  eviction  of  tenant. — See  6  A.  C.  458,  460;  7  A.  C. 
591. 

Fraud,  statute  of,  right  to  recover  for  failure  to  perform  con- 
tract not  valid  under. — See  6  A.  C.   495. 

Fright  as  an  element  of. — See  12  A.  C.  741;   77  A.  S.   859. 

General  rules  as  to. — See  2  L.  766;  3  L.  587. 

Health,  reputation,  or  feelings  injured. — See  Kerr's  Cyc.  C.  C. 
§  3301    and   note   par.    3. 

Husband  or  wife,  right  at  common  law  to  recover  for  services 
or  consortium  against  person  negligently  causing  death  of 
spouse. — See   19   L.  N.   S.   633. 

In  action  for  conversion — As  to,  generally,  see  3  A.  C.  889;  6 
A.    C.    834;    10   A.    C.    1123. 

Same— Right  to  show  insolvency  of  maker  of  chose  in  action 
in  mitigation  of  damages. — See  6  A.  C.  841. 

In  action  on  contracts — As  to,  generally,  see  3  A.  C.  407,  413. 

Same — Exemplary  damages  in  action  on  contract  other  than 
to   marry. — See    3    A.    C.    413. 

Same — Recovery  of  profits  as  damage  for  breach  of  contract 
to  sell  on  commission. — See  10  A.  C.   654. 

In   action  for   criminal   conversation.^ — See    10   A.    C.    60. 

In  action  for,  on  infringement  of  copyright. — See  5  A.  C.  274, 
279. 

In  action  of  unlawful  detainer. — See  6  A.  C.   458. 

In  condemnation  of  property  under  the  law  of  eminent  do- 
main— ^As  to,  generally,  see  1  A.  C.  734;  8  A.  C.  689;  8  A.  C.  822; 
9  A.  C.  470;  10  A.  C.  171;  10  A.  C.  283;  also  "Eminent  domain," 
etc.,  this  note. 

1606 


Tit.II,ch.I,art.I.]       DAMAGES,   GENERALLY.  |  328I 

Same — For  injury  to  personal  property  or  expense  of  re- 
moving it  from  condemned  premises. — See  8  A.  C.  696;  also 
"Eminent  Domain,"  etc.,  this  note. 

In  ejectment,  damages  for  mesne  profits. — See  5  A.  C.   331. 

In  injunction  cases — As  to,  generally,  see  13  L.  312;  20  L. 
752;    52   L.    58;    55   L.    389. 

In  injury  to  lateral  and  subjacent  support. — See  3  A.  C.  118; 
5  A.  C.  216;   10  A.  C.  74;  5  L.  N.  S.   1066. 

Instructions  as  to. — See  4  A.  C.  532;  7  A.  C.  114;  9  A.  C.  553; 
9   A.  C.   1222. 

Interest — As  damages. — See  Kerr's  Cyc.  C.   C.   §  3287  and  note. 

Same — Governing  law  with  respect  to  as  damages. — See  56  L. 
303;    62   L.    37. 

Same — On  amount  of  for  negligent  infliction  of  personal  in- 
juries.— See   14   L.   548;   18  L.   449. 

Same — Right  to  on  unliquidated  damages. — See   4  L.   566. 

Same — Upon  sum  allowed  as. — See  18  L.  449. 

Intoxicating  liquor,  for  death  from  sale  of. — See  3  L.  327. 

Jurisdiction  of  court  of  equity  to  award  compensatory. — See 
14   L.   N.   S.    909. 

Land  owner,  what  may  recover  for  maintaining  and  operating 
railway  and  like  public   improvements. — See   5  A.   S.   537. 

Lateral  support,  removal  of  as  constituting  damage  or  injury 
within  meaning  of  constitutional  provision  against  taking,  etc., 
for  public  use  without  compensation. — See  5  L.  N.  S.  1086;  also 
3  A.  C.  118;   5  A.  C.   216;   10  A.  C.  74. 

Liquidated — As  to,  see  2  L.  N.  S.  210:  9  L.  N.  S.  1134;  10  L.  N.  S. 
204. 

Same — What   agreements   provide   for. — See    30   A.    R.    28. 

Loss  of  customers  as  element  of  for  obstruction  of  highway. — 
See   13  L.  N.   S.   253. 

Loss  of  profits — As  an  element  of  damages — As  to,  generally, 
see   30   L.   57. 

Same — Same — For  trespass. — See  52  L.  42. 

Same — Same — For  wrongful  destruction  or  compensation  of 
logs  or  timber. — See  18  L.  N.  S.   250. 

Same — As  damages. — Sec  69  A.  D.  725-727;  42  A.  R.  461-465; 
60   A.   R.   488-496:   30   A.   S.   470,    471;   53   A.   S.   143;   53   A.  S.   9)6. 

Same — For  infringements  of  patents,  copyrights  or  trade- 
marks.— See    51    L.    801-823. 

Same — From  suspension  of  liuslnoss  wliile  moving,  as  an  ele- 
ment of  damages   in   eminent  domain. — See   17   L.   N.   S.    124. 

Same — In  case  of  conversion. — See  52  L.  51-57. 

Same — In  case'  of  tort. — See  52  L.   33-66. 

Same — In  eminent  domain  cases. — See  "Eminent  domain,  etc.," 
tliis  note. 

Same — Same — As  to,  generally,  see  51  L.  320-330. 

Same — In  use  of  plant  as  an  element  of  damage  for  failure 
to  deliver  materials  to  manufacturer. — See  3  L.  N.  S.  709. 

1607 


§  3281  CIVIL  CODE.  [Div.IV.Pt.I. 

Same — Of  profits   of   sale   or  purchase. — See   52   L.    209-260. 

Same — On   breach   of   contract — Generally,   see   53   L.    34-47. 

Same — Same — For  sale  and  purchase. — See  53  L.  83. 

Same — Same — For  services — By  employee. — See  53  L.  48-57. 

Same — Same — Same — By  employer  or  owner. — See  53  L.  57-80. 

Same — Same — For  transmission  of  telegrams. — See  53  L.  91- 
111;   see   "Telegrams,"   this  note. 

Same-— Same — Partnership   contracts. — See    53   L.    81. 

Same — On  possible  sales  as  measure  of  damages  for  breach 
of  contract  where  no  contingent  sales  have  been  made. — See  8 
L.  N.  S.   255. 

Same — Upon  refusal  of  vendee  to  take  article  manufactured 
to   order.^-See   4  L.  N.  S.   740;   18   L.   N.   S.   613. 

Master  or  employer — Effect  of  servant  or  agent's  malice, 
wantonness  or  personal  motive  on  amount  of  damages  recov- 
erable from,  for  injuries  to  third  person  due  to  negligence  of 
servant  or  agent  having  custody  of  dangerous  agency. — See  10 
L.   N.   S.   403. 

Mental  anguish — As  to,  generally,  see  2  L.  N.  S.  898;  6  L.  N.  S. 
883;  7  L.  N.  S.  518;  14  L.  N.  S.  1242;  15  L.  N.  S.  775;  16  L,.  N.  S. 
674;    17   L.    N.    S.    594. 

Same — As  element  of — As  to,  generally,  see  7  A.  S.  534,  30  A. 
C.  711;  1  L.  677;  2  L.  767;  3  L.  327;  8  L.  765;  13  L.  859;  53  L.  632. 

Same — Same — For  causing  death. — See  13  L.   860. 

Same- — Same — In  action  for  breach  of  contract  relative  to 
corpse. — See   19   L.   N.    S.    564. 

Same — Evidence  admissible  to   show. — See   19   L.   N.    S.    409. 

Same — In  case  of  carriers. — See  3  L.  N.  S.  225;  12  L.  N.  S. 
184;   13  L.  N.   S.   159. 

Same — In  case  of  death. — See  13  L.  860;  also  "For  causing 
death,"  this  note. 

Same — Same — Caused  by  sale  of  intoxicating  liquor. — See  3  L. 
327. 

Same — In    case    of   ejection   from    car. — See    1    L.    677. 

Same — In  case  of  personal   injuries. — See   8  L.   765. 

Same — In  case  of  telegrams. — See  6  L.  669;  13  L.  859;  63  L.  532; 
8  L.  N.  S.  249;  11  L.  N.  S.  497;  12  L.  N.  S.  886;  14  L.  N.  S.  499; 
14  L.  N.  S.  927;  15  L.  N.  S.  277;  see  "Telegrams,"  this  note. 

Same — In  case  of  trespass. — See  53  L.   632. 

Same— On  account  of  another's  mental  or  physical  suffering. 
—See  19  L.  N.  S.   500. 

Same — Right  of  person  not  mentioned  in  telegram  and  whose 
interest  is  not  communicated  to  the  company  to  recover  for. — 
See   19  L:  N.  S.   475. 

Same — Right  to  recover  for  consequence  upon  failure  of  tele- 
graph company  to  transmit  money  to  prepare  corpse  for 
burial.— See    19    L.    N.    S.    575. 

Mental  suffering  as  an  element  of  in  personal  injury  case. — 
See  12  L.  698;  also  "Mental  anguish,"  this  note. 

1608 


Tit.ir,ch.I,art.I.]     damages,  generat.t.y.  §3281 

Mitigation  of — And  reduction  of,  as  to,  generally,  see  26  L. 
432;   57   L.   202;    67   L.   87-95. 

Same — By  proof  tiiat  an  injured  person  was  suffering  from 
disease. — See   10  A.  S.   64. 

Same — Duty  of  person  whose  property  has  been  controverted 
or  destroyed   to   purchase   like   property    in. — See    6   A.   S.   364. 

Same — Evidence  of  provocation  as  in  action  for  assault. — 
See  11  L.  N.  S.  670. 

Same — Failure  of  person  injured  to  remove  cause  of  injury 
or  damage  as  affecting  right  to  recover. — See  3  L.  N.  S.   1092. 

Same — Gratuity  for  third  person. — See  1  A.  C.  210,  213:  10 
A.'C.   789,   794. 

Same — Passenger's  duty  to  minimize  for  carrier's  default  to- 
ward him.— S§e  2  L.  N.  S.  1087. 

Same — Provocation. — See    1    A.    C.    896. 

Same — Same — For  assault. — See  1  A.  C.  899. 

Same — Right  to  set  up  Judgment  in  criminal  action  in. — See 
11  L.  N.  S.  670. 

Money  expended  by  buyer  in  preparing  goods  for  shipment. — 
See  Kerr's  Cyc.  C.  C.   |  330S  and  note. 

Necessity  and  degree  of  relationsliip  essential  to  recover  for 
mental  anguish  for  failure  to  deliver  telegram  announcing 
death   or   illness.— See   19  L.   N.   S.    374. 

Necessity  of  actual  malice  to  justify  damages  for  tort. — See 
16   L.   N.   S.    440. 

Nominal,  rule  as  to  effect  of  failure  to  award. — See  5  A.  C. 
•J23,  225. 

Nuisance — For  generally,   .see    13   L.   322. 

Same — For  pollution  of  stream. — See  9  A.  C.   530-534;   7   J,.   457. 

On  breach  of  contract — As  to  employment. — See  5  L..  N.  S. 
439;   5  L.  N.   S.   529;   6   L.  N.  S.   82,  94. 

Same — As  to  real  property,  as  to,  generally,  see  2  L.  N.  S. 
713;   16  L.  N.  S.  210;   16  L.  N.  S.  768;   17  L.  N.  S.   1130. 

On  breach  of  contract — By  purchaser. — See  3  L.  589. 

Same— By  seller.— See  3  I..   589. 

Same — Of  sale  of  per.sonal  property,  as  to,  generally,  see  3 
L.  N.  S.  1047;  5  L.  N.  S.  1151;  18  I..  N.  S.  613. 

Same — To   convey. — See   4   L.   670. 

On  contract  to  deliver  goods. — Sec   1    L.  656. 

Pain  and  suffering  as  an  (>lemont  of  In  person.il  Injuries. — 
See    11    L.    45. 

Personal  injuries — Allowance  for  physical  services  without 
.vldence  of  value  thereof. — See  19  I..  N.  S.  920. 

Same — Consideration  for 'release  of  claim  for. — See  107  A.  S. 
615. 

Same — Evidence  of  domestic  relations  of  persons  seeking  to 
recover  for. — See  85  A.  S.  835. 

Same — Physical  examination,  power  of  court  to  enforce. — See 
3  A.  S.  554. 

1609 


§  3281  CIVIL  CODE.  [Div.IV.Pt.T. 

Personal  wrong  as  aggravation  of  for  trespass  on  realty. — 
See   19   L.   N.   S.   1034. 

Physical  examination  of  person  injured,  power  of  court  to 
enforce. — See   3   A.   S.   554. 

Physician's  services,  allowance  for  in  actions  for  personal 
injuries  without  evidence  of  the  value  thereof. — See  19  L.  N. 
S.   920. 

Pleading — Failure  to  deny  inaterial  allegations  of  complaint, 
effect  of.— See  8  A.  C.  1071. 

Same — ^Matters  in  mitigation  of. — See  1  A.  C.  210;  10  A.  C. 
218,   219. 

Same — Necessity  of  alleging  special  damages. — See  1  A.  C. 
310;    7   A.   C.   114. 

Same — Sufficiency  of  complaint,  as  to,  see  3  A.  C.  407;  9  A.  C. 
1094. 

Pledgee,  conversion  of  property  by  invalid  sale. — See  43  L. 
768. 

Previous  disease,   effect   of   in   person   injured. — See   16   L.    268. 

Price  agreed  to  be  paid  for  services. — See  Kerr's  Cyc.  C.  C. 
§  3302   and  note. 

Profits — As  an  element  of,  for  loss  of  vessel. — See  6  A.  C.  129, 
131;  also  "Loss  of  profits,"  this  note. 

Same — ^Business,  as  an  element  of  for  personal  injuries. — See 
11    A.    C.    45. 

Same — Loss   of,   when   an   element   of. — See   60  A.   R.    488. 

Provision  for  forfeiture  of  sums  paid  or  retained  under  ex- 
ecutory contract,  effect  to  prevent  recovery  of  any  other  dam- 
ages after  breach. — See  4  L.  N.  S.  755. 

Proximate  and  remote. — Consequences,  what  are. — See  36  A. 
S.  807. 

Same — Damages,    what   are. — See   52    A.   R.    157. 

Punitive. — See  "Exemplary,"   this   note. 

Same — Expenses  of  litigation  as  element  or  as  limit  of.— 
See   4   L.   N.   S.    907. 

Same — Liability  for,  for  maintaining  nuisances. — See  3  L.  N. 
S.    1119. 

Same — For  wanton  failure  to  transport  baggage. — See  9  L. 
N.    S.    1218. 

Same — Refusal  of  conductor  to  listen  to  passenger's  explana- 
tion as  to  his  contract,  as  to  justification  for  expulsion. — See  17 
L.  N.  S.   344. 

Real  property,  for  injury  to  or  detention  of. — See  15  L.  615, 
618;  17  L.  426;  19  L.  653-659;  24  L.  595;  43  L.  560;  52  L.  42;  67 
L.  712;   68  L.  71. 

Rebuttal  of  presumption — Instruction. — See  Kerr's  Cyc.  C.  C. 
§  3336  and  note. 

Recoupment  of,  when  allowed.— See  40  A.  D.  320. 

1610 


Tit.II,ch.I,art.I.]      damages,  generally.  §3281 

Recoverable  for  by  building  contractor  on  breach  of  con- 
tract.— See  5  L.  275. 

Remote  and  proximate  damages. — See  69  A.  D.  724,   725. 

Remote   and    sentimental    consideration. — See    12    L.    699. 

Right  of  action  on  bond  to  recover  interest  when  total  sum 
is  to  be  made  to  exceed  the  penalty. — See  19  L.  N.  S.   84. 

Right  to  recover  for  mental  suffering  on  account  of  an- 
other's mental  or  physical  suffering. — See  19  L.  N.  S.  500. 

Right  to  recover  for  services  rendered  beyond  statutory  pe- 
riod of  limitation  upon  breach  of  parol  contract  to  make  pro- 
vision by  will. — See  6  L.  N.  S.  703. 

Right  to  recover  from  obligor  under  collateral  contract,  the 
damages  which  the  obligor  was  compelled  to  pay  because  of 
breach  of  contract  with  third  person,  in  consequence  of  the 
failure  or  delay  in  performance  of  collateral  contract. — See  18 
L.    N.    S.    575. 

Rule  for  stating  amount  of  claim  for  damages  in  complaint. — ■• 
See  Korr'w  Pocket  Pol.  C.  §  3274. 

Seduction  as  an  element  of  on  breach  of  promise  of  marriage. 
—See   10   L.   585. 

Servant's  malice,  wantonness,  or  personal  motive,  effect  on 
amount  of  damages  recoverable  from  master  for  injuries  to 
third  person  due  to  negligence  of  servant  having  custody  of 
dangerous  agency. — See  10  L.  N.  S.  403. 

Servant  wrongfully  discharged — Measure  of  damages. — See  43 
A.    D.    209-214. 

Special  circumstances  known  to  both  parties. — See  3  L.  589. 

Speculative. — See  "Uncertain,  contingent  and  speculative,"  this 
note. 

Stipulation  for  forfeiture  in  case  of  breach  of  contract  as 
penalty  or  liquidated  damages. — See  1  A.  C.  244;   10  A.  C.   225. 

Telegraph  companies,  recovery  against  for  failure  to  trans- 
mit or  deliver  message. — See  117  A.  S.  286. 

Telegram — Delivery  or  non-delivery  of. — See  7  L.  593:  9  L. 
669;   10   L.   515;   53   L.    738. 

Same — Same — Injury  to  feeling  caused  l>y  as  element  of. — 
See  2  L.  767;  9  L.  669;  13  L.  859. 

Same — Same — Loss  of  profit  as  an  element  of. — See  .t3  L.  191. 

Same — Failure  of  company  to  transmit  money  liy,  to  prepare 
corpse  for  burial,  right  to  recover  for  mental  anguish,  con- 
sequence upon. — See  19  I>.  N.  S.  575. 

Same — Failure  to  deliver  announcing  death  or  illness,  neces- 
sity and  degree  of  relationship  essential  to  r<'Covery  for  mental 
anguish. — See    19   L.   N.   S.    374. 

Same — Right  of  person  not  mentioned  in  and  whose  interest 
is  not  communicated  to  the  company  to  recover  for  mental  an- 
guish.—See   19   L.  N.   S.   475. 

1611 


§  3282  CIVIL  CODE.  [Div.IV,Pt.I. 

That  damages  are  exclusive  of  exemplary  damages  and  in- 
terest,  unless   latter  are   expressly  named,   see  post   §  3357. 

That  damages  must  be  reasonable,  see  post  §  3359. 

Trespass — Loss  of  profits  as  an  element  of  damage  for. — See  52 
L.   42. 

Same — Extent  of  liability  for  consequential  injuries. — See  53 
L.    626-634. 

Uncertain,  contingent,  and  specvilative — As  to,  generally,  see 
6  A.  C.i-973;   10  A.   C.   649. 

Same — Prospective  as  element  of  recovery  for  total  loss  of 
vessel  by  collision. — See  6  A.  C.  131. 

Same — Recovery  of  profits  as  damages  for  breach  of  contract 
for  sale  on  commission. — See  6  A.  C.   976;  10  A.  C.   654. 

Same — Remote  and  sentimental  consideration. — See  12  L.   699. 

Unlavi^ful  and  negligent  acts,  discussion  as  to  whether  meas- 
ure of  liability  differs  in  regard  to  such  acts. — See  36  A.  S.  819- 
821. 

Upon  dissolution  of  attachment — As  to,  generally,  see  3  A.  C. 
720;   4  A.  C.  519;  7  A.  C.  545,  547;   10  A.  C.  951.  ' 

Same — Right  to  recover  counsel  fees  as. — See  10  A.  C.  954. 

Value  of  time  lost  as  an  element  of  in  personal  Injuries. — See 

10  L.   794;   11  L.  45. 

Verdict  in  action  for — As  to,  generally,  see  4  A.  C.  125;  4  A. 
C.   556;   8  A.  C.  746;  8  A.  C.  902. 

Same — Excessive  in  suits  for  personal  injuries. — See  14  L.  677. 

Same — Inadequacy  of  damages  awarded  in  personal  action  as 
ground  for  setting  aside. — See   8  A.  C.   903. 

Same — Set   aside   as    excessive    in    personal    injtiry    cases. — See 

11  L.   47. 

Same— Set  aside  for  inadequacy  of  in  personal  injury  cases. — 
See   11   L.    50. 

Wealth  of  defendant,  when  may  be  shown  to  enhance,  in 
action  for  libel  and  slander. — See  3  A.  R.  377. 

What  recoverable  as. — See  69  A.  D.   725. 

When  single  recovery  bars  all  subsequent  action  for. — See  59 
A.    R.    351. 

Whether  liquidated  or  a  penalty. — See  1  A.  D.  331. 

Within  discretion  of  jury  in  personal  injury  cases. — See  11 
L.   46. 


§3282.     DETRIMENT,    WHAT.      Detriment    is    a    loss    or 
harm   suffered  in  person  or  property. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  damages   generally, 
see    note    §  3281,   ante. 

1612 


Tit.II,ch.T,art.I.]       INJURIES  AFTER  SUIT.  §  3283 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  post. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §  3282,    note. 

§3283.  INJURIES  RESULTING  OR  PROBABLE  AFTER 
SUIT  BROUGHT.  Damages  may  be  awarded,  in  a  judicial 
proceeding,  for  detriment  resulting  after  the  commencement 
thereof,  or  certain  to  result  in  the  future. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

75  C.  558,  563,  17  P.  687,  689  (cited);  117  C.  305,  312,  49  P.  189 
(construed);  123  C.  428.  432,  56  P.  103  (referred  to);  126  C.  1,  7, 
58  P.  315  (cited);  130  C.  285,  287,  62  P.  515  (applied);  136  C. 
129,  130,  68  P.  476  (cited);  150  C.  624,  626,  627,  89  P.  599  (when- 
ever by  one  act  a  permanent  injury  is  done,  damages  are  as- 
sessed once  for  all);  151  C.  113,  117,  91  P.  522  (cited);  151  C.  271, 
276,  90  P.   706    (what  constitutes  damage). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see    note    §  3281,    ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages,  see   note   §  3300,   post. 


1613 


§  3287  -CIVIL  CODE.  [Div.IV.Pt.I. 

ARTICLE   II. 

INTEREST  AS   DAMAGES. 

§  3287.     Person  entitled  to  recover  damages  may  recover  inter- 
est  thereon. 
§  3288.     In   action   other  than   contract. 
§  3289.     Limit  of  rate  by  contract. 
§  3290.     Acceptance   of  principal   waives   claim   to   interest. 

§3287.  PERSON  ENTITLED  TO  RECOVER  DAMAGES 
MAY  RECOVER  INTEREST  THEREON.  Every  person  who 
is  entitled  to  recover  damages  certain,  or  capable  of  being 
made  certain  by  calculation,  and  the  right  to  recover  which 
is  vested  in  him  upon  a  particular  day,  is  entitled  also  to 
recover  interest  thereon  from  that  day,  except  during  such 
time  as  the  debtor  is  prevented  by  law,  or  by  the  act  of  the 
creditor,  from  paying  the  debt. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  25  pars,  annotation. 

57  C.  356,  357  (applied);  63  C.  371,  374  (applied);  72  C.  322, 
330,  14  P.  12,  16  (cited);  72  C.  498,  509,  1  A.  S.  75,  14  P.  190,  196 
(cited);  89  C.  632,  635,  27  P.  67,  68  (referred  to);  33  P.  1130,  1132 
(applied);  103  C.  157,  162,  37  P.  199  (applied);  106  C.  224,  234,  39 
P.  758  (applied);  106  C.  441,  447,  39  P.  853  (referred  to);  106  C. 
566,  572,  573,  39  P.  933  (applied);  110  C.  311,  316,  42  P.  811  (con- 
strued); 114  C.  396,  400,  46  P.  290  (applied — right  to  interest 
from  time  of  filing  complaint);  121  C.  233,  237,  240,  53  P.  689, 
1092  (referred  to);  126  C.  9,  15,  58  P.  312,  313  (applied);  130  C. 
426,  430,  62  P.  616  (applied);  141  C.  692,  697,  75  P.  564  (applied); 
146  C.  281,  285  (interest  is  not  allowable  when — mechanics' 
liens),  79  P.  968,  969,  970  (cited);  3  C.  A.  263,  266  (applied  but 
erroneously  cited  as  §3278),  84  P.  159  (same  error);  6  C.  A. 
479,  482,  92  P.  519,  520   (right  to  interest — goods  sold). 

As  to  interest  in  actions  for  conversion,  see  Kerr's  Cyc.  C.  C. 
§  3336   and   note. 

As  to  legal  rate  of  interest,  see  Kerr's  Cyc.  C.  C.  §  1917  and 
note. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages,  see   note   §  3300,   post. 

1614 


Tit.II.ch.I.art.II.]  limiting  rate.  §§3288-3290 

§32H8.     I>    ACTION    OTHER    THAN    CONTRACT.      In    an 

action    for    the    breach    of    an    obligation    not    arising    from 
the    contract,    and    in    every    case    of    oppression,    fraud,    or 
malice,  interest  may  be  given,  in  the  discretion  of  the  jury. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.   C.  for  17  pars,  annotation. 

72  C.  498,  509,  1  A.  S.  75,  14  P.  190  (construed);  106  C.  441, 
448,  39  P.  853  (construed  with  other  sections);  109  C.  96,  99, 
41  P.  786,  29  L.  755    (referred  to). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see   note   §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages,  see  note  §  3300,  post. 

§  3289.  LIMIT  OF  RATE  BY  CONTRACT.  Any  legal  rate 
of  interest  stipulated  by  a  contract  remains  chargeable  after 
a  breach  thereof,  as  before,  until  the  contract  is  superseded 
by  a  verdict  or  other  new  obligation. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cj'C.  C.  C.  for  4  pars,  annotation. 

136   C.   368,   371,   68   P.   1032    (referred  to). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see   note    §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  tlie  measure  of  dam- 
ages, see   note   §  3300,   post. 

s:j2JM).   acceptance  of  principal  waives  claim 

TO  interest.     Accepting  payment  of  the  whole  principal, 
as  such,  waives  all  claim  to  interest. 

Ili.story:     Enacted  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

100  C.  18,  22,  34  P.  510  (applied);  133  C.  191,  194,  65  P.  381 
(applied). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  post. 


1615 


§  3294  CIVIL  CODE.  [Div.IV.Pt.I. 

ARTICLE   III. 

EXEMPLARY   DAMAGES. 

§  3294.     Exemplary  damages,  in  what  cases  allowed. 

§3294.  EXEMPLARY  DAMAGES,  IN  WHAT  CASES  AL- 
LOWED.  In  an  action  for  the  breach  of  an  obligation  not 
arising  from  contract,  where  the  defendant  has  been  guilty 
of  oppression,  fraud,  or  malice,  express  or  implied,  the 
plaintiff,  in  addition  to  the  actual  damages,  may  recover  dam- 
ages for  the  sake  of  example  and  by  way  of  punishing  the 
defendant. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421, 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March   21,   1905,  Stats,  and  Amdts.   1905,' p.   621. 

See  Kerr's  Cyc,  C.  C.  for  60  pars,  annotation. 

64  C.  272,  28  P.  253  (applied);  68  C.  32,  8  P.  527  (referred  to); 
74  C.  148,  150,  15  P.  452,  453  (applied);  75  C.  563,  566,  17  P.  685, 
686  (cited);  76  C.  532,  534,  18  P.  668,  669  (cited);  77  C.  208,  212, 
19  P.  382,  383  (referred  to);  80  C.  135,  137,  138,  22  P.  70,  71  (con- 
strued); 85  C.  191,  192,  24  P.  656  (applied);  93  C.  59,  71,  28  P. 
845,  848  (cited);  31  P.  263  (referred  to);  97  C.  1,  6,  33  A.  S. 
157,  31  P.  1112  .(applied);  101  C.  411,  413,  35  P.  1024  (applied); 
105  C.  284,  289,  290,  45  A.  S.  40,  38  P.  903  (applied);  107  C.  262, 
269,  40  P.  392  (cited) ;  44  P.  1018,  1019  (applied) ;  114  C.  447,  450,  46  P. 
286  (cited);  121  C.  216,  218,  53  P.  559  (referred  to);  57  P.  394, 
395  (referred  to);  132  C.  316,  319,  64  P.  409  (referred  to);  138 
C.  405,  414,  71  P.  506,  507  (construed);  139  C.  514,  518,  521,  73 
P.  418  (construed  with  another  section);  140  C.  357,  363,  364,  73 
P.  1050  (construed);  142  C.  256,  260,  261,  100  A.  S.  123,  71  P. 
165,  75  P.  842  (cited  and  referred  to);  151  C.  1,  15,  89  P.  1097 
(assumed  that  "actual"  means  express — presumed  malice  is 
closely  assimilated  to  implied  malice  of  criminal  law) ;  5  C. 
A.  126,  128,  89  P.  851  (cited — simple  negligence  does  not  justify 
award  of  punitive  damages). 

As  to  damages  for  wrongs  generally,  see  Kerr's  Cyc.  C.  C. 
§§  3333  et  seq.  and  notes. 

As  to  malice,  fraud,  or  oppression,  generally,  see  Kerr's  Cyc. 
C.  C.  §  3294,  note  pars.   24-25  this  note. 

As  to  malice  in  conversion  of  wheat,  see  Kerr's  Cyc.  C.  C. 
§  3294,  note  par.  35. 

1616 


TitJI.ch.I.art.IIL]  EXEMPLARY.  §  3294 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  post. 

As  to  penal  damages,  see  Kerr's  Cyc.  C.  C.  §§  3344  et  seq.  and 
notes. 

Allowance  of  exemplary  damages — In  general. — See  27  A.  D. 
684-689;  50  A.  D.  767-775;  28  A.  S.  870-883. 

Same — Against  corporations. — See  28  A.  S.  876,  877;  59  A.  S. 
589-609. 

Same — Against  municipal  corporations. — See  59  A.  S.  602. 

Same — For  wrongful  injuries  to  animals. — See  Kerr's  Cyc.  C. 
C.   §  3340  and  note. 

Same — For  wrongful  or  malicious  attachment. — See  68  A.  S. 
266-280. 

Same — Liability  of  principal  or  master  for  act  of  agent  or 
servant. — See  62  A.  D.  379-389. 

Excessive  damages  as  ground  for  new  trial. — See  Kerr's  Cyc. 
C.  C.  P.  §  656  note  subd.  5. 

Libel  or  slander,  how  stated  in  complaint. — See  Kerr's  Cyc. 
C.  C.  P.  §  460  and  note. 


1617 


§  3300  CIVIL  CODE.  [Div.IV,Pt.I. 

CHAPTER   II. 

MEASURE   OF  DAMAGES. 

Article    I.  Damages  for   Breach  of   Contract,    §§  3300-3319. 

II.  Damages  for  Wrongs,   §§  3333-3341. 

III.  Penal  Damages,   §§  3344-3348. 

IV.  General    Provisions,    §§  3353-3360. 

ARTICLE    I. 
DAMAGES  FOR  BREACH  OP  CONTRACT. 

§  3300.  Measure   of  damages   for  breach    of  contract. 

§  3301.  Damages  must  be  certain. 

§  3302.  Breach  of  contract  to  pay  liquidated  sum. 

§  3303.  Dishonor  of  foreign  bills  of  exchange. 

§  3304.  Detriment  caused  by  breach  of  covenant  of  seizin,  etc. 
What  is. 

§  3305.  Detriment  caused  by  breach  of  covenant  against  en- 
cumbrances, is  what. 

§  3306.  Breach  of  agreement  to  convey  real  property. 

§  3307.  Breach  of  agreement  to  buy  real  property. 

§  3308.  Breach  of  agreement  to  sell  personal  property,  not  paid 
for. 

§  3309.  Breach  of  agreement  to  sell  personal  property  paid  for. 

§  3310.  Breach  of  agreement  to  pay  for  personal  property  sold. 

§  3311.  Breach   of  agreement  to   buy  personal  property. 

§  3312.  Breach  of  warranty  of  title  to  personal  property. 

§  3313.  Breach  of  warranty  of  quality  of  personal  property. 

§  3314.  Breach  of  warranty  of  quality  for  special  purpose. 

§  3315.  Breach  of  carrier's  obligation  to  receive  goods,  etc. 

§  3316.  Breach  of  carrier's  obligation  to  deliver. 

§  3317.  Carrier's  delay. 

§  3318.  Breach  of  warranty  of  authority. 

§  3319.  Breach   of  promise  of  marriage. 

§3300.  MEASURE  OF  DAMAGES  FOR  BREACH  OF 
CO^'TRACT.  For  the  breach  of  an  obligation  arising  from 
contract,  the  measure  of  damages,  except  where  otherwise 
expressly  provided  by  this  code,  is  the  amount  which  will 
compensate  the  party  aggrieved  for  all  the  detriment  proxi- 

1618 


Tit.II,ch.II,art.I.]  MEASURE  OF.  §  3300 

mately  caused  thereby,  or  which,  in  the  ordinary   course  of 
things,  would  be  likely  to  result  therefrom. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   266. 

II 
>  See  Kerr's  Cyc.  C.  C.  for  22  pars,  annotation. 

67  C.  406,  408,  7  P.  810,  812  (referred  to);  67  C.  464,  466,  8 
P.  40,  41  (construed);  89  C.  464,  466,  23  A.  S.  488,  26  P.  967 
(applied);  97  C.  490,  493,  32  P.  563  (applied);  98  C.  210,  214,  33 
P.  53  (construed  and  applied);  100  C.  93,  97,  34  P.  625  (con- 
strued and  applied);  102  C.  55,  68,  41  A.  S.  151,  36  P.  368  (cited); 
103  C.  454,  458,  37  P.  466  (cited);  116  C.  239,  244,  48  P.  62  (cited); 
130  C.  309,  314  (applied,  but  erroneously  cited  as  §  3330),  62 
P.  562,  563  (citation  of  §3300  omitted),  1058;  140  C.  339,  342, 
73  P.  1055  (construed  and  applied);  148  C.  596,  600,  84  P.  43 
(considered  in  action  for  breach  of  contract  to  organize  cor- 
poration and  to  issue  stock);  150  C.  51,  56,  87  P.  1093  (distinction 
between  damages  for  breach  of  contract  and  damages  for  tort); 
1  C.  A.  429,  431,  82  P.  634  (libel — recovery  of  damages  is  not 
limited  to  such  as  result  from  injury  to  business);  2  C.  A.  170, 
173,  83  P.  175  (applied  to  attached  oil  stock,  purchased  for 
resale);  4  C.  A.  488,  497,  88  P.  512  (applied  to  breach  of  lease 
of  personal  property  with  option  to  purchase);  144  F.  886,  895 
(applied  with  other  sections — contract  to  furnish  tin  cans). 

MEASURE    OP   DAMAGES. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §   3281,  ante. 

Actual  damages  as  basis  for  award  of  exemplary  damages. — • 
See  7  A.  C.  896. 

Against  promoter  of  corporation. — See  18  L.  N.  S.  1131. 

Against  vendee  for  refusing  to  perform  in  contract  to  pur- 
chase.— See  67  A.  D.   275. 

Conflict  of  laws  concerning. — See  91  A.  S.  714. 

Eminent  domain,  what  recoverable  in  the  exercise  of  the 
right  of — Allowance  of  interest  on  value  of  property  destroyed 
by  negligent  construction  of  railroads,  canals,  etc. — See  18  L.  454. 

Same — Amount  recoverable  by  tenant  and  reversioner. — See  21 
L.   217,   223. 

Same — Benefits  considered. — See  7  L.  289. 

Same — Depreciation   of  neighboring  property. — See  S  L.   330. 

Same — Diminution  in  value  for  operation  of  trains. — See  9  L. 
298. 

Same — Effect  of  preserving  to  owner  an  estate,  rights  of  ease- 
ment.—See  26  L.  751-758. 

Same — Expert  testimony  as  to  value  and  damages,  conclusive- 
ness of.— See  42  L.   767. 

1610 


§  3300  CIVIL  CODE.  [Div.IV.Pt.I. 

Same — In  pollution  of  water  as  an  element  of  for  taking  rail- 
road right  of  way. — ^See  47  L.  782. 

Same — In  taking  of  water. — See  58  L.   253. 

Same — In  taking  property  for  canal. — See  61  L.  841. 

Same — Inconvenience  caused.- — See   2  L.   217. 

Same — Injury    reasonably   anticipated. — See    2    L.    218. 

Same — Injury  to  easement  of  abutting  owners. — See   14  L.   381. 

Same — Injury  to  tract  as  a  whole. — See  2  L.  218;  3  L.  84;  9 
L.   98.'  ■ 

Same — Market  value. — See  3  L.  83;  11  L.  604;  12  L.  611. 

Same — Profit  or  loss  as  affecting. — See  51  L.  320. 

Same — Special  damages. — See  2  L.  218. 

Same — Taken  for  railroad  purposes,  generally,  see  2  L.  219; 
7  L.   409;   8  L.  330;  9  L.   299. 

Same — Value  of — Improvements  made  by  one  taking  property. 
—See  16  L.  805. 

Same — Same— Land  for  its  uses  and  purposes. — See  2  L.  219. 

Same — Same^ — Tract  cut  off. — See  2  L.  219. 

Same — What  injuries  not  considered. — See  2  L.  218. 

Expenses  of  care  and  nursing.- — See  5  A.  C.  146;  10  A.  C.  285. 

For  allowing  land  to  become  infected  with  weeds. — See  12 
L.  N.  S.  88. 

For  an  unconditional  trespass. — See  54  A.  R.  421. 

For  appropriation  of  mineral  lands. — See  2  A.  C.   966. 

For  breach  of  an  executory  contract. — See  42  A.  D.  48. 

For  breach  of  contract — By  carrier  for  carriage. — See  53  L.  84. 

Same — Preventing  operation  of  industrial  business  in  con- 
templation, but  not  established  and  in  actual  operation. — See 
19  L.  N.  S.   155. 

Same — To  furnish  water  for  irrigation. — See  19  L.  N.  S.   938. 

For  breach  of  contract  of  sale — As  to,  generally,  see  2  A. 
C.  997. 

Same — Fixed  charges. — See   2  A.  C.  997. 

Same — On  contract  for  goods  to  be  manufactured. — See  7  A. 
C.  1172,  1175. 

Same — On  executory  contract. — See  2  A.  C.  814;  2  A.  C.  997. 

Same — Value  at  place  of  delivery. — See  9  A.  C.  188. 

For  breach  of  covenant  for  quiet  enjoyment. — See  53  A.  S.  116. 

For  breach  of  warranty — In  sales. — See  5  A.  C.  586,  588;  7 
A.   C.   935,   937. 

Same — Of  title. — See   24  A.   S.   266. 

For  carrier's  loss  of  goods. — See  2  L.  N.  S.  773. 

For  carrying  passenger  beyond  destination. — See  17  L.  N.  S. 
1226-1230. 

For  causing  death  of  a  human  being. — See  12  A.  S.   375. 

For  conversion  or  failure  to  deliver  household  goods. — See  3 
A.  C.  891. 

For  damages  to  goods  received  for  cold  storage. — See  52  L.  108. 

1620 


Tit.ir,ch.II,art.I.]  MEASURE  OF.  §3300 

For  death   by   wrongful  act — As  to,  generally,  see  3  A.  C.   53; 
6   A.  C.   71. 

Same — For  death  of  parent  or  husband. — See  3  A.  C.  98,  103. 
Same — In  suit  by  next  of  kin. — See  10  A.  C.  Ill,  113. 
For  enticement  of  servant. — See  5  L.  N.  S.  1100. 
For    fraudulent    representations    in    the    sale    or    exchange    of 
real  estate. — See  8  L.  N.  S.  804;   16  L.  N.  S.   818. 

For  injury — To  crops.— See  1  A.  C.  761;  6  A.  C.  946. 
Same — To  lateral  and  subjacent  support. — See  5  A.  C.   219;   10 
A.    C.    77. 

Same — To  or  destruction   of  growing  crops. — See   6   A.   C.   949; 
12  L.  N.  S.   267. 

Same — To   or  destruction    of   trees  or  shrubbery   in    the   value 
for  their  timber  or  fire  wood. — See  11  L.  N.  S.  930. 

Same — To   public   land   before   homesteader   receives    patent. — 
See  17  L.  N.  S.  958. 

For  loss  or  destruction  of  manuscript,  legal   papers,   and  the 
like.— See  8  L.  N.   S.   369. 

For  mining  and  carrying  away  coal. — See  33  A.  R.  282. 
For   negligence   of   telegraph    company — As   to,   generally,    see 
1  A.  C.  346,  359. 

Same — Failure  to  transmit  money. — See  7  A.  C.  531,  535. 
Same — Loss  of  professional  fee. — See  5  A.  C.  730. 
Same — Mental    anguish    as    an    element    of. — See    1    A.    C.    349, 
355;   2   A.  C.   52;   7  A.  C.   1068;  also  "Mental   pain  and  suffering" 
this  note. 

Same — Message  showing  damage  will   result. — See  5  A.  C.   52; 
10  A.  C.   476. 

Same — Necessity  that  damages  for  failure  to  transmit  be  con- 
tomplated.— See   1   A.   C.   361;    10   A.   C.    479. 

Same — Quoting    selling    price    or    offering    bid. — See    3    A.    C. 
424,   429;   3   A.  C.   712. 

Same — Where  rule  declared  by  statute. — See  2  A.  C.  52. 
Same — Who  may  recover. — See  1   A.  C.  35S;   10  A.  C.  643,   648. 
For  personal   injuries  in  action   for   bre.Tcli   of  w.nrr.inty. — See 
5  A.  C.  586.  588;  7  A.  C.  935.  937. 

For  preventing  exhibition   or   show   by   breach   of  contract   of 
carriage. — See  4  L.  N.  S.  569. 

For    purcliasor's    refusal    to    accept    goods    speclflcnlly    manu- 
factured for  him. — See  18  L.  N.  S.  613. 

For  servant's  wrongful   dlscliarge. — See   43  A.   D.   209. 
For   the  destruction    of   property   having   no   market    value   at 
the  place  of  destruction. — See  9  A.  C.  1148;  62  A.  S.  791. 
For  the  occasional   flooding  of  land. — See  3  L.  N.  S.  873. 
For  wrongful  cutting  or  destruction  of  standing  timber. — See 
18  L.  N.  S.   244-250. 

For  wrongful  working  of  mine. — See  8  A.  C.  36,  43. 

1621 


§  3301  CIVIL  CODE.  [Div.IV,Pt.I. 

In  actions  for  breach — Of  covenant  of  quiet  enjoyment. — See 
58    A.    R.    606. 

Same — Of  covenant  of  seizor  or  good  right  to  convey. — See  99 
A.   D.   73. 

Same — Of  warranty  of  soundness. — See  40  A.  D.  303. 

In  actions  of  trespass  or  trover  for  property  taken  by  mis- 
take.—See  36  A.  R.   770. 

In  eminent  domain,  etc. — Benefits  set  off  against. — See  9  L.  N. 
S.    781,-837. 

In  trover — Wlien  tlie  value  of  the  property  has  been  enhanced 
by  the  wrong-doer. — See  24  A.  D.  70. 

Same — ^Wliere  tlie  owner  of  a  special  interest  is  tlie  plaintiff. — 
See  50  A.  D.  678. 

Interest  as  an   element  of. — See   1   A.   C.    761,    763;    4   A.   C.    128; 

6  A.  C.  30;  8  A.  C.  298. 

Loss  of  profit  on  possible  sales,  for  breach  of  contract  where 
no  contingent  sales  have  been  affected. — See  8  L.  N.  S.  255. 

Loss  of  time  and  earning  capacity. — See  4  A.  C.  205;  8  A. 
C.   1107. 

Market  value  of  property — As  to,   generally,   see   5   A.   C.    216; 

7  A.  C.   591;    9  A.   C.   1143. 

Same — For  loss  or  destruction  of  property  having  no  market 
value. — See  9  A.  C.  1148. 

Mental  pain  and  suffering  as  an  element  of. — See  1  A.  C.  346; 
2  A.  C.  55;  5  A.  C.  578,  579;  6  A.  C.  46;  7  A.  C.  1068;  9  A.  C.  1050, 
1051;  10  A.  C.  722. 

On  breach  by  vendee  of  executory  contract  for  sale  of  land. — 
See  4  A.  C.  789. 

On   failure   of  title  to  property  sold. — See   53  A.   R.   788. 

Pecuniary  circumstances  of  the  parties  as  affecting. — See  67 
A.   D.   562. 

Profits,  loss  of,  in  actions  for  breacli  of  contract  to  sell. — See 
42   A.   R.    461. 

Recovery .  from  landlord  for  injury  to  tenant  for  defect  in 
premises. — See  34  L.   831. 

Vendee's  damages  in  a  breach  of  contract  to  convey  real 
property.— See  106  A.  S.  963. 

When  lands  are  taken  for  public  use. — See  88  A.  D.  113;  also 
"Eminent  domain"  amount  recoverable,  etc. 

Where  lessee  is  prevented  from  taking  possession  where  he  is 
afterward  evicted  by  the  lessor. — See  100  A.  D.  428. 


§  8301.  DAMAGES  MUST  BE  CERTAIN.  No  damages  can 
be  recovered  for  a  breach  of  contract  which  are  not  clearly 
ascertainable  in  both  their  nature  and  origin. 

History:     Enacted  March  21,   1872. 
1622 


I 


i 


Tit.II,ch.II,art.I.]  liquidated.  §§3302,3303 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

66  C.  536,  538,  6  P.  417  (construed  with  §1671);  101  C.  275, 
280,  35  P.  865  (applied);  140  C.  339,  342,  73  P.  1055  (applied). 

As  to  many  nniscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

As  to  mental  anguish  as  element  of  damages,  see  Kerr's  Cyc. 
C.  C.  §  3300  and  note. 


§3302.  BREACH  OF  tONTRACT  TO  PAY  LIQUIDATED 
SUM.  The  detriment  caused  by  the  breach  of  an  o1)ligation 
to  pay  money  only,  is  deemed  to  be  the  amount  due  by  the 
terms  of  the  obligation,  with  interest  thereon. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

76  C.  621,  623,  18  P.  796,  797  (cited) ;  79  C.  218,  223,  12  A.  S.  139.  21  P. 
743,  744  (applied) ;  89  C.  464.  466,  23  A.  S.  488,  26  P.  9G7  (referred  to 
as  inapplicable);  107  C.  577,  585,  40  P.  1026  (cited);  149  C.  32. 
34,  84  P.  663,  5  L.  N.  S.  870  (referred  to — action  barred  under 
§339);  46  F.  355,  356   (scope  and  purpose  of  section). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  tlie  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Lesee's  abandonment  of  premises  during  term. — See  Kt-rr's 
Cyc.  C.  C.  §  3300  and  note. 

Liquidated  damages. — See  27  A.  S.  717. 


§3303.     DISHONOR  OF  F(M{EIG>  BILLS  OF  EX(  H  VNOE. 

For  the  dishonor  of  foreij^n  bills  of  exchange  the  damages 
are  prescribed  by  sections  thirty-two  hundred  and  thirty- 
five,  thirty-two  hundred  and  thirty-seven,  and  thirty-two  hun- 
dred  and   thirty-eight. 

HiNtory:     Enacted  Marcli   21,   1872. 

See  Kerr's  Cyc.  C.  C.  §  3275  and  note. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281.  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

1623 


§§  3304,  3305  CIVIL  CODE.  [Div.IV,Pt.I. 

§3304.  DETRIMENT  CAUSED  BY  BREACH  OF  COVE- 
NANT  OF  SEIZIJf,  ETC.,  WHAT  IS.  The  detriment  caused 
by  the  breach  of  a  covenant  of  "seizin,"  of  "right  to  convey," 
of  "warranty,"  or  of  "quiet  enjoyment,"  in  a  grant  of  an 
estate  in  real  property,  is  deemed  to  be: 

1.  The  price  paid  to  the  grantor;  or,  if  the  breach  is  partial 
only,  such  proportion  of  the  price  as  the  value  of  the  prop- 
erty affected  by  the  breach  bore  at  the  time  of  the  grant 
to  the  value  of  the  whole  property; 

2.  Interest  thereon  for  the  time  during  which  the  grantee 
derived  no  benefit  from  the  property,  not  exceeding  five 
years; 

3.  Any  expenses  properly  incurred  by  the  covenantee  in 
defending  his  possession. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

70  C.  79,  84,  11  P.  505,  507  (applied);  136  C.  26,  29,  68  P.  321, 
322  (cited). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Covenant  for  quiet  enjoyment,  effect  and  scope  of  covenant 
and  damages  for  breach,  see  53  A.  S.  113-120. 

Damages  for  breach  of  covenant  in  deed. — See  1  A.  D.  9,  10. 


§3305.  DETRIMENT  CAUSED  BY  BREACH  OF  COVE- 
NANT AGAINST  ENCUMBRANCES,  IS  WHAT.  The  detri- 
ment caused  by  the  breach  of  a  covenant  against  encum- 
brances in  a  grant  of  an  estate  in  real  property  is  deemed 
to  be  the  amount  which  has  been  actually  expended  by  the 
covenantee  in  extinguishing  either  the  principal  or  interest 
thereof,  not  exceeding  in  the  former  case  a  proportion  of 
the  price  paid  to  the  grantor  equivalent  to  the  relative  value 
at  the  time  of  the  grant  of  the  property  affected  by  the 
breach,  as  compared  with  the  whole,  or,  in  the  latter  case, 
interest  on  a  like   amount. 

History:     Enacted  March  21,  1872. 
1624 


Tit.II,ch.II,art.I.]       BREACH    OF    AGREEMENT.     §§3306.3307 

§3300.  BREACH  OF  AGREEMEXT  TO  COXVEY  REAL 
PROPERTY.  The  detriment  caused  by  the  breach  of  an 
agreement  to  convey  an  estate  in  real  property,  is  deemed 
to  be  the  price  paid,  and  the  expenses  properly  incurred 
in  examining  the  title  and  preparing  the  necessary  papers, 
with  interest  thereon;  but  adding  thereto,  in  case  of  bad 
faith,  the  difference  between  the  price  agreed  to  be  paid 
and  the  value  of  the  estate  agreed  to  be  conveyed,  at  the 
time  of  the  breach,  and  the  expenses  properly  incurred  in 
preparing  to  enter  upon  the  land. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

55  C.  38,  41  (construed);  78  C.  529.  535,  21  P.  179  (referred  to);- 
81  C.  214,  215,  217,  2.2  P.  546,  547  (applied);  89  C.  474,  476,  26 
P.  1073.  1074  (construed);  116  C.  515,  517,  48  P.  498  (construed 
and  applied);  121  C.  42,  46.  53  P.  642  (referred  to);  123  C.  1. 
5,  10,  69  A.  S.  17,  55  P.  713,  43  L.  199  (cited);  61  P.  472,  475  (not 
applicable  to  action  to  rescind  contract  of  sale  of  land  for  fail- 
ure of  title);  147  C.  299,  302,  305.  81  P.  958  (construed  with 
S3386);  149  C.  122,  128,  84  P.  835  (applied — contra'ct  for  ex- 
change of  lands);  4  C.  A.  354.  356.  88  P.  282  (applied — effect  of 
tender). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281.  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  $  3300,  ante. 

Contracts  for  sale  of  land — Defective  title. — Sec  20  A.  S.  217. 

Damages  recoverable  on  breach  of  warranty  of  title. — See  24 
A.  S.  266-268. 

Measure  of  damages  for  broach  of  contract  to  convey  realty. — 
Sec  100  A.  D.  467.  468. 

Presumption  that  breach  cannot  be  adequately  relieved  by 
money  compensation. — See  Kerr's  Cyc.  C.  C.   S  3387  and  note. 

Recovery  back  of  purchase  money  where  vendor  falls  to  niak<' 
deed. — See   Kerr's  Cyc.  C.   C.   i  1731   and   note. 

S3307.  HKi:V(  II  OI  A(iREE.ME>T  TO  HIV  HKAl,  IMMM'- 
ERTY.  The  detriment  caused  by  the  breach  of  an  agree- 
ment to  i)urchase  an  estate  in  real  property,  is  deemed  to 
be  the  excess,  if  any.  of  the  amount  which  would  have  been 
due  to  the  seller,  under  the  c<mtrart.  over  the  value  of  the 
l)roperty   to  him. 

IliNtory:     Enacted  Xrurch   21.   1872. 
1625 


§§  3308,  3309  CIVIL  CODE.  [Div.IV.Pt.I. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

87  C.  443,  450,  22  A.  S.  257,  25  P.  749,  751  (construed);  123  C. 
1,  5,  10,  69  A.  S.  17,  55  P.  713,  43  L.  199  (cited);  125  C.  563,  567, 
58  P.  130  (referred  to);  138  C.  100,  104,  70  P.  1082,  71  P.  438 
(cited  in  dis.  op.). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Damages  recoverable  upon  breach  of  contract  by  purchaser. — 
See  24  A,  S.   128. 

Forfeiture  of  partial  payment  by  purchaser. — See  42  A.  S. 
417,   418. 

Measure  of  damages  against  purchaser  for  refusing  to  per- 
form his  contract  for  purchase  of  land. — See  67  A.  D.  275-283. 

§3308.  BEEACH  OF  AGREEMENT  TO  SELL  PERSONAL 
PROPERTY,  NOT  PAID  FOR.  The  detriment  caused  by  the 
breach  of  a  seller's  agreement  to  deliver  personal  property, 
the  price  of  which  has  not  been  fully  paid  in  advance,  is 
deemed  to  be  the  excess,  if  any,  of  the  value  of  the  property 
to  the  buyer,  over  the  amount  which  would  have  been  due 
to  the  seller  under  the  contract,  if  it  had  been  fulfilled. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

67  C.  477,  479,  8  P.  17,  18  (construed  and  applied);  1  C.  A.  511. 
513,  82  P.  562  (applied — contract  to  sell  electric  power);  144  F. 
886,  895  (applied  with  other  sections — contract  to  furnish  tin 
cans). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  inany  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Measure  of  damages  for  breach  of  contract  to  deliver  goods 
sold. — See  62  A.  D.  136,  137;  63  A.  D.  476,  477. 

Presumption  that  breach  can  be  adequately  relieved  by  money 
compensation. — See  Kerr's  Cyc.  C.  C.  §  3387  and  note. 

§3309.  BREACH  OF  AGREEMENT  TO  SELL  PERSONAL 
PROPERTY  PAID  FOR.  The  detriment  caused  by  the  breach 
of  a  seller's  agreement  to  deliver  personal  property,  the  price 
of  which  has  been  fully  paid  to  him  in  advance,  is  deemed 
to  be  the  same  as  in  case  of  wrongful  conversion. 

History:     Enacted  March  21,  1872. 
1626 


Tit.TI,ch.TI,art.I.]        BREACH    OF    AGREEMENT.      §§  3310,  3311 

See  Kerr's  Cyc.  C.  -C.  for  4  pars,  annotation. 

96  C.  152,  154,  30  P.  1114  (referred  to  as  inapplicable). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Presumption  that  breach  can  be  adequately  relieved  by  money 
compensation.— See  Kerr's  Cyc.  C.  C.  §  3387  and  note. 

§3310.  BREACH  OF  AGKEEMEM  TO  PAY  FOR  PER- 
SOXAL  PROPERTY  SOLD.  The  detriment  caused  by  the 
breach  of  a  buyer's  agreement  to  accept  and  pay  for  personal 
property,  the  title  to  which  is  vested  in  him,  is  deemed  to  be 
the  contract  price. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§3311.  BREACH  OF  AGREEMENT  TO  BUY  PERSONAL 
PROPERTY.  The  detriment  caused  by  the  breach  of  a 
buyer's  agreement  to  accept  and  pay  for  personal  property, 
the  title  to  which  is  not  vested  in  him,  is  deemed  to  be: 

1.  If  the  property  has  been  resold,  pursuant  to  section 
three  thousand  and  forty-nine,  the  excess,  if  any,  of  the 
amount  due  from  the  buyer,  under  the  contract,  over  the  net 
proceeds  of  the  resale;  or, 

2.  If  the  property  has  not  been  resold  in  the  manner  pre- 
scribed by  section  three  thousand  and  forty-nine,  the  excess, 
if  any,  of  the  amount  due  from  the  buyer,  under  the  con- 
tract, over  the  value  to  the  seller,  together  with  the  excess, 
if  any,  of  the  expenses  properly  incurred  in  carrying  the 
property  to  market,  over  those  w^hich  would  have  been 
incurred  for  the  carriage  thereof,  if  the  buyer  had  accepted  it 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

77  C.  139,  143,  144,  12  A.  S.  63,  19  P.  260,  261  (applied);  90  C. 
515     5''0     27    P.    373,    374,    375    (referred    to    as    inapplicable);    94 

1627 


§§3312,3313  CIVIL,  CODE.  [Div.IV.Pt.I. 

C.  5,  17,  29  P.  406,  409  (construed  and  applied);  106  C.  441,  446, 
447,  448,  39  P.  853  (cited)  with  §§3287,  3288,  3353,  3357);  109  C. 
242,  248,  41  P.  1020  (cited);  120  C.  416,  420,  52  P.  666  (referred 
to);  143  C.  436,  438,  77  P.  144  (applied);  144  C.  81,  84,  77  P.  771 
(cited);  1  C.  A.  241,  243,  81  P.  1086  (applied — contract  to  buy 
prunes);  2  C.  A.  312,  314,  84  P.  356  (subd.  2  applied  with  §  3353— 
contract  to  buy  crop  of  oranges);  4  C.  A.  288,  290,  87  P.  1101 
(applied — sale  of  business — remedy  of  vendor). 

As  to  many  miscellaneous  matters  as  to  damag'es  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

As  to  when  interest  included,  see  Kerr's  Cyc.  C.  C.  §  3287  and 
note. 

Prospective  profits. — See  Kerr's  Cyc.  C.  C.   §  3300  and  note. 

§3312.  BBEACH  OF  WARRANTY  OF  TITLE  TO  PER- 
SONAL PROPERTY.  The  detriment  caused  by  the  breach 
of  a  warranty  of  the  title  of  personal  property  sold,  is 
deemed  to  be  the  value  thereof  to  the  buyer,  when  he  is 
deprived  of  its  possession,  together  with  any  costs  which 
he  has  become  liable  to  pay  in  an  action  brought  for  the 
property  by  the  true  owner. 

Historj-:     Enacted  March   21,  1872. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note   §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

For  Coinmissioners'  coinment  on  this  section,  see  Kerr's  Cyc. 
C.    C.    §  3312,   note. 

Measure  of  damages  on  failure  of  title  to  chattels  sold. — See 
53   A.   R.   788-790. 

§  3313.  BREACH  OF  WARRANTY  OF  QUALITY  OF  PER- 
SONAL PROPERTY.  The  detriment  caused  by  the  breach  of 
a  warranty  of  the  quality  of  personal  property  is  deemed  to 
be  the  excess,  if  any,  of  the  value  which  the  property  would 
have  had  at  the  time  to  which  the  warranty  referred,  if  it 
had  been  complied  with,  over  its  actual  value  at  that  time. 

History:     Enacted  March   21,   1872. 

See   Kerr's   Cyc.   C.   C.   for   5   pars,  annotation. 
60  C.   284,   287    (applied);   75   C.   558,  562,   17  P.   687,   688    (cited); 

1628 


Tit.II,ch.II,art.I.]      BREACH    OF    WARRANTY.  §§3314.3315 

78  C.  606,  610.  21  P.  369.  370  (cited);  103  C.  415.  417.  418,  419, 
420,  42  A.  S.  125,  37  P.  412  (construed);  1  C.  A.  286,  291,  82  P. 
92   (applied  with  §  3314 — sale  of  engine). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281.  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300.  ante. 

Allegation  of  express  warranty  necessary,  when. — See  Kerr's 
Cyc.  C.  C.  §  3314  and  note  par.  2. 

Sale  for  special  purpose — Breach  of  warranty  of  fitness. — See 
Kerr's  Cyc.  C.  C.   §  3314  and  note. 


§3314.  HHE.VCH  OF  WAKRAMY  OF  QUALITY  FOR 
SPECIAL  PURPOSE.  The  detriment  caused  by  the  breach 
of  a  warranty  of  the  fitness  of  an  article  of  personal  prop-- 
erty  for  a  particular  purpose,  is  deemed  to  be  that  which 
is  defined  by  the  last  section,  together  with  a  fair  compen- 
sation for  the  loss  incurred  by  an  effort  in  good  faith  to 
use  it  for  such  purpose. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

65  C.  273,  274,  3  P.  889  (construed);  75  C.  558,  562,  17  P.  687. 
688  (cited);  78  C.  606.  610.  21  P.  369,  370  (cited);  1  C.  A.  286, 
291,  82  P.  92  (applied  with  5  3313— sale  of  engine);  4  C.  A.  488, 
498,  88  P.  512  (proper  mode  of  pleading  in  action  to  ricover 
damages  for  hreacJi  of  warranty  of  Htness  of  article  for  particu- 
lar purpose). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  S  3300,  ante. 

Cognate  section. — «.■«•   Kerr's  Cyc.  C.  C.  $3313  and  nnt.. 

§3:n:».    iiri:a(h  of  rARHiKR's  ohli(;atio\  to  in- 

CEIVE  (JOOOS,  ETC.  The  detriment  caused  by  the  breach 
of  a  carriers  obligation  to  accept  freight,  messages,  or  pas- 
sengers, is  deemed  to  be  the  difference  between  the  amount 
which  he  had  a  right  to  charge  for  the  carriage  and  the 
amount  which  it  would  be  necessary  to  pay  for  the  same 
service  when  it  ought  to  be  i)erformed. 

Ilixtory:      Enartid   Man  h    l^l.    IST  '. 

1629 


§§  3316,  3317  CIVIL  CODE.  [Div.IV,Pt.T. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Obligation  to  accept  freight. — See  Kerr's  Cyc.  C.  C.  §  2169 
and  note. 

§331(5.  BREACH  OF  CARRIER'S  OBLIGATION  TO  DE- 
LIVER. The  detriment  caused  by  the  breach  of  a  carrier's 
obligation  to  deliver  freight,  where  he  has  not  converted 
it  to  his  own  use,  is  deemed  to  be  the  value  thereof  at  the 
place  and  on  the  day  at  which  it  should  have  been  delivered, 
deducting  the  freightage  to  which  he  would  have  been 
entitled  if  he  had  completed  the  delivery. 

Hi.story:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

120  C.   156,   159,  47  P.  874,  52  P.  302,  40  L.  350    (referred  to). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Duties  of  carrier  as  respects  delivery. — See  Kerr's  Cyc.  C.  C. 
§§  2118,  2119  and  notes. 

Limitation  of  liability  by  general  notice  and  special  contract. — 
See  Kerr's  Cyc.  C.  C.  §  2174  and  note. 

Stoppage  in  transitu. — See  Kerr's  Cyc.  C.  C.  §§  3076-3080  and 
notes. 

§8817.  CARRIER'S  DELAY.  The  detriment  caused  by  a 
carrier's  delay  in  the  delivery  of  freight,  is  deemed  to  be 
the  depreciation  in  the  intrinsic  value  of  the  freight  during 
the  delay,  and  also  the  depreciation,  if  any,  in  the  market 
value  thereof,  otherwise  than  by  reason  of  a  depreciation 
in  its  intrinsic  value,  at  the  place  where  it  ought  to  have 
been  delivered,  and  between  the  day  at  which  it  ought  to 
have  been  delivered,  and  the  day  of  its  actual  delivery. 

History:     Enacted  March  21,   1872. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

1630 


Tit.II,ch.II,art.I.]        breach  of  promise.  §§3318,3319 

Carrie.r's  liability  for  delay. — See  Kerr's  Cyc.  C.  C.  §  2196  and 
note. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  3317,  note. 

Loss  or  deterioration  of  goods,  by  delay. — See  31  A.  S.  561- 
567;   11  A.  S.   360-366. 

§3318.    BREACH  OF  WARRANTY  OF  AUTHORITY.     The 

detriment  caused  by  the  breach  of  a  warranty  of  an  agent's 
authority,  is  deemed  to  be  the  amount  which  could  have  been 
recovered  and  collected  from  his  principal  if  the  warranty 
had  been  complied  with,  and  the  reasonable  expenses  of 
legal  proceedings  taken,  in  good  faith,  to  enforce  the  act  of 
the  agent  against  his  principal. 

History:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Implied  warranty  by  assumption  of  authority. — See  Kerr's  Cyc. 
C.  C.   §  2342  and  note. 

§  3319.  BREACH  OF  PROMISE  OF  MARRIAGE.  The  dam- 
ages for  the  breach  of  a  promise  of  marriage  rest  in  the 
sound  discretion  of  the  jury. 

Hi.story:     Enacted  March   21,   1872. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Action  by  unmarried  female  for  seduction. — See  Kerr's  Cyc. 
C.  C.  P.  §  374  and  note. 

Action  for  breach  of  promise  of  marriage. — See  63  A.  D. 
532-548. 

Contract  by  infants  to  marry. — See  18  A.  S.  627,  628. 

Contract  to  marry  extinguished  by  death  of  promisor. — See  22 
A.   S.    813,    814. 

Damages  for  seduction. — See  Kerr's  Cyc.  C.  C.  §  3339  and  note. 

Defenses  to  actions  for  breach  of  promise  to  marry. — See  40 
A.    S.    172-176. 

Measure  of  damages  in  action  for  seduction. — See  44  A.  D. 
177,  178. 

Parent  or  guardian  may  maintain  action  for  seduction  of 
daughter  or  ward,  etc. — See  Kerr's  Cyc.  C.  C.  P.  §  375  and  note. 

1631 


§  3333  CIVIL  CODE.  [Div.IV,Pt.I. 

ARTICLE  II. 

DAMAGES   FOR  WRONGS. 

§  3333.  Breach    of   obligation    other   than   contract. 

§  3334.  Wrongful   occupation   of  real   property. 

§  3335.  Wilful  holding  over. 

§  3336.  Conversion  of  personal  property. 

§  3337.  Same.      [Application   to   benefit  of  owner.] 

§  3338.  Damages   of  lienor. 

§  3339.  Seduction. 

§  3340.  Injuries   to  animals. 

§  3341.  Same.      [Sheep-killing  dogs.] 

§3333.  BREACH  OF  OBLIGATION  OTHER  THA?f  COJf- 
TRACT.  For  the  breach  of  an  obligation  not  arising  from 
contract,  the  measure  of  damages,  except  where  otherwise 
expressly  provided  by  this  code,  is  the  amount  which  will 
compensate  for  all  the  detriment  proximately  caused  thereby, 
whether  it  could  have  been  anticipated  or  not. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  34  pars,  annotation. 

53  C.  56,  58  (cited);  56  C.  217,  218  (cited);  58  C.  241,  242  (cited); 
58  C.  357  (applied);  82  C.  595,  599,  23  P.  133,  134,  23  P.  375 
(cited);  88  C.  159,  163,  164,  22  A.  S.  291,  25  P.  1114  (applied); 
92  C.  159,  174,  28  P.  558,  562  (cited);  102  C.  55,  68,  41  A.  S. 
151,  162,  36  P.  368  (cited);  109  C.  100,  106,  41  P.  794  (applied); 
111  C.  668,  683,  44  P.  320,  32  L.  193  (applied);  114  C.  447.  451, 
46  P.  286    (cited);   130  C.  309,  314   (erroneously  cited  for  §3300), 

62  P.   562,  563    (citation   of   §3300   omitted),   1058;   131  C.   149,   151, 

63  P.  157  (cited);  139  C.  514,  518,  521,  73  P.  418  (cited);  141 
C.  610,  613,  75  P.  164  (applied);  150  C.  51,  56,  87  P.  1093  (dis- 
tinction between  damages  for  breach  of  contract  and  damages 
for  tort);  1  C.  A.  429,  431,  82  P.  634  (libel — recovery  of  damages 
is  not  limited  to  such  as  result  from  injury  to  business) ;  1  C. 
A.  441,  444,  82  P.  640  (applied  with  §  3281 — injury  caused  by 
railroad  depriving  abutting  landowner  of  access,  over  street, 
to  and  from  premises);  1  C.  A.  678,  680,  82  P.  1084  (applied — 
injury  to  railway  passengers);  4  C.  A.  460,  467,  88  P.  587  (ap- 
plied— injury  to  servant  arising  from  unsafe  place  to  work); 
7  C.  A.  132,  134,  93  P.  1044,  1045  (construed  and  applied  with 
§  3336 — damages  for  conversion  of  horses  are  limited  to  those 
specified  in  latter  section). 

1632 


Tit.II,ch.II,art.II.]     OCCUPATION  OF  realty.  §3334 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  32S1,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

As  to  officer's  duty  to  pay,  tender,  or  secure  amount  of  mort- 
gage debt,  see  Kerr's  Cyc.  C.  C.  §  2950  and  note. 

As  to  proximate  cause  of  damages  where  contract  broken, 
see  Kerr's  Cyc.  C.  C.  §  3300  and  note. 

Accrual  of  damages  after  commencement  of  action. — See  Kerr's 
Cyc.  C.  C.   §  3283  and  note. 

Action  for  injuries  to  relatives. — See  48  A.  D.  619-641. 

Damages  for  loss  or  destruction  of  property. — See  12  A.  S.  248. 

Damages  for  negligent  killing  of  minor  child. — See  62  A.  S. 
316. 

Death  by  wrongful  act — Action  by  personal  representatives. — 
See  Kerr's  Cyc.  C.  C.  P.   §  377  and  note. 

Death  of  child  by  wrongful  act — Action  by  father,  guardian,' 
etc. — See  Kerr's  Cyc.  C.  C.  P.  §  376  and  note. 

Elements  and  measure  of  damages  in  actions  for  having 
caused  death  of  human  beings. — See  12  A.  S.  37.5-383. 

Findings  of  court. — See  Kerr's  Cyc.  C.  C.  §  3304  and  note. 

Fright  as  element  of  recoverable  damages. — See  77  A.  S.  859- 
873. 

Interest  as  damages. — See  Kerr's  Cyc.  C.  C.  §  3287  and  note. 

Levy  on  mortgaged  chattels. — See  Kerr's  Cyc.  C.  C.  5§  2968, 
2969  and  notes. 

Loss  of  profits  as  element  of  damages. — See  12  A.  S.  248. 

I.,oss  of  profits  prevented  by  attachment. — See  45  A.  S.  893,  894. 

Malicious  pro.secution  and  abuse  of  process. — See  14  A.  D. 
599-603:   44  A.  R.   346-348;   26  A.   S.   127-164. 

Measure  of  damages  for  destruction  or  loss  of  growing  crops. 
— See  12  A.  S.  248. 

Mental  suffering  as  element  of  damages. — See  36  A.  R.  306- 
308;   7   A.  S.   534-537;   30   A.  S.   711,  712. 

Prospective  profits. — See  Kerr's  Cyc.  C.  C.  8  3300  and  notf. 

Punitive  or  exemplary  damages. — See  Kerr's  Cyc.  C.  C.  !  3294 
and  note. 

Rebuttal  of  presumption — Instruction. — See  Kerr's  Cyc.  C.  C. 
§  3336  and  note  pars.   20.   21. 

Remote  and  proximate  causes. — See  35  A.  R.  649-651;  41  A.  R. 
53-58;  42  A.  R.  3!>n-:i;)n;  47  A.  R.  381-387:  50  A.  R.  569-574;  52 
A.  R.   157-166:   1   A.  S.  656. 

Trespass  upon  land. — Sec  Kerr's  Cyc.  C.  C.  $  3334  and  note 
pars.  5-7. 

§3334.     WRinfiFl'L  (KCIT.VTION  l)V  HFVL  PHtU'EKTY. 

The    detriment    caused    by    tlie    \vr()iii;ful    occupation    of    real 
Korrs  C.   C. — 52  1633 


§  3335  CIVIL  CODE.  [Div.IV,Pt.I. 

property,  in  cases  not  embraced  in  sections  thirty-three  hun- 
dred and  tliirty-five,  thirty-three  hundred  and  forty-four,  and 
thirty-three  hundred  and  forty-five  of  this  code,  or  section 
eleven  hundred  and  seventy-four  of  the  code  of  civil  proced- 
ure, is  deemed  to  be  the  value  of  the  use  of  the  property  for 
the  time  of  such  occupation,  not  exceeding  five  years  next 
preceding  the  commencement  of  the  action  or  proceeding  to 
enforce  the  right  to  damages,  and  the  costs,  if  any,  of  recov- 
ering the  possession. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

72  C.  322,  330,  14  P.  12,  16  (cited);  77  C.  467,  472,  19  P.  872, 
874  (cited);  125  C.  563,  566,  58  P.  130  (referred  to);  1  C.  A. 
266,  270,  82  P.  85   (applied — unlawful  detainer). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Lessee  prevented  from  taking  possession,  or  afterwards 
evicted — Measure  of  damages. — See  100  A.  D.  428,  429;  58  A.  D. 
606-614. 

Value  of  improvements,  set  off,  when. — See  Kerr's  Cyc.  C.  C. 
P.  §  741  and  note. 


§3335.  WILFUL  HOLDING  OVER.  For  wilfully  holding 
over  real  property,  by  a  person  who  entered  upon  the  same, 
as  guardian  or  trustee  for  an  infant,  or  by  right  of  an  estate 
terminable  with  any  life  or  lives,  after  the  termination  of 
the  trust  or  particular  estate,  without  the  consent  of  the 
party  immediately  entitled  after  such  termination,  the  meas- 
ure of  damages  is  the  value  of  the  profits  received  during 
such  holding  over. 

Hi-story:     Enacted  March   21,   1872. 

125  C.   563,   566,  58  P.   130    (referred  to). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  ineasure  of  dam- 
ages, see  note  §  3300,  ante. 

"When  estate!  of  trustee  ceases.^ — See  Kerr's  Cyc.  C.  C.  §  871 
and  note. 

1634 


Tit.II,ch.II,art.II.]  CONVERSION.  §3336 

§3336.    COVEKSIOX   OF   PERSONAL   PROPERTY.     The 

detriment   caused    b3^    the    wrongful    conversion    of    personal 
property  is  presumed  to  be: 

1.  The  value  of  the  property  at  the  time  of  the  conversion, 
with  the  interest  from  that  time,  or,  where  the  action  has 
been  prosecuted  with  reasonable  diligence,  the  highest  mar- 
ket value  of  the  property  at  any  time  between  the  conversion 
and  the  verdict,  without  interest,  at  the  option  of  the  injured 
party ;   and 

2.  A  fair  compensation  for  the  time  and  money  properly 
expended  in  pursuit  of  the  property. 

History.  Enacted  March  21,  1872;  amended  Marcli  30,  1874, 
Code  Amdts.  1873-4,  p.  26G;  January  22,  1878,  Code  Amdts. ' 
1877-8,  p.   90. 

See  Kerr's  Cyc.  C.  C.  for  29  pars,  annotation. 

50  C.  112,  115  (cited);  53  C.  274,  278,  279,  280  (cited);  54  C. 
145,  146  (cited);  54  C.  192,  194,  195  (referred  to  as  inapplicable); 
57  C.  325,  326  (cited);  58  C.  241,  242,  243  (construed):  61  C. 
629,  634  (cited);  71  C.  68,  69,  11  P.  847,  848  (cited  with  §3338); 
76  C.  60.  70,  9  A.  S.  164,  18  P.  100  (cited);  77  C.  267,  279,  11  A. 
S.  279,  19  P.  494,  495.  499  (referred  to);  79  C.  181,  183,  21  P. 
729,  730  (cited);  85  C.  191,  194,  195,  24  P.  656,  657  (construed 
and  applied);  86  C.  459,  461,  462,  25  P.  12,  13  (cited);  90  C.  10, 
14,  27  P.  159  (cited);  27  P.  296  (applied);  91  C.  119,  121,  122,  27 
P.  601,  602,  603  (applied);  92  C.  159,  173.  28  P.  558,  562  (re- 
ferred to);  96  C.  152,  154,  30  P.  1114  (referred  to  as  inapplic- 
able); 112  C.  208.  214,  44  P.  476  (cited);  44  P.  1018  (cited);  115 
C.  39,  49,  46  P.  892  (cited);  57  P.  394,  397  (cited — actions  not 
improperly  joined);  130  C.  190,  193,  62  P.  481  (referred  to  as 
inapplicable);  130  C.  230,  236,  62  P.  395  (cited);  131  C.  149,  151. 
63  P.  157  (cited);  132  C.  316.  319.  64  P.  409  (referred  to  as  In- 
applicable); 136  C.  538,  541,  69  P.  252  (cited);  1  C.  A.  349.  356, 
82  P.  265  (attorneys'  fees  are  not  recoverable  under  this  sec- 
tion, nor  as  costs  in  action);  7  C.  A.  132,  134,  93  P.  1044  (con- 
strued wltli  §  3333 — damages  for  conversion  of  horses  are  lim- 
ited to  those  specified  in  §3336);  103  F.  841.  S4S  (applied— attor- 
neys' fees  as  element  of  compensatory  damages):  109  F.  369. 
370.  378.   48  C.  C.  A.   413.   54  L.   711    (cited). 

As  to  judgment  in  detinue,  see  Kerr's  Cyc.  C.  C.  P.  S  667  and 
note. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281.  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages,  see  note   §  3300.   ante. 

1635 


§§3337,3338  CIVIL  CODE.  [Div.IV.Pt.I. 

Alternative  form  of  judgment  prescribed. — See  Kerr's  Cyc.  C. 
C.   P.    §  667   and   note. 

Breach  of  covenant  to  deliver  personal  property  paid  for. — 
See  Kerr's  Cyc.  C.  C.  §  3309  and  note. 

Cognate  section,  providing  damages  in  trover. — See  Kerr's 
Cyc.  C.  C.   §  3333  and  note. 

Constitutionality  of  amendment. — See  Kerr's  Cyc.  C.  C.  §  3333 
and  note. 

Conversion  by  officers  and  agents  of  corporations. ^See  48  A. 
S.   922,  923. 

Conversion  of  personal  property  sufficient  to  svistain  trover. — 
See  24  A.  S.   795-819. 

Damages  for  wrongful  or  malicious  attachment. — See  68  A.  S. 
266-280. 

Damages  recoverable  in  trover. — See  14  A.  S.   19. 

Executor's  nonfeasance. — See  Kerr's  Cyc.  C.  C.  P.  §  3333  and 
note  par.  11. 

General  rule  is  value  at  time  of  conversion  and  interest. — See 
24   A.   D.    71-73. 

Liability  of  innocent  purchasers. — See  24  A.  D.   85. 

Limitation  on  liability  of  depositary. — See  Kerr's  Cyc.  C.  C. 
P.   §  1840  and  note. 

Measure  of  damages  in  trover. — See  11  A.  D.  526-528. 

Measure  of  damages  where  value  enhanced  by  wrongdoer. — 
See  24  A.  D.  70,  71,  73-77. 

Mining — Damages  for  wrongfully  extracting  ore. — See  Kerr's 
Cyc.  C.  C.  P.  §  3334  and  note. 

Non-existing  property. — See  Kerr's  Cyc.  C.  C.  P.  §  3309  and 
note  par.  3. 

Property  converted  by  mistake. — See  24  A.  D.  77-85;  36  A. 
R.  770. 


§3337.  SAME.  [APPLICATION  TO  BENEFIT  OF  OWN- 
ER.] The  presumption  declared  by  the  last  section  cannot 
be  repelled,  in  favor  of  one  whose  possession  was  wrongful 
from  the  beginning,  by  his  subsequent  application  of  the 
property  to  the  benefit  of  the  owner,  without  his  consent. 

History:     Enacted  March  21,   1872. 

§3338.  DAMAGES  OF  LIENOR.  One  having  a  mere  lien 
on  personal  property,  cannot  recover  greater  damages  for 
its  conversion,  from  one  having  a  right  thereto  superior  to 
his,  after  his  lien  is  discharged,  than  the  amount  secured  by 

1636 


Tit.TI.ch.TI.art.TI.]  SEDUCTION.  §§3339,3340 

the  lien,  and  the  compensation  allowed  by  section  thirty-three 
hundred  and  thirty-six  for  loss  of  time  and  expenses. 
IliNtory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

71  C.  68,  70,  71,  11  P.  847,  848  (cited  with  §3336);  91  C.  119. 
122,  27  P.  601,  602  (construed  and  applied);  126  C.  288,  290,  58 
P.  691    (applied);  128  C.  221,  226,  60  P.  679,  680   (applied). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note   §  3300,  ante. 

Limitations  on  right  to  levy  on  mortgaged  property. — See 
Kerr's  Cyc.  C.  C.  P.  §  2969  and  note. 

Measure  of  damages  for  conversion  of  collateral  security. — 
See   32   A.   S.   725,   726. 

Mortgaged  property  may  be  levied  upon. — See  Kerr's  Cyc. 
C.  C.  P.  §  2968  and  note. 

§3339.  SEDrCTlON.  The  damages  for  seduction  rest  in 
the  sound  discretion  of  the  jury. 

IIlMtory:      Enacted  March    21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  32S1,  ante. 

As  to  many  miscellaneous  matters  as  to  tlie  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Action  by  unmarried  female. — See  Kerr's  Cyc.  C.  C.  P.  $  374. 

Breach  of  promise  of  marriage. — See  Kerr's  Cyc.  C.  C.  V.  §  3319 
and  note. 

Exemplary  damages. — See  Kc-rr's  Cyc.  C.  C.  §  3294  and  note. 

Measure  of  damages  In  action  for  seduction. — See  44  A.  D. 
177,    178. 

Parent  or  guardian — Action  liy. — See  Kerr's  Cyc.  C.  C.  P.  i  375 
and  note. 

§3340.  INJIKIKS  TO  .VMMAI.S.  l\)r  wronk'ful  injuries 
to  animals  hoin^  subjects  of  i^roiMTly.  committed  wilfully  or 
by  gross  negligence,  is  disregard  of  humanity,  exemplary 
damages  may  be  given. 

Ilintoryi     iinacted  Marcli   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

93  C.  393,  394  (erroneously  cited  for  S  3440).  29  P.  TO  (.same 
error). 

1637 


§  3341  CIVIL  CODE.  [Div.IV,Pt.I. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§3341.  SAME.  [SHEEP-KILLING  DOGS.]  The  owner, 
possessor,  or  harborer  of  any  dog  or  other  animal,  that  shall 
kill,  worrj',  or  wound  any  sheep,  angora  goat,  or  cashmere 
goat,  or  poultry,  shall  be  liable  to  the  owner  of  the  same 
for  the  damages  and  costs  of  suit,  to  be  recovered  in  any 
court  of  competent  jurisdiction: 

1.  In  the  prosecution  of  actions  under  the  provisions  of 
this  chapter,  it  shall  not  be  necessary  for  the  plaintiff  to 
show  that  the  owner,  possessor,  or  harborer  of  such  dog  or 
other  animal,  had  knowledge  of  the  fact  that  such  dog  or 
other  animal  would  kill,  wound  or  worry  sheep,  goats,  or 
poultry. 

2.  Any  person  on  finding  any  dog  or  dogs,  or  other  animal, 
not  on  the  premises  of  the  owner  or  possessor  of  such  dog 
or  dogs,  or  other  animal,  worrying,  wounding,  or  killing  any 
sheep,  angora  or  cashmere  goats,  may,  at  the  time  of  finding 
such  dog  or  dogs,  or  other  animal,  kill  the  same,  and  the 
owner  or  owners  thereof  shall  sustain  no  action  for  damages 
against  any  person  so  killing  such  dog  or  dogs,  or  other 
animal. 

History:  Enacted  March  13,  1883,  Stats,  and  Amdts.  1883,  p. 
283;  amended  February  27,  1903,  Stats,  and  Amdts.  1903,  p.  54. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

80  C.  545,  548,  22  P.  219,  220   (construed). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

Exemplary  damages. — See  Kerr's  Cyc.  C.  C.   §  3294  and  note. 

Property  in  dogs.— See  26  A.  S.  80S;  67  A.  S.  288-299. 


1638 


Tit.II.ch.II.art.III.]        holding  over.  §§3344,3345 

ARTICLE  III. 

PENAL,  DAMAGES. 

S  3344.     Failure  to  quit,  after  notice. 
§  3345.     Tenant  wilfully  holding  over. 
§  334fi.     Injuries  to  trees,  etc. 
§  3346a.   Damages  for  firing  woods. 
§  3347.     Injuries  inflicted  in  a  duel. 
S  3348.     Same. 

§3344.    FAILURE    TO    QUIT,    AFTER    NOTICE.      If    any 

tenant  give  notice  of  his  intention  to  quit  the  premises,  and 
does  not  deliver  up  the  possession  at  the  time  specified  in 
the  notice,  he  must  pay  to  the  landlord  treble  rent  during 
the  time  he  continues  in  possession  after  such  notice. 

HUtory:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

125  C.  563,  566,  58  P.  130  (construed  and  applied  with  other 
sections). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§334.i.     TENANT    WILFULLY    HOLDING    OVER.      If    any 

tenant,  or  any  person  in  collusion  with  the  tenant,  holds 
over  any  lands  or  tenements  after  demand  made  and  one 
month's  notice,  in  writing  given,  requiring  the  possession 
thereof,  such  person  holding  over  must  pay  to  the  landlord 
treble  rent  during  the  lime  he  continues  in  possession  after 
such  notice. 

IliNtory:     Enacted  March   21.   1S72. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

125  C.  563,  566,  5S  P.  130  (construed  and  applied  witii  <»thor 
sections);  1  C.  A.  259.  261.  SI  P.  1120  (facts  stating  cause  of 
action  in  ejectment,  witli  proper  prayer);  1  C.  A.  266.  270,  82 
P.  85   (applied — unlawful  detainer). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscollaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

1639 


§§  3346-3347  CIVIL  CODE.  [Div.IV,Pt.I. 

§3346.  INJURIES  TO  TREES,  ETC.  For  wrongful  inju- 
ries to  timber,  trees,  or  underwood  upon  the  land  of  another, 
or  removal  thereof,  the  measure  of  damages  is  three  times 
such  a  sum  as  would  compensate  for  the  actual  detriment, 
except  where  the  trespass  was  casual  and  involuntary,  or 
committed  under  the  belief  that  the  land  belonged  to  the 
trespasser,  or  where  the  wood  was  taken  by  the  authority 
of  highway  officers  for  the  purposes  of  a  highway;  in  which 
cases  the  damages  are  a  sum  equal  to  the  actual  detriment. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

108  C.  197,  207,  41  P.  293  (construed  and  applied  with  §  733 
C.  C.  P.);  139  C.  559,  560,  73  P.  433    (construed  and  applied). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note   §  3300,  ante. 

§  3346a.  DAMAGES  FOR  FIRING  WOODS.  Every  person 
negligently  setting  fire  to  his  own  woods,  or  negligently 
suffering  any  fire  to  extend  beyond  his  own  land,  is  liable  in 
treble  damages  to  the  party  injured. 

History:  Enacted  by  Code  Commission,  Act  March  16,  1901, 
Stats,  and  Amdts.  1900-1,  p.  421,  held  unconstitutional,  see  his- 
tory, §  4  ante;  re-enacted  March  21,  1905,  Stats,  and  Amdts. 
1905,  p.  621,  incorporating  into  the  C.  C.  the  principle  declared 
in   Pol.   C.    §   3344. 

§3347.  INJURIES  INFLICTED  IN  A  DUEL.  If  any  per- 
son slays  or  permanently  disables  another  person  in  a  duel' 
in  this  state,  the  slayer  must  provide  for  the  maintenance  of 
the  widow  or  wife  of  the  person  slain  or  permanently  dis- 
abled, and  for  the  minor  children,  in  such  manner  and  at 
such  cost,  either  by  aggregate  compensation  in  damages  to 
each,  or  by  a  monthly,  quarterly,  or  annual  allowance,  to  be 
determined  by  the  court. 

History:     Enacted  March  21,  1872,  based  on  Stats.  1855,  p.  152. 

As  to  duels  and  challenges,  see  Kerr's  Cyc.  Pen.  C.  §§  225-232 
and  notes. 

1640 


^1 


II 


Tit.II,ch.II,art.IV.]       INJURES— VALUE.  §§  3348,  3353 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§  3348.  SAME.  If  any  person  slays  or  permanently  dis- 
ables another  person  in  a  duel  in  this  state,  the  slayer  is 
liable  for  and  must  pay  all  debts  of  the  person  slain  or  per- 
manently disabled. 

History:     Enacted  March   21,   1872. 


ARTICLE  IV. 

GENERAL,    PROVISIONS. 

§  3353.  Value,  how  estimated  in  favor  of  seller. 

§  3354.  Value,  how  estimated  in  favor  of  buyer. 

§  3355.  Property   of  peculiar  value. 

§  3356.  Value    of   thing   in    action. 

§  3357.  Damages  allowed  in  this  chapter,  exclusive  of  others. 

§  3358.  Limitation   of   damages. 

§  3359.  Damages  to  be  reasonable. 

§  3360.  Nominal  damages. 

§3353.  YALUE,  HOW  ESTIMATED  IN  FAVOR  OF 
SELLER.  In  estimating  damages,  the  value  of  the  property 
to  a  seller  thereof  is  deemed  to  be  the  price  which  he  could 
have  obtained  therefor  in  the  market  nearest  to  the  place  at 
which  it  should  have  been  accepted  by  the  buyer,  and  at 
such  time  after  the  breach  of  the  contract  as  would  have 
sufficed,  with  reasonable  diligence,  for  the  seller  to  effect  a 
resale. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

94  C.  5,  18,  29  P.  406,  410  (construed  and  applied);  106  C.  441, 
446,  39  P.  853  (construed  and  applied  with  other  sections);  53 
P.  693,  694  (construed  and  applied);  140  C.  624,  632,  74  P.  162 
(construed  and  applied);  2  C.  A.  312,  314,  84  P.  356  (applied  with 
subd.  2,  §  3311 — breach  of  contract  to  purchase  orange  crop). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

1641 


§§3354-3356  CIVIL  CODE.  [Div.IV,Pt.I. 

§3354.  VALUE,  HOW  ESTIMATED  IN  FAVOR  OF 
BUYEE.  In  estimating  damages,  except  as  provided  by  sec- 
tions thirty-three  hundred  and  fifty-five  and  three  hun- 
dred and  fifty-six,  the  value  of  the  property,  to  a  buyer 
or  owner  thereof,  deprived  of  its  possession,  is  deemed 
to  be  the  price  at  which  he  might  have  bought  an  equiva- 
lent thing  in  the  market  nearest  to  the  place  where 
the  property  ought  to  have  been  put  into  his  possession,  and 
at  such  time  after  the  breach  of  duty  upon  which  his  right 
to  damages  is  founded  as  would  suffice,  with  reasonable  dili- 
gence, for  him  to  make  such  a  purchase. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  9  pars,  annotation. 

67  C.  477,  479,  8  P.  17  (construed  and  applied  with  other  sec- 
tions); 91  C.  555,  559,  27  P.  927,  928,  1091  (construed  and  ap- 
plied); 144  F.  886,  895  (applied  with  other  sections — contract  to 
furnish  tin  cans). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

As  to  measure  of  damages  for  delay  in  delivery,  see  78  A. 
S.  360-366. 


§3355.  PEOPERTY  OF  PECULIAE  VALUE.  Where  cer- 
tain property  has  a  peculiar  value  to  a  person  recovering  dam- 
ages for  deprivation  thereof,  or  injury  thereto,  that  may  be 
deemed  to  be  its  value  against  one  who  had  notice  thereof 
before  incurring  a  liability  to  damages  in  respect  thereof,  or 
against  a  wilful  wrong-doer. 

History:     Enacted  March  21,  1872. 

§  3356.  VALUE  OF  THIKG  IN  ACTION.  For  the  purpose 
of  estimating  damages,  the  value  of  an  instrument  in  writing 
is  presumed  to  be  equal  to  that  of  the  property  to  which  it 
entitles  its  owner. 

History:  Enacted  March  21,  1872;  amended  April  30,  1874, 
Code  Amdts.   1873-4,  p.  266. 

1642 


Tit.II,ch.II,art.IV.]         LIMITATION  OF.  §§  3357-3359 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  32S1,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§3357.    DAMAGES   ALLOWED   O    THIS  .CHAPTER,   EX- 
CLUSIVE    OF   OTHERS.     The    damages   prescribed    by    this 
chapter    are    exclusive    of   exemplary    damages    and    interest, 
except  where  those  are  expressly  mentioned. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

106  C.  441,  447,  39  P.  853  (construed  and  applied  with  other 
sections). 

As  to  many  miscellaneovis  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§  3358.  LIMITATION  OF  DAMAGES.  Notwithstanding  the 
provisions  of  this  chapter,  no  person  can  recover  a  greater 
amount  in  damages  for  the  breach  of  an  obligation  than  he 
could  have  gained  by  the  full  performance  thereof  on  both 
sides,  except  in  the  cases  specified  in  the  articles  on  exem- 
plary damages  and  penal  damages,  and  in  section  thirty-three 
hundred  and  nineteen,  thirty-three  hundred  and  thirty-nine, 
and  thirty-three  hundred  and  forty. 

History:     Enacted  March   21,   1872. 

90  C.  515,  520,  27  P.  373,  374  (referred  to). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§  3359.  DAMAGES  TO  BE  REASONABLE.  Damages  must, 
in  all  cases,  be  reasonable,  and  where  an  obligation  of  any 
kind  appears  to  create  a  right  to  unconscionable  and  grossly 
oppressive  damages,  contrary  to  substantial  justice,  no  more 
than  reasonable  damages  can  be  recovered. 

History:     Enacted  March  21,  1872. 
1643 


§  3360  CIVIL  CODE.  [Div.IV,Pt.I. 

As  to  liquidated  damages  and  penalty,  and  distinction  between, 
see  Kerr's  Cyc.  C.  C.  §§  1670,  1671  and  notes. 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 

§3360.  NOMINAL  DAMAGES.  When  a  breach  of  duty 
has  caused  uo  appreciable  detriment  to  the  party  affected, 
he  may  yet  recover  nominal  damages. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  19  pars,  annotation. 

123  C.  428,  431,  56  P.  103  (applied) ;  139  C.  514,  520,  73  P.  418  (con- 
strvied  and  applied). 

As  to  many  miscellaneous  matters  as  to  damages  generally, 
see  note  §  3281,  ante. 

As  to  many  miscellaneous  matters  as  to  the  measure  of  dam- 
ages, see  note  §  3300,  ante. 


1644 


Tit.III,ch.I.]  SPECIFIC   RELIEF.  §3366 

TITLE   III. 

SPECIFIC  AND  PREVENTIVE  RELIEF. 

Chapter  I.     General   Principles,   §§3366-3369. 
II.     Specific  Relief,  §§3375-3415. 
III.     Preventive  Relief,  §§  3420-3423. 

CHAPTER  I. 

GENERAL  PRINCIPLES. 

§  3366.  Specific  relief,   etc.,   when   allowed. 

§  3367.  Specific  relief,  how  given. 

§  3368.  Preventive  relief,  how  given. 

§  3369.  Not  to  enforce  penalty,  etc. 

§3366.     SPECIFIC     RELIEF,     ETC.,     WHEN     ALLOWED. 

Specific  or  preventive  relief  may  be  given  as  provided  by  the 
laws  of  this  state. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  421. 
held  unconstitutional,  see  history,  §  4  ante;  amendment  re- 
enacted  March  21,  1905,  Stats,  and  Amdts.  1905,  p.  622,  enlarg- 
ing  the   scope    of   the    section. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

71  C.  68,  69,  11  P.  847  (referred  to);  110  C.  638,  642,  42  P.  1084 
(applied);  117  C.  377,  380  (construed),  381  (construed),  49  P. 
353;   139  C.  469,  474,  73  P.  145   (applied). 

As  to  cancellation  of  instruments,  see  Kerr's  Cyc.  C.  C.  §§  3412 
et  seq.  and  notes. 

As  to  injunctions,  see  Kerr's  Cyc.  C.  C.  §§  3420  et  soq.  and 
notes. 

As  to  possession  of  personal  property,  see  Kerr's  Cyc.  C.  C. 
§§  3379,  3380  and  notes. 

As  to  possession  of  real  property,  see  Kerr's  Cyc.  C.  C.  §  3375 
and  note. 

As  to  rescission  of  contracts,  see  Kerr's  Cyc.  C.  C.  §§  3406  et 
seq.  and  notes. 

As  to  revision  of  contracts,  see  Kerr's  Cyc.  C.  C.  §§  3399  et  seq. 
and  notes. 

As  to  specific  performance  of  obligations,  see  Kerr's  Cyc.  C.  C. 
§§  3384  et  seq.  and  notes. 

1645 


§§  3367-3369  CIVIL  CODE.  [Div.IV,Pt.I. 

§3367.  SPECIFIC  RELIEF,  HOW  GIVEJf.  Specific  relief 
is  given: 

1.  By  taking  possession  of  a  thing,  and  delivering  it  to  a 
claimant; 

2.  By  compelling  a  party  himself  to  do  that  which  ought 
to  be  done;    or, 

3.  By  declaring  and  determining  the  rights  of  parties,  oth- 
erwise than  by  an  award  of  damages. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 
142  C.  43,  46,  75  P.  567   (applied). 

As  to  classification  of  the  instances  in  which  specific  relief 
is  given,  see  Kerr's  Cyc.  C.  C.  §  3375  and  note. 

§  3368.  PREVENTIVE  RELIEF,  HOW  GIVEX.  Preventive 
relief  is  given  by  prohibiting  a  party  from  doing  that  which 
ought  not  to  be  done. 

History:     Enacted  March   21,   1872. 

As  to  certiorari,  see  Kerr's  Pocket  C.  C.  P.  §  1072. 

As  to  contempt,  see  Kerr's  Cyc.  C.  C.  P.  §§  1209-1222  and  notes. 

As  to  injunction,  see  Kerr's  Cyc.  C.  C.  P.   §§  525-533  and  notes. 

As  to  preventive  relief,  generally,  see  Kerr's  Cyc.  C.  C.  §§  3420 
et  seq.  and  notes. 

As  to  prohibition,  see  Kerr's  Cyc.  C.  C.  P.  §§  1102-1105  and 
notes. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.   §  336,  note. 

§3369.  NOT  TO  ENFORCE  PENALTY,  ETC.  Neither 
specific  nor  preventive  relief  can  be  granted  to  enforce  a 
penal  law,  except  in  a  case  of  nuisance,  nor  to  enforce  a  pen- 
alty or  forfeiture  in  any  case. 

History:     Enacted  March  21,   1872. 

138  C.  664,  665,  72  P.  144  (applied — agreement  to  give  certain 
piece  of  property,  instead  of  money,  for  failure  to  perform  con- 
tract). 


1646 


Tit.III.ch.II.art.L]    POSSESSION  OR  TITLE.  §  3375 

CHAPTER  II. 

SPECIFIC  RELIEF. 

Article    I.  Possession  of  Real   Property,   §  3375. 

II.  Possession  of  Personal  Property,  §§  3379,  3380. 

III.  Specific  Performance  of  Obligations,   §§  3384-3395. 

IV.  Revision  of  Contracts,  §§  3399-3402. 

V.  Rescission  of  Contracts,  §§  3406-3408. 

VI.  Cancelation  of  Instruments,   §§  3412-3415. 

ARTICLE  I. 

POSSESSION    QF    REAL    PROPERTY. 
§  3375.     Judgment  for  possession   or   title. 

§  3375.  JUDGMENT  FOK  POSSESSION  OR  TITLE.  A  per- 
son entitled  to  specific  real  property,  by  reason  either  of  a 
perfected  title,  or  of  a  claim  to  title  which  ought  to  be  per- 
fected, may  recover  the  same  in  the  manner  prescribed  by 
the  code  of  civil  procedure,  either  by  a  judgment  for  its  pos- 
session, to  be  executed  by  the  sheriff,  or  by  a  judgment 
requiring  the  other  party  to  perfect  the  title,  and  to  deliver 
possession  of  the  property. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  47  pars,  annotation. 

As  to  action  concerning  real  estate,  see  Kerr's  Cyc.  C.  C.  P. 
§§  738  et  seq.  and  notes. 

As  to  specific  enforcement  of  contract  to  convey  realty,  see 
Kerr's  Cyc.  C.  C.  §§  3384  et  seq.  and  notes. 

As  to  writ  of  restitution,  see  Kerr's  Cyc.  C.  C.  P.  §  957  and 
note. 


1647 


§§  3379,  3380  CIVIL  CODE.  [Div.IV.Pt.I. 

ARTICLE  II. 

POSSESSION   OF   PERSONAL   PROPERTY. 

§  3379.      Judgment  for   delivery. 

§  3380.     When  holder  may  be  compelled  to   deliver. 

§3379.  JTDGMEKT  FOR  DELIVERY.  A  person  entitled 
to  the  immediate  possession  of  specific  personal  property 
may  recover  the  same  in  the  manner  provided  by  the  code 
of  civil  procedure. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  16  pars,  annotation. 

As  to  breach  of  agreement  to  transfer  personalty;  compensa- 
tion in  damages,  see  Kerr's  Cyc.  C.  C.  §  3387  and  note. 

As  to  claim  and  delivery,  see  Kerr's  Cyc.  C.  C.  P.  §§  509  et  seq. 
and  notes. 

§3380.  WHEX  HOLDER  MAY  BE  COMPELLED  TO  DE- 
LIVER. Any  person  having  the  possession  or  control  of  a 
particular  article  of  personal  property,  of  which  he  is  not 
the  owner,  may  be  compelled  specifically  to  deliver  it  to  the 
person  entitled  to  its  immediate  possession. 

HLstory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,   p.    266. 

As  to  breach  of  agreement  to  transfer  personalty,  and  rem- 
edies to  enforce  performance,  see  Kerr's  Cyc.  C.  C.  §  3387  and 
note. 

For  Commissioners'  comment  on  this  section,  see  Kerr's  Cyc. 
C.  C.  §  3380,  note. 


1648 


Tit.III,ch.II,art.III.]        PERFORMANCE.  §  3384 

ARTICLE  III. 
SPECIFIC  PERFORMANCE   OF  OBLIGATIONS. 

§  3384.     In   wliat   cases   compelled. 

§  3385.     Remedy   mutual    [repealed]. 

§  3386.     No  remedy  unless  mutual. 

§  3387.     Distinction  between  real  and  personal  property. 

§  3388.  Contract  signed  by  one  party  only,  may  be  enforced  by 
other. 

§  3389.  Liquidation  of  damages  not  a  bar  to  specific  perform- 
ance. 

§  3390.     What  cannot  be  specifically  enforced. 

§  3391.     What  parties  cannot  be  compelled  to  perform. 

§  3392.  What  parties  cannot  have  specific  performance  in  their- 
favor. 

§  3393.  Specific  performance  not  required  when  oppressive 
[repealed]. 

§  3394.     Agreement  to  sell  property  by  one  who  has  no  title. 

§  3395.  Relief  against  parties  claiming  under  person  bound  to 
perform. 

§  3384.  IN  WHAT  C.VSES  COMPELLED.  Except  as  other- 
wise provided  in  this  article,  the  specific  performance  of  an 
obligation  may  be  compelled. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  p.   266. 

See  Kerr's  Cyc.  C.  C.  for  102  pars,  annotation. 

110  C.  638,  641  (construod),  642  (construed),  42  P.  1084;  123  C.  1, 
6,  69  A.  S.  17,  55  P.  713,  43  L.  199  (applied  with  other  sections); 
135  C.   256,   260,   67   P.   276    (applied). 

SPECIFIC    l»KRKOUM.\NCK. 

As  to  cancellation  nf  iii-strumonts,  see  Kerr's  Cyo.  C.  C.  §§  3412 
et  seq.  and  notes. 

As  to  conditions  precedent  to  a  necessity  of  tender,  see  1  L. 
554;  21  L.  126. 

As  to  contracts  in  general;  nature  of;  manner  of  creation; 
interpretation;  validity,  extinction,  etc.,  see  Kerr's  Cyc.  C.  C. 
§§  1549-1701   and  notes. 

As  to  discretion  in  granting;  remedy  at  law,  see  8  L.  625;  12  L. 
239. 

As  to  doubtful  title  in,  of  contracts  to  convey  land,  effect  on, 
see  3  L.  739. 

1649 


§  3384  CIVIL  CODE.  [Div.IV.Pt.I. 

As  to  interpretation  of  contracts,  see  Kerr's  Cyc.  C.  C.  §§  1635- 
1661  and  notes. 

As  to  laches  as  a  bar  to  suits  for,  see  54  A.  D.  130. 

As  to  part  performance,  what  acts  amount  to  and  what  do 
not,  see  53  A.  D.  539. 

As  to  proceedings  to  compel,  of  contract  of  intestates  by  their 
executors  and  administrators,  see  Kerr's  Cyc.  C.  C.  P.  §§  1597  et 
seq.  and  notes. 

As  to  refusal  of,  because  of  the  inability  of  the  court  to 
enforce  its  decree,  see  68  A.  S.  753. 

As  to  rescission  of  contracts,  see  Kerr's  Cyc.  C.  C.  §§  3406  et 
seq.  and  notes. 

As  to  revision  of  contracts,  see  Kerr's  Cyc.  C.  C.  §§  3399  et 
seq.  and  notes. 

As  to,  of  revised  contract,  see  Kerr's  Cyc.  C.  C.  §  3402  and 
note. 

As  to,  of  contract  between  husband  and  wife  to  compromise 
pending  or  contemplated  divorce  suit,  see   60  L.  406,  412. 

As  to,  of  contract  for  corporate  stock,  see  12  L.  776;  50  L.  501. 

As  to,  of  contract  in  relation  to  land  in  another  state,  see  1 
L.   79. 

As  to,  of  contract  to  prevent  revocation  of  license,  see  49  L. 
497. 

As  to,  of  contracts,  see  23  A.   D.   423. 

As  to,  of  covenants  restricting  the  use  of  land,  see  21  A.  S. 
484. 

As  to,  of  gift  of  or  verbal  contract  for  lands;  part  perform- 
ance, see  5  L.  323. 

As  to,  of  option  contracts,  see  21  L.  127. 

As  to,  of  oral  voluntary  agreements,  see  11  L.  116. 

As  to,  of  parol  trust,  see  2  L.   662. 

As  to,  where  wife  refuses  to  join  in  conveyance  in  pursuance 
of  husband's  agreement,  see  89  A.  D.  576. 

As  to  statute  of  frauds,  what  contracts  are  void  thereunder 
and  what  enforceable  thereunder,  see  Kerr's  Cyc.  C.  C.  §  1624 
and  note. 

Certainty  and  definiteness  of  contract  necessary. — See  1  L. 
381;  26  A.  D.  661. 

Conditions  precedent  to;  necessity  of  tender. — See  1  L.   554. 

Consideration,  inadequacy  of  as  ground  for  refusing. — See 
15  A.  D.  299. 

Damages  in  lieu  of. — See  20  L.  752. 

Discretion  as  to  granting,  remedy  at  law.- — See  3  A.  C.  1032; 
9  A.  C.  595;  10  A.  C.  164;  8  L.  625;  12  L.  239. 

Doubtful  title,  in  case  of. — See  3  L.  739. 

Effect  of  denial  of  the  contract. — See  4.  L.  N.  S.  410. 

Effect  of  incapacity  to  perform.^ — See  12  L.   240. 

Equitable    enforcement    for    limited    time    to    prevent    public 

1650 


Tit.III,ch.II,art.III.]       PERFORMANCE.  §  3384 

inconvenience,  of  contract  which  is  against  public  policy. — See 
1   L.  N.   S.   1032. 

For  performance  of  continuous  acts. — See  3  L.  N.  S.  828. 

Forfeiture  clause  in  contract;  time,  when  of  essence. — See  12 
L.   239. 

Fraudulent  expression  of  opinion  as  a  defense.- — See  35  L. 
433. 

Ground  of  relief — As  to,  generally,  see  10  A.  C.  931. 

Same — Inadequacj^  of  damage  recoverable  as  warrant,  of 
partly  performed   oral   contract. — See   1   A.   C.   999. 

Inability  of  defendant  to — Effect  of  upon  chancery  jurisdic- 
tion.— See  16  L.  614-616. 

Same — Where  wife  refuses  to  unite  in  conveyance. — See  24  L. 
763-766. 

Inadequacy  of  consideration — As  ground  for  denying. — See 
12   A.  C.   122. 

Same — Effect  of  on  action  for. — See   1 4  L.  N.  S.   317. 

Injunction  in  aid  of  performance. — See  5  A.  C.  265. 

Judicial  discretion,  as  to,  rule  of. — See  3  A.  C.  1032;  9  A.  C. 
595;   10  A.  C.  164;  8  L.  625;  12  L.   239. 

Jurisdiction  of  equity  to  decree,  of  contract  affecting  real 
estate  in  another  country. — See  69  L.  681. 

Laches  as  a  bar  to  suits  for. — See  54  A.  D.  132. 

I>iquidated  damages,  effect  of  provision  in  contract  for  sale 
of  land.— See   2  L.  N.  S.   210. 

Mandatory  injunction  to  compel  a  contract  for  services. — See 
20  L.   167. 

Mistake,  effect  of  on  action  for.— See  15  L.  N.  S.  81. 

Mutuality  of  contract  or  obligation  necessary. — See  7  A.  C. 
492;  6  L.  N.  S.  391.  397. 

Same — Remedy,  necessity  of,  and  what  is. — Sec  27  A.  S.  173; 
5  W.   &  P.   4565. 

Same— Right. — See  1  L.   554;   12  L.   244. 

Of  agreement — To  reconvey  property  fraudulently  conveyed. — 
See  3  A.  C.  942. 

Same — To  submit  to  arbitration. — See  15  L.   142. 

Of  antenuptial  contracts — As  to,  generally,  see  9  A.  C.  595. 

Same — Right  of  party  to  marriage,  of  antenuptial  contract  by 
third  person. — See  9  A.  C.  603. 

Of  contract — As  to,  generally,  see  23  A.  D.   423. 

Same — As  to  disposition  of  property  at  death. — Sec  8  L.  X.  S. 
1130;  9  L.  N.  S.  157;  12  L.  N.  S.  218;  15  L.  N.  S.  466. 

Same — Between  husband  and  wife  to  compromise  divorce 
suit. — See  60  L.  412. 

Same — For  municipal  water  supply. — See  61   L.  91. 

Same — For  personal  services. — See  6  L.  653. 

Same — For  sale  of  corporate  stock. — See  50  L.  501-512. 

Same — In  relation  to  personal  property. — See  5  A.  C.  265,  269; 
10  A.  C.   931,  934. 

1651 


§  3384  CIVIL  CODE.  [Div.IV.Pt.I. 

Same — In    relation    to    real    property,    certainty    required. — See 
2   A.   C./286. 

Same— Saine — Contract  to  sale  by  one  having  part  interest  in 
premises.^See  10  A.  C.  560,  562. 

Same — Same — -Decree    providing    for    mortgage    to    secure    de- 
ferred payments. — See  9   A.  C.   1058. 

Same — Same — Evidence  on. — See   2  A.  C.   286;   9  A.  C.   770. 

Same — Same — Land  sold  to  third  party.- — See  6  A.  C.  189. 

Sam'e- — Same — Necessity    of    tender    of    purchase    price. — See    4 
A.   C.   849,  852. 

Same — Same — Provisions   in   contract   for  liquidated   damages, 
effect  of. — See  8  A.  C.  357. 

Same — Same — Title  to  be  conveyed. — See  8  A.  C.  357. 

Same — Same- — -Where  contract  price  to  be  affixed  by  appraisers. 
—See  8  A.  C.  660,   664. 

Same — Of  guaranty.- — See  3  A.  C.  773. 

Same — Of  services. — See  6  L.  N.  S.  1115-1144. 

Same — Signed  by  beneflciarj^  but  not  by  holder  of  legal  title. — 
See  2  L.  N.  S.   884. 

Same- — To  construct,  erect,  or  repair.— See  9  A.  C.  159,  160;  10 
A.  C.  227,  230. 

Same- — To  convey  homestead. — See  8  A.  C.  357. 

Same — To    establish    or   maintain    railway    station. — See    16   L. 
N.  S.  307. 

Same — To  give  security. — See  5  L.  N.  S.  585-597. 

Same — To    provide    for    party    to   marriage — As    to,    generally, 
see  12  L.  N.  S.  232. 

Same — Same — Part  performance. — See  7  L.  N.  S.  734. 

Of  covenants  restricting  the  use  of  land. — See  21  A.  S.  484. 

Of  gift.— See  5  L.  323. 

Of  options.— See  1  A.  S.   986,  990;   118  A.  S.   592;   21  L.   127;   6  L. 
N.  S.   403. 

Of  parol  trust. — See  2  L.   662. 

Of  voluntary  agreement. — See  11  L.   116. 

Part    performance — Taking    possession    as    a    sufficient.- — See    8 
L.  N.  S.  870. 

Same — What  acts  amount   to   and   what  do  not. — See   53   A.   D. 
589;  6  W.  &  P.  5182. 

Penalty  will  not  prevent. — See  1  L.  192. 

Refusal  of  because  of  the  inability  of  the  court  to  enforce  its 
decree. — See  68  A.  S.  749. 

Relief,  generally,  see  50  L.  512. 

To  prevent  revocation  of  license.— See  49  L.  507. 

Uncertainty  as  to  time  as  affecting  right  to. — See   2  L.   N.  S. 
221. 

Verbal   contract   in   relation   to   land — As   to   validity   of,   gen- 
erally, see  5  L.  323. 

Same — For  exchange  of  lands. — See  5  L.  245. 

1652 


Tit.III,ch.II,art.III.]       remedy  mutual.  §§3385,3386 

Same — On  part  performance. — See  5  L.  325. 

Same — Sufficiency  of  payment  alone. — See  5  L.  236. 

Same — Taking  possession  as  an  act  of  performance  under — 
As  to,  generally,  see  5  L.  326. 

Same — Same — And  making   improvements. — See   5   L.   327. 

Same — Theory  of  ground  for  relief. — See  5  L.  324. 

Same — Where  fully  performed  by  one  party. — See  .5  L.  324. 

When  purchaser  at  judicial  sale  compelled  to  complete  pur- 
chase.— See  21  L.  45. 

Where  wife  refuses  to  join  in  conveyance  in  pursuit  of  hus- 
band's agreement. — See  89  A.  D.  576. 

With  abatement  of  price  when. — See  10  L.  N.  S.  117-125. 

§3385.    REMEDY   MITUAL    (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    267. 

110  C.  638.  642,  42  P.  1084   (referred  to). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

§  3386.  NO  REMEDY  UNLESS  MUXrAL.  Neither  party  to 
an  obligation  can  be  compelled  specifically  to  perform  it, 
unless  the  other  party  thereto  has  performed,  or  is  com- 
pellable specifically  to  perform,  everything  to  which  the 
former  is  entitled  under  the  same  obligation,  either  com- 
pletely or  nearly  so,  together  with  full  compensation  for  any 
want  of  entire  performance. 

Hicttory:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  23  pars,  annotation. 

91  C.  87,  90,  27  P.  515  (construed);  110  C.  63S.  642,  42  P.  10S4 
(construed);  142  C.  342.  346,  75  P.  896  (applied);  144  C.  .'.2S.  533. 
78  P.  25.  27  (applied):  147  C.  299,  303.  81  P.  958  (construed  with 
§3306);  153  C.  106,  112,  94  P.  623  (applied — contract  to  build  and 
operate  railroad — test  of  mutuality  of  remedy,  how  applied);  4 
C.  A.  361.  368,  88  P.  287  (when  failure  to  perform  obligation  Is 
insufficient,  in  equity,  to  constitute  defense  to  action  for  breach 
of  contract). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

As  to  mutuality,  contract  necessary  for  spociflc  pt-rformance, 
see  7  A.  D.  492. 

As  to  mutuality  of  right  in  specific  performance,  see  1  L.  554; 
12  L.  244. 

1653 


§§  3387-3389  CIVIL  CODE.  [Div.IV.Pt.I. 

As  to  necessity  of  mutuality  of  remedy,  and  what  is,  for 
specific  performance,  see  27  A.  S.  173. 

As  to  what  parties  cannot  have  specific  performance,  see 
Kerr's  Cyc.  C.  C.  §  3392  and  note. 


§3387.  DISTINCTION  BETWEEN  EEAL  AND  PERSON- 
AL PROPEETY.  It  is  to  be  presumed  that  the  breach  of  an 
agreement  to  transfer  real  property  cannot  be  adequately 
relieved  by  pecuniary  compensation,  and  that  the  breach  of 
an  agreement  to  transfer  personal  property  can  be  thus 
relieved. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

123  C.  1,  6  (applied  with  other  sections),  9  (construed),  11 
(construed),  69  A.  S.  17,  55  P.  713,  43  L.  199;  135  C.  256,  261  (con- 
strued), 262   (applied),  67  P.   276;   52  P.   729,  730    (construed). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

Distinctions  between  kinds  of  redress. — See  Kerr's  Cyc.  C.  C. 
§  3386  and  note  3. 

§  3388.  CONTRACT  SIGNED  BY  ONE  PARTY  ONLY,  MAY 
BE  ENFORCED  BY  OTHER.  A  party  who  has  signed  a 
written  contract  may  be  compelled  specifically  to  perform 
it,  though  the  other  party  has  not  signed  it,  if  the  latter  has 
performed,  or  offers  to  perform  it  on  his  part,  and  the  case 
is  otherwise  proper  for  enforcing  specific  performance. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  4  pars,  annotation. 
146  C.   286,  288,   79  P.   970,  971    (applied). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

§3389.  LIQUIDATION  OF  DAMAGES  NOT  A  BAR  TO 
SPECIFIC  PERFORMANCE.  A  contract  otherwise  proper 
to  be  specifically  enforced,  may  be  thus  enforced,  though  a 
penalty  is  imposed,  or  the  damages  are  liquidated  for  its 
breach,  and  the  party  in  default  is  willing  to  pay  the  same. 

History:     Enacted  March  21,  1872. 
1654 


Tit.III,ch.II,art.Tn.]  ENFORCEMENT.  §  3390 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

l'^3  C  1  6  (applied  witli  other  sections),  9  (construed),  11 
(construed),  69  A.  S.  17,  55  P.  713,  43  L.  199;  135  C.  256.  261,  67 
P.  276  (construed);  52  P.  729,  730  (construed). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

§  3390.    WHAT  CAKNOT  BE  SPECIFICALLY  ENFORCED. 

The  following  obligations  cannot  be  specifically  enforced: 

1.  An  obligation  to  render  personal  service; 

2.  An  obligation  to  employ  another  in  personal  service; 

3.  An  agreement  to  submit  a  controversy  to  arbitration; 

4.  An  agreement  to  perform  an  act  which  the  party  has 
not  power  lawfully  to  perform  when  required  to  do  so; 

5.  An  agreement  to  procure  the  act  or  consent  of  the  wife 
of  the  contracting  party,  or  of  any  other  third  person;   or, 

6.  An  agreement,  the  terms  of  which  are  not  sufficiently 
certain  to  make  the  precise  act  which  is  to  be  done  clearly 
ascertainable. 

History:     Enacted  March  21,  1S72. 

See  Kerr's  Cyc.  C.  C.  for  44  pars,  annotation. 

88  C  245  249,  22  A.  S.  301,  26  P.  99  (referred  to);  119  C.  35, 
38  50  P.  1063,  51  P.  536  (applied);  121  C.  396,  398,  66  A.  S.  35. 
53' P.  926  (applied);  122  C.  341,  348,  68  A.  S.  35,  55  P.  3  (referred 
to)-  130  C.  526,  529  (applied),  530  (referred  to),  62  P.  927;  136 
C.  605,  611,  69  P.  432  (applied);  140  C.  495,  497,  74  P.  40  (applied); 
148  c' 610,  615,  618,  84  P.  166  (.allegations  of  complaint  sufficient 
to  warrant  specific  performance  of  contract  to  sell  lieu  land 
selected  for  surrendered  forest  land);  1  C.  A.  259,  265,  81  P. 
1120  (equity  will  not  compel  performance  by  one  party  where 
there  is  no  certainty  that  other  party  even  Intends  to  carry 
out  promises  made  by  him). 

As  to  certainty  and  definiteness  of  contract  as  affecting 
specific  performance  thereof,  see  1  L.  381. 

As  to  certainty  in  contract  requisite  for  specific  performance, 
see  26  A.  D.   661. 

As  to  effect  of  inability  to  perform  upon  jurisdiction  of  chan- 
cery, see  16  Li.   614. 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

As  to  specific  performance  of  contract  for  conveyance  where 
wife  refuses  to  unite  in  the  conveyance,  see  24  L.  763. 

As  to  specific  performance  of  contract  for  personal  service, 
see  6  L.  653. 

1655 


§  3391  CIVIL,  CODE.  [Div.IV.Pt.I. 

§3391.  WHAT  PARTIES  CANNOT  BE  COMPELLED  TO 
PERFORM.  Specific  performance  cannot  be  enforced  against 
a  party  to  a  contract  in  any  of  the  following  cases: 

1.  If  he  has  not  received  an  adequate  consideration  for 
the   contract; 

2.  If  it  is  not,  as  to  him,  just  and  reasonable; 

3.  If  his  assent  was  obtained  by  the  misrepresentation, 
concealment,  circumvention,  or  unfair  practices  of  any  party 
to  whom  performance  would  become  due  under  the  contract, 
or  by  any  promise  of  such  party  which  has  not  been  substan- 
tially fulfilled;   or, 

4.  If  his  assent  was  given  under  the  influence  of  mistake, 
misapprehension,  or  surprise,  except  that  where  the  contract 
provides  for  compensation  in  case  of  mistake,  a  mistake 
within  the  scope  of  such  provision  may  be  compensated  for, 
and  the  contract  specifically  enforced  in  other  respects,  if 
proper  to  be  so  enforced. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  33  pars,  annotation. 

74  C.  557,  563,  5  A.  S.  470,  16  P.  386,  389  (construed);  77  C. 
114,  115,  116  (construed),  19  P.  190;  123  C.  447,  451,  56  P.  58 
(construed);  124  C.  492,  494,  57  P.  386  (applied);  128  C.  120, 
128,  60  P.  689  (applied);  129  C.  283,  287,  61  P.  907,  50  L.  548 
(applied);  134  C.  170,  171,  66  P.  231  (referred  to);  135  C.  256, 
261,  263  (referred  to),  67  P.  276;  142  C.  462,  467,  76  P.  62  (re- 
ferred to);  144  C.  528,  535,  78  P.  25  (applied);  148  C.  374,  377, 
83  P.  148  (cited — sufficiency  of  complaint  for  specific  perform- 
ance); 149  C.  613,  614,  87  P.  193  (cited — vendor's  complaint  for 
specific  performance  of  executory  agreement  for  sale  of  land) ; 
151  C.  220,  226,  90  P.  536  (cited — specific  performance  of  con- 
tract to  convey  land  should  be  refused  when);  6  C.  A.  152,  156, 
91  P.  667  (cited — what  is  necessary  to  enforcement  of  contracts 
to  convey  during  lifetime  of  parties). 

As  to  fraudulent  expression  of  opinion  as  a  defense  to  specific 
performance,  see  35  L.  417,  433. 

As  to  inadequacy  of  consideration  as  a  ground  for  refusing 
specific  performance,  see  15  A.  D.  299. 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

Mutuality  resulting  from  executed  consideration. — See  Kerr's 
Cyc.  C.  C.  §  3386  and  note. 

1656 


Tit.III.ch.II.art.III.]  performance.  §§  3392-3395 

§  3392.  WHAT  PARTIES  CANXOT  HAVE  SPECIFIC  PER- 
FORMAXCE  I\  THEIR  FAVOR,  Specific  performance  can- 
not be  enforced  in  favor  of  a  party  who  has  not  fully  and 
fairly  performed  all  the  conditions  precedent  on  his  part  to 
the  obligation  of  the  other  party,  except  where  his  failure  to 
perform  is  only  partial,  and  either  entirely  immaterial,  or 
capable  of  being  fully  compensated,  in  which  case  specific 
performance  may  be  compelled,  upon  full  compensation  be- 
ing made  for  the   default. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  36  pars,  annotation. 

4  C.  A.  361,  368,  88  P.  287  (when  failure  to  perform  obligation 
is  insufficient,  in  equity,  to  constitute  defense  to  action  for 
breach  of  contract). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 

As  to  no  remedy  unless  mutual,  see  Kerr's  Cyc.  C.  C.  §  3386 
and  note. 

§3393.  SPECIFIC  PERFORMANCE  >0T  REQl'IRED 
^\nl:y  oppressive   (repealed). 

History:  Enacted  March  21,  1872;  repealed  Mnnii  r!f».  is;74. 
Code   Amdts.   1873-4,   p.    267. 

§3394.     AGREEMENT     TO     SELL     PROPERTY     RV     ONE 
WHO  HAS  NO  TITLE.     An  agreement  for  the  sale  of  prop- 
erty cannot  be  sppcifically  enforced  in  favor  of  a  seller  who 
cannot  give  to  the  buyer  a  title  free  from  reasonable  doubt. 
History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384.  ante. 

§339.-..  RELIEF  AGAINST  PARTIES  (LAIMI.X^  I  VDER 
PERSON  BOUND  TO  PERFORM.  Whenever  an  obligation 
in  respect  to  real  property  would  be  specifically  enforced 
against  a  particular  person,  it  may  be  in  like  manner  en- 
forced against  any  other  person  claiming  under  him  by  a 
title    created   subsequently    to   the   obligation,   except   a   pur- 

1657 


§  3399  CIVIL  CODE.  [Div.IV.Pt.I. 

chaser  or  encumbrancer  in  good  faith  and  for  value,  and 
except,  also,  that  anj-  such  person  may  exonerate  himself 
by  conveying  all  his  estate  to  the  person  entitled  to  enforce 
the   obligation. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

122  C.  659,  664,  55  P.  587  (applied);  136  C.  138,  143,  89  A.  S. 
120,  68  P.  587   (construed). 

As  to  many  miscellaneous  matters  as  to  specific  performance, 
see  note  §  3384,  ante. 


ARTICLE  IV. 

REVISION  OF  CONTRACTS. 

§  3399.  When    contract   may    be   revised. 

§  3400.  Presumption  as  to  intent  of  parties. 

§  3401.  Principles   of   revision. 

§  3402.  Enforcement  of  revised  contract. 

§3399.  WHEN  CONTEACT  MAY  BE  REVISED.  When, 
through  fraud  or  a  mutual  mistake  of  the  parties,  or  a  mis- 
take of  one  party,  which  the  other  at  the  time  knew  or  sus- 
pected, a  written  contract  does  not  truly  express  the  inten- 
tion of  the  parties,  it  may  be  revised  on  the  application  of  a 
party  aggrieved,  so  as  to  express  that  intention,  so  far  as  it 
can  be  done  without  prejudice  to  rights  acquired  by  third 
persons,  in  good  faith  and  for  value. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  81  pars,  annotation. 

65  C.  280,  281,  3  P.  881,  882  (construed  and  applied);  68  C. 
611,  615,  616,  10  P.  179,  181,  182  (construed  and  applied);  83  C. 
155,  158,  23  P.  294,  295  (construed  and  applied);  85  C.  488,  502,  24 
P.  930,  933  (construed  and  applied);  86  C.  335,  340,  24  P.  993 
(construed  and  applied);  88  C.  207,  209,  212,  213,  26  P.  85,  86, 
87  (construed  and  applied);  31  P.  367,  369  (cited);  112  C.  345, 
352,  53  A.  S.  216,  44  P.  670  (construed  and  applied);  120  C.  67, 
69,  52  P.  119  (construed  and  applied);  123  C.  324,  330,  55  P. 
1057  (construed  and  applied);  132  C.  582,  584,  64  P.  1097,  1098 
(construed  and  applied  with  other  sections);  137  C.  71,  75,  69 
P.    844    (construed   and  applied  with   other   sections);   137   C.    89,, 

1658 


Tit.III,ch.II,art.IV.]  PRINCIPLES.  §§  3400-3402 

93,  68  P.  850  (construed  and  applied);  137  C.  456,  458,  70  P. 
294  (construed  and  applied):  138  C.  112.  115,  70  P.  1005  (con- 
strued and  applied);  144  C.  450,  454,  77  P.  1032  (construed);  150 
C.  21,  26,  27,  87  P.  1029  (relief  is  not  to  be  refused  because  party 
asking  it  might  have  discovered  mistake  before  signing);  2 
C.  A.  433,  435,  84  P.  53  (action  to  enforce  contract,  and  to 
enforce  it  as  reformed,  lies  when). 

As  to  equitable  jurisdiction  and  relief  in  case  of  mistake,  see 
note  6  Paige  Ch.   (N.  T.)   347,  3  L.  ed.  1015. 

As  to  reformation  by  suit  in  equity,  see  65  A.  S.  481. 

As  to  reformation  of  instruments  affecting  homesteads,  see 
77  A.  S.  804. 

As  to  reformation  of  instruments  and  cause  and  proceedings 
relating  to,  see  65  A.  S.  481. 

As  to  reformation  of  instrument  on  ground  of  mistake,  see 
30  A.  S.  621. 

As  to  when  relief  will  l)e  granted  and  instrument  reformed, 
see  3  L.  189;  5  L.  156. 

§3400.    PRESUMPTION    AS    TO    I>TE\T    OF    PARTIES. 

For  the  purpose  of  revising  a  contract,  it  must  be  presumed 
that  all  the  parties  thereto  intended  to  make  an  equitable 
and   conscientious    agreement. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

132  C.  582,  584,  64  P.  1097  (construed  and  applied  with  other 
sections  of  code);  2  C.  A.  433,  435,  84  P.  53  (action  to  enforce 
contract,  and  to  enforce  as  reformed,  lies  when). 

§.S401.  PRINCIPLES  OF  REVISION.  In  revising  a  writ- 
ten instrument,  the  court  may  inquire  what  the  instrument 
was  intended  to  mean,  and  what  were  intended  to  be  its  legal 
consequences,  and  is  not  confined  to  the  inquiry  what  the 
language  of  the  instrument  was  intended  to  be. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

85  C.  488,  501,  24  P.  930,  933  (construed  and  applied);  132 
C.  582,  584,  64  P.  1097,  1098  (construed  and  applied  with  other 
sections);  2  C.  A.  433,  435,  84  P.  53  (action  to  enforce  contract, 
and  to  enforce  it  as  reformed,  lies  when). 

§3402.    ENFORCEMENT    OF    REVISED    CONTRACT.      A 

contract  may  be  first  revised  and  then  specifically  enforced. 

1659 


§  3406  CIVIL  CODE.  [Div.IV.Pt.I. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  422, 
held  unconstitutional,  see  history,  §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

132  C.  582,  584,  64  P.  1097,  1098  (construed  and  applied  with 
other  sections);  137  C.  71,  75,  69  P.  844  (construed  and  applied 
with  other  sections  and  with  §1856  C.  C.  P.);  137  C.  456,  458, 
70  P.-  294  (construed  and  applied);  149  C.  122,  126,  84  P.  835 
(contract,  in  same  action,  may  be  first  revised,  and  then  specific- 
ally enforced);  150  C.  21,  26,  87  P.  1029  (cited — execution  of  deed 
without  reading-  it);  2  C.  A.  433,  435,  84  P.  53  (action  to  enforce 
contract,  and  to  enforce  it  as  reformed,  lies  when). 


ARTICLE  V. 

RESCISSION  OP  CONTRACTS. 

§  3406.     When   rescission   may  be  adjudged. 

§  3407.      Rescission  for  mistake. 

§  3408.     Court  may  require  party  rescinding-  to  do  equity. 

§3406.    WHEN   RESCISSIOJf  MAY  BE   ADJUDGED.     The 

rescission   of   a   written    contract   may   be   adjudged,    on    the 
application  of  a  party  aggrieved: 

1.  In  any  of  the  cases  mentioned  in  section  sixteen  hundred 
and  eighty-nine;  or, 

2.  Where  the  contract  is  unlawful,  for  causes  not  apparent 
upon  its  face,  and  the  parties  were  not  equally  in  fault;   or, 

3.  When  the  public  interest  will  be  prejudiced  by  permit- 
ting it  to  stand. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  March  6,  1901,  Stats,  and  Amdts.  1900-1,  p.  422. 
held    unconstitutional,    see    history,    §   4    ante. 

See  Kerr's  Cyc.  C.  C.  for  140  pars,  annotation. 

86  C.  248,  251,  21  A.  S.  33,  24  P.  1018  (construed);  98  C.  490, 
499,  502,  33  P.  550,  553  (construed  with  other  sections);  120  C. 
502,  511,  47  P.  369,  52  P.  797  (construed  with  other  sections); 
133  C.  441,  443,  65  P.  894  (construed  and  applied  with  other 
sections);  138  C.  668,  672,  72  P.  149  (construed  and  applied  with 
§1689,  subd.  2);  141  C.  56,  63,  74  P.  433  (construed  and  applied 
with  other  sections);  147  C.  739,  743,  82  P.  436  (contract  obtained 
by  fraudulent  promise  may  be  rescinded);   148  C.  539,  547,  83  P. 

1660 


Tit.III,ch.II,art.V.]  RESCISSION.  §  3407 

1000  (rules  of  equity  not  applicable  when);  149  C.  667,  676,  87 
P.  276  (ground  for  rescission  must  be  alleged  and  relief  sought); 
1  C.  A.  690,  694,  82  P.  1052   (basis  of  action  to  rescind). 

As  to  effect  of  rescission,  see  15  A.  D.   572-575. 

As  to  fraud  in  contracts,  see  Kerr's  Cyc.  C.  C.  §§  1572-1574  and 
notes. 

As  to  how  and  within  what  time  right  of  rescission  must  be 
exercised,  see  74  A.  D.  657. 

As  to  misrepresentation,  see  Kerr's  Cyc.  C.  C.  §  1568  and  note. 

As  to  mistake,  see  Kerr's  Cyc.  C.  C.  §§  1576-1579  and  notes. 

As  to  placing  of  parties  In  statu  quo,  see  Kerr's  Cyc.  C.  C. 
§  3407  and  note. 

As  to  relief  from  fraud  or  mistake  in  instrument,  see  4  L.  483; 
5  L.  152;  6  L.  835;  11  L.  857;  12  L.  273. 

As  to  rescinding  in  equity  where  there  is  no  actual  fraud, 
accident,  or  mistake,  see  15  A.  D.  572,  4  L.  483;  5  L.  152;  6  L. 
835;  11  L.  857;  12  L.  273. 

As  to  rescission  of  contract  for  gross  ignorance  or  mistake 
respecting  value  of  property,  see  54  A.  R.  614. 

As  to  rescission  of  contract,  when,  how,  and  by  whom  may 
be  made,  see  50  A.  D.  672. 

As  to  rescission  of  contracts  for  gross  inadequacj-  of  con- 
sideration, see  15  A.  D.  572-575. 

As  to  rescission  of  contracts  in  equity  where  tlicre  is  no 
actual  fraud,  accident,  or  mistake,  see  15  A.  D.  572-575. 

As  to  rescission  of  contracts  made  with  heirs,  reversioners, 
and  expectants  in  the  lifetime  of  the  ancestor,  see  15  A.  D. 
572-575. 

As  to  rescission  of  sale  for  fraud  in  purchase  on  credit,  see 
18  A.  S.  362. 

As  to  rescission  when  advantage  has  been  taken  of  the  situa- 
tion or  condition  of  one  of  the  parties,  see  15  A.  D.  572-575. 

As  to  right  and  conditions  of  rescission,  see  1  L.  826;  6  L. 
503;   9  L.  607. 

As  to  right  to  rescind  contract  without  liability  for  non- 
performance, see  note  30  L.  33-73. 

As  to  right  to  rescind  or  abandon  contract  because  of  other 
party's  default,  see  note  30  L.  33-73. 

As  to  setting  aside  written  instrument  for  fraud  and  fraud- 
ulent representations,  see  11  L.  66,  96. 

As  to  undue  influence  in  contract,  see  Kerr's  Cyc.  C.  C.  §  1575 
and  note. 

As  to  what  will  warrant  rescission,  see  30  L.   33-73. 

Duress — As  to  effect  of  duress  upon  contracts,  see  Kerr's  Cyc. 
C.  C.   §  1569  and  note. 

§3407.  llESriSSIO\  FOH  MISTAKE.  Rescission  cannot 
be    adjudged    for    mere    mistake,    unless    the    party    against 

1661 


§  3408  CIVIL  CODE.  [Div.IV.Pt.I. 

whom   it   is   adjudged   can    be   restored   to    substantially    the 
same  position  as  if  the  contract  had  not  been  made. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  27  pars,  annotation. 

94  C.  56,  58,  28  A.  S.  91,  29  P.  329  (construed  and  applied);  98 
C.  490,  4'99,  33  P.  550,  553  (construed  and  applied  with  other  sec- 
tions)'";- 109  C.  417,  426,  42  P.  139  (construed  and  applied  with 
§1691);  114  C.  161,  168,  45  P.  1054,  46  P.  386  (construed);  120 
C.  502,  511,  47  P.  369,  52  P.  797  (construed  and  applied  with  other 
sections);  124  C.  264,  268,  56  P.  1042  (referred  to  with  §1691); 
146  C.  379,  390,  80  P.  234  (construed  with  §  3408 — what  restora- 
tion is  sufficient  in  rescission  for  fraud) ;  148  C.  539,  547,  83  P. 
1000  (rules  of  equity  not  applicable  when);  149  C.  667,  676,  87 
P.  276  (ground  for  rescission  inust  be  alleged  and  relief  sought). 

§  3408.  COURT  MAY  KEQUIRE  PARTY  RESCINDING  TO 
DO  EQUITY.  On  adjudging  the  rescission  of  a  contract,  the 
court  may  require  the  party  to  whom  such  relief  is  granted 
to  make  any  compensation  to  the  other  which  justice  may 
require. 

Historj-:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

94  C.  56,  58,  28  A.  S.  91,  29  P.  329  (construed);  98  C.  490,  499, 
502,  33  P.  550,  553  (construed  and  applied  with  other  sections); 
120  C.  502,  511,  47  P.  369,  52  P.  797  (construed  and  applied  with 
other  sections);  123  C.  377,  378,  55  P.  1007  (referred  to);  146  C. 
379,  390,  80  P.  234  (construed  with  §  3407— what  restoration  is 
sufficient  in  rescission  for  fraud);  147  C.  739,  744,  82  P.  436 
(rescission  on  ground  of  fraud — restoration  not  necessary 
when);  148  C.  539,  547,  83  P.  1000  (rules  of  equity  not  applicable 
when);  152  C.  383,  394,  92  P.  1011  (if  offer  of  rescission  has  been 
made  and  refused,  and  party  is  compelled  to  sue  for  rescission, 
principles  of  equity  apply);  1  C.  A.  690,  694,  82  P.  1052  (basis  of 
action  to  rescind). 


1662 


Tit.III,ch.II,art.VI.]  CANCELLATION.  §§3412,3413 

ARTICLE  VI. 

CANCELATION  OF  INSTRUMENTS. 

§  3412.     When  cancelation  may  be  ordered. 
§3413.      Instrument  obviously  void. 
§  3414.     Cancelation    in    part. 

§  3415.     Reissuance,    etc.,    of    lost   private    documents    or    instru- 
ments. 

S3412.    WHEN    CAIV(  ELATION   MAY    BE    ORDERED.     A 

written  instrument,  in  respect  to  which  there  is  a  reasonable 
apprehension  that  if  left  outstanding  it  may  cause  serious 
injury  to  a  person  against  whom  it  is  void  or  voidable,  may, 
upon  his  application,  be  so  adjudged,  and  ordered  to  be 
delivered  up  or  canceled. 

History:  Enacted  March  21,  1872;  amended  by  Code  Com- 
mission, Act  Marcli  6,  1901,  Stats,  and  Amdts.  1900-1,  p.  422, 
held   unconstitutional,   see  liistory,   §   4  ante. 

See  Kerr's  Cyc.  C.  C.  for  13  pars,  annotation. 

59  C.  194,  197  (construed  and  applied):  79  C.  443.  445,  21  P. 
946.  947  (construed  and  applied);  83  C.  234,  238,  23  P.  298  (con- 
strued and  applied);  102  C.  627,  631,  36  P.  1011  (construed  and 
applied);  126  C.  471,  474,  77  A.  S.  195.  58  P.  910  (referred  to); 
132  C.  691.  697.  64  P.  1091.  1092  (construed  and  applied);  6  C.  A. 
?,r,,  43.  91  P.  409  (action  under  §  738  C.  C.  P.  could  accomplish 
nothing  more  nor  less  than  action  under  §  3412  C.  C);  36  F.  33", 
352   (cited). 

§3413.  INSTIUMKNT  (HJVIOrSLY  VOID.  An  instrument, 
the  invalidity  of  which  is  apparent  upon  its  face,  or  upon  the 
face  of  another  instrument  which  is  necessary  to  the  use  of 
the  former  in  evidence,  is  not  to  be  deemed  capable  of  caus- 
ing injury,  within  thf  pi-ovisious  of  the  last  section. 

TIlMtory:     F^nacti-d  March   21.   1872. 

See  Kerr's  Cyc.  C.  C.   for  3  pars,  annotation. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what);   79  C.   443,  445.   21    1'.   9ir..  lUT    ( const  ni.<l   .ind  .ipplbd ). 


1663 


§§  3414,  3415  CIVIL  CODE.  [Div.IV,Pt.I. 

§3414.  CANCELATION  IN  PART.  Where  an  instrument 
is  evidence  of  different  rights  or  obligations,  it  may  be  can- 
celed in  part,  and  allowed  to  stand  for  the  residue. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

55  C.  564,  566  (meaning  of  "instrument" — it  does  not  embrace 
what)--  86  C.  248,  251,  21  A.  S.  33,  24  P.  1018  (construed  and 
applied  with  other  sections). 

§3415.  RE-ISSUANCE,  ETC.,  OF  LOST  PRIVATE  DOCU- 
MENTS  OR  INSTRUMENTS.  An  action  may  be  maintained 
by  any  person  interested  in  any  private  document  or  instru- 
ment in  writing,  which  has  been  lost,  destroyed  or  damaged 
by  conflagration  or  other  public  calamity,  to  prove,  establish, 
compel  the  re-issuance,  re-execution,  and  re-acknowledgment 
of  such  document  or  instrument.  If  such  document  or  in- 
strument be  a  negotiable  instrument,  the  court  must  compel 
the  person  in  whose  favor  it  is  drawn  to  give  a  bond  exe- 
cuted by  himself  and  two  sufficient  sureties  to  indemnify  the 
person  re-issuing,  re-executing,  or  re-acknowledging  the 
same  against  any  lawful  claim  thereon. 

History:  Enacted  June  18,  1906,  Stats,  and  Amdts.,  extraordi- 
nary session   1906,  p.  86.     In  effect  immediately. 


1664 


Tit.III.ch.III.]  INJUNCTION.  §  3420 

CHAPTER  III. 

PREVENTIVE  RELIEF. 

§  3420.  Preventive  relief,  how  granted. 

§  3421.  Provisional   injunctions. 

§  3422.  Injunction,  when  allowed. 

§  3423.  Injunction,  when  not  allowed. 

§3420.  PREVENTIVE  KELIEF,  HOW  GRANTED.  Pre- 
ventive relief  is  granted  by  injunction,  provisional  or  final. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  164  pars,  annotation. 

INJUNCTIONS. 

As  to  cemetery  property,  burials,  or  removal  of  remains. — See 
3  L.  N.  S.  482-493. 

Affecting-  real  property  in  another  state  or  country,  jurisdic- 
tion to  issue. — See  69  L.  689. 

Against  action  or  proceedings  in  foreign  jurisdiction. — See 
21   L.  71-75;  69  L.  689. 

Against  acts  of  food  commissioners  which  affect  sale  of  foods. 
—See  15  L.  N.  S.  331. 

Against  blasting. — Sec  6  L.  N.  S.  570. 

Against  broach  by  employee  of  agreement  not  to  engage  in  a 
competing  business. — See  16  L.  N.  S.  389. 

Against  commission  of  crime — As  to  generally,  see  35  A.  R. 
670;  2  L.  N.  S.  1111. 

Sanu — "When  property  rights  involved. — See  3  L.  N.  S.  622. 

Against  continuance  of  a  nuisance. — See  56  A.  R.  6. 

Against  control,  use  of,  or  interference  with  church  property. 
—See  3  L.  N.  S.  854-879. 

Against  cotenant  in  partition  suit. — Sec  12  L.  484. 

Against  crimes  and  criminal  prosecutions. — See  1  A.  C.  119; 
r.  A.  C.  1012;  7  A.  C.  574;  10  A.  C.  757;  35  A.  R.  670;  21  L.  84-88; 
2  L.  N.  S.   Ill;   3  L.  N.  S.   622. 

Against  criminal   proceedings. — See   21   L.   84-SS. 

Against  dealing  in  non-transferable  railroad  tickets. — See  10 
L.  N.  S.  437. 

Against  docum.ntary  evidence. — See  1  L.  754. 

Against  eminent  domain  proceedings  to  restrain  irreparable. 
— See  5  L.  661,  662. 

Against  enactment  of  void  municipal  ordinances. — See  36 
A.  S.   449. 

Kerr's   C.   C. — 53  1665 


§  3420  CIVIL  CODE.  [Div.IV,Pt.I. 

Against  enforcement  of  liens  or  claims  against  specific  prop- 
erty, amount  in  dispute  in  case  of. — See  61  L.   781. 

Against  enforcement  of  void  municipal  ordinances. — See  118 
A.  S.   372. 

Against  execution  sale  or  other  proceedings  under  final 
process. — See  30  L.  99-142. 

Against  false  statement  as  to  plaintiff's  property  or  business. 
— See  16  L.  243. 

Against  garnishment  of  wages,  proof  of  rule  of  employer 
providing  for  discharge  of  employee  whose  wages  are  garnished. 
—See  6  L.  N.   S.  491. 

Against  hunting  or  fishing  of  navigable  waters  or  against 
interfering  therewith. — See   17   L.  N.   S.    1236. 

Against  illegal  acts — Of  municipal  and  other  public  corpora- 
tions.— See  2  A.  S.  92. 

Same — Of  police  officers  other  than  arrest. — See  2  L.  N.  S.  678, 
683. 

Against  improper  use  of  leased  premises. — See  59  A.  D.  70. 

Against  inducing  breach  of  contract  or  assisting  in  a  con- 
tinuance of  such  breach. — See  11  L.  N.  S.  202. 

Against  interference  with  public  agency. — See  15  L,  64. 

Against  judgment — As  to  generally,  see  32  L.  321. 

Same — Against  or  in  favor  of  sureties. — See  31  L.  60-66. 

Same — Entered  by  confession. — See  30  L.  235-242. 

Same — For  defenses  existing  prior  to  rendition. — See  31  L. 
747-774. 

Same — For  errors  and  irregularities. — See   30  L.   700-709. 

Same — For  matters  arising  subsequent  to  rendition. — See  30 
L,.  560,   571. 

Same — For  want  of  jurisdiction. — See  31  L.   200-212. 

Same — Garnishment  proceedings. — See   30  L.   360. 

Same — ^Negligence  as  a  cause  for  and  as  a  sale  to. — See  31  L. 
33-40. 

Same — Obtaining  by  fraud. — See  30  L.  787-793. 

Same — On  account  of  accident. — See  30  L.  794-796. 

Same — On  account  of  mistake. — See  30  L.  799. 

Same — On  account  of  surprise  or  duress. — See   30  L.   800. 

Same — On  ground  of  loss  of  defense  by  reason  of  negligence 
or  unskillfulness  of  the  attorney. — See  9  L.  N.  S.  524. 

Against  laying  pipes  in  streets. — See  8  L..  488. 

Against  legal  proceedings. — See  8  L.  N.  S.  574;  11  L.  N.  S.  581; 
12  L.  N.  S.   881;   15  L.  N.  S.   1008. 

Against  levy  on  partnership  property  for  debt  of  partner. — 
See  46  L.  491. 

Against  maintaining  telephone  or  telegraph  line  in  street  or 
highway,  delay  in  applying  for,  effect  of. — See  8  L.  N.  S.  1091. 

Against  maintenance  of  house  of  prostitution  by  owner  or 
occupant  of  neighboring  property. — See  11  L.  N.  S.  1060. 

16t)6 


Tit.III,ch.III.]  INJUNCTIONS.  §  3420 

Against    mining'    operation    by    lessee    pending    dispute    as    to 
forfeiture  of  lease. — See  1  L.  N.  S.  333. 

Against  negotiation  of  note. — See  28  L.  577. 

Against  pleading  the  statute  of  limitations. — See  51  A.  D.  700; 
75  A.  D.  84. 

Against  private  nuisance  authorized  by  legislature. — See  1  L. 
N.  S.  134. 

Against  prosecution  of  a  criminal  or  quasi  criminal  nature. — 
See  2  L.  N.  S.   631. 

Against   reduction    of   capital   stock   of   corporation. — See    1    L. 
N.  S.   571. 

Against  removal   of  subjacent  support   by   mining. — See   16   L. 
N.  S.   851. 

Against    repeated    garnishment    of    exempt    wages. — See    10    h- 
N.  S.  983. 

Against  repeated  trespass. — See  13  L.  N.  S.  173. 

Against  sale  of  corporate  franchise  or  property  necessary  to- 
its  enjoinment. — See   20  L.   737. 

Against   sale   of  personal   property  under   execution. — See    111 
A.  S.  97. 

Against  sale  of  property  for  illegal  taxes. — See   69   A.  D.   198; 
23  A.  R.  622;  49  A.  R.  287;  53  A.  R.  110. 

Against  saloon,  proof  of  character  of  locality. — See  4  L.  N.  S. 
810. 

Against  speech  or  publication. — See  32  L.  831. 

Against  strikes. — See  28  L.  464. 

Against  suit  in  another  state  to  evade  local  exemption  laws. — 
See  15  L.  N.  S.  1008. 

At  suit  of  state  against  public  nuisance  which  is  also  a  crime. 
— See  15  L.  N.  S.  747. 

Against  surviving  partner  witli  reference  to  real  estate. — See 
28  L.  137. 

Against  the   collection   of  purchase  money  where  the  title  to 
land  is  defective. — See  7  L.  N.  S.  445-465. 

Against  the   enforcement   of   illegal   contracts. — See    48   L.    842- 
850. 

Against   the   prosecution    of   an    action    in    another   state. — See 
56  A.  R.  663;   59  A.  S.   880. 

Against  the  publication  of  letters. — See   49  A.  D.   ISO. 

Against  threatened  wrong. — See  6  L.   90. 

Against   trespass   on   real    estate. — See   11   A.   D.    498;    53   A.    R. 
346;   99   A.   S.   731. 

Against  trespass  to  cut  timber. — See   22   L.    233. 

Against  unfair  competition  in  business. — See  3  L.  760. 

Against  unlawful   sale  of  church  by  trustees. — See   2  L.   N.  S. 
828. 

Attorney's  fees  on   the  dissolution   of. — See   77   A.   D.   158. 

Bond— Actions   on.— See   6   A.   C.    401;   6   A.   C.   902,   904;    8   A.   C. 
709. 

1667 


§  3420  CIVIL  CODE.  [Div.IV.Pt.I. 

Same — For  of  judgment  on. — See  62  L.  446. 

Same — Loss  of  profits  as  elements  of  damage  in  action  on. — 
See  32  L.  58. 

Same — Necessity  for. — See  6  A.  C.  589. 

Same — Penalty  as   limit   of  liability   on.— See   55   L.   389. 

Same— Recovery  of  counsel  fees  as  damages  upon  dissolution 
of  injunction. — See  8  A.  C.  712. 

Same — ^Requirement  of. — See  13  L.  311. 

Same — Right  to  recover  on  for  damages. — See  18  L.   275. 

Same — Supersedeas  bond. — See  4  A.  C.   229,  231. 

By  federal  court  against  state  railroad  commissioners. — See 
3  L.   238. 

By  private  person  to  restrain  violation  of  municipal  ordinance. 
—See  5  L.  N.  S.  493. 

Caution  as  to  granting. — See  13  L.  311. 

Damages  in  lieu  of. — See  20  L.  652. 

Discretion  of  court  in  granting. — See  2  A.  C.  782;  7  A.  C.  1069; 

11  L.   577. 

Dissolution  of,  as  to. — See  11  L.  577. 

Distinguished  from  mandamus. — See  3  L.   55. 

Federal  courts,  power  of  state  court  to  enjoin  proceedings  in. 
— See  11  A.  C.  744. 

For  violation  of  legal  right. — See  6  L.  855. 

Inadequacy  of  legal  remedy  necessary. — See  6  A.  C.  1012;  7 
A.  C.  50. 

In  aid  of  attachment. — See  20  L.  446. 

In  case  of  contractual  rights.- — See  3  A.  C.  975;  6  A.  C.  902; 
7  A.  C.  50. 

In  cases  of  water  rights  and  sewers. — See  3  L.   609;  4  L.   572; 

12  L.  468;  41  L.  497;  48  L.  707;  59  L.  81,  91;  60  L.  243. 
In  matters  preceding  election. — See  3  L.  N.  S.  382. 
In  support  of  strict  legal  right. — See  3  L.  613. 
Irreparable  injury,  what  is  within  the  meaning  of  the  law  of. 

—See  1  A.  S.  374,  379. 

Legal  remedy  must  be  inadequate. — See  1  L.   745. 

Liquidated  damages,  effect  of  stipulation  for  in  contract  not 
to  engage  in  business,  upon  equitable  jurisdiction  to  enjoin 
breach  thereof. — See  10  L.  N.  S.  204. 

Mandatory. — See  20  A.  D.  389. 

Necessity  of  special  circumstances. — See  1  L.  745. 

Nuisance — Against  private  authorized  by  legislature. — See  1 
L.  N.  S.  134. 

Same — Right  of  lessee  to  maintain. — See  3  L.  N.  S.  448. 

Parties  entitled  to.— See  3  A.  C.  1011,  1013. 

Power  to  grant  mandatory. — See  20  L.  161-169. 

Purpose  or  object  of.- — See  1  L.  744. 

Remedy  by  for  unlaAvful  discrimination  by  railroad  against 
hack-driver. — See  8  L.  N.  S.  1027. 

1668 


Tit.III.ch.IIL]  INJUNCTIONS.  §  342O 

Restraining  collection  of  illegal  taxes. — See  22  L.  699. 
*  Right  of  individual  to  enjoin  act  of  public  officials. — See  3  A.  C. 
1013. 

Right  to  enjoin  acts  under  unconstitutional  statute,  as  affected 
by  other  remedies  in  case  such  acts  are  done. — See  8  L.  N.  S. 
124. 

State  as  proper  party  to  maintain  bill  to  abate  or  enjoin  a 
public  nuisance  in  a  city  street. — See  19  L.  N.  S.   1173. 

State,  right  of  to  enjoin  act  committed  in  another  state. — See 
11  A.  C.  490. 

To  enjoin  acts  with  respect  to  real  property  in  another  state. 
—See  7  L.  N.  S.   114. 

To  enjoin  passage  of  municipal  ordinance. — See  2  L.  N.  S.   152. 

To  enjoin  publication — Of  book  by  author  who  has  parted  with 
property  rights  in  work. — See  3  L.  N.  S.  629. 

Same — Of  collusive  suit  in  court  of  co-ordinate  jurisdiction. — 
See  11  L.  N.  S.  581. 

To  enjoin  sale  or  transfer  of  property. — Sec  2  L.  N.  S.  560;  6 
L.  N.  S.  510;  18  L.  N.  S.  218;  18  L.  N.  S.  1156. 

To  prevent  a  wrong  which  will  result  in  injury  to  genei'al 
business  reputation. — See  3  A.  C.  975. 

To  prevent  breach — Of  contract. — See  90  A.  S.  634. 

Same — Of  stipulation  to  handle  or  use  the  product  of  one 
producer  only. — See  10  L.  N.  S.  475. 

To  prevent  clouds  on  title — As  to  generally,  see  8  L.  727;  10 
L.  293. 

Same — By  execution  sales. — See  62  A.  D.  523. 

To  prevent  collection  of  tax  on  excessive  assessment. — See  16 
L.  N.  S.  807. 

To  prevent  enticement  of  servant. — See  5  L.  N.  S.  1096. 

To  prevent  improper  use  of  trade-mark. — See  1  L.  46;  8  L.  643. 

To  prevent  passage  of  municipal  ordinance. — See  13  L.  844. 

To  prevent  removal  of  lateral  support. — See  68  L.  697. 

To  prevent  the  erection,  maintenance,  or  removal  of  fences  or 
gates. — See  7  L.  N.  S.  49-86. 

To  prevent  threatened  sale  of  property. — See  7  A.  C.   185. 

Same — On  ground  that  action  on  debt  secured  Ijy  instruments 
under  which  sale  is  sought  is  barred  by  statute  of  limitations. 
—•See  7  A.  C.  189. 

To  prevent  use  of  street  for  railroad  purposes,  riglit  of 
abutting  lot  owners  to. — See  5  L.  373. 

To  protect  easement. — See  3  L.  861;  6  I...  262. 

To  protect  personal  rights. — See  37  L.  733:  1  L.  N.  S.  1147. 

To  protect  trade  secret. — See  4  L.  N.  S.  102. 

To  restrain  action  in  another  state. — See  100  A.  C.  20,  26. 

To  restrain  acts  of  continuing  trespass  of  land  located  in 
another  state. — See  8  A.  C.  511,  519. 

To  restrain  assessment  on   paid-up  stock. — See   45   L.   653. 

1669 


§  3420  CIVIL  CODE.  [Div.IV,Pt.T. 

To  restrain  breach  of  contract — As  to  generally,  see  5  L.  242; 
6  L.  856;  26  L.  711. 

Same — Not   capable    of   being   specifically    enforced. — See    3    A. 
C.   976. 

To  restrain  breach  of  covenant — As  to  generally,  see   5  L.   46; 
5  L.  422. 

Same — Restricting  use  of  real  property. — See  5  L.  423. 

To  restrain  consolidation  of  corporation. — See  2  L.  594. 

To  restrain  enforcement  of  judgment. — See  10  A.  C.   444. 

To  restrain  garnishment  proceedings. — See  12  A.  C.  332,  335. 

To  restrain  illegal  appropriation. — See  7  L.  180. 

To  restrain  in  relation  to  taxes. — See  10  L.  294;  22  L.  699-709. 

To  restrain  interference  with  view  of  premises  from  street. — 
See  5  L.  N.  S.  486. 

To  restrain  nuisance — As  to  generallj',  see  7  L.   299;  9  L.   711, 
716;  12  L.  753;  13  L.  321;  also  note  §3479,  post. 

Same — By  municipal  corporation. — See  40  L.  465;  41  L.  321;  42 
L.   814;  44  L.  565;  51  L.   657. 

Same — Liquor  nuisance. — See  7  L.   299. 

Same — Maintained  by  municipal  corporation. — See  23  L.  301. 

To  restrain   other  actions — At  equity. — See  3  A.  C.   965,  966. 

Same— At  law. — See  5  A.  C.  724;  8  A.  C.  569. 

Same — Same — In    case    of    fraud,    accident    or    mistake. — See    5 
A.  C.  727. 

Same — Criminal  prosecution. — See 
A.  C.   574;   10  A.  C.  757;   35  A.  R.   670; 
3  L.  N.  S.  622. 

Same — Same — Injunction    against 
ordinance. — See  6  A.  C.  1013;  10  A.  C. 

Same — Same — Power  of  equity  to  enjoin  criminal  prosecutions. 
—See  1  A.  C.  121. 

To  restrain  police  surveillance. — See  5  A.  C.  480,  483. 

To  restrain  prosecution  of  suits  in  other  states  or  countries. — 
See  56  A.  R.  663;  59  A.  S.  880. 

To   restrain   the   collection   of  taxes   and   assessments. — See   69 
A.  D.  198. 

To  restrain  threatened  trespass. — See  11  L.  207. 

To  restrain  trespass  upon,  or  interference  with  oyster  beds. — 
See   3  L.   N.   S.   205. 

To  restrain  unfair  competition,   fraudulent  intent  requisite   to 
justify. — See  4  L.  N.  S.  960. 

To    restrain    use    of    intimidation    and    threats    to    prevent    one 
entering  another's  employment. — See  12  L.  195. 

To  restrain  use  of  trade  secrets. — See  13  L.  652. 

To  stay  waste. — See  11  L.  207. 

Violation  of,  contempt.^ — See  3  A.  C.  28;  3  A.  C.  966. 

Waiver  of  right  to  by  laches  in  failure  to  object  to  improve- 
ments.— See  50  A.  R.  117. 

1670 


1  A.  C.   119; 

6   A.   C.   1012;    7 

21  L.   84-88; 

2  L.  N.  S.    Ill; 

prosecution 

under    invalid 

760. 

I 


TiUII.ch.III.]  ALLOWANCE  OF.  §§  3421-3423 

When  becomes  binding  on  the  enjoined  parties. — See  55  A.  D. 
722. 

With  regard  to  land  in  another  state,  jurisdiction  to  issue. — 
See  69  L.  689. 

§3421.  PROVISIONAL  INJUNCTIONS.  Provisional  in- 
junctions are  regulated  by  the  code  of  civil  procedure. 

History:     Enacted  March   21,   1872. 

As  to  injunctions  generally,  see  note  §  3420,  ante. 
As  to  provisional  injunction,  see  Kerr's  Cyc.  C.  C.  P.  §§  525-533 
and  notes. 

§3422.    INJUNCTION,   WHEN   ALLOWED.     Except   where 
otherwise  provided  by  this  title,  a  final   injunction  may  be' 
granted  to  prevent  the  breach  of  an  obligation   existing  in 
favor  of  the  applicant: 

1.  Where  pecuniary  compensation  would  not  afford  ade- 
quate relief; 

2.  Where  it  would  be  extremely  difficult  to  ascertain  the 
amount  of  compensation  which  would  afford  adequate  relief; 

3.  Where  the  restraint  is  necessary  to  prevent  a  multi- 
plicitj^  of  judicial  proceedings;   or, 

4.  Where  the  obligation  arises  from   a  trust. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

64  C.  472,  473,  2  P.  244  (construed  and  applied);  113  C.  272, 
276,  54  A.  S.  348,  45  P.  329,  33  L.  459  (applied);  117  C.  377,  380, 
381,  49  P.  353  (construed  and  applied);  148  C.  610,  619,  84  P.  166 
(construed  and  applied  with  §  3423 — injunction  to  prevent  breach 
of  obligation  existing  in  favor  of  plaintiff  is  properly  granted 
when). 

As  to  injunctions  generally,  see  note  §  3420,  ante. 

§3423.  INJUNCTION,  WHEN  NOT  ALLOWED.  An  in- 
junction cannot  be  granted: 

1.  To  stay  a  judicial  proceeding  pending  at  the  commence- 
ment of  the  action  in  which  the  injunction  is  demanded, 
unless  such  restraint  is  necessary  to  prevent  a  multiplicity 
of  such  proceedings. 

2.  To  stay  proceedings  in  a  court  of  the  United  States. 

1671 


§3423 


CIVIL  CODE. 


[Div.IV.Pt.I. 


3.  To  stay  proceedings  in  another  state  upon  a  judgment 
of  a  court  of  that  state. 

4.  To  prevent  the  execution  of  a  public  statute,  by  oflBcers 
of  the  law,  for  the  public  benefit. 

5.  To  prevent  the  breach  of  a  contract,  the  performance 
of  which  would  not  be  specifically  enforced. 

6.  To  prevent  the  exercise  of  a  public  or  private  office,  in 
a  lawful  manner,  by  the  person  in  possession. 

7.  To  prevent  a  legislative  act  by  a  municipal  corporation. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1873-4,  p.  267. 

See  Kerr's  Cyc.  C.  C.  for  10  pars,  annotation. 

75  C.  179,  181,  16  P.  776,  778  (construed  and  applied);  79  C. 
540,  548,  21  P.  952,  954  (construed  and  applied);  117  C.  377,  378, 
379,  49  P.  353  (construed  with  §3274);  139  C.  469,  474,  475,  476, 
478,  73  P.  145  (construed  and  applied);  147  C.  24,  28,  81  P.  225, 
228  (construed  and  applied);  148  C.  610,  615,  619,  84  P.  166  (con- 
strued and  applied  with  §  3422 — injunction  to  prevent  breach  of 
obligation  existing  in  favor  of  plaintiff  is  properly  granted 
when);  152  C.  224,  227,  92  P.  353  (subds.  4  and  6  are  inapplicable 
to  suit  for  injunction  against  execution  of  void  statute). 

As  to  injunctions  generally,  see  note  §  3420,  ante. 


1672 


Pt.II.Titl.]  DEBTOR,    CREDITOR.  §§3429,3430 


PART    II. 

SPECIAL  RELATIONS  OF  DEBTOR  AND  CREDITOR. 

Title  I.     General   Principles,    §§  3429-3433. 

II.     Fraudulent  Instrument  and  Transfers,  §§  3439-3442. 
III.     Assignments   for   the   Benefit   of   Creditors,    §§  3449- 
3473. 

TITLE   I. 
GENERAL  PRINCIPLES. 

§  3429.  Who  is  a  debtor. 

§  3430.  Who  is  a  creditor, 

§  3431.  Contracts  of  debtor  are  valid. 

§  3432.  Payments   in   preference. 

§  3433:  Relative  rights  of  different  creditors. 

§3429.  ^VHO  IS  A  DEBTOR.  A  debtor,  within  the  mean- 
ing of  this  title,  is  one  who,  by  reason  of  an  existing  obliga- 
tion, is  or  may  become  liable  to  pay  money  to  another, 
whether  such   liability  is  certain  or  contingent. 

IiiN<<»ry:     Enacted  Marcli   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

68  C.  12,  8  P.  525  (applied);  112  C.  476,  490,  44  P.  SIO  (applied) : 
121  C.  16,  25,  53  P.  416  (construed);  132  C.  459,  465,  84  A.  S.  62, 
64  P.  709    (applied);   2  C.  A.  233,  235,  83  P.   280   (cited). 

See  Kerr's  Cyc.  C.  C.  §  3430  and  note. 

As  to  who  is  a  debtor,  see  23  L.  322;  2  L.  ed.  666;  2  W.  &  P. 
1891. 

§.3430.  WHO  IS  A  CKEDITOI?.  A  creditor,  within  the 
meaning  of  this  title,  is  one  in  whose  favor  an  obligation 
exists,  by  reason  of  which  he  is,  or  may  become,  entitled  to 
the  payment  of  money. 

Hi.s(ory:     Enacted  Marcli   21,   1S72. 
1673 


§§  3431,  3432  CIVIL  CODE.  [Div.IV.Pt.II. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

112  C.  476,  490,  44  P.  810  (applied);  121  C.  16,  25,  53  P.  416 
(referred  to);  132  C.  459,  465,  84  A.  S.  62,  64  P.  709  (applied);  2 
C.  A.  233,  235,  83  P.  280   (cited). 


§3431.    CONTRACTS   OF  DEBTOR  ARE   VALID.     In   the 

absence  of  fraud,  every  contract  of  a  debtor  is  valid  against 
all   his  creditors,   existing  or   subsequent,  who  have  not  ac- 
quired a  lien  on  the  property  affected  by  such  contract. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

127  C.  290,  312,  53  P.  911,  59  P.  827,  46  L.  371  (applied  in  dis. 
op.);  135  C.  156,  158,  67  P.  46  (construed);  152  C.  488,  496,  92  P. 
1017  (construed  with  §  2965 — §  3431  affords  no  protection  to 
chattel  mortgagee  as  against  claims  of  creditors  when). 

§  3432.  PAYMENTS  IN  PREFERENCE.  A  debtor  may  pay 
one  creditor  in  preference  to  another,  or  may  give  to  one 
creditor  security  for  the  payment  of  his  demand  in  prefer- 
ence to  another. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

82  C.  132,  135,  23  P.  36  (applied);  83  C.  303,  309,  23  P.  350,  352 
(applied);  100  C.  626,  631,  35  P.  323  (applied);  104  C.  264,  266,  37 
P.  927  (applied);  108  C.  81,  85,  41  P.  29  (construed  with  §3457); 
127  C.  72,  84,  59  P.  319  (applied);  127  C.  134,  137,  59  P.  393  (con- 
strued); 128  C.  658,  660,  61  P.  282  (applied);  135  C.  156,  158,  67 
P.  46  (applied);  139  C.  362,  366,  73  P.  182  (referred  to);  140  C. 
397,  399,  73  P.  1059   (cited). 

As  to  preferences  by  corporation,  see  42  A.  S.  767;  22  L.  802; 
brief  29  L.  830. 

As  to  preference  by  debtor,  see  3  L.  139;  11  L.  466;  brief  14  L. 
198. 

As  to  preference  by  insolvent  corporations  by  legal  proceed- 
ings, see  22  L.  808. 

As  to  preferences  by  insolvent  corporations  in  favor  of  direc- 
tors and  officers,  see  22  L.  806;  note  44  L.  756;  brief  56  L.  121, 
122. 

As  to  preference  by  national  bank,  see  25  L.  546. 

As  to  validity  of  conveyance  to  creditor  as  to  subsequent 
creditors,  see  9  L.  415. 

As  to  validity  of  mortgage  to  secure  creditor,  see  9  L.   648. 

1674 


Tit.I.]  RIGHTS  OF   CREDITORS.  §  3433 

§3438.  BELATIVE  RIGHTS  OF  DIFFERENT  CRED- 
ITORS. Where  a  creditor  is  entitled  to  resort  to  each  of 
several  funds  for  the  satisfaction  of  his  claim,  and  another 
person  has  an  interest  in,  or  is  entitled  as  a  creditor  to  resort 
to  some,  but  not  all  of  them,  the  latter  may  require  the 
former  to  seek  satisfaction  from  those  funds  to  which  the 
latter  has  no  such  claim,  so  far  as  it  can  be  done  without 
impairing  the  right  of  the  former  to  complete  satisfaction, 
and  without  doing  injustice  to  third  persons. 

History:     Enacted  March  21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

113   C.   463,   466,   45   P.   840    (applied);    114  C.   537,   541,   46   P.    462 
(applied);  119  C.  283,  296,  63  A.  S.  108,  51  P.  2,  542  (applied);  127  ■ 
C.  72,  84,  59  P.  319    (applied);  139  C.  350,  352,  361,  63  P.  335,  73  P. 
159   (applied);  141  C.  11,  12,  74  P.  356  (applied). 


1675 


§  3439  CIVIL  CODE.  [Div.IV.Pt.II. 

TITLE   II. 

FRAUDULENT  INSTRUMENTS   AND   TRANSFERS. 

§  3439.  Transfers,   etc.,   with   intent  to   defraud   creditors. 

§  3440.  Certain  transfers  presumed  fraudulent. 

§3441.  Creditor's  right  must  be  judicially  ascertained. 

§  3442.  Question  of  fraud,  how  determined. 

§  3439.  TRANSFERS,  ETC.,  WITH  INTENT  TO  DEFRAUD 
CREDITORS.  Every  transfer  of  property  or  charge  thereon 
made,  every  obligation  incurred,  and  every  judicial  proceed- 
ing taken,  with  intent  to  delay  or  defraud  any  creditor  or 
other  person  of  his  demands,  is  void  against  all  creditors  of 
the  debtor,  and  their  successors  in  interest,  and  against  any 
person  upon  whom  the  estate  of  the  debtor  devolves  in 
trust  for  the  benefit  of  others  than  the  debtor. 
History:     Enacted  March  21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  65  pars,  annotation. 

69    C.    247,    250,    10    P.    400    (applied);    75    C.    185,    187,    16    P.    778 
(applied);  83  C.  234,  237,  238,  23  P.  298,  299   (applied),  84  C.  244, 

249,  24  P.  118,  119  (applied);  84  C.  505,  508,  24  P.  286,  287  (ap- 
plied); (C.  Dec.  30,  1890),  25  P.  404  (construed);  88  C.  396,  397, 
22  A.  S.  310,  26  P.  213  (applied);  89  C.  286,  288,  26  P.  873,  874,  13 
L.  576  (applied);  94  C.  180.  188  (cited  in  dis.  op.),  29  P.  495,  498 
(construed  and  applied);  41  P.  860,  861  (referred  to);  114  C.  451, 
454,  456,  457,  458,  46  P.  270  (construed  and  applied);  114  C.  526. 
535,  536,  43  P.  613,  46  P.  460  (referred  to);  115  C.  266,  273,  53 
A.  S.  97,  47  P.  37,  37  L.  626  (construed);  117  C.  140,  146,  148,  48 
P.  1025  (referred  to);  128  C.  103.  108,  60  P.  675  (construed);  131 
C.  625,  627,  63  P.  1008  (construed);  135  C.  121,  125,  67  P.  20 
(construed);    135    C.    156,    160,    67    P.    46    (construed);    138    C.    248, 

250,  71  P.  179  (applied);  2  C.  A.  509,  512,  83  P.  257  (right  of  main- 
tenance, how  far  within  protection  of  this  section);  3  C.  A.  358, 
362,  85  P.  169  (transfer  is  void  at  instance  of  assignee  in  insol- 
vency when);  5  C.  A.  690,  694,  695,  91  P.  173  (applied — transfer 
from  husband  to  wife  on  day  judgment  was  rendered  against 
him);  57  F.  133,  135  (applied — assignment  of  life  insurance 
policy). 

As  to  claims  against  whicli  voluntary  fraudulent  conveyances 
may  be  avoided,  see  52  A.  D.  113. 

As    to    extent    of    validity    of    conveyances    fraudulent    as    to 
creditors,  see  note  37  A.  D.  145. 

1676 


Tit  II  ]  TRANSFER,  INTENT,  ETC.  §  3439 

As   to   failure   of   creditor   to    record   conveyance   as   badge    of 
fraud,  see  31  L.  638. 

As  to  fraudulent  conveyance  made  in  contemplation  of  future 
indebtedness,  see  90  A.  D.  735. 

As  to  fraudulent  conveyances,  see  67  A.  D.   402;  83   A.  D.   534; 
31  A.  R.  179;  34  A.  S.  395. 

As  to  fraudulent  conveyances,  badges  of  fraud,  see  9  L.  645. 
As  to  fraudulent  intent  in  voluntary  conveyance,  see  9  L.  417. 
As  to  insurance  of  life  of  debtor  as  fraud  on  creditor,  see  29 
A.  S.  360. 

As  to  knowledge  of  grantee  of  fraudulent  conveyance,  see  20 
A.  S.  632;  66  A.  S.  649. 

As    to    knowledge    or    notice    sufficient    to    put    purchaser    on 
inquiry  as  to  fraudulent  intent,  see  32  L.  44. 

As  to  nature  of  conveyance  which  intent  to  defraud  creditors 
renders  void,  see  72  A.  D.  392. 

As  to  necessity  of  intent  to  defraud  creditors,  see  72  A.  D.  384. ' 
As  to  necessity  of  knowledge  or  intent  on  part  of  grantee  in 
fraudulent  conveyance,  see  55  A.  S.  216;  57  A.  S.  45. 

As  to  necessity  of  person  impeaching  fraudulent  conveyance 
to  show  that  he  was  creditor,  see  23  A.  D.  299. 

As  to  participation  by  creditor  in  fraud  of  debtor  making 
conveyance  to  him  fraudulent,  see  31  L.   609. 

As  to  participation  by  purchaser  in  fraud  of  vendor  which 
will  avoid  conveyance,  see  32  L.  33. 

As  to  persons  entitled  to  impeach  fraudulent  conveyances,  see 
39  A.  D.  599;  62  A.  S.  600;   69  A.  S.  73. 

As  to  reconveyance  after  fraudulent  conveyance,  see  66  A.  S. 
891. 

As  to  recovery  by  executor  or  administrator  of  assets  fraudu- 
lently transferred  by  decedent,  see  38  A.  D.  583;  50  A.  D.  469. 

As  to  right  of  administrator  to  avoid  fraudulent  transfer,  see 
14   A.   D.    157. 

As  to  right  of  administrator  to  maintain  action  to  set  aside 
conveyance  as  fraudulent  against  creditors  of  the  estate,  see 
Kerr's  Cyc.  C.  C.   §  1589  and  note. 

As  to  right  of  assignee  in  bankruptcy  or  insolvency  to  avoid 
fraudulent   sale    of  assignor,    see    95    A.    D.    166. 

As  to  right  of  assignee  to  impeach  fraudulent  conveyances  of 
his  assignor,  see  36  A.  R.  569. 

As  to  right  of  divorced  wife  to  attack  conveyances  by  husband 
as  fraudulent,  see  71  A.  D.  711. 

As  to  right  of  grantee  in  fraudulent  conveyance  to  reimburse- 
ment,  see   4  A.  D.   320;    66   A.  S.   649. 

As  to  right  of  receiver  to  maintain  action  to  set  aside  fraudu- 
lent conveyances,  see   59   A.   D.   525. 

As  to  right  of  subsequent  creditor  to  attack  conveyance  as 
fraudulent,  see  68  A.  D.  133. 

1677 


§  3440  CIVIL  CODE.  [Div.IV.Pt.II. 

As  to  right  of  trustees  for  benefit  of  creditors  to  attack  trans- 
fer as  fraudulent,  see  21  A.  D.   732. 

As  to  validating  fraudulent  conveyances,  see   71  A.  S.   546. 

As  to  validity  of  assignment  of  life  insurance  policy  when  in 
fraud  of  creditors,  see  87  A.  S.   484. 

As  to  validity  of  conveyance  of  homestead,  see  Kerr's  Cyc. 
C.    C.    §  3442    notes    15-18. 

As  to  validity  of  conveyances  intended  to  defeat  dower,  see  39 
A.  D.   218. 

As  to  validity  of  fraudulent  conveyance  in  hands  of  bona  flde 
purchaser,  see  28  A.  D.  206;  37  A.  D.  145;  50  A.  D.  469;  79  A.  D. 
420. 

As  to  validity  of  judgments  made  for  the  purpose  of  de- 
frauding creditors,  see  83  A.  D.  534. 

As  to  validity  of  voluntary  conveyance  between  parties,  see 
note  50  A.   D.   469;  and  9  K   415. 

As  to  voluntary  conveyances  fraudulent  as  to  subsequent  cred- 
itors, see  72  A.  D.  384;  73  A.  D.  178;  80  A.  D.  234;  84  A.  D.  464; 
55  A.  S.   216;   1  L.  520;  9  L.  415. 

As  to  what  constitutes  fraudulent  conveyance,  see  brief  45 
L.  645. 

As  to  what  constitutes  notice  to  purchaser  of  fraud  against 
creditors,   see  45  A.  R.   185. 

§3440.  CERTAIN  TRANSFERS  PRESUMED  FRAUDU- 
LENT. Every  transfer  of  personal  property,  other  than  a 
thing  in  action,  or  a  ship  or  cargo  at  sea  or  in  a  foreign 
port,  and  every  lien  thereon,  other  than  a  mortgage,  when 
allowed  by  law,  and  a  contract  of  bottomry  or  respondentia, 
is  conclusively  presumed,  if  made  by  a  person  having  at  the 
time  the  possession  or  control  of  the  property,  and  not  accom- 
panied by  an  immediate  delivery,  and  followed  by  an  actual 
and  continued  change  of  possession  of  the  things  transferred, 
to  be  fraudulent,  and  therefore  void,  against  those  who  are 
his  creditors  while  he  remains  in  possession,  and  the  suc- 
cessors in  interest  of  such  creditors,  and  against  any  persons 
on  whom  his  estate  devolves  in  trust  for  the  benefit  of  others 
than  himself,  and  against  purchasers  or  encumbrancers  in 
good  faith  subsequent  to  the  transfer; 

[Exception.]  Provided,  however,  that  the  provisions  of 
this  section  shall  not  apply  to  the  transfers  of  wines  in  the 
wineries  or  wine  cellars  of  the  makers  or  owners  thereof,  or 

1678 


Tit.il.]  PRESUMING  FRAUD.  §  3440 

other  persons  having  possession,  care,  and  control  of  the 
same,  and  the  pipes,  casks,  and  tanks  in  which  the  said 
wines  are  contained,  which  transfers  shall  be  made  in  writ- 
ing, and  certified  and  verified  in  the  same  form  as  provided 
for  chattel  mortgages  and  which  shall  be  recorded  in  the 
book  of  miscellaneous  records  in  the  office  of  the  county 
recorder  of  the  county  in  which  the  same  are  situated; 

[Public  recordation  required.]  Provided,  also,  that  the 
sale,  transfer,  or  assignment  of  a  stock  in  trade  (or  of  such 
a  quantity  of  a  stock  in  trade  as  to  be  substantially  a  whole) 
in  bulk,  or  in  any  manner  otherwise  than  in  the  ordinary 
course  of  trade  and  in  the  regular  and  usual  practice  and 
method  of  business  of  the  vendor,  transferer,  or  assignor,' 
will  be  conclusively  presumed  to  be  fraudulent  and  void  as 
against  the  existing  creditors  of  the  vendor,  transferer,  or 
assignor,  unless  at  least  five  days  before  the  consummation 
of  such  sale,  transfer,  or  assignment  the  vendor,  transferer, 
or  assignor,  or  the  intended  vendee,  transferee,  or  assignee 
shall  record  in  the  office  of  the  county  recorder  in  the  county 
or  counties  in  which  the  said  stock  in  trade  is  situated,  a 
notice  of  said  intended  sale,  transfer,  or  assignment,  stating 
the  name  and  address  of  the  intended  vendor,  transferer,  or 
assignor,  the  name  and  address  of  the  intended  vendee,  trans- 
feree, or  assignee,  and  a  general  statement  of  the  character 
of  the  property  or  merchandise  intended  to  be  sold,  assigned,  or 
transferred,  and  the  date  when,  and  the  place  where,  the 
purchase  price,  if  any  there  be,  is  to  be  paid. 

[Sales  at  public  aiictlou.]  Provided,  nevertheless,  that  if 
such  intended  sale  is  to  l)e  at  public  auction  the  notice  above 
required  to  be  recorded  shall  state  that  fact,  the  time,  terms, 
and  place  of  said  sale,  the  names  and  adresses  of  the  vendor 
and  auctioneer,  and  a  general  statement  of  the  character  of 
the  property  or  merchandise  intended  to  be  sold;  but  such 
sale  shall  in  no  event  occur  within  five  days  of  the  date 
of  recordation  of  said  notice; 

[Trausfers  under  order  of  court.]  Provided  further,  that 
the   provisions  of   this   section   shall   not  apply   or  extend   to 

1679 


§  3440  CIVIL  CODE.  [Div.IV,Pt.II. 

any  sale,  transfer  or  assignment  made  under  the  direction  or 
order  of  a  court  of  competent  jurisdiction,  or  by  any  execu- 
tor, administrator,  guardian,  receiver,  or  other  officer  or  per- 
son acting  in  the  regular  and  proper  discharge  of  official 
duty,  or  in  the  discharge  of  any  trust  imposed  upon  him  by 
law,  nor  to  any  transfer  or  assignment  made  for  the  benefit 
of  creditors  generally,  nor  to  any  sale,  transfer  or  assign- 
ment of  any  property  exempt  from  execution. 

History:  Enacted  March  21,  1872;  amended  March  12,  1895, 
Stats,  and  Amdts.  1895,  p.  47;  March  10,  1903,  Stats,  and  Amdts. 
1903,    pp.    111-112. 

See  Kerr's  Cyc.  C.  G.  for  121  pars,  annotation. 

53  C.  401,  402  (construed);  53  C.  623,  625  (construed);  56  C. 
330,  333,  334  (applied);  61  C.  640,  642  (applied);  63  C.  3,  4  (re- 
ferred to);  63  C.  242,  245  (applied);  63  C.  494,  496  (construed); 
64  C.  78,  79,  28  P.  60  (applied);  67  C.  283,  284,  7  P.  699  (cited); 
7  P.  768  (applied);  9  P.  651  (applied);  69  C.  247,  249,  10  P.  400, 
402  (applied);  70  C.  560,  563,  12  P.  467,  468  (construed  and  ap- 
plied) ;  13  P.  492,  493  (applied — sale  invalid  against  execution 
obtained  by  vendor's  creditor);  73  C.  211,  212,  14  P.  780  (ap- 
plied); 73  C.  320,  323,  14  P.  876,  877  (applied);  73  C.  399,  401,  15 
P.  24  (applied);  74  C.  46,  47,  15  P.  369,  370  (construed);  74  C. 
376,  379,  16  P.  194,  195  (applied);  76  C.  166,  168,  18  P.  242,  243 
(applied);  76  C.  305,  307,  18  P.  327,  328  (applied);  76  C.  457,  459, 
18  P.  421,  423  (applied);  76  C.  537,  540,  9  A.  S.  245,  18  P.  658,  659 
(construed);  77  C.  241,  244,  19  P.  482,  483  (applied);  77  C.  544,  546, 
20  P.  71,  72  (construed  and  applied);  78  C.  113,  114,  116,  20  P.  296 
(applied);  81  C.  93,  96,  97,  15  A.  S.  34,  22  P.  331,  332,  5  L.  579 
(construed  and  applied);  22  P.  1132,  1133,  1134  (applied);  84  C. 
168,    170,   171,    24   P.    167    (construed  and  applied);    84   C.    244,   249, 

24  P.  118,  119  (applied);  84  C.  554,  557,  24  P.  169,  170  (referred 
to);  89  C.  286,  289,  296,  303,  26  P.  873,  874,  876,  879,  13  L.  576 
(construed  and  referred  to);  89  C.  501,  503,  26  P.  1077,  1078 
(what  constitutes  "immediate  delivery,"  or  "actual  and  con- 
tinued change  of  possession,"  is  question  of  fact);  91  C.  288,  295, 

25  A.  S.  180,  27  P.  668,  670  (applied);  92  C.  76,  79,  28  P.  46,  47 
(applied);  93  C.  393,  394  (applied  but  erroneously  cited  as  §  3340), 
29  P.  70  (same  error);  94  C.  180,  187,  29  P.  495  (referred  to  in 
dis.  op. — rights  of  assignee  for  benefit  of  creditors  in  case  of 
fraudulent  conveyance);  94  C.  523,  525,  29  P.  961  (applied);  95  C. 
262,  265,  267,  29  A.  S.  Ill,  30  P.  538  (construed  and  applied);  30 
P.  792  (construed  and  applied);  31  P.  530  (applied);  31  P.  620, 
622  (construed);  98  C.  454,  459,  33  P.  335,  336  (construed);  99 
C.    340,   343,   33   P.    906,    907    (applied);    101    C.    238,    240,    35    P.    772 

1680 


rpji-  jj  -j  PRESUMING  FRAUD.  §  3440 

(construed  and  applied);  102  C.  547,  550,  552,  41  A.  S.  200,  36 
P  857  (applied);  107  C.  67,  75,  76,  40  P.  42  (construed  and  ap- 
plied)" 107  C.  144.  148,  40  P.  37  (applied);  109  C.  156,  158,  41  P. 
862  (construed  and  applied);  109  C.  197,  200,  201,  202,  41  P.  1008 
(construed  and  applied);  112  C.  8,  13,  53  A.  S.  151,  44  P.  3o7 
(applied);  44  P.  795,  796  (applied);  114  C.  289,  293,  46  P.  95 
(construed);  114  C.  526,  529,  535,  536,  43  P.  613.  46  P.  460  (re- 
ferred to);  47  P.  52  (applied);  115  C.  316,  325,  326,  47  P.  47,  1095, 
36  L.  505  (applied  in  dis.  op.);  116  C.  670,  677,  48  P.  911  (sale 
fraudulent  and  void  as  to  existing  creditors);  117  C.  37,  40,  48 
P.  978  (applied);  117  C.  42,  47,  48  P.  972  (applied);  117  C.  140, 
146  48  P.  1025  (referred  to  in  quoting  §3442);  119  C.  80,  82,  51 
P  15  (applied);  121  C.  240,  242,  53  P.  692  (referred  to);  54  P. 
735  736  (applied);  55  P.  251,  252  (construed);  122  C.  468,  470, 
68  A  S.  47,  55  P.  253  (applied);  122  C.  547,  550,  55  P.  404  (ap- 
plied); 123  C.  312,  315,  69  A.  S.  60,  55  P.  990  (construed);  124 
C.  200,  202,  203,  204,  71  A.  S.  42,  56  P.  880  (applied);  125  C.  183, 
187,  188,  57  P.  897  (applied);  126  C.  557,  558,  559,  58  P.  1044 
(what  is  necessary  to  make  sale  of  personal  property  good  as 
against  creditors  and  to  avoid  presumption  of  fraud);  127  C. 
230,  231,  59  P.  583  (applied);  127  C.  290,  296,  297,  298,  303,  308, 
31l'  312  53  P.  911,  59  P.  827,  46  L.  371  (referred  to  with  §  2957); 
128*0.  35,  37,  60  P.  462  (construed);  128  C.  322,  326,  60  P.  847 
(applied)-  69  P.  1061,  1063  (without  change  of  possession,  sale  is 
void  as  to  creditors  of  seller);  143  C.  282,  283,  76  P.  1029  (con- 
strued and  applied);  1  C.  A.  648,  649,  82  P.  1067  (applied— sale 
of  hay  is  valid  when);  2  C.  A.  233,  235,  236,  83  P.  280  (applied- 
sale  of  stock  in  trade  is  void  unless  notice  is  recorded) ;  4  C.  A. 
585,  587,  88  P.  725  (construed — under  this  section,  transfer  must 
not  only  be  fraudulent,  but  it  must  be  made  with  intent  to  de- 
fraud creditors);  6  C.  A.  755,  758,  760,  93  P.  284  (not  applicable 
where  seller  is  not  indebted);  11  F.  410  (applied— sale— suffi- 
cient delivery  and  change  of  possession). 

As  to  effect  as  against  creditors  of  retaining  possession  after 
sale,  see  1  A.  D.  454;  6  A.  D.  288;  13  A.  D.  691;  14  A.  D.  308;  14 
A.  D.  383;  15  A.  D.  71;  20  A.  D.  639;  31  A.  D.  450;  50  A.  D.  326; 
72  A.  D.  635;  80  A.  D.  789;  85  A.  D.  186;  9  L.  645;  31  L.  635. 

As  to  effect  of  retention  of  possession  by  mortgager,  see  26  A. 
D.    639,    663. 

As  to  fraudulent  intent  as  question  of  fact  or  law,  see  Kerr's 
Cyc.  C.  C.  §  3442  notes  3-9. 

As  to  immediate  delivery  and  actual  and  continued  change  of 
possession  being  question  of  fact,  see  Kerr's  Cyc.  C.  C.  §  3440. 
note  part  IV. 

As  to  necessity  of  delivery  of  possession  of  property  as  against 
creditors,  see  9  A.  D.  357;  12  A.  D.  470;  29  A.  D.  362;  69  A.  D.  90. 
As  to  persons  entitled  to  attack  transfers,  see  Kerr's  Cyc.  C. 
C.    §  3439   note   subd.    4. 

1681 


§  3441  CIVIL  CODE.  [Div.IV.Pt.II. 

As  to  sufficiency  of  delivery  and  change  of  possession  after 
sale  as  against  creditors  and  subsequent  purchasers,  see  97  A. 
D.  340,   345;   15  A.  S.  694. 

As  to  validity  of  inortgage  where  mortgaged  property  is  left 
in  possession  of  mortgager,  see  59  A.  D.  535. 

§3441.  CREDITOR'S  RIGHT  MUST  BE  JUDICIALLY 
ASCERTAINED.  A  creditor  can  avoid  the  act  or  obligation 
of  his  debtor  for  fraud  only  where  the  fraud  obstructs  the 
enforcement,  by  legal  process,  of  his  right  to  take  the  prop- 
erty affected  by  the  transfer  or  obligation. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

9  P.  545,  546  (cited);  93  C.  283,  286,  28  P.  1045,  1046  (applied); 
95  C.  524,  525,  532,  29  A.  S.  149,  30  P.  765  (construed);  132  C.  609, 
613,  64  P.  995  (applied);  150  C.  737,  740,  90  P.  116  (construed  with 
§  3442 — what  transfer  is  prima  facie  evidence  of  fraud);  3  C.  A. 
651,  656,  86  P.  978  (transfer  of  homestead  cannot  be  held  fraudu- 
lent as  matter  of  fact  when);  4  C.  A.  585,  587,  588,  '88  P.  725 
(cited  and  applied  with  other  sections — convej^ance  of  home- 
stead). 

As  to  action  for  damages  by  creditor  against  fraudulent  ven- 
dee,  see  47  L.   433. 

As  to  appointment  of  receiver  to  take  charge  of  property 
fraudulently  conveyed  as  against  creditor,  see  72  A.  S.   62. 

As  to  indictability  of  combination  to  dispose  of  property  of 
debtor  for  purpose  of  defrauding  his  creditors,  see  51  A.  D.  86. 

As  to  loss  of  homestead  of  fraudulent  conveyance  by  husband 
to  wife,   see  31  A.   R.   645,   756. 

As  to  parties  defendant  in  action  to  set  aside  fraudulent  con- 
veyance, see  15  A.  D.  427. 

As  to  proceedings  to  have  fraudulent  conveyance  set  aside, 
see  75  A.  D.   360;   69  A.  S.  221. 

As  to  necessity  of  proceeding  to  set  aside  fraudulent  sale,  see 
17  A.  D.   185. 

As  to  necessity  to  exhaust  legal  remedy  before  resorting  to 
equity,   see  72  A.   D.   384. 

As  to  right  of  wife  to  claim  homestead  on  property,  convey- 
ance of  which  has  been  set  aside  as  fraudulent  to  creditors,  see 
40   A.   R.   757. 

As  to  validity  of  conveyance  by  partner  of  partnership  prop- 
erty to  pay  individual  debts  as  against  partnership  creditors,  see 
30    A.    R.    535. 

As  to  validity  of  conveyance  of  exempt  property,  see  20  A. 
R.   150. 

1682 


Tit.II.]  DETERMINING   FRAUD.  §  3442 

§3442.    QUESTION     OF     FRAUD,    HOW     DETERMINED. 

In  all  cases  arising  under  section  twelve  hundred  and  twenty- 
seven,  or  under  the  provisions  of  this  title,  except  as  other- 
wise provided  in  section  thirty-four  hundred  and  forty,  the 
question  of  fraudulent  intent  is  one  of  fact  and  not  of  law; 
nor  can  any  transfer  or  charge  be  adjudged  fraudulent  solely 
on  the  ground  that  it  was  not  made  for  a  valuable  consideration ; 
provided,  however,  that  any  transfer  or  encumbrance  of  prop- 
erty made  or  given  voluntarily,  or  without  a  valuable  consid- 
eration, by  a  party  while  insolvent  or  in  contemplation  of 
insolvency,  shall  be  fraudulent,  and  void  as  to  existing  cred- 
itors. 

History:  Enacted  March  21,  1872;  amended  Marcli  26,  1895, 
Stats,  and  Amdts.  1895,  pp.  154-5;  amended  by  Code  Commis- 
sion, Act  March  6,  1901,  Stats,  and  Amdts.  1900-1,  p.  422,  held 
unconstitutional,  see  history,   §  4  ante. 

See  Kerr's  Cyc.  C.  C.  for  53  pars,  annotation. 

54  C.  628,  629  (applied);  65  C.  343,  344,  4  P.  Ill  (applied);  13  P. 
166,  167  (applied);  74  C.  541,  543,  16  P.  317,  318  (applied);  83  C. 
368,  371,  23  P.  389,  391  (applied);  84  C.  505,  508.  24  P.  286,  288 
(question  of  fraud  is  question  of  fact,  that  is,  a  question  of 
intent);  25  P.  404  (applied);  89  C.  286,  289,  293,  296,  26  P.  873. 
875,  876,  13  L.  576  (applied);  92  C.  617,  622,  28  P.  557,  558  (ap- 
plied); 93  C.  283,  286,  28  P.  1045  (applied);  104  C.  221,  223,  37 
P.  889  (applied);  109  C.  662,  671,  42  P.  303  (applied);  117  C.  140, 
146,  148,  150,  48  P.  1025  (applied — reading  of  section  prior  to 
amendment);  118  C.  432,  434,  50  P.  660  (applied);  122  C.  114, 
117,  54  P.  536  (applied);  54  P.  849,  850  (construed);  122  C.  655. 
658,  68  A.  S.  73,  55  P.  605  (applied);  126  C.  636,  638,  639.  59  P.  137 
(applied);  126  C.  644,  652,  59  P.  143  (construed);  140  C.  615,  619, 
620,  623,  74  P.  303,  304  (construed);  141  C.  624,  627,  75  P.  323 
(construed);  144  C.  709;  711,  78  P.  263  (applied);  145  C.  223,  226. 
78  P.  649  (applied);  150  C.  737,  740,  741,  90  P.  116  (applied- 
right  of  subsequent  creditor  to  attack  conveyance  on  ground 
that  it  is  fraudulent  as  to  him);  152  C.  188,  189,  92  P.  177  (effect 
of- conveyance,  before  amendment  of  section,  made  witliout  valu- 
able consideration);  3  C.  A.  358,  362,  85  P.  169  (applied — deed 
by  insolvent  corporation  to  ex-dlrector — insolvency);  4  C.  A. 
585,  587,  88  P.  725  (this  section  must  be  construed  with  limita- 
tions provided  in  ^3441);  6  C.  A.  755,  758,  760.  93  P.  284  (not 
applicable  where  seller  Is  not  Indebted). 

As  to  allegation  and  proof  as  to  fraudulent  transfers,  see 
69  A.  S.  74. 

1683 


§  3442  CIVIL  CODE.  [Div.IV,Pt.II. 

As  to  answer  in  action  attacking  transfer  as  fraudulent,  see 
20  A.  D.   315. 

As  to  burden  of  proof  as  to  fraudulent  conveyances,  see  11  A. 
S.   758;   31  L.   646. 

As  to  burden  of  proof  as  to  voluntary  conveyances,  see  53 
A.   S.    63. 

As  to  consideration  for  voluntary  convej^ance,  see  13  L.  640. 

As  to  evidence  of  fraud,  see  53  A.  S.  62;  53  A.  S.  223:  66  A.  S. . 
649. 

As  to  fraudulent  conveyance  by  father  to  son,  see  21  A.  D. 
432;   26  A.  D.   385. 

As  to  fraudulent  intent  being  question  of  fact,  see  Kerr's  Cyc. 

C.  C.  §  3442,  note  pars.  41-43;  11  A.  S.  757;  9  L.  417. 

As  to  immediate  delivery  and  actual  and  continued  change 
of  possession  as  question  of  fact,  see  Kerr's  Cyc.  C.  C.  §  3440 
subd.  4  and  note. 

As  to  invalidity  of  voluntary  conveyance  as  against  creditors, 
see  8  A.  D.  537;  14  A.  D.  704;  84  A.  D.  163;  28  A.  R.  721;  1  L.  519; 
9  L.  413. 

As  to  invalidity  of  voluntary  conveyance  as  against  subse- 
quent bona  fide  purchasers  from  vendor,  see  50  A.  D.  326. 

As  to  marriage  as  consideration  for  conveyance,  see  7  A.  D. 
362. 

As  to  presumption  of  fraud  from  relationship  of  parties  to 
conveyance,   see    7   A.   S.    83. 

As  to  presumption  of  fraud  in  voluntary  conveyance,  see  72  A. 

D.  384;   1  L.  520. 

As  to  validity  of  agreements  between  husband  and  wife  as 
against  creditors,  see  58  A.  S.  492. 

As  to  validity  of  antenuptial  agreement,  see  40  A.  R.  622. 

As  to  validity  of  conveyance  for  future  support  as  against 
creditors,  see   62  A.   S.   581. 

As  to  validity  of  conveyance  from  husband  to  wife,  see  88  A. 
D.  54;  90  A.  S.  497;  20  A.  S.  715. 

As  to  validity  of  sale  by  insolvent,  see  63  A.  D.  172. 

As  to  validity  of  settlement  between  husband  and  wife  at- 
tending divorce  suit  as  against  creditors  of  husband,  see  60 
L.  413. 

As  to  validity  of  voluntary  conveyances,  see  17  A.  D.  755;  26 
A.  D.  194;  14  A.  S.  739;  53  A.  S.  62;  67  A.  S.  503. 


1684 


Tit.iii.]  ASSIGNMENT,    ETC.  §  3449 


TITLE   III. 

ASSIGNMENTS  FOR   THE    BENEFIT   OF   CREDITORS. 

§  3449.  When  debtor  may  execute  assignment. 

§  3450.  Insolvency,  what. 

§  3451.  Certain  transfers  not  affected. 

§  3452.  What  debts  may  be  secured. 

§  3453.  What  preferences  may  be  given   [repealed]. 

§  3454.  Preference   must   be   absolute  [repealed]. 

§  3455.  Certain  rights  not  affected  by  preferences  in  assignment 

[repealed]. 

§  3456.  Joint  and  separate   debts    [repealed]. 

§  3457.  Assignment,  when  void. 

§  3458.  The   instrument  of  assignment. 

§  3459.  Compliance  with  provisions  of  last  section  necessary  to 
validity    of   assignment. 

§  3460.  Assignee  takes,  subject  to  rights  of  third  parties. 

§  3461.  Inventory    required. 

§  3462.  Verification    of    inventory. 

§  3463.  Recording  assignment  and  filing  inventory. 

§1364.  Same.     More  than  one  assignor.     Recording  assignment. 

§  3465.  Assignment,  when  void. 

§  3466.  Assignment  of  real  property. 

§  3467.  Bond   of   assignees. 

§  3468.  Conditions  of  disposal  and  conversion. 

§  3469.  Accounting  of  assignee. 

§  3470.  Property    exempt. 

§  3471.  Compensation. 

§  3472.  Assignees   protected   for   acts   done    in   good    faith. 

§  3473.  Assent  of  creditor  necessary  to  modification  of  assign- 
ment. 


§3449.     WHEN   DEBTOR   MAY   EXECUTE   ASSIGNMENT. 

An  insolvent  debtor  may  in  good  faith  execute  an  assignment 
of  property  in  trust  for  the  satisfaction  of  his  creditors,  in 
conformity  to  the  provisions  of  this  chapter;  subject,  how- 
ever, to  the  provisions  of  this  code  relative  to  trusts  and 
fraudulent  transfers,  and  to  the  restrictions  imposed  by  law 
upon  assignments  by  special  partnerships,  by  corporations, 
or  by  other  specific  classes  or  persons. 

1685 


§  3449  CIVIL  CODE.  [Div.IV.Pt.II. 

[Form  of  assignmeut.]  Every  such  assignment  shall  con- 
tain a  list  of  the  names  of  the  ci-editors  of  the  assignor,  and 
their  places  of  residence  and  amounts  of  their  respective 
demands,  and  the  amounts  and  nature  of  any  security  there- 
for, and  shall,  subject  to  the  other  provisions  of  this  section, 
be  made  to  the  sheriff  of  the  county,  or  city  and  county, 
wherein  the  assignor  resides,  if  the  assignor  resides  within 
this  state;  or  in  case  the  assignor  resides  out  of  this  state, 
then  to  the  sheriff  of  the  county,  or  city  and  county,  wherein 
the  property  assigned,  or  some  of  it,  is  situated;  but  when 
the  assignor  resides  out  of  the  state,  an  assignment  made 
as  herein  provided  may,  by  its  terms,  transfer  any  property 
of  the  assignor  in  this  state. 

[Sheriff  to  take  possession — Notice  to  creditors.]  The  sher- 
iff shall  forthwith  take  possession  of  all  the  property  so 
assigned  to  him,  and  keep  the  same  till  delivered  by  him,  as 
hereinafter  provided.  When  the  assignment  has  been  made, 
as  herein  provided,  the  sheriff  shall  immediately,  by  mail, 
notify  the  creditors  named  in  the  assignment,  at  their  places 
of  residence  as  given  therein,  to  meet  at  his  ofHce  on  a  day 
and  hour  to  be  appointed  by  him,  of  not  less  than  eight  nor 
more  than  ten  days  from  the  date  of  the  delivery  of  the 
assignment  to  him,  for  the  purpose  of  electing  one  or  more 
assignees,  as  they  may  determine,  in  the  place  and  stead  of 
the  said  sheriff  in  the  premises,  and  shall  also  publish  a 
notice  of  such  meeting,  and  the  purpose  thereof,  at  least 
once  before  such  meeting,  in  some  newspaper  published  in 
his  county,  or  city  and  county. 

[Notice  to  contain  demand  on  creditors.  ]  The  notice  so  to 
be  mailed  shall  also  contain  a  statement  of  the  amount  of 
the  demand  of  the  creditor,  and  the  amount  and  nature  of 
any  security  therefor,  as  set  forth  in  the  assignment;  and  if 
any  creditor  shall  not  find  the  amount  of  his  claim  to  be 
correctly  so  stated,  he  may  file  with  said  sheriff,  at  or  before 
such  meeting,  a  statement,  under  oath,  of  his  demand,  and 
such  statement  shall,  for  the  purpose  of  voting  as  hereinafter 
provided,  be  accepted  by  said  sheriff  as  correct;   and  when 

1686 


Tit.III.]  ASSIGNMENTS,  FOR,   ETC.  §  3449 

no  such  statement  is  filed,  the  statement  of  amount  as  set 
forth  in  the  assignment  shall  be  accepted  by  the  sheriff  as 
correct.  No  creditor  having  a  mortgage  or  pledge  of  real 
or  personal  property  of  the  debtor,  or  lien  thereon,  for  secur- 
ing the  payment  of  a  debt  owing  to  him  from  the  debtor, 
shall  be  allowed  to  vote  any  part  of  his  claim  at  such  meet- 
ing of  creditors,  unless  he  shall  have  first  conveyed,  released, 
or  delivered  up  his  said  security  to  said  sheriff,  for  the  bene- 
fit of  all  creditors  of  said  assignor.  At  such  meeting  the 
sheriff  shall  preside,  and  a  majority  in  amount  of  demands 
present  or  represented  by  proxy  shall  control  all  questions 
and  decisions. 

The  creditors  may  adjourn  such  meeting-  from  time  to  time, 
and  may  vote  on  all  questions  either  in  person  or  by  proxy 
signed  and  acknowledged  before  any  officer  authorized  to 
take  acknowledgments,  and  filed  with  the  sheriff.  At  such 
a  meeting,  or  any  adjournment  thereof,  the  creditors  may 
elect  one  or  more  assignees  from  their  own  number,  in  the 
place  and  stead  of  the  sheriff,  and  the  person  or  persons  so 
elected  shall  afterwards  be  the  assignee  or  assignees  under 
the  provisions  of  this  title;  and  the  sheriff,  by  transfer  in 
writing,  acknowledged  as  required  by  section  three  thousand 
four  hundred  and  fifty-eight,  shall  at  once  assign  to  such 
elected  assignee  or  assignees,  upon  the  trusts  in  this  title 
provided,  all  the  property  so  assigned  to  him,  and  deliver 
possession  thereof.  All  recitals  in  such  assignment  by  said 
sheriff  of  notices  of  such  meeting,  and  the  holding  thereof, 
and  of  the  due  election  of  such  assignee  or  assignees,  shall 
be  prima  facie  proof  of  the  facts  recited. 

[Sheriff's  fees  and  expenses.]  The  sheriff  shall,  before  the 
delivery  of  such  assignment,  be  paid  the  expenses  incurred 
by  him,  and  fees  in  such  amount  as  would  by  law  be  col- 
lectable if  the  property  assigned  had  been  levied  upon  and 
safely  kept  under  attachment.  Thereupon,  and  after  the 
record  of  such  last-named  assignment,  as  in  this  title  pro- 
vided, such  elected  assignee  or  assignees  shall  take,  and  hold, 
and  dispose  of  all  such  property  and  its  proceeds,  upon  the 

1687 


§  3449  CIVIL  CODE.  [Div.IV,Pt.II. 

trusts  and  conditions  and  for  the  purposes  in  this  title  pro- 
vided. 

History:  Enacted  March  21,  1872;  amended  March  7,  1889, 
Stats,  and  Amcits.  1S89,  p.  80-2;  March  26,  1895,  Stats,  and 
Amdts.    1895,    pp.    82-4. 

See  Kerr's  Cyc.  C.  C.  for  32  pars,  annotation. 

13  P.  166,  16-7  (fraudulent  intent  of  assignment  for  benefit 
of  creditors  is  question  of  fact,  and  not  of  law) ;  63  C.  187,  188 
(cited);  78  C.  263,  265,  267,  20  P.  561  (referred  to);  83  C.  234, 
237,  23  P.  298,  299  (referred  to);  87  C.  453,  456,  25  P.  675,  676 
(cited);  94  C.  180,  188,  29  P.  495,  498  (referred  to);  98  C.  409, 
411,  33  P.  325,  326  (referred  to);  104  C.  395,  399,  38  P.  53  (re- 
ferred to);  108  C.  81,  86,  87,  41  P.  29  (referred  to);  112  C.  476, 
495,  44  P.  810  (referred  to);  113  C.  429,  431,  45  P.  703  (referred 
to);  124  C.  160,  161,  163,  56  P.  883  (referred  to);  128  C.  103,  107, 
60  P.  675  (referred  to);  139  C.  362,  367,  73  P.  182  (referred  to); 
144  C.  511,  513,  516,  78  P.  30  (referred  to);  148  C.  18,  27,  82  P.  374 
(referred  to  in  construing  §  1204  C.  C.  P.). 

As  to  assignments  for  benefit  of  creditors  affirmed  by  cred- 
itors, though  fraudulent,  see  18  A.  D.  622. 

As  to  assignment  for  benefit  of  creditors,  in  general,  see  2  A. 
S.  24-26. 

As  to  authority  of  partner  to  assign  partnership  property, 
see  Kerr's  Cyc.  C.  C.  §  2430  and  note. 

As  to   conditional   assignments   invalid,   see   58  A.   S.    83. 

As  to  creditor's  right  to  compel  execution  of  trust,  see  90  A. 
D.   507. 

As  to  fraud,  effect  of,  in  assignments  for  benefit  of  creditors, 
see   58  A.  S.   95-99. 

As  to  fraudulent  assignments,  see  26  A.  D.   585. 

As  to  insolvency  of  corporations,  and  their  right  to  make  as- 
signments for  the  benefit  of  creditors,   see  57  A.   S.   76-84. 

As  to  intendments  in  favor  of  assignment,   see  74  A.  D.  698. 

As  to  limitation  of  corporate  powers,  see  Kerr's  Cyc.  C.  C. 
§  355   and  note. 

As  to  modification  of  assignments,  see  Kerr's  Cyc.  C.  C.  §  3473 
and  note. 

As  to  omission  of  assets  from  inventory,  see  58  A.  S.  75. 

As  to  title  of  assignor  passing  by  assignment,  see  45  A.  D. 
709. 

As  to  validity  of  transfer  of  property  of  special  partnership, 
made  after,  or  in  contemplation  of,  insolvency,  see  Kerr's  Cyc. 
C.    C.    §  2496    and    note. 

As  to  when  an  assignment  for  the  benefit  of  creditors  is 
deemed  fraudulent,  and  effect  of  the  fraud  on  the  assignment, 
see    58   A.   S.    74-101. 

1688 


Tit.III.]  INSOLVENCY,  WHAT  IS.  §§  3450,  3451 

Does  an  assignment  for  benefit  of  creditors  preclude  discliargre 
under  bankruptcy  or  insolvency  laws. — See  28  A.  D.  212-219. 

Infant's  assignment  for  benefit  of  creditors,  validity  of. — See 
18   A.   S.    597,   598. 

Power  of  assignees  over  unpaid  stock  subscriptions. — See  3 
A.  S.  833. 

Retention  of  possession,  after  assignment,  as  evidence  of 
fraud.— See  29  A.  R.   787-789. 

That  state  insolvent  laws  are  superseded  by  United  States 
Bankruptcy  Law  of  July  1,  1898,  see  89  A.  S.  127,  but  compare 
note   94   A.  S.   584. 

§3450.    I>'SOLYENCY,    ^VHAT.      A    debtor    is    insolvent, 
within  the  meaning  of  this  title,  when  he  is  unable  to  pay 
his  debts  from  his  own  means,  as  they  become  due. 
History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

74  C.  540,  543,  16  P.  317,  318  (referred  to);  78  C.  573,  576.  21 
P.  305,  306  (referred  to);  84  C.  41,  48,  23  P.  1088,  1090  (referred 
to);  98  C.  409,  411,  33  P.  325,  326  (referred  to);  117  C.  140,  155, 
48  P.  1025   (referred  to);   139  C.  362,  367,  73  P.  182   (referred  to). 

§3451.     CERTAIN    TKAXSFERS    NOT    AFFECTED.      The 

provisions  of  this  title  do  not  prevent  a  person  residing  in 
another  state  or  country  from  making  there,  in  good  faith, 
and  without  intent  to  evade  the  laws  of  this  state,  a  transfer 
of  property  situated  within  it;  but  such  person  cannot  make 
a  general  assignment  of  property  situated  in  this  state  for 
the  satisfaction  of  all  his  creditors,  except  as  in  this  title 
provided;  nor  do  the  provisions  of  this  title  affect  the  power 
of  a  person,  although  insolvent,  and  whether  residing  within 
or  without  this  state,  to  transfer  property  in  this  state,  in 
good  faith  to  a  particular  creditor,  or  creditors,  or  to  some 
other  person  or  persons  in  trust  for  such  particular  creditor 
or  creditors  for  the  purpose  of  paying  or  securing  the  whole 
or  part  of  a  debt  owing  to  such  creditor  or  creditors,  whether 
in  his  or  their  own  right  or  otherwise. 

HiHtory:  Enacted  March  21,  1872;  amended  March  S.  188J. 
Stats,  and  Amdts.  1889,  p.  82;  amended  by  Code  Commission. 
Act  March  16.  1901,  Stats,  and  Amdts.  1900-1,  p.  422.  held  uncon- 
stitutional, see  history,  §  4  ante,  amendment  re-enacted  March 
21,   1905,  Stats,  and  Amdts.   1905.  p.   622. 

1689 


§§3452,3453  CIVIL  CODE.  [Div.IV,Pt.II. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

83  C.  303,  309,  23  P.  350,  352;  98  C.  409,  411,  33  P.  325,  326  (re- 
ferred to);  126  C.  43,  50,  77  A.  S.  141,  58  P.  320,  46  L.  832  (con- 
strued); 139  C.  362,  366,  73  P.  182,  183  (referred  to);  3  C.  A.  294, 
298,  85  P.  134   (cited). 

As  to  assignment  made  in  another  state,  effect  of  on  resident 
attaching  creditors,  see  78  A.  D.  596. 

As  to  effect  of  assignment  under  foreign  bankruptcy  laws,  see 
55   A.^D.    132-140. 

As  to  extraterritorial  effect  of  assignment,  see  97  A.  D.  355, 
678,    98    A.    D.    594-597. 

As  to  foreign  bankruptcy,  assignment  under,  effect  of,  see  7 
A.  D.  591,  8  A.  D.  597;  17  A.  D.  769;  20  A.  D.  963. 

As  to  foreign  creditor  not  permitted  to  attack  assignment,  see 
55  A.  R.   136. 

As  to  transfer  of  property  out  of  state  by  assignment  for 
benefit  of  creditors,  see  23  L.  33. 

As  to  validity  of  assignment  for  benefit  of  creditors  in  an- 
other state,  see  78  A.  D.  594;  97  A.  D.  355,  678. 


§3452.  WHAT  DEBTS  MAT  BE  SECURED.  An  assign- 
ment for  the  benefit  of  creditors  may  provide  for  any  sub- 
sisting liability  of  the  assignor  which  he  might  lawfully  pay, 
whether  absolute  or  contingent. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  6  pars,  annotation. 

98  C.  409,  411,  33  P.  325,  326  (referred  to);  128  C.  103,  107,  60 
P.  675;  139  C.  362,  367,  73  P.  182  (referred  to);  3  C.  A.  358,  363, 
85  P.  169  (transfer  to  ex-director  of  insolvent  corporation  not 
coming  within  this   section). 

As  to  preferences  among  creditors,  lawful  and  unlawful,  see 
34  A.  S.  856,   857,  94  A.  S.   230. 

As  to  void  assignment  for  prohibited  preferences,  see  58  A.  S. 
87,  88. 


§3453.    WHAT    PREFERENCES    MAT    BE    GIVEN     (re- 
pealed). 

Hi.story:      Enacted    March    21,    1872;    repealed    March    30,    1874, 
Code    Amdts.    1873-4,   p.    267. 

98  C.   409,  411,   33   P.   325,   326   (referred  to);   139   C.   362,  367,    73 
P.   182    (referred  to);  3  C.  A.  294,  298,  85  P.   134   (cited). 

1690 


Tit  III  ]  VOID   ASSIGNMENT.  §§  3454-3457 

§3454.    PREFERENCE  MUST  BE   ABSOLUTE    (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Amdts.    1873-4,   p.    267. 

98  C.  409,  411,  33  P.  325,  326  (referred  to);  139  C.  362,  367,  73 
P.  182    (referred  to). 

§3455.  CERTAIN  RIGHTS  NOT  AFFECTED  B¥  PREF- 
ERENCES  IN  ASSIGNMENT   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code  Amdts.    1873-4,   p.   267. 

98  C.  409,  411,  33  P.  325,  326  (referred  to);  139  C.  362,  367,  73 
P.    182    (referred    to). 

§3456.    JOINT  AND  SEPARATE  DEBTS   (repealed). 

History:  Enacted  March  21,  1872;  repealed  March  30,  1874, 
Code   Anidts.    1S73-4,    p.    267. 

98  C.  409,  411,  33  P.  325,  326  (referred  to);  139  C.  362,  367,  73 
P.    182    (referred    to). 

§3457.  ASSIGNMENT,  ^VHEN  VOID.  An  assignment  for 
the  benefit  of  creditors  is  void  against  any  creditor  of  the 
assignor  not  assenting  thereto,  in  the  following  cases: 

1.  If  it  give  a  preference  of  one  debt  or  class  of  debts  over 
another. 

2.  If  it  tend  to  coerce  any  creditor  to  release  or  compro- 
mise his  demand. 

3.  If  it  provide  for  the  payment  of  any  claim  known  to  the 
assignor  to  be  false  or  fraudulent;  or  for  the  payment  of 
more  upon  any  claim  than  is  known  to  be  justly  due  from 
the  assignor. 

4.  If  it  reserve  any  interest  in  the  assigned  property,  or 
in  any  part  thereof,  to  the  assignor,  or  for  his  benefit,  before 
all  his  existing  debts  are  paid. 

5.  If  it  confer  upon  the  assignee  any  power  which,  if 
exercised,  might  prevent  or  delay  the  immediate  conversion 
of  the  assigned  property  to  the  purposes  of  the  trust. 

6.  If  it  exempt  him  from  liability  for  neglect  of  duty  or 
misconduct. 

1691 


§  3458  CIVIL  CODE.  [Div.IV.Pt.II. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.   1873-4,  pp.   267-8. 

See  Kerr's  Cyc.  C.  C.  for  18  pars,  annotation. 

85  C.  134,  135,  24  P.  721,  722  (referred  to);  87  C.  453,  456,  457, 
25  P.  675,  676  (referred  to);  98  C.  409,  411,  33  P.  325,  326  (re- 
ferred to);  108  C.  81,  85,  87,  41  P.  29  (cited);  113  C.  429,  431,  45 
P.  703,  131  C.  625,  627,  63  P.  1008  (referred  to);  139  C.  362,  367, 
73  P.-lSf   (referred  to). 

-As  to  when  an  assignment  for  the  benefit  of  creditors  is 
deemed  fraudulent,  and  effect  of  the  fraud  on  the  assignment, 
see  58  A.  S.  74-101. 

Assignments  exacting  releases,  validity  of,  see  16  A.  D.  340- 
342. 

Tliat  a  debtor  may  prefer  creditors,  see  Kerr's  Cyc.  C.  C.  §  3432 
and  note. 

Tliat  preferential  transfers  by  special  partnersliips  are  void, 
see  Kerr's  Cyc.  C.  C.  §  2496  and  note. 


§3458.  THE  INSTKmiENT  OF  ASSIGNMEXT.  An  as- 
signment for  the  benefit  of  creditors  must  be  in  writing,  sub- 
scribed by  the  assignor,  or  by  his  agent  thereto  authorized 
in  writing,  and  the  transfer  by  the  sheriff  must  also  be  in 
writing,  subscribed  by  the  sheriff  in  his  official  capacity. 
Both  such  assignment  and  such  transfer  must  be  acknowl- 
edged, or  proved  and  certified,  in  the  mode  prescribed  by 
the  chapter  on  recording  transfers  of  real  property,  and  be 
recorded  as  required  by  sections  thirty-four  hundred  and 
sixty-three  and  thirty-four  hundred  and  sixty-four;  but 
recording  in  one  county  constitutes  a  compliance  with  the 
following  section. 

History:  Enacted  March  21,  1872;  amended  March  7,  1889, 
Stats,   and   Amdts.    1889,   p.    82. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

98  C.  409,  411,  33  P.  325,  326  (referred  to  as  it  stood  before 
amendment);  104  C.  395,  399,  38  P.  53  (cited);  139  C.  362,  367,  73 
P.  182   (referred  to);  144  C.  511,  515,  78  P.  30   (cited). 

As  to  constructive  notice,  see  Kerr's  Cyc.  C.  C.  §§  1213  et  seq. 
and  notes. 

As  to  subsequent  purchasers,  rights  of,  etc.,  see  Kerr's  Cyc. 
C.  C.  §  1170  and  note. 

1692 


Tit.III.]  ASSIGNEE'S    TITLE.  §§  3459-3461 

§3459.  COMPLIANCE  WITH  PROVISIONS  OF  LAST 
SECTION    NECESSAEY    TO    VALIDITY    OF    ASSIGNMENT. 

Unless  the  provisions  of  the  last  section  are  complied  with, 
an  assignment  for  the  benefit  of  creditors  is  void  against 
every  creditor  of  the  assignor  not  assenting  thereto. 

History:     Enacted  March  21,   1872. 

See  Kerr's  Cj'c.  C.  C.  for  4  pars,  annotation. 

98  C.  409,  411.  33  P.  325,  326  (referred  to  as  it  stood  before 
amendment);  139  C.  362,  367,  73  P.  182  (referred  to);  144  C.  511, 
515,   78   P.    30. 

As  to  provisions  relating-  to  recording  transfers  of  real  prop- 
erty, see  Kerr's  Cyc.  C.  C.  §§  1213-1217  and  notes. 

As  to  recording  of  assignment  for  benefit  of  creditors,  see  51 
A.   D.   594. 

§3460.  ASSIGNEE  TAKES,  SUBJECT  TO  BIGHTS  OF 
THIED  PAETIES.  An  assignee  for  the  benefit  of  creditors 
is  not  to  be  regarded  as  a  purchaser  for  value,  and  has  no 
greater  rights  than  his  assignor  had,  in  respect  to  things 
in  action  transferred  by  the  assignment. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  17  pars,  annotation. 

98  C.  409,  411,  33  P.  325,  326  (referred  to);  128  C.  103,  106,  60 
P.   675    (referred  to);    139   C.   362,   367,   73  P.   182    (referred  to). 

As  to  assignee  not  a  purchaser  for  value,  see  72  A.  D.   483. 

As  to  assignee's  right  to  sue  elsewhere,  see  55  A.  R.  130,  138- 
140. 

As  to  attachment  of  property  in  hands  of  assignee  for  cred- 
itors, see  26  L.   593. 

As  to  preferences  between  creditors,  see  Kerr's  Cyc.  C.  C. 
§§  3432,    3433,    3451    and    notes. 

As  to  right  of  assignee  of  creditors  to  compromise  claims  in 
general,  see  23  L.  578. 

§3461.  INVENTOBY  BEQUIBED.  Within  twenty  days 
after  an  assignment  is  made  for  the  benefit  of  creditors,  the 
assignor  must  make  and  file,  in  the  manner  prescribed  by 
section  thirty-four  hundred  and  sixty-three,  a  full  and  true 
inventory,  showing: 

1.  All  the  creditors  of  the  assignor; 

1693 


§  3461  CIVIL  CODE.  [Div.IV.Pt.II. 

2.  The  place  of  residence  of  each  creditor,  if  known  to  the 
assignor;   or  if  not  known,  that  fact  must  be  stated; 

3.  The  sum  owing  to  each  creditor  and  the  nature  of  each 
debt  or  liability,  whether  arising  on  written  security,  account, 
or  otherwise; 

4.  The  true  consideration  of  the  liability  in  each  case,  and 
the  place  where  it  arose; 

5.  Every  existing  judgment,  mortgage,  or  other  security 
for  the  payment  of  any  debt  or  liability  of  the  assignor; 

6.  All  property  of  the  assignor  at  the  date  of  the  assign- 
ment, which  is  exempt  by  law  from  execution;   and, 

7.  All  of  the  assignor's  property  at  the  date  of  the  assign- 
ment, both  real  and  personal,  of  every  kind,  not  so  exempt, 
and  the  encumbrances  existing  thereon,  and  all  vouchers 
and  securities  relating  thereto,  and  the  value  of  such  prop- 
erty according  to  the  best  knowledge  of  the  assignor. 

History;     Enacted  March   21,  1872. 

See  Kerr's  Cyc.   C.   C.  for   10  pars,  annotation. 

78  C.  263,  267,  20  P.  561  (construed  and  applied);  80  C.  542, 
543,  22  P.  219  (construed  and  applied  with  other  sections);  82 
C.  607,  610,  23  P.  116,  117  (construed  and  applied);  85  C.  134, 
135,  136,  24  P.  722  (construed  and  applied);  87  C.  453,  460,  25 
P.  675,  677  (construed  and  applied);  31  P.  568,  569  (cited);  98 
C.  409,  411,  412,  33  P.  325,  326  (referred  to  with  other  sections); 
37  P.  224  (referred  to);  108  C.  81,  86,  87,  41  P.  29  (applied  with 
other  sections);  139  C.  362,  367,  73  P.  182  (referred  to  with 
other  sections). 

As  to  assignment  by  partnership,  see  10  L.  521. 

As  to  creditors  availing  themselves  of  assets  without  prefer- 
ence, see  Kerr's  Cyc.  C.  C.  §  3449  and  note  par.   7. 

As  to  perjury  for  making  false  oath  to  inventory  of  creditors, 
see  Kerr's  Cyc.  Pen.  C.   §  123  and  note. 

As  to  property  which  passes  by  deed  of  assignment,  see  2  A. 
S.    26. 

As   to   recitals   of  assignment,   see    13   L.    693. 

As  to  reservation  of  property,  invalidating  assignment,  see 
2   A.  S.   24. 

As  to  reservations  rendering  assignment  void,  see  15  A.  D.  556; 
23  A.  D.  71;  26  A.  D.   247,  586;  74  A.  D.   773. 

As  to  surplus  after  payment  of  assenting  creditors'  claims, 
reservation   of,  see  58  A.  S.   78,  79. 

As  to  what  property  ■  does  not  pass  by  assignment,  see  3  L. 
822. 

1694 


Tit.III.]  INVENTORY,     VERIFICATION.  §  3462 

§3462.  VERIFICATION  OF  IjNYEMORY.  An  affidavit 
must  be  made  by  every  assignor  executing  an  assignment 
for  the  benefit  of  creditors,  to  be  annexed  to  and  filed  with 
the  inventory  mentioned  in  the  last  section,  to  the  effect  that 
the  same  is  in  all  respects  just  and  true  according  to  the 
best  of  such  assignor's  knowledge  and  belief.  If  the  assignor 
neglects  or  refuses  to  make  and  file  such  inventory  and 
affidavit  within  said  twenty  days,  the  assignment  shall  not, 
for  that  reason,  be  affected  in  any  way,  but  in  that  event 
the  assignee  or  assignees  elected  by  the  creditors  shall 
within  twenty  days  thereafter  make  and  file  in  the  office  of 
the  county  recorder  where  the  assignment  is  first  recorded, 
a  verified  inventory  of  all  assets  received  by  them; 

[Citation  by  court  to  apjieur,  etc.]  and  such  assignee  or 
assignees  may  at  any  time,  or  from  time  to  time,  after 
the  transfer  to  them  by  the  sheriff,  by  petition  to  the  supe- 
rior court  of  the  county [,]  or  city  and  county [.]  where  the 
assignment  is  first  recorded,  cause  the  assignor,  by  order 
or  citation [,]  to  appear  before  said  court,  or  a  commissioner 
or  referee  to  be  appointed  by  it,  at  a  time  and  place  within 
the  county,  or  city  and  county,  to  be  designated  in  the  order 
or  citation,  to  be  examined  touching  the  matters  mentioned 
in  section  three  thousand  four  hundred  and  sixty-one,  and 
any  other  matters  relative  to  the  assignment,  and  to  have 
with  him  all  books  of  account,  vouchers,  and  papers  relating 
to  the  assigned  property;  and  such  court  may  by  its  order 
require  the  surrender  to  such  assignee  or  assignees  of  such 
books,  vouchers,  and  papers,  to  be  by  them  retained  until 
their  trust  is  fully  completed  and  performed. 

History:  Enactod  Marcli  21,  1872;  amended  March  7.  1SS9. 
Stats,   and   Amdts.    1889,   p.    82-3. 

See  Kcrr'.s  Cyc.  C.  C.   for   3  pnrs.   annotation. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  witli  ntlior 
sections);  82  C.  607,  610,  23  P.  116,  117  (construed  and  applied); 
87  C.  453,  455,  459,  460,  25  P.  675.  677  (construed  and  applie.l); 
31  P.  568,  569  (cited);  98  C.  409,  411,  33  P.  325.  326  (referred  to 
with  other  sections);  108  C.  81,  86.  87.  41  P.  29  (applied  with 
other  sections);  139  C.  362,  367.  73  P.  182  (referred  to  with  other 
sections). 

1695 


§§  3463,  3464  CIVIL  CODE.  [Div.IV,Pt.II. 

As  to  false  inventory,  when  constitutes  perjury,  see  Kerr's 
Cyc.  C.  C.  §  3461  and  note  pars.  6,  7. 

As  to  sufficiency  of  schedule  and  affidavit,  see  3  L.  139;  12  L. 
809. 

§  3468.    RECORDING  ASSIGNMENT  AND  FILING  INVEN- 

TORY.  An  assignment  for  the  benefit  of  creditors  must  be 
recorded,  and  the  inventory  required  by  section  thirty-four 
hundred  and  sixty-one  filed  with  the  county  recorder  of  the 
county  in  which  the  assignor  resided  at  the  date  of  the 
assignment;  or,  if  he  did  not  then  reside  in  this  state,  with 
the  recorder  of  the  county  in  which  his  principal  place  of 
business  was  then  situated;  or,  if  he  had  not  then  a  resi- 
dence or  place  of  business  in  this  state,  with  the  recorder 
of  the  county  in  which  the  principal  part  of  the  assigned 
property  was  then  situated. 

History:     Enacted  March  21,   1872. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  with  other 
sections);  87  C.  453,  460,  25  P.  675,  677  (affidavit  seems  to  be 
essential  to  validity  of  assignment);  98  C.  409,  411,  33  P.  325, 
326  (referred  to  with  other  sections  as  they  stood  before 
amendment);  35  P.  646,  647,  reversed  on  hearing  in  banc,  104 
C.  395,  38  P.  53  (construed  and  applied);  104  C.  395,  399,  38  P. 
53  (construed  and  applied);  108  C.  81,  86,  87,  41  P.  29  (applied 
with  other  sections);  139  C.  362,  367,  73  P.  182  (referred  to  with 
other  sections). 

§  3464.     SAME.     MORE  THAN  ONE  ASSIGNOR  RECORD- 

ING  ASSIGNMENT.  If  an  assignment  for  the  benefit  of  cred- 
itors is  executed  by  more  than  one  assignor,  it  may  be  re- 
corded, and  a  copy  of  the  inventory  required  by  section  thirty- 
four  hundred  and  sixty-one  may  be  filed  with  the  recorder 
of  the  county  in  which  any  of  the  assignors  resided  at  its 
date,  or  in  which  any  of  them,  not  then  residing  in  this  state, 
had  then  a  place  of  business. 

History:     Enacted  March  21,   1872. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  with  other 
sections);  98  C.  409,  411,  412,  33  P.  325  (referred  to  with  other 
sections);  (C.  Jan.  26,  1894),  35  P.  646,  647,  reversed  on  hearing 
in  banc,  104  C.  395,  399,  38  P.  53   (construed  and  applied);  108  C. 

1696 


Tit.III.]  VOID   ASSIGNMENT.  §§  3465, 3466 

81,  86,  87,  41  P.  29  (applied  with  other  sections);  139  C.  362,  367, 
73   P.   182    (referred   to   with   other  sections). 

As  to  object  of  recording  and  purposes  of  this  and  preceding 
section,  see  Kerr's  Cyc.  C.  C.  §  3458  and  note  pars.   2,  3. 


§3465.  ASSIGNME^'T,  WHEN  VOID.  An  assignment  for 
the  benefit  of  creditors  is  void  against  creditors  of  the  as- 
signor and  against  purchasers  and  encumbrancers  in  good 
faith[,]  and  for  value[,]  unless  it  is  recorded  as  provided 
in  this  title,  and  unless  either  the  inventory  required  by  sec- 
tion three  thousand  four  hundred  and  sixty-one,  or  the 
inventory  required  of  the  assignee  or  assignees  by  section 
three  thousand  four  hundred  and  sixty-two[,]  is  filed  in  the  . 
manner  provided  in  this  title  and  within  the  time  designated. 

History:  Enacted  March  21,  1872;  amended  February  25, 
1878,  Code  Amdts.  1877-8,  p.  90;  March  7,  1889,  Stats,  and  Amdts. 
1889,   p.   83. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  with  other  sec- 
tions);  85  C.  134,  135,  24  P.  722  (construed  and  applied);  87  C. 
453,  460,  25  P.  675,  677  (affidavit  seems  to  be  essential  to  validity 
of  assignment);  98  C.  409,  411,  412,  33  P.  325,  326  (referred  to  as 
it  stood  before  amendment);  (C.  Jan.  26,  1894),  35  P.  646.  647. 
651.  reversed  on  hearing  in  banc.  104  C.  395.  38  P.  53  (construed 
and  applied);  108  C.  81.  SG.  87.  41  P.  29  (applied  with  other 
sections);  139  C.  362.  367,  73  P.  182  (referred  to  with  otlier  sec- 
tions). 

§3466.  ASSI(i>3It\T  OK  KE.VL  PROPERTY.  Where  an 
assignment  for  the  benefit  of  creditors  embraces  real  prop- 
erty, it  is  subject  to  the  provisions  of  article  four  of  the 
chapter  on  recording  transfers,  as  well  as  to  those  of  this 
title. 

IliNtory:     Enacted  Marcli   21,   1S72. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  with  other  sec- 
tions); 98  C.  409.  411,  412.  33  P.  325.  326  (referred  to  as  It  stood 
before  amendment):  104  C.  395,  398.  38  P.  53  (construed  and  ap- 
plied); 108  C.  81.  86.  87.  41  P.  29  (applied  with  other  sections); 
139  C.  362,  367.  73  P.  182  (referred  to  with  other  sections). 
Kerr's  C.  C— 54  1697 


§§3467,3468  CIVIL  CODE.  [Div.IV,Pt.II. 

§3467.  BOND  OF  ASSIGNEES.  No  bond  shall  be  given 
by  the  sheriff,  but  he  shall  be  liable  on  his  official  bond  for 
the  care  and  custody  of  the  property  while  in  his  possession. 
Within  forty  days  after  date  of  the  transfer  by  the  sheriff, 
the  assignee  must  enter  into  a  bond  to  the  people  of  this 
state  in  such  amount  as  may  be  fixed  by  a  judge  of  the  supe- 
rior court  of  the  county,  or  city  and  county,  in  which  an 
inventory  in  accordance  with  the  provisions  of  this  title  is 
filed,  with  sufficient  sureties  to  be  approved  by  such  judge 
and  conditioned  for  the  faithful  discharge  of  the  trust  and 
the  due  accounting  for  all  moneys  received  by  the  assignee, 
which  bond  must  be  filed  in  the  same  office  with  the  inven- 
tory; and  any  assignee  failing  to  comply  with  tlie  provisions 
of  tliis  section  may  be  removed  by  the  above-named  superior 
court  on  petition  of  the  assignor  or  any  creditor,  and  his 
successor  appointed  by  such  court. 

History:  Enacted  March  21,  1872;  amended  February  15, 
1883,  Stats,  and  Amdts.  1883,  p.  2;  March  7,  1889,  Stats,  and 
Amdts.    1889,   p.    83. 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  with  other 
sections);  31  P.  568,  569  (cited — necessity  of  bond);  98  C.  409, 
410,  411,  414,  33  P.  325,  326,  327  (referred  to  with  other  sections); 
35  P.  646,  647  (referred  to);  104  C.  395,  398,  38  P.  53  (referred 
to);  108  C.  81,  86,  87,  41  P.  29  (applied  with  other  sections); 
139  C.  362,  367,  73  P.   182    (referred  to  with  other  sections). 

As  to  bond  of  assignee  in  general,  see  7  L.  403;  11  L.  852. 

§.3468.    CONDITIONS  OF  DISPOSAL  AND  CONVERSION. 

Until  a  verified  inventory  has  been  made  and  filed,  either  by 
the  assignor  or  assignee,  as  required  by  the  provisions  of 
this  title,  and  the  assignee  has  given  the  bond  required  by 
the  last  section,  such  assignee  has  no  authority  to  dispose 
of  the  property  of  the  estate,  or  any  part  of  it  (except  in 
the  case  of  perishable  property,  which  in  his  discretion  he 
may  dispose  of  at  any  time,  and  receive  the  proceeds  of  sale 
thereof) ;  nor  has  he  power  to  convert  the  property,  or  the 
proceeds  of  any  sale  of  perishable  property,  to  the  purposes 
of  the  trust. 

1698 


Tit.III.]  PUBLICATION    BY    ASSIGNEE.  §  3468 

[Publication  by  assignee.]  Within  ten  days  after  the  filing 
of  his  bond,  the  assignee  must  commence  the  publication 
(and  such  publication  shall  continue  at  least  once  a  week 
for  four  weeks),  in  some  newspaper  published  in  the  county, 
or  city  and  county,  where  the  inventory  is  filed,  of  a  notice 
to  creditors  of  the  assignor,  stating  the  fact  and  date  of  the 
assignment,  and  requiring  all  persons  having  claims  against 
the  assignor  to  exhibit  them,  with  the  necessary  vouchers, 
and  verified  by  the  oath  of  the  creditor,  to  the  assignee,  at 
his  place  of  residence  or  business,  to  be  specified  in  the 
notice;  and  he  shall  also,  within  ten  days  after  the  first  pub- 
lication of  said  notice,  mail  a  copy  of  such  notice  to  each, 
creditor  whose  name  is  given  in  the  instrument  of  assignment, 
at  the  address  therein  given.  After  such  notice  is  given,  a 
copy  thereof,  with  affidavit  of  due  publication  and  mailing, 
must  be  filed  with  the  county  recorder  with  whom  the  inven- 
tory has  been  filed,  which  affidavit  shall  be  prima  facie  evi- 
dence of  the  facts   stated   therein. 

[Dividends.]  At  any  time,  or  from  time  to  time,  after  the 
expiration  of  thirty  days  from  the  first  publication  of  said 
notice  (provided,  the  same  shall  also  have  been  «iailed  as  in 
this  section  provided),  the  assignee  may,  in  his  discretion, 
declare  and  pay  dividends  to  the  creditors  whose  claims  have 
been  presented  and  allowed.  No  dividend  already  declared 
shall  be  disturbed  by  reason  of  claims  being  subsequently 
presented  and  allowed;  but  the  creditor  presenting  such 
claims  shall  be  entitled  to  a  dividend  equal  to  the  per  cent 
already  declared  and  paid,  before  any  further  dividend  is 
made;  provided,  however,  that  there  be  assets  sufficient  for 
that  purpose;  and  provided,  that  the  failure  to  present  such 
claim  shall  not  have  resulted  from  his  own  neglect,  and  he 
shall  attach  to  such  claim  a  statement,  under  oath,  showing 
fully  why  the  same  was  not  before  presented. 

When  a  creditor  lias  a  iiiorttiatre  or  pledse  of  real  or  per- 
sonal property  of  the  debtor,  or  a  lien  thereon,  for  securing 
the  payment  of  a  debt  owing  to  him  from  the  debtor,  and 
shall    not    have    conveyed,    released,    or    delivered    up    such 

1699 


§  3469  CIVIL  CODE.  [Div.IV,Pt.II. 

security  to  the  sheriff,  as  provided  for  by  section  three  thou- 
sand four  hundred  and  forty-nine  of  this  code,  he  shall  be 
admitted  as  a  creditor  only  for  the  balance  of  the  debt  after 
deducting  the  value  of  such  mortgage,  pledge,  or  lien,  to  be 
ascertained  by  agreement  between  him  and  the  assignee,  or 
by  a  sale  thereof,  to  be  made  in  such  manner  as  the  superior 
court  of  the  county  in  which  the  assignment  is  made  shall 
direct;  or  the  creditor  may  release  or  convey  his  claim  to 
the  assignee  upon  such  property,  and  be  admitted  to  prove 
his  whole  debt. 

[Right  of  redemptiou.]  If  the  value  of  the  property  ex- 
ceeds the  sum  for  which  it  is  so  held  as  security,  the  assignee 
may  release  to  the  creditor  the  debtor's  right  of  redemption 
thereon  on  receiving  such  excess;  or  he  may  sell  the  prop- 
erty, subject  to  the  claim  of  the  creditor  thereon;  and  in 
either  case  the  assignee  and  creditor,  respectively,  shall  exe- 
cute all  deeds  and  writings  necessary  or  proper  to  consum- 
mate the  transaction.  If  the  property  is  not  sold  or  leased, 
and  delivered  up,  the  creditor  shall  not  be  allowed  to  prove 
any  part  of  his  debt. 

History:  Enacted  March  21,  1872;  amended  March  7,  1889, 
Stats,  and  Amdts.  1889,  p.  83;  March  26,  1895,  Stats,  and  Amdts. 
1895,  pp.    84,   85. 

80  C.  542,  543,  22  P.  219  (construed  and  applied  with  other 
sections);  98  C.  409,  412,  33  P.  325,  326  (referred  to  with  other 
sections);  108  C.  81,  86,  87,  41  P.  29  (applied  with  other  sections); 
139  C.  362,  367,  73  P.  182  (referred  to  with  other  sections);  144 
C.  511,  517,  78  P.  30  (construed  and  applied  with  other  code 
sections). 


§3469.  ACCOUNTING  OF  ASSIGNEE.  After  six  months 
from  the  date  of  an  assignment  for  the  benefit  of  creditors, 
the  assignee  may  be  required,  on  the  petition  of  any  creditor, 
to  account  before  the  superior  court  of  the  county  where 
the  accompanying  inventory  was  filed  in  the  manner  pre- 
scribed by  the  insolvent  laws  of  this  state. 

History:  Enacted  March  21,  1872;  amended  February  15, 
1883,   Stats,  and  Amdts.    1883,  p.   3. 

1700 


Tit.IIT.]  EXEMPT    PROPERTY — PAY.  §§  3470-3472 

See  Kerr's  Cyc.  C.  C.  for  7  pars,  annotation. 

98  C.  409,  412,  33  P.  325,  326  (referred  to  with  other  sections); 
108  C.  81,  86,  87,  41  P.  29  (applied  with  other  sections);  139  C. 
362,   367,  73  P.   182    (referred  to   with  other  sections). 

§3470.  PROPERTY  EXEMPT.  Property  exempt  from 
execution,  and  insurance  upon  the  life  of  the  assignor,  do 
not  pass  to  the  assignee  by  a  general  assignment  for  the 
benefit  of  creditors,  unless  the  instrument  specially  mentions 
them,  and  declares  an  intention  that  they  should  pass  therebj'. 

History:     Enacted  March   21,   1872. 

98  C.  409,  412,  33  P.  325,  326   (referred  to  with  other  sections); 
108  C.   81,   86,  87,   41  P.   29   (applied  with   other  sections);    139  C. 
362,   367.   73   P.   182    (referred   to   with   other  sections):    198  U.   S.' 
202,    209,    49    L.    ed.    1018,    1020    (cited — exemption    of   life    insur- 
ance  policies   from   execution). 

As  to  property  exempt  from  execution,  see  Kerr's  Cyc.  C.  C. 
P.   §  690  and  note. 

§3471.  COMPEXS.VTION.  The  elected  assignee  or  assign- 
ees for  the  benefit  of  creditors  shall  be  entitled  to  the  same 
commissions  on  assignments  heretofore  and  hereafter  made 
as  are  allowed  by  law  to  the  assignees  in  insolvency,  and 
the  assignment  cannot  grant  more.  Such  assignee  or  as- 
signees shall  also  be  entitled  to  all  necessary  expenses  in 
the  management  of  their  trust. 

HiNtory:  Enacted  March  21,  1872;  amended  March  7,  1889, 
Stats,  and  Amdts.   1889,   p.   84.     . 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

56  C.  628  (construed  and  applied  with  §2274);  98  C.  409.  412. 
33  P.  325.  326  (referred  to  witli  other  sections):  108  C.  81.  86.  87. 
41  P.  29  (applied  with  other  sections);  139  C.  362,  367.  73  P.  182 
(referred  to  with  other  sections). 

§3472.  ASSIGNEES  PROTECTED  FOI!  A(  TS  D()>E  I\ 
GOOD  FAITH.  An  assignee  for  the  benefit  of  creditors  is 
not  to  be  held  liable  for  his  acts,  done  in  good  faith,  in  the 
execution  of  the  trust,  merely  for  the  reason  that  the  assign- 
ment is  afterward  adjudged  void. 

HUtur}-!     Enacted  March   21.   1872. 
1701 


§  3473  CIVIL  CODE.  [Div.IV,Pt.II. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

98  C.  409,  412,  33  P.  325,  326  (referred  to  with  other  sections); 
108  C.  81,  86,  87,  41  P.  29  (applied  with  other  sections);  139  C. 
362,  367,  73  P.  182    (referred  to  with  other  sections). 

As  to  duty  of  trustee  to  render  accounts,  see  Kerr's  Cyc.  C.  C. 
§  3469   and   note. 

As  to  obligations  of  trustees  in  general,  see  Kerr's  Cyc.  C.  C. 
§§  2258  et  seq.  and  notes. 

As  -to  trustees'  right  to  repayment  out  of  trust  property  of 
expenses,  etc.,  see  Kerr's  Cyc.  C.  C.  §  2273  and  note. 

§3473.  ASSENT  OF  CREDITOR  NECESSARY  TO  MODI- 
FICATION  OF  ASSIGNMENT.  An  assignment  for  the  benefit 
of  creditors  which  has  been  executed  and  recorded  so  as  to 
transfer  the  property  to  the  sheriff,  or  a  transfer  by  the 
sheriff  to  the  elected  assignee  or  assignees  which  has  been 
executed  and  recorded,  cannot  afterwards  be  modified  or  can- 
celed by  the  parties  without  the  consent  of  the  assignor  and 
of  every  creditor  affected  thereby. 

History:  Enacted  March  21,  1872;  amended  March  7,  1889, 
Stats,  and  Amdts.   1889,  p.    84. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

78  C.  263,  265,  20  P.  561  (referred  to  with  other  sections);  98 
C.  409,  411,  412,  33  P.  325,  326  (referred  to  with  other  sections); 
108  C.  81,  86,  87,  41  P.  29  (applied  with  other  sections);  139  C. 
362,   367,  73  P.  182    (referred  to  with  other  sections). 

As  to  acceptance  of  trust  by  one  of  two  or  more  assignees 
being  sufficient,   see   13  C.   242,   288. 


1702 


Pt.III,Tit.I.]  NUISANCE,    GENERALLY.  §3479 


PART   III. 

NUISANCE. 

Title  I.     General  Principles,  §§  3479-3484. 
II.     Public  Nuisances,   §§  3490-3495. 
III.     Private  Nuisances,  §§  3501-3503. 

TITLE   I. 

GENERAL  PRINCIPLES. 

§  3479.  Nuisance,    what. 

§  3480.  Public  nuisance. 

§  3481.  Private  nuisance. 

§  3482.  Wliat  is  not  deemed  a  nuisance. 

§  3483.  Successive   owners. 

§  3484.  Abatement  does  not  preclude  action. 

§3479.  NUISAX'E,  WHAT.  Anything  which  is  injurious 
to  health,  or  is  indecent  or  offensive  to  the  senses,  or  an 
obstruction  to  the  free  use  of  property,  so  as  to  interfere 
with  the  comfortable  enjoyment  of  life  or  property,  or  unlaw- 
fully obstructs  the  free  i)assaiE:e  or  use,  in  the  customary 
manner,  of  any  navitrable  lake,  or  river,  bay,  stream,  canal, 
or  basin,  or  any  public  park,  square,  street,  or  highway,  is  a 
nuisance. 

HIMory:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code  Amdts.  1S73-4,  p.  268;  amended  by  Code  Comml.««9inn,  Act 
March  16,  1901,  Stats,  and  Amdts.  1900-1.  p.  420.  hold  unconstitu- 
tional, see  history,  §  4  ante. 

See  Kerr's  Cyc.  ('.  C.  for  20  par.s.  annotation. 

65  C.  447,  inr,.  4  V.  426,  432  (applied);  66  C.  13S.  147,  l.'.l.  .')«  A. 
R.  80,  4  P.  1152  (applied);  66  C.  171.  174  (applied  to  operation 
of  stationary  engine  to  run  cable  cars,  but  erroneously  cited  as 
§731),  4  P.  1162.  1164  (same  error);  67  C.  543,  546,  8  P.  82  (cited); 
76  C.  166,  160.  18  P.  141.  143  (cited):  79  C.  347,  348.  21  P.  763 
(construed);  87  C.  91,  93,  25  P.  258  (referred  to  with  Pen.  C. 
§«  370,   372);    111   C.    25.   30.   43   P.   396    (cited);    116   C.   397.   399.   48 

1703 


§  3479  CIVIL  CODE.  [Div.IV,Pt.III. 

P.  374,  39  L.  581  (cited);  126  C.  670,  673,  77  A.  S.  217,  59  P.  202 
(cited);  131  C.  501,  502,  63  P.  1083  (cited);  136  C.  14,  16,  68  P. 
108  (applied);  144  C.  134,  136,  77  P.  823  (cited  in  opinion  of  trial 
court  quoted);  150  C.  171,  173,  88  P.  713  (cited);  150  C.  195,  196, 
88  P.  899  (applied — obstruction  of  highway);  1  C.  A.  229,  231, 
81  P.  1118  (applied — street  railway  tracks  not  laid  in  center 
of  street);  1  C.  A.  441,  445,  82  P.  640  (applied — depriving  land 
owner  of  access  to  his  premises);  2  C.  A.  346,  348,  83  P.  1082 
(structures  on  street  constitute  private  as  well  as  public  nuisance 
— rights  of  abutting  owner);  18  F.  753,  770,  776   (cited). 

NUISANCE. 

As    to    definition    for    purposes    of    criminal    prosecution,    see 
Kerr's   Cyc.    Pen.    C.    §  370    and   note. 

As  to  putting  animals,  etc.,  in  streets,  rivers,   etc.,  see  Kerr's 
Cyc.  Pen.  C.   §  374  and  note. 

Abatement — And   injunction. — See    1    A.    C.    35;    1   A.    C.    345;    2 
A.  C.  249,  250;  5  A.  C.  132,   136;  6  A.  C.  146. 

Same — My   destruction,   when   sustainable. — See   26   A.    D.    443; 
44    A.    R.    111. 

Same — Of   private,   when   justifiable. — See   43   A.    R.    24. 

Action   by   other   than   property   owner   for   damages    by. — See 
1   A.   C.    272. 

Attractive.— See  3  L.  N.  S.   149;   19  L.  N.  S.   1094. 

Authority  of  the  legislature  to  declare  what  are. — See  47  A.  S. 
544. 

Barking  of  dog,  as  a. — See  10  A.  C.  67;  7  L.  N.  S.  349. 

Bawdy-house  as  a — As  to,  see  1  A.  C.  35. 

Same — Enjoined  at  suit  of  private  citizen. — See  1  A.  C.   38. 

Bees   as   a. — See    62    L.    133,    134. 

Blasting  as  a. — See  2  A.  C.   198,   201. 

Boundaries — Rights  of  adjoining  owners. — See  Kerr's  Cyc.  C. 
C.   §1  829-834  and  notes. 

Same — Trees   near  as  a.^ — See    21   L.    730. 

Brick  kiln  as  a. — See   10   A.   R.   674-676;   2   L.  N.   S.    92. 

Bridge  over  navigable  water  as  a. — See  2  L.  541. 

Burning  of  soft  coal  as  a. — See  12  A.  C.   846;  13  L.  N.  S.   465. 

Businesses  and  machinery  which  may  be  enjoined  as. — See  51 
A.    R.    467. 

By  use  of  neighboring  property. — See  9  L.  711. 

Casting  water  on  land. — See  10  L.  254. 

Church   bells  as. — See   43   A.   R.    522-526. 

Cognate     section — Nuisance      defined      and      actions      for. — See 
Kerr's  Cyc.  C.  C.  P.  §  731  and  note;  also  ""Definition  of,"  this  note. 

Conducting  business  so  as  to  create. — See  9  L.   712. 

Contributory    wrong    of    plaintiff    as    precluding    recovery    of 
damages    for. — See    11    A.    C.    134. 

Damages  in   streams,   when   constitute. — See   30  A.   S.   551. 

1704 


Tit.L]  NUISANCE,    GENERALLY.  §  3479 

Dancing  as  a. — See  18  L.  N.  S.  699. 

Definition  of. — See  Kerr's  Cyc.  C.  C.  §  3479  and  note;  Kerr's 
Cyc.  C.  C.  P.  §731  and  note;  30  A.  D.  564;  66  A.  D.  790; 
67  A.  D.  607;  67  A.  D.  665;  78  A.  D.  687;  5  A.  R.  292;  21  A.  R. 
436;  44  A.  R.  205;  49  A.  R.  721;  6  A.  S.  739;  60  A.  S.  848;  91  A.  S. 
63;  9  L.  711;  38  L.  716;  40  L.  851;  58  L.  266;  34  L.  ed.  784;  5  W.  & 
P.  4855. 

Deposit  of  debris  in  stream. — See  30  A.  S.  551,  554. 

Disturbing  public  church  gathering  by  singing. — See  13  A. 
S.   896. 

Driving  foul  air  against  neighbor's  windows  as  a. — See  9 
L.    N.    S.    695. 

Effect  of  legislative  autliority  upon  liability  for  private. — See 
70  L.   579-597;    1   L.  N.   S.   49-129. 

Enjoined  at  suit  of  private  citizen. — See   1   A.   C.   38. 

Equitable  relief  against  cemetery  as  a. — See  5   A.  C.    136. 

Fireworks  in  city  streets  as  a. — See  16  L.  395;  16  L.  N.  S. 
621. 

Fish — Interference  with. — See  Kerr's  Cyc.  C.  C.  §  3480  and 
note   pars.    13-15. 

Future  damages. — See  36  Alb.  L.  J.  84,  reproduced  in  part  as 
note   59  A.   R.   351,  369. 

Highways — Obstruction  of. — See  Kerr's  Cyc.  C.  C.  §  3480  and 
note  par.  4;  §3493  and  note  pars.  6-10. 

Hospital  as  a. — See  1  A.  C.  341;  6  A.  C.  817,  823. 

Houses — Dangerous  to  lives,  health,  etc.,  of  neiglibors  as 
nuisances. — See   44   A.   R.    Ill,    112. 

Same — Of  ill-fame  as  nuisances. — See  48  A.  R.   274-278. 

In   highway   or  alley. — See   8   L.    830. 

Injunction  to  restrain  threatened  or  apprehended. — See  2  A. 
C.   250;   73  A.  D.   113. 

Joinder  of  parties  plaintiff  in  suits  to  abate. — See  71  A.  D. 
311. 

Landlord  and  tenant,  respective  liabilities  of  for  to  eacli  other 
and  to  third  persons. — See  50  A.  D.  776. 

Lateral  and  subjacent  support. — See  Kerr's  Cyc.  C.  C.  §  832 
and  note. 

Liability — For  though  due  to  the  act  or  negligence  of  an  In- 
dependent contractor. — See  76   A.  S.  399. 

Same — Of    erector   and    continuer    of. — See    14    A.    D.    336. 

Same — Of  municipality  for  failure  to  abate. — See  1   A.  C.   964. 

Same — Of  owner  of  vacant  property  for  using  It,  or  per- 
mitting it  to  be  used,  in  sucli  a  way  as  to  collect  crowds  to  the 
injury  of  the  neighborhood. — See   11  L.  N.  S.  463. 

Same — Of  property  owner  for  a  nuisance  wlilch  he  did  not 
create. — See  86  A.  S.  508. 

Liquor  nuisances. — See  14  A.  S.   454. 

Livery-stables,  whether  and  wlien  constitute. — See  32  A.  R. 
141. 

1705 


§  3479  CIVIL  CODE.  [Div.IV.Pt.III. 

Mining  operations  regarded  as  nuisances. — See  63  A.  D.  98- 
100. 

Mooring  logs  and  rafts  as  a. — See  3  L.  407. 

Municipal  power  over — As  to,  generally,  see  9  L.  714;  39  L. 
551;   40   L.   465;    51   L.   657. 

Same — Affecting  highways  and  waters — As  to,  generally,  see 
39  L.   650-681;   40  L.   465. 

Same — Affecting  pubfic  morals,  decency,  peace  and  good 
order.-^See    39   L.    520-528;    41    L.    321. 

Same — Affecting  safety,  health  and  personal  comfort. — See  38 
L.   305-335;    41   L>.   322. 

Same — Buildings  and  other  structures  as. — See   38   L.   161-170. 

Same — Relating  to  trade   or   business. — See   38   L.    641-657. 

Same — Smoke  as  a  public. — See  18  L.  N.  S.  156. 

Same — To  define,  prevent  and  abate. — See  36  L.   593-613. 

Same — Upon  public  streets  and  highways,  created  by  street 
railroads  and  other  electrical  companies. — See  39  L.  609-621;  44 
L.   565. 

Municipal  corporations — Liability  of  for  maintaining. — See  15 
A.   S.   845;   30   A.   S.   395. 

Same — Power  of  to  determine  what  is  and  to  remove. — See  27 
A.  D.  98;   120  A.  S.  372;  also  "Municipal  power  over,"  this  note. 

Same — Right  to  create. — See   84  A.   S.   916. 

Municipality's  power  to  regulate  hitching  of  horses  in  streets. 
—See    11    L.    N.    S.    1080. 

Navigable  waters,  remedies  for  obstruction  of. — See  57  A.  S. 
693-701. 

Noise  as  a — Generally,   see   12  L.   53. 

Same — Arising  from   lawful   business. — See   4   A.   C.    378. 

Same — ^With  or  without  vibration  incident  to  lawful  industrial 
business  as  a. — See  17  L.  N.  S.   287. 

Obstruction — Of  highway  preventing  or  interfering  with  ac- 
cess to  property,  right  of  private  individual  to  abate  as  a.— See 

11  A.    C.    287. 

Same — Of  navigable  water  as  a. — See  4  L.   209;   59  L.   90. 

Same— Of  street  or  highway. — See  38  A.  R.  127;  16  A.  S.  209. 

Offensive  trades  and  manufactures  as. — See   42  A.  R.   540. 

Other  nuisances  producing  similar  results,  existence  of  as 
defense  to  proceedings  for  maintaining  a  nuisance. — See  12  A. 
C.   909. 

Percolating  of  filthy  water. — See  39  A.  R.  16. 

Place  for  sale  of  intoxicating  liquors  as  a — Generally,  see  6 
L.    721. 

Same — In   violation   of  law. — See   7  L.    298. 

Pollution    of    stream    or   water   as    a. — See    48    A.    R.    194,    196; 

12  L.   577. 

Pool-selling  as  a. — See  10  L.  N.  S.  992. 
Powder  magazines  as. — See   38  L.    306. 

1706 


Tit.I.]  PUBLIC  NUISANCE.  §  348O 

Power-house  of  electric  lig'ht  or  power  company  as  a. — See 
8   A.   C.   567. 

Prescriptive  right  to  maintain  public. — See  30  A.  S.  556;  53 
L.   891-903. 

Private — Person's  right  to  abate  without  suit. — See  26  A.  D. 
443;   44  A.  R.   111. 

Same — Wliat  will  be  enjoined  as  interfering  with  the  com- 
fortable enjoyment  of  real  property. — See  10  A.   R.   674. 

Public — Injunction  against,  who  may  obtain. — See  67  A.  D. 
203. 

Same — Private  action   for. — See   31   A.   D.    132;    25   A.   R.   533. 

Same — Private  citizens,  when  may  obtain  injunctions  against. 
—See  52  A.  R.   574. 

Same — What  are. — See  107  A.  S.  195. 

Public  health  and  safety — Crimes  against. — See  Kerr's  Cyc. 
Pen.  C.  §§  368-402%  and  notes. 

Purprestures,  what  are,  and  remedies  for  tlieir  abatement. — 
See   69  A.   S.    271,  281. 

Railroad  in   street  as  a. — See  5  L.   371. 

Right  of  landlord  to  recover  damages  to  premises  caused  by, 
existing  at  commencement  of  tenancy. — See   6  A.  C.   150. 

Right  to  compensation  for  property  destroyed  in  abating  pub- 
lic—See  19  L.  196. 

Running  of  statute  of  limitations  against  action  for  dam- 
ages for. — See  10  A.  C.  184. 

Sewer  In  neighborhood  of  plaintiff's  land. — See  Kerr's  Cyc. 
C.  C.  §3493  and   note  par.   18. 

Slaughter-house  as  a. — See  Kerr's  Cyc.  C.  C.  §  3493  and  note; 
also    13   L.    321,   322. 

Smoke,   soot,   cinders   and   coal-dust  as  a. — See   9    L.    712. 

Stables  as  nuisances. — See  32  A.   R.   141-143;   17  L.   N.  S.   1025. 

Storage  of  explosives  as  a. — See  1  A.  C.  206,  209;  5  A.  C. 
498,  503;   38  L.   308;   16  L.  N.   S.    691. 

Summary  destruction  of  private  property  in  abating. — See  1 
A.   C.    345. 

Surface  water  as  a — Generally,  see  4  L.  594;   10  L.  254. 

Same — Liability   of  city   for. — See   65   L.    2S0. 

Trees   near  boundary  as   a. — See   21   L.    730. 

Two  or  more  persons  creating  or  maintaining,  suits  and  ac- 
tions against. — See  118   A.   S.   868. 

Validity  of  statute  authorizing  forfeiture  or  destruction  of 
property  used   in   violation   of  gaming  laws. — See   8  A.  C.   910. 

Vendee  of  property,  when  not  liable  for. — See  59  A.  R.  351. 

What  constitutes — As  to,  generally,  see  4  A.  C.  373;  5  A.  C. 
132;   8  A.  C.  558;   10  A.  C.   66. 

§3480.  PrBLIC  >UISA>TE.  A  public  nuisance  is  one 
which  affects  at  the  same  time  an  entire  community  or  nelgh- 

1707 


§  3480  CIVIL  CODE.  [Div.IV,Pt.III. 

borhood,  or  any  considerable  number  of  persons,  although 
the  extent  of  the  annoyance  or  damage  inflicted  upon  indi- 
viduals may  be  unequal. 

History:  Enacted  March  21,  1872;  amended  March  30,  1874, 
Code   Amdts.    1873-4,  p.    268. 

See  Kerr's  Cyc.  C.  C.  for  15  pars,  annotation. 

66  C*!"138,  147,  56  A.  R.  80,  4  P.  1152  (cited);  109  C.  340,  343,  42 
P.  437  (referred  to  in  opinion  of  trial  court  quoted);  111  C. 
25,  30,  43  P.  396  (cited);  116  C.  397.  399,  48  P.  374,  39  L.  581 
(cited);  126  C.  670,  673,  77  A.  S.  217,  59  P.  202  (cited);  150  C. 
171,  174,  88  P.  713  (cited);  150  C.  195,  196,  88  P.  899  (applied — 
obstruction  of  public  highway);  1  C.  A.  229,  231,  81  P.  1118 
(applied — street  railway  tracks  not  laid  in  center  of  street) ;  6 
C.  A.  276,  280,  92  P.  196  (private  person,  in  suit  to  abate  pub- 
lic nuisance,  must  show  what);    18  F.   753,   770    (cited). 

As  to  constitutionality  of  statute,  see  Kerr's  Cyc.  C.  C.  §  3479 
and  note  par.  4. 

As  to  interference  with  water-rights  as  nuisance,  see  Kerr's 
Cyc.  C.  C.  §  3479  and  note. 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Abatement  of  public  nuisance. — See  Kerr's  Cyc.  C.  C.  §§  3494, 
3495    and    notes. 

Cognate  section — Nuisance  defined  and  actions  for. — See  Kerr's 
Cyc.  C.  C.  P.  §  731  and  note. 

Highway  obstructed.-^See  Kerr's  Cyc.  C.  C.  §  3493  and  note 
pars.   6-10. 

Injunctions  against  purprestures  and  nuisances. — See  35  A. 
S.    673,    674. 

Lapse  of  time  does  not  legalize  public  nuisance. — See  Kerr's 
Cyc.  C.  C.  §  3490  and  note. 

License  from  city. — See  Kerr's  Cyc.  C.  C.  §  3479  and  note 
par.   8. 

Municipal  control  over  public  nuisance  upon  public  streets 
and  highways  created  by  street  railroads  and  other  electrical 
companies. — See   39   L.    609-621. 

Municipal  power  as  to  nuisances  affecting  public  morals,  de- 
cency,  peace,  and  good  order. — See  39  L.   520-528. 

Municipal  power  over  nuisance  affecting  highways  and  waters. 
—See    39   L.    649-685. 

Municipal  power  over  nuisance  affecting  safety,  health,  and 
personal   comfort. — See   38  L.    305-336. 

Private  person  may  maintain  action,  when. — See  Kerr's  Cyc. 
C.    C.    §  3493    and    note. 

Public  health  and  safety — Crimes  against. — See  Kerr's  Cyc. 
Pen.   C.    §§  368-402%   and   notes. 

1708 


Tit.L]  SUCCESSIVE   OWNERS.  §§  3481-3483 

Purprestures  with  reference  to  park. — See  ante  §  3479  and 
note  par.  9. 

Question  of  fact. — See  Kerr's  Cyc.  C.  C.  §  3479  and  note  par.  10. 

Slaug-hter-liouse. — See  Kerr's  Cyc.  C.  C.   §  3493  and  note. 

Smoke — Municipal  control  over,  as  public  nuisance. — See  39 
L.   551-554. 


§3481.     PRIVATE     iVUISANCE.       Every    nuisance    not    in- 
cluded in  the  definition  of  the  last  section  is  private. 
History:     Enacted  March   21,  1872. 

§3482.  WHAT  IS  NOT  DEEMED  A  NUISANCE.  Nothing 
which  is  done  or  maintained  under  the  express  authority  of 
a  statute  can  be  deemed  a  nuisance. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  8  pars,  annotation. 

91  C.  238,  255,  27  P.  604,  608  (applied);  18  F.  753,  771,  779 
(cited). 

As  to  many  miscellaneous  matters  as  to  nuisance,  sec  note 
§  3479,  ante. 

License  from  city.— See  Kerr's  Cyc.  C.  C.  §  3479  and  note 
par.   8. 

Nuisance  caused  by  deposit  of  debris  not  authorized  by  legis- 
lation.—See  30   A.  S.   555,   556. 

War  department's  permission. — See  Kerr's  Cyc.  C.  C.  §  3479 
and  note  par.   20. 

§.S483.  SUCCESSIVE  OWNERS.  Every  successive  owner 
of  property  who  neglects  to  abate  a  continuing  nuisance 
upon,  or  in  the  use  of,  such  property,  created  by  a  former 
owner,  is  liable  therefor  in  the  same  manner  as  the  one  who 
first  created  it. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  2  pars,  annotation. 

72  C.  180,  182,  1  A.  S.  45,  13  P.  478  (cited);  36  P.  859,  861  (con- 
strued); 1  C.  A.  441,  446,  82  P.  640  (action,  without  previous 
demand,   for   abatement   of  nuisance). 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Grantee's  liability  for  nuisance. — See  34  A.  S.  267. 

1709 


§§3484,3490  CIVIL  CODE.  [Div.IV,Pt.III. 

Liability  of  creator  of  nuisance  as  affected  by  alienation. — 
See   14   A.   D.   336-341. 

Liability  of  landlord  and  lessee  respectively  for  nuisance  on 
premises. — See    34    A.    S.    267. 

Notice  to  successive  owner. — See  14  A.  D.  338-341. 


§3484.    ABATEMENT    DOES    NOT    PRECLUDE    ACTION. 

The  abatement  of  a  nuisance  does  not  prejudice  the  right  of 
any  person  to  recover  damages  for  its  past  existence. 

History:     Enacted  March   21,  1872. 

See   Kerr's   Cyc.    C.   C.   for   2   pars,   annotation. 
As   to   many  miscellaneous   matters   as   to   nuisance,   see    note 
§  3479,  ante. 


TITLE   II. 

PUBLIC   NUISANCES. 

§  3490.  Lapse   of  time  does   not  legalize. 

§  3491.  Remedies   against  public    nviisance. 

§  3492.  How   regulated. 

§  3493.  Remedies  for  public   nuisance. 

§  3494.  Action. 

§  3495.  How  abated. 


§3490.     LAPSE    OF    TIME    DOES    NOT    LEGALIZE.      No 

lapse  of  time  can   legalize  a  public  nuisance,   amounting  to 
an  actual  obstruction  of  public  right. 

History:     Enacted  March   21,   1872. 

See  Kerr's  Cyc.  C.  C.  for  5  pars,  annotation. 

66  C.  138,  152,  56  A.  R.  80,  4  P.  1152  (cited);  103  C.  236,  238, 
37  P.  149  (cited);  128  C.  230,  235,  60  P.  851  (applied);  2  C.  A. 
346,  350,  S3  P.  1082  (cited);  18  F.  753,  787   (cited). 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Custom  cannot  give  right  to  deposit  debris  in  stream. — See 
30   A.    S.    556. 

Definition  of  public  nuisance. — See  Kerr's  Cyc.  C.  C.  §  3480  and 
note. 

Laches  in  objecting  to  nuisance. — See  50  A.  R.   117-119. 

1710 


Tit.II.]  PUBLIC— REMEDIES.  §§  3491-3493 

§3491.     KEaiEDIES   AGAIXST  PUBLIC   MnSA>CE.     The 

remedies  against  a  public  nuisance  are: 

1.  Indictment   or   information; 

2.  A  civil  action;  or, 

3.  Abatement. 

History:  Enacted  March  21,  1872;  amended  March  2,  1880, 
Code  Amdts.    1880    (C.   C.   pt.),   p.   1. 

See  Kerr's  Cyc.   C.  C.  for  2  pars,   annotation. 
18   F.    753,    781    (cited). 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

§3492.  HOW  REGULATED.  The  remedy  by  indictment 
or  information  is  regulated  by  the  penal  code. 

History:  Enacted  March  21,  1872;  amended  March  2,  1880, 
Code  Amdts.  1880   (C.  C.  pt.),  p.  1. 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Cognate  sections  to  wliich  reference  is  here  made  are  Pen. 
C.  §§  370-374. 

§3493.  REMEDIES  FOR  PUBLIC  >UISA>CE.  A  private 
person  may  maintain  an  action  for  a  public  nuisance,  if  it  is 
specially  injurious  to  himself,  but  not  otherwise. 

History:     Enacted  March   21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  20  pars,  annotation. 

54  C.  532,  533  (cited);  87  C.  166,  176,  25  P.  240,  243  (referred 
to);  89  C.  26,  29,  26  P.  618  (cited);  103  C.  236,  238,  37  P.  149  (ap- 
plied); 107  C.  199,  205,  40  P.  437  (applied):  109  C.  340,  343,  42  P. 
437  (applied);  121  C.  511,  513,  53  P.  1118  (applied);  136  C.  14, 
15,  68  P.  108  (cited);  141  C.  360,  363,  74  P.  1049  (applied):  144 
C.  134,  139,  77  P.  823  (cited);  150  C.  171,  174,  88  P.  713  (applied — 
obstruction  to  highway);  150  C.  277,  279,  88  P.  977  (applied — 
railroad  constructed  on  public  street  without  authority);  152 
C.  118,  120,  92  P.  70  (suit  to  recover  damages  caused  by  nuisance 
without  seeking  its  abatement);  1  C.  A.  140,  141,  81  P.  1022 
(applied — obstruction  of  public  alley);  1  C.  A.  229,  231,  81  P. 
1118  (applied — street  railway  tracks  not  laid  in  center  of 
street);  2  C.  A.  346,  349,  83  P.  1082  (private  person,  not  owning 
land  abutting  on  street  cannot  maintain  action  for  obstruc- 
tion in  street  unless  he  is  damaged  in  person);   6  C.  A.  276,  280, 

1711 


§§  3494, 3495  CIVIL  CODE.  [Div.IV,Pt.TII. 

92  P.  196  (private  person,  in  suit  to  abate  public  nuisance,  must 
show  what);   18  F.   753,  781    (cited). 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Action  by  private  person  for  obstruction  of  highway. — See 
16  A.  S.  209. 

Inconvenience  no  ground  for  refusing  to  enjoin  nuisance. — 
See  30  A.  S.  557. 

Injunctions  against  purprestures  and  nuisances. — See  35  A.  S. 
673,  674. 

Injunctions  against  threatened  nuisances. — See  73  A.  D.  113- 
116. 

Joinder  of  parties  plaintiff  and  defendant  in  action  to  abate 
nuisance. — See   71   A.   D.    311-316. 

Nuisance  by  obstructing  street — Action  for,  cannot  be  main- 
tained by  adjoining  owner  unless  specially  damaged. — See  28 
A.    D.    306. 

Prescriptive  right  to  maintain  public  nuisance  no  defense, 
when. — See  Kerr's  Cyc.  C.  C.  §  3490  and  note  par.  5. 

Private   action   for   public    nuisance. — See    31    A.    D.    132-135. 

Private  person  may  sue  to  restrain  public  nuisance,  when. — 
See  30  A.  S.   554,   555. 

Right   of   action   in   case   of   nuisance. — See    4   L.    211,    212. 

Statute  of  limitations  in  actions  for  nuisances. — See  20  A.  S. 
176-179. 

§  3494.  ACTION.  A  public  nuisance  may  be  abated  by 
any  public  body  or  officer  authorized  thereto  by  law. 

History:     Enacted  March  21,  1872. 

4  C.  A.  695,   697,  88  P.  1099    (applied  to  carpet-beating  works). 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante.    • 

Abatement  of  public  nuisance. — See  Kerr's  Cyc.  C.  C.  §  3493 
and  note. 

Action  by  private  person  for  public  nuisance. — See  Kerr's  Cyc. 
C.   C.    §  3493   and   note. 

Right  of  private  person  to  abate  nuisance  without  suit. — 
See  26  A.  D.  443,  445;  43  A.  R,  24-26. 

§3495.  HOW  ABATED.  Any  person  may  abate  a  public 
nuisance  which  is  specially  injurious  to  him  by  removing, 
or,  if  necessary,  destroying  the  thing  which  constitutes  the 
same,  without  committing  a  breach  of  the  peace,  or  doing 
unnecessary  injury. 

History:     Enacted  March  21,  1872. 
1712 


Tit  III  ]  PRIVATE— REMEDIES.  §§  3501-3503 


TITLE   III. 

PRIVATE  NUISANCES. 

§  3501.     Remedies  for  private  nuisance. 
§  3502.     Abatement,  when  allowed. 
§  3503.     Wlien  notice  is  required. 

§  3501.  REMEDIES  FOE  PRIVATE  NUISANCE.  The  rem- 
edies against  a  pi'ivate  nuisance  are: 

1.  A  civil  action;  or, 

2.  Abatement. 

History:     Enacted  March  21,  1872. 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Cognate  section — Nuisance  defined  and  actions  for. — See  Kerr's 
Cyc.  C.  C.  P.  §  731  and  note. 

§3502.  ABATEMENT,  WHEN  ALLOWED.  A  person  in- 
jured by  a  private  nuisance  may  abate  it  by  removing,  or, 
if  necessary,  destroying  the  thing  which  constitutes  the 
nuisance,  without  committing  a  breach  of  the  peace,  or  doing 
unnecessary  injury. 

History:     Enacted  March  21,  1872. 

See  Kerr's  Cyc.  C.  C.  for  3  pars,  annotation. 

126  C.  413,  417  (erroneously  cited  for  §3532),  58  P.  914,  915 
(correct  citation). 

As  to  many  misrcllaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

§3503.  AVHEN  NOTICE  IS  REQUIRED.  Where  a  private 
nuisance  results  from  a  mere  omission  of  the  wrong-doer, 
and  cannot  be  abated  without  entering  upon  his  laud,  reason- 
able notice  must  be  given  to  him  before  entering  to  abate  it. 

History:  Enacted  March  21,  1872;  amonded  by  Code  Com- 
mission, Act  March  16,  1901,  Stats,  and  Amdts.  1900-1,  p.  423, 
held  unconstitutional,  see  history,  §  4  ante. 

As  to  many  miscellaneous  matters  as  to  nuisance,  see  note 
§  3479,  ante. 

Notice  to  successive  owner. — See  14  A.  D.  338-341. 

1713 


§§  3509-3513  CIVIL  CODE.  [Div.IV,Pt.IV. 


PART   IV. 

MAXIMS  OP  JURISPRUDENCE. 

§  3509.  The  maxims  of  jurisprudence  hereinafter  set  forth 
are  intended  not  to  qualify  any  of  the  foregoing  provisions 
of  this  code,  but  to  aid  in  their  just  application. 

History:     Enacted  March  21,  1872. 

88  C.  522,  527,  22  A.  S.  331,  26  P.  518,  519,  12  L.  508  (cited);  123 
C.  525,  530,  531,  56  P.  458  (referred  to  with  §  3534  and  dis- 
cussing  §§  1634,   1658,    1665). 

§  3510.  When  the  reason  of  a  rule  ceases,  so  should  the 
rule  itself. 

History:     Enacted  March  21,  1872. 

88  C.  522,  527,  22  A.  S.  331,  26  P.  518,  519,  12 -L.  508  (applied); 
141  C.  116,  123,  99  A.  S.  35,  70  P.  663,  74  P.  766,   64  L.  236   (cited). 

§3511.  Where  the  reason  is  the  same,  the  rule  should  be 
the  same. 

History:     Enacted  March   21,   1872. 

§  3512.  One  must  not  change  his  purpose  to  the  injury  of 
another. 

History:     Enacted  March  21,  1872. 

§  3513.  Any  one  may  waive  the  advantage  of  a  law 
intended  solely  for  his  benefit.  But  a  law  established  for  a 
public  reason  cannot  be  contravened  by  a  private  agreement. 

History:     Enacted  March  21,  1872. 

58  C.  95,  98  (applied);  95  C.  364,  368,  30  P.  551,  552  (cited); 
99  C.  173,  177,  33  P.  887,  888  (construed  and  applied);  108  C. 
627,  659,  49  A.  S.  97,  41  P.  772  (cited);  113  C.  329,  336,  45  P.  691, 
36  L.  648  (cited);  129  C.  356,  359,  61  P.  1123  (applied);  135  C. 
118,  119,  67  P.  5  (cited);  144  C.  650,  655,'  79  P.  381  (referred  to  as 
inapplicable). 

1714 


Pt.IV.]  MAXIMS.  §§  3514-3520 

§  3514.  One  must  so  use  his  own  rights  as  not  to  infringe 
upon  the  rights  of  another. 

History:     Enacted  March   21,  1872. 

66  C.  138,  151,  56  A.  R.  80,  4  P.  1152  (cited);  86  C.  374,  382,  24 
P.  1074,  1076,  10  L.  139  (applied);  1  C.  A.  335,  339,  82  P.  207  (ap- 
plied— lower  riparian  owner  damming  up  stream);  1  C.  A.  696, 
699,  82  P.  1079  (applied  to  right  of  free  speech). 

§  3515.     He  who  consents  to  an  act  is  not  wronged  by  it. 
History:     Enacted  March   21,  1872. 

70   C.    467,   468,   11   P.   762    (referred  to   as   inapplicable);    95   C. 

541,    544,   30   P.    770,    771    (applied);    99  C.    234,    235,    33   P.   903,   904 

(applied);    106   C.    149,   151,   39   P.   623  (cited   with    §§3516,   3521); 
143  C.   501,   504,  77  P.  405    (cited). 

§  3516.  Acquiescence  in  error  takes  away  the  right  of 
objecting  to  it. 

History:     Enacted  March   21,  1872. 
106  C.   149,  151,  39  P.  623    (cited  with  §§3515,  3521). 

§  3517.     No  one  can  take  advantage  of  his  own  wrong. 
History:     Enacted  March   21,   1872. 

82  C.  77,  83,  22  P.  979,  980  (cited);  125  C.  468,  471,  58  P.  83 
(cited);  4  C.  A.  598,  603,  88  P.  643   (applied  to  gratuitous  agent). 

§  3518.  He  who  has  fraudulently  dispossessed  himself  of  a 
thing  may  be  treated  as  if  he  still  had  possession. 

History:     Enacted  March   21,  1872. 

§  3519.  He  who  can  and  does  not  forbid  that  which  is  done 
on  his  behalf,  is  deemed  to  have  bidden  it. 

History:     Enacted  March   21,   1872. 

143  C.  501,  504,  77  P.  405  (cited);  145  C.  589.  594,  79  P.  268 
(cited). 

§  3520.    No  one  should  suffer  by  the  act  of  another. 

History:     Enacted  March  21,  1872. 
1715 


§§  3521-3526  CIVIL  CODE.  [Div.lV. 

106  C.  149,  151,  39  P.  623  (referred  to  with  §§3515,  3516);  138 
C.  618,  622,  72  P.  173  (applied);  141  C.  221,  227,  74  P.  754  (cited); 
149  C.  69,  77,  84  P.  760,  5  L.  N.  S.  536,  9  A.  C.  851  (applied— neg- 
lig'ent  act  of  city  in  operating  electric-light  plant). 

§  3521.     He  who  takes  the  benefit  must  bear  the  burden. 
History:     Enacted  March   21,   1872. 

106  C.  151  (cited  with  §§3515-3516);  138  C.  618,  622,  72  P.  173 
(applied);  141  C.  221,  227,  74  P.  754  (applied— liability  for  debts 
of  company  presumably  entitles  one  to  corresponding  share  of 
profits  or  dividends). 

§  3522.  One  who  grants  a  thing  is  presumed  to  grant  also 
whatever  is  essential  to  its  use. 

History:     Enacted  March   21,   1872. 

116  C.  587,  591,  48  P.  725  (cited);  142  C.  513,  516,  76  P.  253 
(referred  to);  145  C.  468,  473,  78  P.  951   (applied). 

§  3523.     For  every  wrong  there  is  a  remedy. 
History:     Enacted  March   21,   1872. 

117  C.  195,  202,  49  P.  8,  9  (referred  to  as  inapplicable);  149  C. 
69,  77,  84  P.  760,  5  L.  N.  S.  536,  9  A.  C.  851  (applied— negligent 
act  of  city  in  operating  electric-light  plant) ;  7  C.  A.  398,  411, 
94  P.  582,  583,  588  (applied — remedy  in  equity  for  judicial 
wrong). 

§  3524.  Between  those  who  are  equally  in  the  right,  or 
equally  in  the  wrong,  the  law  does  not  interpose. 

History:     Enacted  March   21,   1872. 
109   C.   571,   583,   42  P.   225    (applied). 

§  3525.  Between  rights  otherwise  equal,  the  earliest  is  pre- 
ferred. 

History:     Enacted  March   21,   1872. 

54  C.   140,   143    (referred  to  as  inapplicable). 

§  3526.  No  man  is  responsible  for  that  which  no  man  can 
control. 

History:     Enacted  March  21,  1872. 
1716 


p|.  lY  ■]  MAXIMS.  §§  3527-3532 

§  3527.  The  law  helps  the  vigilant,  before  those  who  sleep 
on    their    rights. 

History:     Enacted  March   21,   1872. 

§  3528.    The  law  respects  form  less  than  substance. 

History:     Enacted  March   21,   1872. 

58  C.  95.  98  (applied);  89  C.  38,  41,  26  P.  619,  620  (applied- 
notice  of  entry  of  judgment);  95  C.  364,  368,  30  P.  551,  552 
(cited);  129  C.  244,  246,  61  P.  1126  (applied);  135  C.  613,  615,  67 
P.  1043  (cited);  136  C.  416,  419,  69  P.  87   (referred  to). 

§  3529.  That  which  ought  to  have  been  done  is  to  be  re- 
garded as  done,  in  favor  of  him  to  whom,  and  against  him 
from  whom,  performance  is  due. 

History:     Enacted  March    21,   1872. 

87  C.  253,  256,  25  P.  420  (cited);  99  C.  57,  69,  33  P.  786.  790 
(cited);  102  C.  83,  91,  36  P.  378  (cited);  136  C.  416,  419,  69  P. 
87    (cited). 

§3530.  That  which  does  not  appear  to  exist  is  to  be  re- 
garded as  if  it  did  not  exist. 

History:     Enacted  March   21,   1872. 
123  C.   437,  439,  56  P.   49   (applied). 

§  3531.     The   law   never   requires   impossibilities. 
History:     Enacted  March   21.   1S72. 

2  C.  A.  24,  29,  82  P.  1122  (applied — inability  of  viewers  to 
ascertain  damages).  . 

§  3532.     The  law  neither  does  nor  requires  idle  acts. 
History:     Enacted  March   21.   1872. 

58  C.  95,  98  (applied);  83  C.  246.  263.  17  A.  S.  233.  23  P.  869. 
874  (cited);  95  C.  364,  368.  30  P.  551.  552  (cited);  96  C.  210.  212. 
213,  31  P.  38  (applied);  126  C.  413.  417  (applied  hut  crronoously 
cited  as  §3502).  58  P.  914.  915  (correct  citatl.m):  130  C.  392.  393, 
80  A  S  138.  62  P.  615  (referred  to  as  inapplicable* :  144  C.  665. 
669.  79  P.  383  (applied);  147  C.  739.  745.  82  P.  436  (applied— offer 
to  return  that  which  there  is  no  right  to  keep);  3  C.  A.  463, 
469.   86   P.   817    (applied). 

1717 


§§  3533-3540  CIVIL  CODE.  [Div.IV. 

§  3533.    The  law  disregards  trifles. 

History:     Enacted  March   21,   1872. 
70  C.  519,  521,  11  P.  664,  665   (applied). 

§  3534.     Particular    expressions    qualify    those    which    are 
general. 

History:     Enacted  March   21,   1872. 

123  C.  525,  530,  56  P.  458  (referred  to,  with  §  3509,  as  inappli- 
cable). 

§  3535.     Contemporaneous  exposition  is  in  general  the  oest. 
History:     Enacted  March   21,   1872. 

79  C.  477,  485,  21  P.  865,  866  (applied);  118  C.  474,  484,  50  P. 
644   (applied). 

§  3536.     The  greater  contains  the  less. 

History:     Enacted  March   21,   1872. 

Maxim  applied:  27  C.  524.  146  C.  245,  256,  79  P.  891,  106  A.  S. 
23    (referred  to — decree   of  divorce). 

§  3537.     Superfluity  does  not  vitiate. 

History:     Enacted  March   21,   1872. 

Maxim  applied:  2  C.  269;  5  C.  840;  6  C.  19;  20  C.  681;  22  C.  465; 
26  C.   294;   27  C.  496;   32  C.  639,  91  A.  D.   602. 

§  3538.     That  is  certain  which  can  be  made  certain. 
History:     Enacted  March   21,  1872. 

82  C.  497,  500,  23  P.  130,  131  (applied);  130  C.  82,  94,  62  P.  516 
(cited);  146  C.  350,  368,  80  P.  81,  88  (applied);  150  C.  229,  236, 
88  P.  917    (applied  to  executory  contract  of  sale). 

§  3539.     Time  does  not  confirm  a  void  act. 

History:     Enacted  March   21,   1872. 

§  3540.  The  incident  follows  the  principal,  and  not  the 
principal  the  incident. 

History:     Enacted  March  21,  1872. 
1718 


Pt.IV.]  MAXIMS.  §§  3541-3543 

110  C.  164,  167.  52  A.  S.  75.  42  P.  566  (applied);  142  C.  513,  517, 
76  P.  253  (applied);  146  C.  686.  689.  106  A.  S.  75.  81  P.  30.  2  A.  C. 
811  (applied — lien  on  building  is  principal  thing,  and  lien  on 
land  is  incident  to  completion  of  building — effect  of  destruction 
of  building). 

§  3541.  An  interpretation  which  gives  effect  is  preferred  to 
one  which  makes  void. 

History:     Enacted  March   21.   1872. 

123  C.  140.  143.  55  P.  681  (applied);  129  C.  222,  226,  61  P.  1085 
(cited  with  §3542);  136  C.  97,  104,  68  P.  494  (cited  in  dis.  op.); 
141  C.  101,  102,  99  A.  S.  33,  74  P.  699  (cited);  3  C.  A.  348,  353,  85 
P.  165  (applied  to  statute  relative  to  sale  to  state  for  delin- 
quent taxes);   4   C.  A.   184,   190.   87   P.   405    (applied  to   contract).. 

§  3542.     Interpretation  must  be  reasonable. 

History:     Enacted  March   21,   1872. 

129  C.  222,  226,  61  P.  1085  (cited  with  §3541);  130  C.  82,  94,  62 
P.   516    (applied). 

§  3543.  Where  one  of  two  innocent  persons  must  suffer  by 
the  act  of  a  third,  he,  by  whose  negligence  it  happened,  must 
be  the  sufferer. 

History:     Enacted  March   21,  1872. 

54  C.  140,  143  (applied  but  erroneously  cited  as  §  3543  C.  C.  P.): 
93  C.  329,  356,  28  P.  1053,  1058  (applied);  100  C.  617,  621,  35  P. 
328  (applied);  101  C.  405,  411.  40  A.  S.  65,  35  P.  1019  (applied): 
102  C.  93,  105.  41  A.  S.  172.  36  P.  374,  24  L.  197  (applied);  37  P. 
772.  774  (criticized);  122  C.  621.  623.  55  P.  596  (referred  to);  69 
P.  481,  483  (applied  where  loss  resulted  through  pretended 
agent's  disposition  to  keep  things  which  did  not  belong  to 
him);   143  C.  501.  504,  77  P.  405   (cited);  83  F.  48,  55   (cited). 


1719 


INDEX. 

f  References  are  to  sections.] 

"A    COiNSIIJKKATION."      See    tit.    Vnltinhle    ColiHldernl  l..n. 
ABANDONMENT.      See   tit.   Appro|irl:i(  ion. 

as  to,  2716. 

in  marine  Insurance.     See  tit.  Mnrlne  liiHiirniKM-. 

as  to,  generally,  2716-2732. 
notice  on  actual  total   loss,  not  necessary,   2709. 
of  child,  adoption,  224. 

by  father,  custody  on,  197. 

guardianship  of,  246. 

parent  presumed  to  rellntjulsh  on,  211. 

what  deemed  to  be,   224. 
of   homestead,   1243,  1245. 
of  husband  by   wife,  support,   175. 
of  ship  by  master,  2041. 
of   water  appropriation,    1411. 
parent  by  child,   no  liability  for  support.   208. 
shipmaster's  authority    ternilnated   by,   2381. 
thing  abandoned,   1872. 
wat^r  appropriation,  of,   1411. 
what  deemed   to  be  of  child,    224. 
\IIATKMENT 
by    legacy,    1362. 
of  nuisance.     See  tit.  NulMniice. 

as   to   generally,    34S  )-3.".ii:!. 

.\iinucTiox 

as  to,   in  general,   49. 

of   husband   or   wife.   etc..   49. 
\II.S<U,ITE    OWNKIISIIII* 

what    is.   670. 
.\<'CKPT.4NCK.      See   tits.    «   oii«rn«-t;    Nruol  InMr    I  ii>.(  rmiMMil  «. 

of  accord,   1  .t23. 

of  benefit  of   transaction,    1.'>R9. 
of  gift.     See  tit.  Gift. 
of  guaranty,   279.'>. 
of  partial   performanc<-,   1741. 
of  principal,   walvi-s    interest,   when.   3290. 
of  rent,  lease  renewed   by,   when.  1945. 
partial  performance,  of,  effi^ct,  1741. 
ACCESSION 

as  to  acquisition   of  property  by,  1000. 

1721 


INDEX. 
[References  are  to  sections.] 

ACCESSION    (continued). 
to  personal  property. 

by  uniting  several  things,   1025,  1205. 
increase  of  tiling  hired  belongs  to  liirer,  1926. 
increase   of  thing  pledged,   2989. 
inseparable  materials,   1029. 
materials  of  several  owners,  1030. 
of  thing  pledged,    belongs  to   pledgeor,    2991. 
owner's  election  between  thing  and  its  value,  1032. 
ownership  of,  732. 
principal  part,  what,  1026,  1027. 
product  of  thing  belongs  to  hirer,  1926. 
the  more  valuable  or  bulky,  1027. 
uniting  materials  and  workmanship,  1028. 
wilful    trespassers,    1031. 
wrongdoer,  liability  in  damages,  1033. 
to  realty 

alluvion.     See  tit.  Alluvion. 

as  to,  generally,   1014.  , 

avulsion.     See  tit.  AvuLsion. 

as  to,  generally,  1015. 
fixtures.     See  tit.  Fixtures. 
as  to,   1013. 

removable  by  tenant,  1019. 
islands    in    navigable    and   non-navigable    streams.      See    tit. 
Islands. 
formed  by  division   of  streams,    1018. 
sudden  removal  of  bank.     See  tit.  Avulsion. 
uniting  materials  and  workmanship,   1028. 
wilful  trespass,  1031. 
wrongdoer  liable  in  damages,  1033. 
ACCESSORY 
a  lien  is,  2909. 

transfer  of  principal  thing  passes,   1084,  3540. 
ACCIDENT.     See  tit.  Mistake. 

deposit  by,  to  be  accepted,   1816. 

disregarding  erroneous  parts  in  written  instrument,  1640. 
trust  arising  from,  2224. 
ACCIDENT   INSURANCE   CORPORATION.      See  tit.   Mutual   Life, 
Health,  and  Accident   Insurance   Corporation. 
investment  of  funds  of,   421,   421  [a]. 
ACCIDENT    INSURANCE    POLICY 

"compensation,"  meaning  of,  1644. 
ACCORD  AND  SATISFACTION 

acceptance   of  consideration    extinguishes   obligation,    1523. 
accord 

as  to   what  is  an,   1521. 
effect  of,  1522. 

1722 


INDEX. 
[References  are  to  sections.] 

ACCORD  AND  SATISFACTION   (continued), 
definition  of,   1521. 

part  performance  is  satisfaction,  when,  1524. 
satisfaction,  wliat  is,   1523. 
ACCOUNT.     See  tit.  Aooounting. 
by  employee,  1986,  2014. 
by  partner,   2412,  2438. 
by  servant,  1986,  2014. 
by  trustee,  2237. 

partners  mutual  liability  to,  2412. 
ACCOUNTING.     See  tit.   Account. 

by  partners,    2412. 
ACCRETION.     See   tit.   Acees-sion. 
ACCUMULATION 

application  of  income  to  support  of  minor,  726. 
tlirectioii.s  for 

for  benefit  of  minors  in  being-,  must  be,  724. 
for  longer  term  than  until  attaining  majority,  725. 
void  in  part  when,  effect  of,  725. 
void  unless  allowed  by  law,  723. 
when  void,  724,  725. 
express  trust  for,   of  rents  and  profits,  857. 
of  Income  of  property 

for  benefit  of  one  or  more  persons,  724. 
rules  governing,   722. 

to  commence  at  a  subsequent  date,  724. 
to  commence  on  the  creation  of  the  interest,  724. 
rules  by  which  governed,  724. 
time  of  commencement  and  termination,  724. 
ACKNOWLEDGE.      See  tits.  Adoption;  nastard.s. 
ACKNOWLEDGMENT.       See     tits.     Acknoivledgnient     of     Ins<rii- 
nients;  Deeds;  Registration;  Wills. 
act  citing  defect  in,   1207. 

affidavit  as  to  identity  of  person  executing.   1185. 
articles   of   incorporation,   of,   292. 
assignment  for  benefit  of  creditors,  of,  3458,  3459. 
by  attorney  in  fact,  form  of,  certificate,  1189. 
certificate  of 

by  attorney  in  fact,  form  of,  1189. 
damage  for  defective,  1202. 
defective,  how  corrected,   1202. 
indorsement  of,  on,  1188. 
justice  of  the  peace,  by,  1194. 
contempt,  punishment  for  by  officer  taking,   1201. 
conveyance  executed  before  code,   1205,   1206. 
corporations,  of 

as  to  how  executed,  1161. 

1723 


INDEX. 
[References  are  to  sections.] 

ACKNOWLEDGMENT. 

corporations   of    (continued). 

form  of  acknowledgment  by,  1190. 

prerequisites  of  taking,  1185. 
correcting  defective  certificate  of,  1202. 
damages  for  defective,   1202. 
declaration  of  marriage,  of,  76,  79%. 
deputy  may  take,  1184. 
foreign 

certificate  of  clerk,  1189. 

form   of,    1189. 

who  may  take,   1182,   1183. 
form  of 

l>y  attorney  in  fact,  1188. 

by  corporation,   1190. 
general,   1189. 

of  foreign,   1189. 
illegitimate  child,  of,   1387. 
indorsement  on,   1188. 
interpreters,  1201. 

inventory  of  wife's  property,  of,   165. 
justice  of  the  peace,  power  to  take,  1194. 
mortgages,  of,  2952. 

of  abandonment   or  declaration   of  homestead,   1243. 
of  articles  of  incorporation,   292. 
of  assignment  for  benefit  of  creditors,   3458. 
of  assignment  of  debt  secured  by  mortgage,  2936. 
of  certificate  of  partnership,  2480. 
of  conveyances  made  before  the  code,  1205,   1206. 
of  homestead 

abandonment  of,   1243. 

conveyance   of,   1242. 

declaration   of,   1243. 

encumbrance  of,  1242. 

selection  of,    1262,   1266. 
of  illegitimate  child,  1387. 
of   inventory   of   wife's   property,   165. 
of   marriage 

declaration  of,  77. 

settlement   of,   178-180. 
of  married  woman's  conveyance,   1187. 

deed,   1093. 

power   of  attorney,    1094. 
of  partnership  certificate,  2480. 
of  power  of  attorney  and  revocation,   1216. 
of  sale  of  wine,   3440. 

officers  taking,  authority   of,   1194,   1201. 

1724 


INDEX. 
[References  are  to  sections.! 

ACKNOWLEDGMENT    (continued), 
partnership,  of,  certificate  to,  2480. 
prerequisite  to  taking,  1185. 
proof  of  instruments  which  are  not,   1195. 

action  and  judgment  for,  1203,   1204. 
recorded  vritliont 

what  instruments  can  not  be,   1161. 
what  instruments  may  be,  1159,  1160. 
requisites  of,  1185. 

seals  of  officers  to  be  affixed,  when,  1193. 
signatures  of  officers  must  be  affixed,  1193. 
subpoenas  may  be  issued  by  officers  taking,  1201. 
what  law  governs,   1205,   1206. 
who  may  take   within  the  state,   1180-1184. 
who  may  take  without  the  United  States,  1183. 
witnesses  to,   1196,  1197. 
ACKXOWLEDGMEXT   OF   INSTRUMENTS 
by  married  -woman 

certificate   of  acknowledgment,   1187,   1189. 
general  form  of  certificate  of  within  the  state,  1189. 
outside  of  the  state,  1189. 
by  whom  may  be  taken  within  the  state,   1180,  1181. 
by  whom  may  be  taken  without  the  state,  1182. 
by  whom  may  be  taken  without  the  United  States,   1183. 
certificate  of  justice  in  certain  cases,  1194. 
deputy  can  take  acknowledgment  when,  1184. 
form   of  acknowledgment  by  attorney  in  fact,   1189. 
form   of  acknowledgment   by   corporation,    1190. 
form  of  acknowledgment  by  married  woman 
within  the  state,  1187,  1189. 
without  the  state,   1189. 
requisites  for  acknowledgment,   1185. 
ACaUIESCEXCE 

objections  removed  by,   3516. 
ACTION 

by  owner  and  occupant  of  dominant  tenement,   809. 
by  owner  of  servient  tenement,  810. 
for  divorce.     See  tit.  Divorce. 

for  recovery  of  stock.     See  tit.  AHses.sment  of  Stocks. 
for  overcharge  by  street  railroad  company,  504. 
lies   to  obtain   judgment  proving  instrument,    1203. 
limitation  of.     See  tit.  I^imitation  of  Action.^. 
pending,  not  affected  by  code,   6. 
purchaser  of  franchise  may  maintain,  when,  390. 
to  recover  assessment  of  corporate  stock,  349. 
ACT  OP  GOD 

liability  of  carrier  relieved  by,  2194. 
performance  of  obligation  excused  by,   1511. 

1725 


INDEX. 

[References  are  to  sections.] 

ACTUAL.  NOTICE.     See  tit.  Notice. 
ADEMPTION.      See  tit.   Legacies. 

deemed  advancement,  when,  1351. 
ADJOURNMENT 

of  corporate  election,  314. 
of  corporate  meeting,  312. 
ADMINISTRATOR.     See  tit.  Executor  and  Administrator. 
ADMIRALTY.      See  tit.   Ships  and  Sliipping. 
ADOPTION 

as  to  generally,  221. 
abandoned  cliild 

of,  consent  not  necessary,  224. 

wlien   child   deemed   to   be  abandoned,    224. 
adoption  of  illegitimate  child,   230. 
adopting  parent  must  be  ten  years  older,  222. 
any  minor  child  may  be  adopted,  221. 
by  whom  child  may  be  adopted,  222. 
consent  to 

as  to  necessity   of,   224. 

of  child,  267. 

of  non-residents,  225. 

of  parents,  who  not  required,  224. 

of  wife,    223. 
contract  of,   226. 

how   entered   into,    226. 

to  be  filed,  227. 
deserted  child,  224. 
effect  of  adoption,  227,  228. 

on  former  relations  of  the  child,  229. 
from  orplian  asylums 

in  general,  224. 

judge's  order  on  adoption,   227. 
name  of  adopting  parent,  child  may  take,  228. 
non-residents,  226. 

one  spouse,  must  have  consent  of  other,  223. 
order  of  adoption,    227. 

to  be  filed,   227. 
petition  for,   226,   227. 
proceedings  on  adoption,  226,  227. 
when  not  necessary,  214. 
who  may  adopt,   221,   222. 
ADULT 

child,  compensation  for  support  of,   208,   210. 
who  is  an,  27. 
ADULTERY 

defense  of  plaintiff's  adultery,  93. 
definition  of,  93. 
divorce,  ground  for,   92. 

1726 


INDEX. 
[References  are  to  sections.] 

ADVANCEMEXTS.      See   tit.   liCgacies. 

cl:iild,  to,  effect  of,  1309. 

constitute  part  of  distributor's  share,  wlien,  1395. 

death  of  heir,  advance  to  before  decedent,  1399. 

during  life  of  testator,  effect  of,  1309. 

effect  on  share  of  child  receiving,  1395,  1399. 

effect  where  less  or  greater  than  share,  1396. 

taken  towards  share  in  testator's  estate,  1395. 

to  child,  effect  of,  1309. 

to  heir  who  dies  before  testator,  1399. 

value  of,  how  determined,  1398. 

what  are,  1398. 

when  deemed  ademption,  1351. 

when  not  enough,   1396. 

when  too  much,  1396. 
ADVERSE   POSSESSION 

as  to  generally,  1007. 

confers  title,  when,  1007. 

owner  of  property  held  by,  may  transfer,  1047. 

property  so  held  may  be  mortgaged,  2921. 
ADVERSE   POSSESSION    OF   WATERS.      See    tit.    Appropriation. 
AFFIDAVIT 

as  to  sum  contributed  by  special  partner,  2481. 

corporation,  on  filing  articles  of,   294. 

mining,  showing  work  done  or  notices  posted,  1159. 

of  payment  of  ten  per  cent  subscription  to  stock,  295. 

of  publication   of  notice  of  sale  of  delinquent  stock,   348. 

of  subscription  to  stock,  etc.,  295. 

of  transfer   of   stock,  by  non-resident.   326. 

on  filing  articles  of  incorporation,  295. 

pnrtner.sliip 

fictitious  name,   2471. 

of  notice   of   special,    2484. 

to  inventory  in  assignment  for  benefit  of  creditors.  3462. 

when  required  on  transfer  of  certificate  of  stock,  326. 
AFFIRMATIONS.     See  tit.   Oath! 

and    oaths,    officer    authorized    to    take    proof    of    instruments 
may  administer,   1201. 
AFTER-AC^l'IRED    PROPERTY 

passes  by  will,  when,   1312. 
AFTER-ACailRED  TITLE 

conveyance  passes,  when,  1106. 

inures  to   mortgagee.  2930. 
AFTER-HORX    CIHI^D 
takes  under  will,  1337. 
unprovided  for  to  succeed,   1306. 
AGE 

of  majority.     See  tit.  Majority. 

1727 


INDEX. 
[References  are  to  sections.] 

AGENCY.     See  tit.  Agent. 

actual  agency,  what  is,  2299. 
actual  authority 

of  factor,   2368. 

defined,  2295. 
actual  or  ostensible  agency,  2298. 

actual  agency,  what,  2299. 

ostensible  agency,  what,  2300. 
acts  which  an  agent  may  perform,  2305. 

acts  within  scope  of  authority  affecting  principal  how,  2330. 
agent  as  trustee 

authority  as  to  persons  having  notice  of  restrictions,  2318. 

must  keep  principal   informed,  2020. 

not  having  authority  to  contract,  2345. 

not  to  act  in  own  name,  2322. 

rights  of  persons  dealing  with  without  knowledge  of  agency, 
2336. 

to  conform  to  authority,  2019. 

to  define  scope  of  agency,  2322. 

under  legal  disability,  2355. 

warrant  of  authority,  2342. 

who  may  be,  2296. 
agent's  authority  as  to  persons  having  notice  of  restrictions, 

2318. 
as  to  persons  dealing  without  knowledge  of  agency,   2336. 
attorney  in  fact  to  convey  realty.     See  tit.  Attorney  in  Fact. 
auctioneers.     See  tit.  Auctioneers, 
authority  of  agent 

agent   warrants   his,    2342. 

as  to  persons  having  notice  of  restrictions,  2318. 

as  to  persons  with  notice  of  restrictions,  2318. 

construed   by   its   specific   terms,   not   by   the   general   terms, 
2321. 

exceeded,   whether  principal  bound,   2333. 

exception  as  to  general,  2322. 

exceptions    to    general,    2322.* 

implied,  2319. 

measure  of,    2315,   2318. 

necessary  authority  of,   2319. 

of  general  agent  to  receive  price  of  property,  2325. 

of  ostensible  authority,  2317. 

of  special  agent  to  receive  price,  2326. 

to  be  construed  by  its  specific  rather  than  its  general  terms, 
2321. 

to  disobey  instructions,    2320. 

to  receive  price,  2325. 

to  warrant,   2342. 

1728 


INDEX. 
[References  are  to  sections.] 

AGENCY 

authority  of  agent    (continued). 

want  of,  actual,  2316. 

what  authority  may  be  conferred,   2304. 

what  included  in  authority  to  sell  real  property,  2323. 

what  included  in  power  to  sell  personal  property,  2323. 

what  may  be  delegated  to,  2304. 

whether  principal   bound  when  agent  exceeds,  2333. 
cannot  have  authority  to  defraud  principal,  2306. 

creation   of  agency  unnecessary,    2307. 
collecting,  duty  of,  2021. 

consideration  for  appointment  unnecessary,   2308. 
covenants  may  be  given  by  agent,  2324. 
created,  how,  2307. 
created  by  ratification,  2307. 

damages  for  breach  of  warranty  of  agent's  authority,  3318. 
death  of 

agent  terminates,  2355. 

principal   terminates,   2356. 
definition,   2295. 
delegation  of  authority,  2349,  2350. 

when  agent  may  make,  2349. 
delivery  of  contract  to  agent,  1626. 
exceptions  to  general  authority,  2322. 
exclusive  credit  given  to.  effect,  2335. 
factors.     See  tit.  FaetorN. 
fraud  of,  2306. 
eeneral  aii^eiit 

autliority  to  receive  price,  2325. 

defined,  2297. 
general  or  special  agency,  2297. 
incapacity  of  party  terminates,   2345. 
indemnity  against  acts  of,  2775. 
instructions,  agent's  power  to  disobey,  2320. 
instrument  executed  by  binds  principal,  wlien,  2337. 
instrument    intended    to    l)ind    principal    does    not   bind   agent. 

2337. 
insurance  by,  2589. 
interpretation  of  authority,   2321. 
manager  of  ship  general  agent  for  owner.s,  2070. 
married  woman's  power  of  attorney,   1094. 
measure  of  agent'.s  authority.   2315,  231S. 
minor  cannot  delegate  power,  33. 
mutual   obligations  of  principals  and  agt-nts  t<i  tlilrd  persona. 

2330. 
necessary  authority  of  agent.   2319. 

negligence   or   omission   of,  principal    responsible,    2338. 
Kerrs   C.   C— 55  1T29 


INDEX. 

[References  are  to  sections.] 

AGENCY   (continued). 

not  having  capacity  to  contract,   2345. 

notice  of  dishonor  by  agent,  3148. 

notice  to   agent.      See   tit.   Constructive  notice. 

binds  principal,   when,    2332. 
obligation    of    agent    to    surrender    property    to    third    person, 

2344. 
oral  authorization,  2309. 
ostensible  agency,  what  is,   2300. 
ostensible  antliority  of  agent 

as  to  generally,   2300. 

defined,  2300. 

of  factor,   2369. 

principal  not  liable  for  acts  under,  when,  2334. 

what  amounts  to,  2317. 
particular  agencies,  as  to  generally,  2362. 
partner  agent  for  firm,   2429. 

liable  as  agent,  2443. 
pilots.      See  tit.   Shipmasters  and  Pilots. 
power  of  attorney  to  gratuitous  employee,  1975. 
power  to  disobey  instructions,  2320. 
price,  authority  to  receive,  2325. 
principal  bound 

by  instrument  executed  by  agent,  when,  2337. 

how  affected  by  agent's  acts  within  scope  of  authority,  2330. 

when  bound  by  incomplete  execution,  2331. 

when  bound  where  agent  exceeds  authority,   2333. 
ratification 

creates   agency,    2307. 

created,  agent's  liability  respecting,  2339. 

effect  of  giving  exclusive  credit  to,  2335. 

of  agent's  acts,   2310. 

of  part  of  transaction,  2311. 

void,   when,   2312. 

^Then  and  bon'  may  be  made 
as  to  generally,  2310. 

not  to  work  injury  to  third  party,   2313. 
of  part  of  transaction,  2311. 
rescission   of,   2314. 
when   ratification   void,   2312. 
real  estate  agent  may  give  covenant,  2324. 
real  estate  brokers,  statute  of  frauds  relating  to,  1624. 
representations,  power  of  agent  to  make,   2319. 
rescission  of  ratification  of  agent's  act,   2314. 
responsible  to  third  parties,   2343. 
revocation  by  principal  terminates  agency,  2355. 
rights  of  persons  dealing  with  agent  without  notice  of  agency, 
2336. 

1730 


INDEX. 
[References  are  to  sections.] 

AGENCY   (continued). 

scope  of,  agent  not  to  define,  2322. 

set-off  against  claim  of  principal  by  third  person,  2336. 

shipmasters.     See  tit.  SIiipniiiNters  nnd   I'ilot.s. 

ship's  manager.     See  tit.  Sliip'.s  Maiuig^or. 

special  agent 

authority  to  receive  price,  2325. 

defined,  2297. 
statute  of  frauds  in  relation   to,   1624,   2309. 
Hubag^nt 

liability   of,    2022. 

rightfully  appointed  represents  principal,   2351. 

termination   of  power  coupled  witli  interest,   2355. 

unauthorized  employment  of,  2350. 
termination  of 

by   death    of   agent,   2355. 

by  death  of  principal,  2356. 

by  extermination  of  subject  of,  2355. 

where  coupled  with  an  interest,  2356. 
third  person,  agent's  obligation  to  surrender  property  to,  2344. 
third  persons  not  to   Ije  injured  by   ratification   of  agent's  act, 

2313. 
torts,  agent's  liability  for  to  third  person,   2343. 
torts  of  agent,  liability  of  principal  for,  2336,  2339. 
trustee's  power,  as,  2267. 
warrant  of  autliority  of,  2323,  2342. 
who  may  appoint  an  agent,  2296. 
who  may  be  an  agent,  2296. 

wilful  wrongs  of  the  agent,  principal   lial)le  for.  when,  2339. 
AGENT.     See  tits.   Aseney;   Kiiiployinent ;   Mnxter  niid   .Servant. 
appointment  of  for  co-oi)erative   corporat  ion.s,   653,  6r)3ii,   653x. 
collecting  agent.     See  tit.  Attorney. 

duties  and  powers  of,  2021, 
must  conform  to  authority  conforriMl,   _'im  i. 
must  keep  his  principal   informed,  2020. 
notice  to  in  line  of  duty.      See  tit.  ConNlnieUte  .Nullee. 
of  corporations.     See  tits.  C'oriioratlonN:  forpornte  iNnvem. 

of    co-operative    agricultural,    etc.,    association.   aiM'"iiitnient 
of,   653q. 

of  co-operative  corporations,  appointment  of,  653x. 
power  to  sell,  and  receive  payment,  1142. 
responsibility  as  subagent,  2022. 
AGISTOR 

as  to  lien   upon  property,  3051. 
AtJitlOKMEXT.     See  tit.  Contract. 
seamen   not  to  lose  wages  by,   2056. 

17.31 


INDEX. 
[References  are  to  sections.] 

AGRICULTURAL,  FAIR  CORPORATIONS 

debts  and  liabilities,  amount  that  may  be  contracted,  621. 

liabilities  which  may  be  contracted,  621. 

may  acquire  and  hold  real  estate,   620. 

may  fix  fee,  etc.,  of  membership,  622.  ' 

not  for  profit,  622. 
AGRICULTURAL   LANDS.      See  tit.   Lea.se. 
ALIENATION.     See  tit.  Conveyance. 
ALIENS 

apprenticeship  of,   274. 

estate  of,  when  vests  in  sovereign,  1404. 

inheriting  must  claim  within  five  years,  672. 

property  rights  of,  671. 

right  to  inherit  and  succeed,   1404. 
ALIMONY.     See  tits.  Allowance;  Divorce. 

pendente   lite,   when   allowed,    137. 
ALLUVION.     See  tit.  Acee.s.sion. 

accession  by,  1014. 

definition   of,   1014. 

islands.     See  tit.  Lsland.s. 

ownership  of,  1014. 

sudden  reinoval  of  bank  of  stream,  1015. 
ALTERATION 

and  cancellation  of  contracts,   in  general,  1697-1701. 

of  duplicate  of  contract,  1701. 

of  legal  relation  of  adopted  child,  229. 

of  legal  relations  of  husband  and  wife,  159. 
ALTERNATIVE 

future  interest  in  the,  602, 

obligations. in  the,  1448,  1451. 
ALTERNATIVE  OBLIGATIONS.     See  tit.   ObIig;ation.s. 
AMBIGUITY 

in   contracts,   construction   of,   1376-1403. 

in  wills,  construction   of,   1323. 
AMENDMENT.     See  tit.  Corporations. 

to   articles   of  incorporation,   362. 
AMUSEMENT,  PLACE  OF,  ETC. 

rights   of  citizens  in,   51. 
ANIMALS 

care  required  of  borrower,  1886. 

cruelty  to,  607-607g. 

damages  for  injuries  to,  3340. 

depositary  of,  1834. 

game.     See  tit.  Game. 
right  to  take,  802. 

injury  to,  damages  for,  3340. 

killing  sheep  by  dogs,  3341. 

1732 


INDEX. 
[References  ai'e  to  sections.] 

ANIMALS    (continued). 

lien  for  keeping-,  3051. 

lien  of  owner  for  service  of  stallion,  etc.,  3062. 

societies   for    the   prevention    of    cruelty    to.      See   tit.    Societies 
for  the  Prevention  of  Cruelty  to  Children  and  AnimnlN. 

wild,  property  in,  656. 
ANNUAL  REPORT 

of  bridge,  ferry,  wharf,  chute,  and  pier  corporations,  531. 

of  building  and  loan  associations,  645. 

of  consolidated  colleges,  etc.,  652. 

of  homestead  corporations,  565. 

of  land  and  building  associations.     See  tit.  Land  and  Building 
Corporations. 

of  religious,  social,  and  benevolent  corporations,  596. 
ANNUITIES 

definition  of,  1357. 
ANNULMENT  OF  MARRIAGE.     See  tit.  Divorce. 
ANTECEDENT  WILL.      See  tit.   Wills, 

revivor   by   revocation   of  subsequent  will,   1296. 
ANTENUPTIAL   CONTRACTS 

as  to,   ITS. 
APPORTIONING   EASEMENTS.      See    tit.    Easements   and   Servi- 
tudes. 
APPORTIONMENT 

or  hire,   when,  1935. 

of  liens,  effect  of,  2912. 
APPRAISEMENT 

of  homestead,  1245,  1260. 

of  property  found,  1S65. 
APPRAISERS 

report  of  and  contents  of,  1252. 

to  value  homestead,  1251. 

to  be  sworn,  1250. 

to  determine  value  and  divisibility,  1251. 
APPRENTICE.      See   tit.   Master  and   Appreutlee. 

APPROPRIATION   OF  ^V^\TER.     See  tits.  Water  and  Canal   Cor- 
porations;   Water-Right. 

water-right.      See   tit.   Water-Riglit. 

water-rights  may  be  acquired  by,  1410. 
APPURTENANCES 

deemed  fixtures,  when,  661. 

irrigation  stock  appurtenant  to  land,  when,  324. 

land,  to,  662. 

of  ship.      See  tit.   Ships  and  Shipping. 

pass  by  transfer  of  land,  476,   1084,  3540. 
ARBITRATION 

partner  may  submit  to,  2430. 

specific  performance  of  agreement  for  not  enforced,  3390. 

1733 


INDEX. 
[References  are  to  sections.] 

ARREST 

of  children  and  commitment  to  asylums,  etc.,  607g. 
ARTICLES  OF  INCORPORATION.     See  tit.  Corporations. 

acknowledgment  of,  292. 
amendment  of,  362. 

assent  of  two-thirds  of  stockholders,  362. 

filing  copy  of  amended  articles,  362. 

original  and  amended  articles  together  contain  what,  362. 

penalty  for  neglect  to  file,  362. 
building  and  loan  association,  of,  what  to  contain,  633. 

amount  to  be  subscribed  must  be  fixed,   293. 
certain  corporations  to  state  further  facts  in  articles,  291. 
co-operative  agrieiiltural,  etc.,  a.ssociatlons 

amendment  of,   653r. 
debts  at  time  of,  653r. 

subscription  of,  653b. 

what  to   contain,    653o. 
co-operative  corporation-^ 

amendments  of,   653y. 

what  to  contain,  653v. 
copy  of  must  be  filed,  where,  299[a]. 

corporate  name  must  not  be  duplicated  nor  closely   imitated, 
296. 

certificate  to  be  filed,  297. 
how  executed,  292. 
number  of  directors  and  trustees,  increasing  and  diminishing, 

290. 
lost,  restoration  of,  297a. 
prerequisites  to  filing  of,  294. 
prima  facie  evidence,   when,  297. 
restoration  of  lost,   297a. 
what  they  must  satisfy,  290. 
ASSESSMENT  OF  STOCK 

action  to  recover  assessments,  349. 
action  to  recover  stock  sold 

as  to  generally,  347. 

limitation   of  action,  347. 

proof  of  publication  and  sale,  348. 
delin<|neut   notice  of  assessment 

as  to  generally,  337. 

contents  of,  338. 

form   of,   337. 

jurisdiction  conferred  by,  340> 

publication  of,  339. 

sale  of  stock  at  auction,  341. 

disposition  of  stock  purchased  by  corporation,  344. 

extension  of  time  of  delinquent  sale,  notice  of,  345. 

1734 


INDEX. 
[References  are  to  sections.] 

ASSESSMENT  OF  STOCK 

delinquent  notice  of  a.siiies.sinent 

sale  of  stoclv  at   auction    (continued), 
higliest  bidder  to  be  purcliaser,  342. 
in  default  to  bidder  corporation  may  purcliase,  343. 
liow  levied,  331,  332. 

levy  of  assessment  while  old  assessment  unpaid,  333. 
not   invalidated   by   failure   to   make   publication    of   notice   as 

required,  346. 
notice  of  assessment,  335. 

delinquent  notice,  form  of,  337. 
form  of  notice,  335. 
publication  of  notice,  336. 
service  of  notice,  336. 
order  of,  what  shall  contain,  334. 
power  to  assess,  limitation  as  to,  332. 
waiver  of  sale,  action  to  recover  assessments,  349. 
ASSESSMENTS.     See  tit.  Taxes  and  Assessments. 
ASSIGNEE.     See  tit.  Assignment  for  Benefit  of  Creditors. 

takes  subject  to  rights  of  third  persons,  3460. 
ASSIGNEE  OP  LESSEE 

remedies  of  lessor  against,  822. 
ASSIGNMENT.      See    tits.    Assignment    for    Benefit    of    Creditors;' 
Conveyances. 
as  to  what  may  be  assigned.     See  tits.   Clioses  in  Action;  Per- 
sonal Property. 
of  action  against  street  railway  for  penalty  for  overcharging, 

504. 
of  choses  in  action,  954. 
of  debt  carries  mortgage,  2934. 
of  debts  secured  by  mortgage,  2936. 
of  life   insurance  policy,   2764. 
of  mortgage  as  notice,   2933. 
partner  may  not  make,   2430. 
warranty  of  written   instrument  sold,   1774. 
ASSIGNMENT  F^OR  BENEFIT  OF  CREDITORS 

assent  of  creditor  necessary  to  modification  of,  3473. 
assignee 

accounting  of,  3469. 
bond  of,  3467. 
compensation  of,  3471. 

protected  for  acts  done  in  good  faith,  3472. 
takes  subject  to  right  of  third  persons,   3460. 
as  to,  generally,  3449. 
certain  transfers  not  affected  by,  3451. 
conditions  of  disposal  and  conversion,  3468. 
debtor  may  execute,  when,  3449. 

1735 


INDEX. 
[References  are  to  sections.] 

ASSIGNMENT   FOR  BENEFIT   OF  CREDITORS    (continued), 
exempt  property  not  affected  by,  3470. 
insolvency,  what  is,  3450. 
instrument   of  assignment,   3458. 

compliance  with  statute  necessary  to  validity,  3459. 
inventory 

filing  of,  3463. 

nature  and  requisites  of,  3461. 

recording  of,  3463. 

where  more  tlian  one  assignor,  3464. 
verification  of,  3462. 
modification    of   assignment,   assent   of   creditor   necessary   to, 

3473. 
of  real  property,  3466. 
what  debts  may  be  secured,  3452. 
when  assignment  void,  3457,  3465. 
as  to,  generally,  3457. 
ASSOCIATIONS  AND  SECRET  ORDERS 

not  insurance  corporations,   451. 
ATTACHMENT 

exemption  of  policy  of  life,  etc.,  insurance  from,  453k. 
lien  of  officer,  3057. 
of  mortgaged  personalty,  2968,  2972. 
ATTORNEY  FEES 

upon  foreclosure  of  mortgage.    See  tit.  Land  and  Building  Cor- 
porations. 
ATTORNEY-GENERAL 

duty  of  when  alien  does  not  claim,  1405. 
may  .inquire   into   corporations,   382. 
proceedings  by,  in  case  of  escheat,  1406. 
ATTORNEY  IN  FACT 
as  to,  1095. 

certificate  of  acknowledgment  by,  1192. 
form  of  certificate  of  acknowledgment  by,  1192. 
how  must  execute  for  principal,   1095. 
officers  must  aflSx  their  signatures,  1193. 
to  convey  realty,  1095. 
revoking  power  of,  1216. 
ATTORNMENT 

by  tenant  to  stranger,   effect  of,   1948. 
to  landlord  on  grant  of  rent,  etc.,  1111. 
AUCTION 

auctioneer's  memorandum,  1798. 

bids  by  seller  or  agent,  when  void,  1797. 

bid,  withdrawal,  1794. 

by  bidding,  1797. 

defined,  1792. 

1736 


INDEX. 
[References  are  to  sections.] 

AUCTION  (continued). 

delinquent  stock,  sale  of  at,  341. 

memorandum  of  auctioneer,  1798. 

pledge,  sale  of  at,  3005. 

sale  by,  1792. 

complete,  when,  1793. 

under  written   conditions  modifying,   1795. 

statute  of  frauds,   1624. 

under  written  conditions,   1795. 

withdrawal   of   bid,   1794. 

without  reserve,  rights  of  buyer,  1796. 
AUCTIONEERS.     See  tit.  Agents. 

authority  from  seller,  2362. 

authority  from  bidder,  2363. 

memorandum  by,  as  to,  1798. 
AUTHOR 

property  of  in  writings,  980-985. 
AUTHORITY 

joint,  how  construed,  12. 
AUTOMOBILE 

franchise  for  constructing  road  for,  524. 
AVERAGE.     See  tit.  General  Average. 
AVOIDING  TOLLS 

penalty  for,  519.  • 

AVULSION.     See  tit.  Accretion. 

distinction  from  alluvion,  1015. 

islands.     See  tit.  Islands. 

sudden  removal  of  bank,  1015. 
AWARD.     See  tit.  Arbitration. 
BADGES 

officers  of  railroads  to  wear,  488. 

to  be  worn  by  agents  of  society  for  prevention  of  cruelty,  etc. 
607f. 
BAGGAGE.     See  tits.  Carriers;  Railroad  Corporations. 

bicycle  as,  2181. 

carried 

and   delivered   how,    2183. 
at  owner's  risk,  when,  2183. 

check  to  be  affixed  to  by  railroad,  479. 

checking,   generally,   2183. 

consists   of   what,   2181. 

damages  for  failure  to  check,  479. 

liability   for,    2182. 

lien  of  carrier  on,  2191. 

obligation  to  carry,  2180. 

obligation  to  carry  on  stage,  2180. 

sale  of  by  innkeeper  for  storage,  1862. 

1737 


INDEX. 
[References  are  to  sections.] 

BAGGAGE    (continued). 

to  be  checked,  479. 

unchecked,  carried  at  owner's  risk,  2183. 
BAIL.     See  tit.   Indemnity. 

as  to  what  is,  2780. 

how  regulated,  2781. 
BAILED    HOPS. 

tare  op,  995. 
BAILMENT.      See    tits.    Depo.sit;    Depositary;    Hiring;    Loan    for 
Use;   W^arebou.senian. 

gratuitous  depositary,  creditor  is,  when,  1505. 
BANK.     See  tits.  Banking'  Corporations;  Savings  Banks. 

book  and   notice  to   directors  and   stockholders,    312[a]. 

lien  of  banker,  3054. 
BANK  ASSOCIATION.     See  tit.  Banking  Corporations. 
BANK  COMMISSIONER 

land  and  building  corporations  to  report  to,  644. 
subject  to,  647. 

report  of,   644. 
BANK-NOTES.      See  tit.  Negotiable  Instruments. 

as   to,   3095,    3261. 
BANKER 

lien  of,  3054. 
BANKING   CORPORATIONS 

as  to,  300. 

capital  stock  of,  300. 

copy  of  proceedings  of  meeting,  300. 
BASTARDS 

adoption  of,  227,  230. 

custody  and  control  of,  200. 

legitimized  by  subsequent  marriage  of  parents,  215. 

proof  of  illegitimacy,  195. 
BENEFIT    CORPORATION.      See    tit.    Religious,    Social,    and   Be- 
nevolent Corporations. 

cumulative  voting  of,  307. 

directors  or  trustees,  number  of,   290,  305. 

exempt  from  insurance  laws,   451,   453p. 

fraternal  societies  exempt  from  insurance  laws,  451,  453p. 

insurance  associations,  452a,  453. 

insurance,  mutual  life,  etc.,  437,  452. 

record  to  be  open  to  inspection,  378. 
BENEVOLENT    ASSOCIATIONS.      See    tit.    Benefit    Co-operative 
Society. 

bequests  to,  limitation  of  power  to  make,  1313. 

incorporation  of,  592a-604. 

insurance  associations,    452a,    453. 

1738 


INDEX. 
[References  are  to  sections.] 

BENEVOLENT   CO-OPERATIVE    SOCIETIES 

are  corporations  within  the  statute,  451. 
BEaUESTS  AND  DEVISES.  See  tit.  Wills. 
BICYCLE. 

as  baggage.        See   tit.  Baggage. 
franchise  for  constructing  paths  for,  524. 
is  baggage  or  luggage,  2181. 
BIGAMY 

ground   for   annulling  marriage,    82. 
BILLS    OP   EXCHANGE.      See    tits.   Foreign   BilLs   of   E.xcliange; 
Negotiable    In-stninients. 
acceptance 

as  to  generally,  3193. 
by  separate  instrument,   3196. 
cancelation  of  acceptance,  3198. 

holder  entitled  to  acceptance  on  face,  when,  3194. 
how  made,  3193. 

promise  to  accept  equivalent  to   acceptance,  when,   3197. 
what  is  admitted  by,  3199. 
acceptance  or  payment   for  honor 
as   to  generally,   3203. 
holder  of  bill  bound  to,  when,  3204. 
how    enforced,    3206. 
how  made,   3205. 

notice  of  dishonor  not  excused  by,  3207. 
when  may  be  made,  3203. 
bill  in  parts  of  set,  3173. 

converted  into  promissory  note,   when,  3246. 
days  of  grace,   not  allowed,   3181. 
definition   of,  2171. 
drawee  in  case  of  need,  3172. 
form  and  interpretation  of,  3171. 
must  be   in   a  set,    3174. 
presentment  for  acceptance,  3185. 
how  made,  3186. 

to  be  made  to  drawee  in  case  of  need,  when,  3188. 
to  joint  drawees,  3187. 
when   may   be  presented,    3185. 
when   must  be  made,  3189. 
presentment   for   payment,    3212. 

effect  of  delay  in  certain   cases,   3213. 

effect  in  other  cases,   3214. 
excuse  for  presentment,  as  to,   3218. 
delay  when  excused,   3219. 

presentment  and  notice  when  excused,  3220. 
presentment  when  excused,   3218. 

1739 


INDEX. 
[References  are  to  sections.] 

BILLS  OF  EXCHANGE   (continued). 

presentment  of  part  of  set,  3173. 

riglits  and  obligations  of  drawer,  3177. 

wlien  not  accepted,  wliere  to  be  made,  3211. 

wliere  payable,   3176. 

where  payable  at  a  particular  place,  3212. 
BILL  OF  LADING 

conditions    in    limiting   liability,    2176. 

consignee   entitled   to,   2130. 

definition    of,    2126. 

delivery  according  to  exonerates  carrier,  2131. 

effect  of  accepting  from  carrier,   2176.  . 

effect  of  on  right,  etc.,  of  carrier,  2129. 

negotiability    of,    2127,    2128. 

refusal   to  give,  effect   of,   2130. 

surrender   of  before  delivery,  carrier  may   require,    2132. 

to  "bearer,"  2128. 

to  be  given  to  consignor,  2130. 
BISHOP 

of  religious  corporations,  602. 
BLASTING  ROCK.     See  tits.  Negligence;  Nuisance. 
BOARD   OF   TRADE 

assessments,  592d. 

as   to,   286. 

by-laws  of,  592c. 

capital  stock  of,  592. 
certificate  of,  592. 

formation,  organization,  and  powers  of,  591. 

power  of  trustees,  directors,  and  executive  committee,  592a. 

power  to  acquire,  use,  and  sell  property,  592b. 

pre-existing  corporations  may  become,   592e. 

rights  and  liabilities  of  stockholders,  592. 
BOARDING-HOUSE,    KEEPER   OP.      See   tit.    Innkeepers. 
BODILY  AILMENTS.     See   tit.   Wills. 
BOLTS.      See    tit.    Logger's    Lien. 

lien   on,   3065. 
BONDS.     See   tits.   Guaranty;   Indemnity;   Suretyship. 

as  to,   3261-3268. 

cemeteries  may  issue,  611. 

corporations,   issue  of  restricted,   359. 

negotiable,    3095,    3261. 

non-residents,  on  transfer  of  stock  to,  326. 

of  railroads.     See  tit.  Railroad  Corporations. 

savings   and  loan   corporations  may   invest   in   what,    574. 

when  required  on  transfer  of  certificate  of  stock,  326. 
BOOKS  OP  RECORD 

as  to  generally,  1171. 

1740 


INDEX. 

[References  are  to  sections.] 

BORROWER.     See  tits.  Hiring;  Loan  for  Use. 

care   required   of,   1886. 

degree  of  skill  to  be  exercised,  1888. 

of  animal  borrowed  for  use,  1887. 

to  bear  expenses,  when,   1892. 

to  repair  injuries,  when,  1889. 
BOTTOMRY.     See   tit.   Respondentia. 

definition    of,    3017. 

interest,   rate   of,    3022. 

lender,  rights  of  when  no  necessity  for  bottomry,  3023. 

lien   of,   how   lost,   3027. 

loan   becomes  due,  when,  3026. 

master  may  hypothecate  freight  money,  3021. 

master  may  hypothecate  ship,  3019,  3020. 
when  owner  cannot  be  reached,  3020. 

owner  may  hypothecate  ship,  3018. 

preference  of  lien  over  other  liens,  3028. 

priority   of  lien,    3029. 

rate   of   interest,    3022. 

rights  of  lender  when  no  necessity  for  bottomry,   3023. 

stipulation  for  personal  liability  void,  3024. 

when  loan  becomes  due,   3026. 
BOUNDARIES 

acquiescence  in  line,  prescription  by,  841. 

boundaries  by   ways.     See  tit.   Ways,  Boundary  by. 
as  to  generally,  831. 

by  water.     See  tit.  AVaters,  Boundary  by. 
as  to  generally,  830. 

fence.     See  tit.  Fence. 

lateral   and  subjacent  support.     See   tit.    Lateral   Support. 
as  to  generallj',  832. 

line  trees,  834. 

rights  of  owners  in,   829. 

trees  whose  trunks  are  wholly  on  land  of  one.     See  tit.  Treen. 
BOYS.     See  tit.   Males. 

BREACH  OF  PROMISE  OF  MARRIAGE.     See  tit.  Contracts. 
BRIDGE  CORPORATIONS 

as  to,  generally,  528-531. 
BRIDGES.     See  tit.  Bridges,  Ferry,  Wharf,  Chute,  and  Pier  (  «>r- 
poratlon. 

duty  of  wagon  road  corporation  to  construct,  etc.,  51-1. 

to  be  constructed  by   water  and  canal   corporations.     See   tit. 
W^ater  and  Canal  Corporations. 

water  companies,  duty  to  maintain,   551. 
BRIDGES     AND     FERRIES.       See     tit.     BrldfceN.     i'erry.     \Vlinrf. 
Cliute,   and   Pier   Corporations. 

on  line  of  toll  road.     See  tit.   Wagon  road  Corporations. 

1741 


INDEX. 
[References  are  to  sections.] 

BRIDGES,    FERRY,    WHARF,    CHUTE,    AND    PIER    CORPORA- 
TIONS 

annual  report  to  be  made  to  supervisors,  530. 
by  whom  to  be  made,  530. 
damage  for  failure  to  report,   530. 

duty  of  district  and  city  attorneys  in  relation  to,  530. 
publication  of  report,  530. 
what  report  to   contain,   530. 
corporate  existence  ceases,  when,  529. 

statute  applies  to  natural  persons  and  corporations,   531. 
toll  not  to  be  collected  without  authority,  528. 
BROKER.     See  tit.  Agency. 

real   estate,  statute  of  frauds  applies  to,    1624. 
BUILDING  CORPORATIONS.     See  tit.  Land  and  Building  Corpo- 
rations. 
BUILDING  AND   LOAN  ASSOCIATIONS 
annual  report  of,   645. 

arrears  in  payments,   defaults  and  forfeitures,   639. 
articles  of  incorporation,  what  to  contain,    633. 
bonds,  investments  in  and  loans  upon,  647. 
capital   stoclv   of 

as   to   g-enerally,   634. 
form   of,    634. 
control  and  supervision  of  by  state,  644. 
defaults,  639. 
definition,  648. 

directors  from  holders  of  guarantee  stock,  634. 
dividend    fund,    641. 
dues  of 

as   to   g-enerally,   634. 
installment    stock,    634. 
paid-up   stock,   634. 
fees,   634. 
fines,  634. 
foreign 

agents    of,    646. 
deposit  by,    646. 
forfeitures,    639. 
formation  of,  633,  648a. 
free  shares,   retiring,  63Fi, 
gruarantee    .stoclc 

as   to   generally,    634. 
directors  from  holdei.-s  of,   634. 
installment    stock,    634, 
interest,   638. 
investments 

in  and  loans  upon   bonds,  647. 
of  funds  in  mines  unlawful,  737. 
1742 


INDEX. 
[References  are  to  sections.] 

BUILDING  AND  LOAN  ASSOCIATIONS    (continued). 
loans 

as  to  generally,   637. 

of  funds  on  mines  unlawful,  637. 

on  own  guarantee  stock  unlawful,  637. 

unlavrfiil 

borrowings,    637. 

loan  on  own   guarantee  stock,   637. 
to  invest  or  loan  funds  to  mine,  637. 
upon  bonds,  647. 
losses,   641. 

maturity  of   stock,   636. 
membership,    643. 
organization   of,  633. 
paid-up  stock,  634. 
penalty,  637. 
powers    of,    633. 
profits   and  losses,    641. 
prohibition,   637. 
purcliase  of  real  estate,  640. 
reincorporation  of  existing  associations,  648a. 
reserve  fund,  641. 
retiring  free  sliares,  635. 
repayment  of  loan,  638. 
report 

all  statements  in   perjury,  when,   645. 
annual,    645. 
further  reports,  645. 
security,  638. 

state  supervision  and  control,   644. 
status  of  present  contracts,   648. 
stock,   maturity   of,   636. 
withdrawals,    642. 
Ill  IjI^S.      See   tits.   AniiiiulM;   DaiiiaeoN. 

lien   for  service   of,   3062. 
Bl'KIAL.      See    tit.    Cemetery. 

burned  bonds,  of  corporation,  proceedings   to   restore.   329. 
right  of,   801,   802. 
nuSIAESS.      See    tit.    Goo«l-\Vlll. 
lirSINESS    ASSOCIATION,      .^c'    tit.    IIiihIim-ss    (  orporiil  Ioiim. 

co-operative,     6531)-i"i.'(;?k. 
ni  SIXESS    COIirOK.VTIOX.      See    tit.    IliiNiii*-s>4     \s<«>cl:it Ion. 

co-operative,  652-G53a. 
BLSIXESS   DAYS.     See   tit.    iloHilii>.s. 

wliat  are,  9. 
llY-IiAWS  OF  COUrOH  Vi'IOXS.     See  tit.':.   CIiiiiiiIht  iif  (  ommerce. 
HonrdM    o£   'rrmle.    Ete.;    CoileeeH    nnd    Seiulnariea;   Co- 
operntHe  IliiNinenM  ANMoeintionH. 
1743 


INDEX. 
[References  are  to  sections.] 

BY-LAWS  OF  CORPORATIONS    (continued), 
amendment   of  by-laws,   how   made,   304. 
co-operative  agricultural,   etc.,  associations,  what   to   contain, 

653p. 
co-operative  corporations,  what  to  contain,  653w. 
of   municipal    corporation.      See   tit.    Municipal   Corporation. 
of  mutual  benefit  and  life  associations,  what  may  provide,  453. 
of  mutual  life,  etc.,  insurance  corporations,  may  limit  amount 

of  stock,  etc.,    445. 
record  of,  304. 

when,  how,  and  by  whom,  301. 
CANAL    CORPORATIOIV 

as  to,  generally,   548-552. 
CANCELATION 

and  alteration  of  contracts,  as  to,   generally,   1699-1701. 
in  part,  3414. 

of  acceptance  of  bill  of  exchange,  3198. 
of  deed  does  not  revest  title,  1058. 
of  instruments,  in  general,  3412,  3414. 
of  will,    1292,    1293. 
recording  of,  3412. 
CANCELATION   OF  INSTRUMENTS 
cancelation  in  part,  when,  3414. 
instrument  obviously  void,   3413. 
may  be  ordered,  when,  3412,  3414. 
CAPACITY  TO  CONTRACT.     See  tit.  Contract. 

of  idiots.     See  tits.  Idiots;  Persons  of  Unsonnd  Mind. 
of   intoxicated  persons.      See   tit.   Intoxication. 
of  minors.     See  tits.  Infant;  Minors. 
as    to,    1557. 
CAPITAL   STOCK.      See   tit.    Corporation. 

assessment  of.     See  tit.  Assessment  of  Stock. 
assessment    of    railroads,    455. 

minimum  required  to  be  paid  in  before  incorporation,  290a. 
of  railroad  corporations.     See  tit.  Railroad  Corporations. 
transfer  of   railroad   stock,    455. 
not   valid  except,   455. 
CARE.      See    tit.    Negligence. 
degree   of,    16. 
great 

borrower  to  use,  1886. 

carrier  of  messages  for  reward  to  use,  2161. 
employee,  for  his  own  benefit,  to  use,  1979. 
shipmaster  to  use,  2043. 
ordinary 

carrier  of  property  for  reward,   2096. 
carrier  of  persons  gratuitously,   2090. 
1744 


INDEX. 
[References  are  to  sections.] 

CARE 

ordinary   (continued). 

depositary  for  hire,  to  use,  1852. 
employee  for  reward,  to  use,  1978. 
hirer,  to  use,   1928. 
voluntary  agent,  to  use,  2078. 
trustee,  to  use,   2259. 
slight 

gratuitous  carrier  of  property  to  use,  2114. 
gratuitous  depositary,  to  use,  1846. 
gratuitous   employee,  to   use,   1975. 
utmost 

carrier  of  messages  by  telegraph,  to  use,  2161. 
carrier  of  persons  for  reward,  to  use,  2100. 
CARELESSNESS.      See   tit.    Negligence. 
CARRIAGE 

common  carriers.     See  tit.  Common  Carriers. 
of  messages.     See  tits.  Carriers  of  Messages;  Telegrranis. 
of  persons.     See  tit.  Cai*riers  of  Persons. 
of  property.     See  tit.  Carriers  of  Property. 
CARRIAGE  IN   GENERAL.     See   tit.   Common   Carrier. 
carriers  by  sea,  rights  and  duties,  2088. 
contract  of  carriage,  2085. 
gratuitous   carriers,    obligations   of,    2089. 

who  has  begun  to  carry,  2090. 
kinds    of   carriers,    2086. 
inland  carriers,  2087. 
marine  carriers,  2087. 
CARRIER 

act  of  God  relieves  of  liability,  2194. 
baggage.      See   tit.   Baggage. 
bill   of  lading.      See  tit.   Bill  of  Lading. 

common  carrier.     See  tits.  Common  Carriers;  Common  Carrier.H 
of  Persons;   Common  Carriers  of  Property. 
defined,   2168. 
compensation,  2173. 

payment  and   refusal   of,    2173. 
connecting,  delivery  to,  2201. 
consignee  defined,  2110. 
contract  of  carrier,   2085. 

damages   for   breach    of   obligation   to   deliver,    3316. 
for  breach  of  obligation  to  receive  goods,  3315. 
for   delay,    3317. 
for  non-delivery,   3316. 
for  refusal  to  receive  freight,  3315. 
delay  in  carriage  of  freight,  liability  for,  2196. 
delays,  generally,  2104. 

1745 


INDEX, 

[References  are  to  sections.] 

CARRIER  (continued). 
delivery 

exonerates  carrier,  when,  2131. 

in  part,  apportionment  of  freight,   2140. 

manner  of,  2118,  2119. 

not  made,  carrier  may  exonerate  himself,  liow,  2121. 
obligations  of  carrier  on,  2120. 

place  of,   2118,   2119. 

surrender  of  bill  of  lading  may  be  demanded  before,  2132. 

to  connecting  carriers,    2201. 
duty  of  carrier  of  persons.     See  tit.   Common  Carriers  of  Per- 
sons. 
ejection  of  passengers.     See  tit.  Ejection  for  Non-Payment  of 

Fare. 
exemption  from  liability  where  negligent,  none,  2196. 
expense  of  transportation   of  things  sold,   1755. 
fare.      See   tit.   Fare, 
freigrbt 

defined,  2110. 

not  accepted,  to  be  stored  by  carrier,   2121, 

not  delivered,  obligation  of  carrier,  2120. 

obligation    to   accept,   2169. 
frei{i:litage 

apportionment    of,    2140. 

according  to  distance,   2142. 
hy    contract,    2140. 

carriage   further   than   agreed,    2143. 

consignee  liable  for,  when,   2137. 

consignor  liable  for,  when,  2138. 

defined,   2110. 

for  natural  increase  of  freight,  2139. 

lien  for,   2144. 

marine  insurance.     See  tit.  3Iarine  Insurance. 

sale  of  perishable  property  for,   2204. 

to  be  paid,  when,   2136. 
general  average  adjustment.     See  tit.  General  Average. 
gratuitous   care   required  of.     See  tit.   Care. 
inland,  what  is,  2087. 
insurable   interest  of.      See   tit.  Insurable  Interest. 

as  to,  2548. 
jettison.      See   tit.   Jettison, 
liability  for  negligence 

cannot  be   relieved  from,   2175. 

limiting  of,  generally,  2174-2176. 

when  limitation   on  void,  2175, 
lien 

for   freightage,    2144. 

1746 


INDEX. 
[References  are  to  sections.] 

CARRIER 

lien  (continued). 

limitation  on,  without  notice  of  value,  2200. 

on   baggage,    2191. 
loss  of  freig-lit 

liable   for,   when,    2194. 

no  liability  for,  when,  2194. 
loss  of  property  or  money,  liability  for,  2177. 
loss,   proof   of,   2202. 

loss  through  negligence,  liability,   2195. 
marine.     See  tit.  Ships  and  Sliipping. 

negligence   of,   cannot  be   exempted  from   by   contract,   2195. 
notice 

carrier  to  give  for  non-delivery,  2120,  2121. 

of  value  of  freight,  to  be  given,  2200. 
obligations.      See    tit.    Obligations. 

limited,   how,   2174-2176. 
of  messages.     See  tit.  Carriers  of  Messages. 
passengers.     See  tit.  Passengers. 

damages  for  refusal  to  receive,  3315. 

duty    to,    generally,    2100. 

ejection   of.      See   tit.   Ejection  for  ]Von-Payn»ent  of  Fare. 

entering  train   without  payment  of  fare,  2189. 

safe   and   fit  vehicles.     See  tit.  Veliicles. 

seats  to  be  provided,   2185. 
penalty  for  failure  to  observe  schedule  time,   2172. 
perils  of  sea.     See  tit.  Perils  of  Sea. 
preferences  may  be  given,  when,  2171. 
preferences  not  be  given,  when,  2170. 
property 

care    required    of,    2114. 

conflicting  orders  of  consignee  and  consignor,  2116. 

must  obey  directions,  2115. 
rate    of   speed,    2104. 
rules   and    regulations,    2186. 
sale   of  perishable  freight,    2204. 
schedule  time  must  be  observed,  2172. 
state  may  be  given  preferences,  2171. 
tickets.     See   tit.   Tickets. 
time  of  running  must  be  observed,  2172. 
United  States  may  be  given  preferences,  2171. 
value  of  articles  to  be  stated,  when,  2200. 
vehicles.     See  tit.  Vehicles. 

not  to  be  overcrowded,   2102. 
written  contract  of,  2176. 
CARRIER'S   DELAY 
damages  for,  3317. 

1747 


INDEX. 
[References  are  to  sections.] 

CARRIER'S    OBIilGATION    TO    DELIVER 

breach  of,  damages  for,  3316. 
CARRIER'S   OBLIGATION   TO  RECEIVE  GOODS 

breach   of,  damages  for,   3315. 
CARRIERS  OF  MESSAGES   (other  than  telegraph  and  telephone 
companies).     See  tits.  Telegrrayh  and  Telephone  Com- 
panies. 

degree  of  care  and  diligence  required,  2162. 
duty  to  deliver,  2161. 
CARRIERS  OF  PERSONS.     See  tit.  Common  Carriers  o£  Persons. 

gratuitous  carriage,  2090. 

degree  of  care  required,  2096. 
carriers    for   re-^vard 

as  to  who  are  passengers.     See  tit.  Passengers. 

delays,    2104. 

general  duties  of,  2100. 

negligence   of.     See   tit.   Negligence. 

overloaded  vehicles  prohibited,  2102. 

rate  of  speed,   2104. 

treatment  of  passengers,  2103. 

vehicles.      See   tit.   Vehicles. 

bound  to  provide  safe  and  fit,  2101. 
not  to  be  overloaded,  2102. 
CARRIERS    OF    PROPERTY 

bill  of  lading.     See  tit.  Bill  of  Lading. 

as  to  generally,    2126-2132. 
care  and  diligence  required  of,   2114. 

as  to  generally,  2114. 
conflicting    orders   by    consignor,    2116. 

consignee  not  accepting,   disposition  made   of  freight,  2121. 
delivery    of    freight 

as  to  generally,  2118. 

notice  when  not  delivered,  2120. 

place  of  delivery,  2119. 

stoppage  in  transitu.     See  tit.     Stoppage  in  Transitu. 

when  consignee  does  not  accept,  2121. 
deviation  from  route,  2117. 
freightage.      See  tit.   Freiglitage. 

as  to  generally,   2136-2144. 
general  average.     See  tit.  General  Average. 

as  to  generally,  2148-2162. 
general   definition,   2110. 
notice  when  freight  not  delivered,  2120. 
obligations    of,    2114. 
stowage,  2117. 
to  obey  directions  of  shipper,  2116. 

1748 


INDEX. 
[References  are  to  sections.] 

CAUSA   MORTIS.      See   tit.    Gittn. 
CEMETKRY.      See   tit.    Cemetery  Corporationn. 

burial  riglits  of  servant,  801,  802. 
disposal  of  lots,  598. 
establishing  by  corporation.   595. 
CEMETERY    CORPORATIONS 

alienability  of  lots  revived  how,  613. 

annual  report  of,  609. 

bonds   may   be   issued,   611. 

burial  lot  inalienable,  when,  613. 

improvement  in  grounds,  611,  612. 

inalienability  of  lot,  when,  613. 

land  that  may  be  held  by  and  disposed  of,  608. 

must  be  surveyed  and  subdivided  into  lots,  608. 
lot  owners  previous  to  purchase  to  be  members,  614. 
lot,  sale  of  after  disinterment,   613. 
lots,   rights  and   interests   in,  613. 
lots,   surveying,   etc.,  608. 
may  hold  personal  property  and  to  what  amount,  610. 

how  disposed  of,  610. 
may  issue  bonds  to  pay  for  grounds,  611. 

proceeds  of,  how  disposed  of,  611. 
may  sell  lands,  when,  615. 
may  take  and  hold  property  in  trust,  616. 

application  of  Income,  616. 

investment   of  proceeds   of   income    in    what,    616. 

purposes  for  which  may  hold,  616. 
may  take  and  hold  title  to  what  and  how,  612. 
members  eligible  to  vote  and  hold  office,  609. 
personal   property,   holding  and   disposing   of,    610. 
property  held  in  truNt 

investment  of  proceeds,  616. 

proceeds  to  be  used,  how,  611,  616. 
sale  of  lands,  conditions  and  restrictions,  608. 
sale   of  lots,   proceedings   on,    615. 
who  may  not  be  buried  in  lot,  613. 
CERTIFICATE 

false,  liability  of  officers,   316. 

fee  of  recorder  for  recording,  1165. 

of  corporate  existence,  extending  by,  401. 

of    deposit,    negotiable,    3095. 

non-negotiable,   when.   3095,    3621. 
of   discharge   of  mortgage,   2939. 
of  indenture  of  apprenticeship,  275. 
of  marriage,  69a,  73,  79. 

of  master  of  ship  in  favor  of  seamen,  2059. 
of   partnership.      See   tit.   Partnership,    General. 

1749 


INDEX. 
[References  are  to  sections.] 

CERTIFICATE    (continued). 

of  partnersliip  under  fictitious  name,  2466-2477. 
of  residence  of  corporation,  when  to  be  filed,  1163. 
of  restoration   of  lunatic,  evidence  of  legal   capacity,   40. 
of  savings  and  loan,  .576. 
of   stock.      See    tit.    Corporation. 
to  seamen  of  efforts  to  save  cargo,  etc.,  2059. 
CERTIFICATE  OF  ACKXOAVLEDGMEXT.     See  tit.  Acknowleds- 
nient. 
form  of  certificate  of  acknowledgment.     See  tit.  Aoknowledg- 
nient. 
CERTIFICATE    OF   DEPOSIT 

as   to   generally,    3268. 
CERTIFICATE   OF   MARRIAGE.      See   tit.   Marriage. 
CERTIFICATE  OF   SHERIFF'S   SALE.     See   tit.   SlieriltVs  Certifl- 

eate    of    Sale. 
CERTIFICATE  OF  STOCK 

affidavit  or  bond  required  before,  when,   326. 
how   issued,    323. 
how  transferred,  324. 

irrigation  stock  appurtenant  to  land,  324. 
lost,  etc.,  certificate,  procedure  for  securing  new,   328. 
married  woman  may  transfer,  325. 
shares   of  personal   property,   324. 
CERTIFIED   COPY 

of  recorded  instrument  may  be  recorded,   1218. 
CHAMBER  OF  COMMERCE.  BOARDS  OF  TRADE,  MECHANICS' 
INSTITUTES,   ETC. 
as    to,    generally,    591-592e. 

assessments,  power  to  levy  and  collect,  592d. 
business  of,  591. 
by-laws    of,    592c. 
capital  stock  and  certificates  of,   592. 

rights  and  privileges  of  stockholders,   592. 
executive  committee,  powers  which  may  be  conferred  on,  592a. 
formation  of,  591. 

meetings  of,  how  called  and  conducted,   592c. 
organization  of,  591. 

power  which   may  be   conferred   on   the  trustees,   etc.,   592a. 
powers  of,  591. 

to  acquire,  sell,  and  use  property,  592b. 
to  levy  and  collect  assessments,   592d. 
pre-existing   corporation   may   have   benefit   of   title,   592e. 
certificate,  execution,  and  contents  of,   592e. 
notice  of  meeting  and  object  to  be  published,  592e. 
rights  and  privileges  of  stockholders,   592. 
trustees,  powers   which   may   be   conferred  upon,   592a. 
CHANCERY  COURTS.     See   tits.   Equity;  Speclflc  Relief. 

1750 


INDEX. 
[References  are  to  sections.] 

CHANGE   OF   N.4MB.      See   tit.    Corporations. 

conveyance  of  real  estate  on,  how  made,  1096. 
CHARGE.     See  tit.  Privileged  Communication. 
CHARITABLE  BEQ,UESTS.     See  tit.  Wills, 
CHARITABLE   USES   AND   BEaUESTS 

limitation  as  to  time  and  amount,   1313. 
CHARITABLE  USES  AlVD  TRUSTS.     See  tits.   Trusts;  Uses  and 

Trusts. 
CHARTER  PARTY.     See  tit.   Ships  and  Shipping. 

definition  of,  1959. 

insurable  interest,  2665. 

shipmaster  may   enter   into,   2376. 

ship's  manager  may  enter  into,   2388. 
CHASTITY 

want  of,  avoids  promise  of  marriage,   62. 
CHATTEL    INTERESTS 

what  are,    765. 
CHATTELS,    REAL 

estate  for  life  of  third  person  is  not,  766. 

what  are,  765. 
CHECKS.     See   tit.   Negotiable   Instruments. 

time  of  presentment,  rules  applicable  to  checks,   3255. 
CHILD.     See  tit.  Parent  and  child. 

en  ventre  sa  mere,   29,  698. 

property  of,  parents'  control  over,  202. 
allowance  out  of  for  maintenance,  201. 
takes  under  will,  when,  1339. 

to  maintain  parent,  when,   206. 

unborn.      See  tit.   Unborn  Child. 

who  may  be  arrested  and  committed  to  asylums,  etc.,  607g. 
CHILDREN.      See    tits.   Parent    and   Child;    Succession;    \Vllls. 

custody  of  in  actions  for  divorce,   138. 

legitimacy  of,  born  in  wedlock,  193. 

posthumous,    698. 

societies   for   the   prevention    of   cruelty  to.     See   tit.    Sociclics 
for  the  Prevention  of  Cruelty  to  Children  and  Animals. 

unprovided   for  by   will   to   succeed,   when,    1307. 
CHILDREN    OF    ANNULLED    MARRIAGE.      See    tit.    Divorce. 
CHOSES  IN  ACTION.     See  tit.   Personal  Property. 

definition    of,    953. 

judgment   is,    954. 

survivorship,    954. 

transfer  of,  954. 
CHURCH.     See  tit.  Religious  Corporations, 

seat  at,  right  to,  801,  802. 
CHUTE.      See    tit.    Bridges,   Ferry,   Wharf,   Chute    and    Pier    Cor- 
porations. 

as  to,  529,  530,  531. 

1751 


INDEX. 
[References  are  to  sections.] 

CIRCUS.     See  tits.  Civil  Rights;  Places  of  Public  Amusement. 

refusing  admission   to   unlawful,   when,   53. 
CITIZENS 

rights  of  in  places  of  public  accommodation  or  amusement,  51. 
CITY.     See  tits.  Municipal  Corporations;  W^ater  Companies. 

water  companies,  contract  witli  to  furnish  water,  548,   54J. 
CITY  L.OTS.     See  tit.  Leases  of  City  Lots. 
CIVIL    CODE 

act  establishing,    1. 

actions  pending  not  affected  by,  6. 

cited,  how,  21. 

construed    liberally,    4. 

continuation  of  statutes  and  common  law  by,  5. 

definition  of  terms,   14. 

divisions  of,  1. 

does  not  affect  pending  actions,  6. 

how   cited,    21. 

not    retroactive,    3. 

private  statute,  how  affected  by,   20. 

repeal  of  other  statutes  by,  20. 

retroactive  effect   of 
not  as  to  wills,  1375. 
not  generally,   3. 

rules  of  construction.     See  tit.  Rules  of  construction. 

takes  effect,  when,  2. 

terms  defined,  14. 

title  of,   1. 

vested  rights  not  affected  by,  6. 
CIVIL    LAW   DOCTRINE 

ascending  line,  1391. 

collateral   line,    1390. 
degrees   of,    1393. 

descending  line,  1391. 

direct  line,  1391. 
degrees   of,   1392. 
CIVIL   RIGHTS 

discriminations  prohibited,  52. 

of    citizens    in    places    of    public    accommodation    or    ainuse- 
ment,   51. 
CLAIM  AND   DELIVERY.      See   tit.   Replevin. 

gold  coin,  judgment.     See  tit.  Judgment. 

judgment  for  delivery,  3379. 

when  holder  may  be  compelled  to  deliver,  3380. 
CLAIM    NOT    DUE 

no  lien  for,  2882. 
CLAIMANT.     See  tit.  Appropriation  of  Water. 

of  waters,  1420. 

1752 


INDEX. 
[References  are  to  sections.] 

CLERK   OF   COUNTY 

acknowledgments,  may  take,   1181. 
articles  of  incorporation  to  be  filed  with,   296. 
certificate  of  special  partnership  to   be   filed  with,    2479. 
duty  of 

recording-   marriage   licenses,    69. 

to  keep  register  of  partnership  names,  2470. 

where   acknowledgment   taken   before   justice    of   the   peace, 
1194. 
may   take   acknowledgments,    1181. 

notice  of  dissolution   of  special   partnership,  filing  with,   2509. 
petition  to  appraise  homestead  must  be  filed  with,   1247. 
register  of  partnership  names  must  be  kept  by,   2470. 
CODICIL 

execution   of  republishes  will,  when,    1287. 
included  under  term  "will,"  14. 
republication  of,  1287. 
revocation    of   will    revokes,    1305. 
COLLATERAL    SECURITY.      See    tit.    Pledge. 
COLLATERAL    WARRANTIES 

abolished,    1115. 
COLLECTION 

agent  for,  as  to  duties  of,  2021. 
effect  of  warranty   of  collectibility,    2800. 
partner  may  make  when  acting  in   liquidation,   2462. 
COLLEGES    AND   SEMINARIES    OF    LEARNING 
appointing  president,    650. 
appointing   professors,    650. 
articles  of  incorporation,  649. 

contents  of,  649. 
board  of  trustees,  term,  quorum  and  powers,  650. 
by-laws,  making  of,   650. 
consolidation  of,   652. 

annual    reports    to,    652. 

new  corporation,  trustees'   term   of,   652. 

what  authorized  to  consolidate,  652. 
course  of  study,  650. 
election  of  other  trustees,   650. 
existing   corporations   may   reincorporate,   651. 
issue  diplomas,  650. 
may  take  under  wills,  1275. 
powers  of  trustees,  650. 
president,  election  of  by  trustees,  650. 
quorum    of   trustees,    650. 
salaries,  fixing  of,   650. 
specific   grants   to,    653. 

cannot  be  diverted,  653. 

1753 


INDEX. 

[References  are  to  sections.] 

COLLEGES  AND  SEMINARIES  OF  LEARNING    (continued), 
transfer  of  property  from  existing  to  new,  651. 
trustees  of,  and  their  powers,   650. 
to  declare  vacancy,   650. 
to    fill   vacancy,    650. 
to   hold    property,    650. 
.t.o  mortgage  and  lease  property,  650. 
wills,  may  take   under,   1275. 
COLLISION 

loss  by,  apportioned  how,  973. 

of   ships.     See   tit.   Rules  of  Navigafion. 

of  vessels,  from  breach  of  rules,  971. 

on  breach  of  rules  of  navigation,  liability,  972. 

implies  wilful  default,  972. 
rule  for  avoiding,  970. 
COLLOQUIUM.      See   tit.   LibeL 
COLLUSION 

definition  of,  114. 
in  divorce.     See  tit.  Divorce. 
presumed  from  lapse  of  time,   125. 
COLOR.      See   tit.   Trade-Mark.s. 
COMMISSION  3IERCHANT.     See  tit.  Factors. 
COMMON 

interest  in,  what  is,  685. 
what  interests  are  in  common,  686. 
COMMON    CARRIERS 

in  general.     See  tit.   Common  Carrier.s  in  General. 

of  messages.     See  tits.  Carrier.s  of  messages;  telegrams;  Tele- 

grraph  and   Telephone    Companies. 
of  persons.     See  tit.   Common  Carriers  of  Persons. 
of  property.     See   tit.   Common   Carriers  of  Property. 
COMMON    CARRIERS    IN    GENERAL 
certain  agreements  void,  2175. 
compensation  must  be  reasonable,   2173. 
definition   of,  2168. 

loss  of  valuable  letters,  liability  for,  2177. 
modification   of  liability  of  carrier  by  contract,   2176. 
assent  of  modification  necessary,  2176. 
by  acceptance  of  ticket,  etc.,  2176. 
not  to  give  preferences,  2170. 

must  give  what  preferences,   2171. 
obligations  of,  altered  by  agreement,   2174. 
obligation  to  accept  freight,   2169. 
starting  promptly  at  time  and  place,   2172. 
COMMON    CARRIERS    OF    PERSONS 

additional   amount   to    be    paid,    when,    2189. 

1754 


I 


INDEX. 
[References  are  to  sections.] 

COMMON  CARRIERS  OF  PERSONS  (continued). 

baggag-e   or  luggage,   liow  carried   or   delivered,    2183. 
bicycle  as,  2181. 
carrier's  lien   on,   2191. 
bicycle  as  luggage  or  baggage,  2181. 
carrier  of  persons,  obligation  to  carry,  2180. 
defined,  2181. 
ejectment  of  passengers.     See  tit.  Ejection  of  Passengers. 

for   refusal   to   pay   fare,    2188. 
fare,  when  payable.     See  tit.  Fare. 
as   to   when   payable,    2187. 
not  payable  after  ejection,  2190. 
liability  for  baggage   or  luggage,  2182. 
obligation  to  carry  baggage  or  luggage.     See  tit.  Baggage. 

as  to  generally,  2180. 
obligation  to  provide  seats  for  passengers,    2185. 
obligation   to  provide  vehicles.     See   tit.   Vehicles. 

as   to,   2184. 
passenger  who  has  not  paid  fare,  to  pay  additional  rate,  when, 

2189. 
regulations  for  conduct  of  business  as  to,  2186. 
seats   for  passengers   to   be  provided,   2185. 
COM3ION    CARRIERS    OP"    PROPERTY 
liability  of   inland  carriers,   2194. 

exemptions  do  not  apply   to,  when,  2195. 
liability  for  delay,  2196. 
COMMON   LAW 

code  continuation  of,   5. 
COMMON    PROPERTY.      See   tits.    Husband   and    Wife;    Property. 
COMMUNITY    PROPERTY 
as   to   generally,    164. 
as  to  what  is,   687. 

contracts  by  wife  in  relation   to,   167. 
disposition   on   divorce,    146. 
distribution  of  on  death   of  husband,   1402. 
distribution  of  on  death  of  wife,   1401. 
limitation   of  action  as  to,    164. 
management,  control,  and  disposition  of,   172. 
COMPENSATION 

for  support  of  adult  children  by  parent,  210. 
given   by   law,   3274. 
of  appraisers    of    homestead,    1258. 
of  assignee  of  creditors,  3471. 
of  borrower,  1892. 
of  depositary   for    hire,    1853. 
of  employee  dismissed  for  cause,  2002. 
of  employee  quitting  for  cause,   2003. 

1755 


INDEX. 
[References  are  to  sections.] 

COMPENSATION    (continued). 

of   finder,    1867. 

of  partner,  none,   2413. 

of  trustee,  2273,  2274. 

of  voluntary  depositary,   2078.  J 

on  partial  failure  to  perform,  3392.  fi 

on  .rescission,  3408. 

services  continued  beyond  two  years,  rate  of,  1980.  ( 

without  employment,  2079.  ' 

COMPLAINT  ) 

to  court.     See  tit.  Court.s.  j 

for  cruelty  to  children  or  animals,  607b. 
COMPLETION 

as  applied  to  appropriation  of  waters,  1417. 
COMPOSITION 

author   lias   property   in,   980-985. 
COMPRESSED    AIR 

as  motive  power  by  railroads,  465a. 
CONCEALMENT.  See  tit.  Insurance. 
CONCESSIONS 

foreign  corporations  may  transfer,   364. 
CONDITIONAL 

delivery  cannot  be  made  to  be,  1056. 

devise  or  bequest.     See  tit.  Devise  and  Bequest. 

obligation.      See   tit.    Obligations. 

offer   of,   when   valid,   1494. 

will   may  be  probated,  when,    1281. 
CONDITION   OF   WILL.      See   tit.    Wills. 
CONDITIONAL   OBLIGATION.     See   tit.   Obligations. 
CONDITIONS 

concurrent 

definition  of,  1437. 
performance    of,    1439,    1498. 

forfeiture,   considered  how,  1442. 

impossible,  are  void,  1441. 

kinds   of,    1435. 

performance  of  essential,  when,  1439. 

precedent    or    subsequent.        See    tits.     Conditions     Precedent; 
Conditions    Subsequent. 
as  to  generally,   708. 

restraining  alienation,  void,   711. 

restraining  marriage,  void,  710. 

subsequent.     See  tit.  Conditions  Subsequent. 

unlawful   are   void,    1441. 
CONDITIONS   PRECEDENT 

effect  of,   1347. 

in  will,  1347. 

1756 


INDEX. 
[References  are  to  sections.] 

CONDITIONS  PRECEDENT   (continued). 

what  are,  708. 

when    deemed    performed,    1348. 
CONDITIONS   SUnSEQ,UENT 

as    to    generally,    1438. 

conveyance  on,  1109. 

in   will,   1349. 
CONDONATION.      See    tit.    Divorce. 

CONFIDENTIAL  RELATIONS.     See  tits.  Tru.st;  Trustees;   Wills. 
CONFLICT   OF   LAWS 

as  affecting  contracts,    1556. 

as   affecting-  personalty,    946. 

as  affecting  realty,   755. 

as  affecting  wills,  1376. 

assignment  for   benefit   of   creditors,   3451. 

injunction,    3423. 

marriage  out  of  state  valid,  when,   63. 
CONFUSION   OF  GOODS.     See   tit.  Aece.ssion. 

as  to  ownership  of  things  made  by,  1025-1033. 
CONGRESS 

carriers  by  sea  governed  by  laws  of,  2088. 

seamen  governed  by  laws  of,  2088. 
CONNIVANCE 

in  divorce.     See  tit.  Divorce. 
CONSANGUINITY 

collateral  and  direct,   1390,    1392. 

half-blood,   inheritance  by,    1394. 

how   computed,   1388-1394. 
CONSENT 

apparent  consent,  when  not  free,  1567. 

communication    of.     See   tit.   Contract. 
as  to  generally,   1581. 

deed  obtained  by  fraud,  when,   1568. 

essentials  of,  1565. 

fraud  in  obtaining.     See  tit.  Fraud. 

mutually  necessary  to  contract,  1580. 

when  voidable,  1566. 
CONSIDERATION.     See  tits.  Confrriet;  Vnliinble  CoiisldernHon. 

agency,   2308. 

as  to  what  constitutes,  1605. 

burden  of  proof  to  invalidate,   1615. 

executed  and  executory,  1609. 

executory,  1610,  1611. 

failure  of,  rescission  for,  1682. 

for  agreement  of  separation  between  husband  and  wifi\  160. 

good,  what  is,  1605. 

guaranty,   consideration    for.    2792. 

1757 


INDEX. 
[References  are  to  sections.] 

CONSIDERATION    (continued). 

illegal    consideration   void,    1608. 

impossibility  of  ascertaining',  effect  of,  1612. 

in  contract  between  spouses  for  separation,  160. 

lawful  only  is  valid,  1607. 

negotiable  instrument  must  have,   3122. 
presumption    as    to,    3123. 

new,v<:ontract  altered  without,  effect,  1697. 

proportion  payable  where  performance  prevented,  1515. 

return  bj'  minor,  as  disaffirmance,  35. 

rewards  offered.     See  tit.  Rewards. 

subscription.     See  tit.  Proiio.sal. 

written  instrument  presumed  to  have,  1614. 
CONSIGNMENT 

vonMignor 

definition   of,   2110. 

directions  of  to   carrier,   2115. 

definition   of  consignee,   2110. 

delivery  of,   2118-2122. 

freightage.     See  tit.  Freightage. 

insolvency  of  consignee,  effect  of,  3077. 

special  contract  of  carrier.     See  tit.  Common  Carriers  of  Prop- 
erty. 

stoppage  in  transitu.     See  tit.  Stoppage  in  Transitu. 
CONSOLIDATION 

of  co-operative  business  associations,  653i. 

of  co-operative  corporations  with   other  corporations,   653x. 
CONSTITUTIONAL.  LAW 

statute  creating  homestead  right  constitutional,  1269. 
CONSTRUCTION 

of  deed.     See  tit.  Interpretation. 

of  devise  of  land,  1311. 

of  words  and  phrases,  13. 
CONSTRUCTIVE   DELIVERY 

What  is,   1059. 
CONSTRUCTIVE    NOTICE.      See    tits.    Notiee;    Recording   Trans- 
fers. 

conveyance,  filing  with  the  recorder  is,  1213. 
CONSTRUCTIVE  TRUSTS.     See  tit.  Uses  and  Trusts. 
CONSTRUED 

joint  authority,   how,   12. 
CONSUL 

of  United  States  may  take  foreign  acknowledgments,  1183. 
CONTEMPT 

in  divorce  proceedings.     See  tit.  Divorce. 

officer  taking  acknowledgement  may  punish  for,   1201. 
CONTINGENT  ESTATES.     See  tit.  Future  Contingent  Estates. 

1758 


INDEX. 
[References  are  to  sections.] 

CONTINGENT   INTEREST 

as  to  what  constitutes,  695. 
not  void  because  improbable,   697. 
CONTINGENT  REMAINDER  IN  FEE 

as  to,   772. 
how  created,  773. 
on   term   of  years,   776. 
CONTINUANCE 

of  corporate  existence,  287,  401. 
CONTINUING  GUARANTY.     See  tit.  Guaranty. 
CONTRACT 
acceptance 

by  performance  of  conditions,  1584. 
reward,  offer  of.     See  tit.  Reward. 

deemed  complete,  when,  1582. 

mode  of  communicating',  1582. 

must  be  absolute,  1585. 
assumption  of  obligation  by  accepting  benefits,  effect  of,  1589. 
as  to  who  may  contract,  1556. 

idiots.     See  tits.  Idiots;  Persons  of  Unsound  Mind. 

minors.     See  tit.  Infant.s  and  Minors. 

as  to  power  to  enter  into   contracts,   1558. 
breach  of,  damages  for,  3294. 

by  husband  and  wife.     See  tit.  Husl>aud  and  Wife. 
consent,  mutuality  of,   1580. 

as  to,  generally,    1580. 
consideration  for.     See  tit.  Consideration. 

as  to  generally,   1605. 

executed  and   executory   consideration,    1609. 

how  ascertained,  1611. 

illegal  consideration,  effect  of,   1608. 

impossibility  of  ascertaining,   effect  of,   1612. 

invalidating  sufficient  consideration,  burden  of  proof.  1615. 

lawful  consideration,  1607. 

legal  or  moral  obligation  as  a  good  consideration,  1606. 

possibility  of  execution   on  face,  1613. 

presumptive  evidence  of  consideration,  when.   1614. 
contract  for  benefit  of  a  third  person,  may  bo  enforced,  when, 

1559. 
contracts  creating  monopolies.     See  tit.  Monouolles. 
contracts  in  restraint  of  trade  void,   1673. 

exception   in   favor  of  good   will,  1674. 
corporate    seals,    how   affixed,    1628. 
definition,   1549. 
duress.     See  tit.  Duress. 

as  to  what  constitutes,   1569. 
generallj%  1569. 

1759 


INDEX. 
[References  are  to  sections.] 

CONTRACT    (continued). 

effect  of,  nullity  of,  one  alternative,  1451. 
essential!^  of 

as  to  generally,   1269,    1550. 
consent.     See  tit.  Consent. 
executed  and  executory  contracts,  what  are,  1609. 
express  contract 

as  to  what  is  an,  1620. 
express   or  implied   contracts,    1619. 
implied  contract,  what  is,  1621. 
kinds  of  contracts,  1619. 
may  be  oral,  when,  1622. 

must  be   in   writing,   when.     See  tit.   Statute  o£  Frauds. 
as    to,    generally,    1624. 

agreements  authorizing  and  employing  agents  to  sell  real 
estate,    1624. 
extinction  of  contracts,   1682. 
by  alteration,  1700. 

alteration  of  verbal  contracts,  1697. 

alteration  and  modification  of  written  contracts,  1698. 
by  cancelation,   1699. 
by  performance,    1682. 
by  rescission,  1688. 
how  effected,   1691. 
when  party  may  rescind,   1689. 

when  stipulations  against  right  to  rescind  do  not  defeat, 
1690. 
by  unauthorized  alteration,   1700. 

alteration  of  duplicate  not  to  prejudice,  1701. 
fraud  in  procuring.     See  tit.  Fraud. 

as  to,   1571. 
identification  of  parties  to  contract  essential,  1558. 
interpretation   of  contracts.     See  tit.   Interpretation. 

as  to,  generally,  1635-1661. 
in  the  alternative,  1448,  1450. 
in  writing,  effect  of,  1625. 

takes  effect,  when,   1626. 
joint  and  several,  1659. 
lender  cannot  modify,  1905. 
lien  may  be  created  by,  2884. 
manner  of  creating,  1619-1623. 

contract   in   writing   takes   effect,    when,    1626. 
effect  of  written  contract,  1625. 
menace.     See  tit.  Menace. 

as  to  what  constitutes,   1570. 
mistake.      See   tits.   Fraud  and  Mistake;   Mistalce. 
as  to  what  constitutes,   1576. 
1760 


INDEX. 
[References  are  to  sections.] 

CONTRACT    (continued). 

mode   of   coiumiiiiicatlng   acceptance    of   proposal. 

as  to  generally,   1582. 

when  communication  deemed  complete,  1583. 
mutuality  of  consent,  1580. 

not  in  through  fraud,  enforceability,  1623. 
object  of  contract,  1595. 

as  to  requisites   of  object,  1596. 

as  to  what  is,    1596. 

contract  partially  void,  when,   1599. 

contract  wholly  void,  when,  1598. 

impossibility  of  contract,  what  is,  1597. 
of  exchange,  form  of,  1804. 
of  minors.       See    tit.    Minor. 
of  persons   without  understanding,   38. 
partly  written  and  partly  printed,  1651. 
private  seals,  act  abolishing  applicable,   1629. 
provisions  of  code  in.respect  to  real  property,  1627. 
ratification    of.      See    tit.    Ratification. 

as  to  validity,   1588. 
revocation   of  proposal.      See   tit.  Revocation. 

as  to,  generally,  1586. 

how   made,    1587. 
time  of  performance  of,  1657. 

to  relieve  directors  from  liability  void,  when,  327. 
transfer  of  waives  vendor's  lien,  when,  3047. 
undue   influence.     See  tit.   Undue  Influence. 

as  to  what  constitutes,  1575. 
unlawful  contracts.     See  tit.  Unlairfiil  Contracts. 
wagering.     See  tit.  Unlawfnl  Contracts. 
what  is  a  contract,   1549. 
who  may  contract,  1556. 
CONTRACT  FOR   SERVICE 

limited   to   two   years,    1980. 
CONTRinUTIOlV 

between  persons  bound  jointly  or  jointly  and  severally.  143:: 
general   average   loss,   in   admiralty,   2152. 
insnrance  cases   in 

as  to  generally,  2621,   2622,   2642,  2745. 

where  there  is  over-insurance,  2620. 
release  of  one  joint  debtor,  effect  on  right  to,  1543. 
surety's  right  to,  2848. 
CONTRIBUTIOIV.      See   tit.   Suretyship. 
between   joint  obligors,    1432. 
general  average  loss,   2152. 
in   insurance  cases,   2621,  2646. 
release  of  joint  debtor,  effect  on  right  to,  1543. 
Kerr's  C.   C— 56  1761 


INDEX. 
[References  are  to  sections.] 

CONTROLLER  OF  STATE 

duty,  where  property  escheats,  1406. 
selection  of  right  of  way  to  be  transmitted  to,  478. 
CONVERSION 

claim  and  delivery.     See  tit.  Claim  and  Delivery. 

damages  for,  3336-3338. 
equitable,   1338. 
extinguishes  lien,  2910. 
in  general,  1711-1714. 
lien  extinguished  by,  2910. 
CONVEYANCE.     See  tits.  Deed.s;  Tran.sfers. 
absolute  not  to  be  conditional,  1056. 
agent  may   covenant  on,   2324. 
agreement   for 

covenants,  1733,  1734. 

effect  of,  1731. 

specific  performance  of,   1741. 

statute  of  frauds  as  affecting,  1741., 
bona  fide  purchaser  or  encumbrancer,  who  is,  1107. 
by  attorney  in  fact,  1095. 
cancelation  of  instruments  in,  3412,  3414. 
certificate  of  proof  of  execution  of,  1198. 
changed  name,  by  person   with,  1096. 
communitj'^  property,  wife's  consent  to,   172. 
conclusiveness  of,  and  parties  bound,   1107. 
conditions  precedent  in,   1110. 
conditions  subsequent  in,  1109. 
constructive   delivery,   1059. 
covenants 

agreement  to  give,  1733. 

by  agents,  how  far  binding,  2324. 

form  of,   1734. 

implied,   1113. 

running  with   land,   1460-1468. 

who  bound  by,  1465. 
damages 

for  breach  of  agreement  to  buy,  3307. 

for  breach  of  agreement  to  convey,  3306. 

for  breach  of  covenants,  3304. 
against   encumbrances,   3305. 
date  of  delivery,  presumption  as  to,  1055. 
deemed  mortgage,  though  absolute  in  form,  when,  2924. 

definition   of,   1215. 
delivery 

constructive,  1059. 

date  of,  presumption  as  to,  1055. 

in  escrow,  1057. 

1762 


INDEX. 
[References  are  to  sections.] 

CONVEYANCE 

delivery   (continued). 

must  be   absolute,   1056. 

necessity  for,  1054. 
easement,   passes   with,   1104. 
escroTP 

delivery    of   deed   in,    1057. 
executed  before  code,  how,  1205,  1206. 
execution  of  not  acknowledged,  how  proved,  1195. 
fee  passes  by  presumption,  1105. 

words  of  inheritance  unnecessary  to,   1072. 
form  of,  1092. 

fraudulent.     See  tit.  Fraudulent  Transfer.s. 
grant,  includes  what,   1053. 
heir's  conveyance  good,  when,  1364. 
"heirs"  and  "issues,"  interpretation  of  in,  1071. 
heretofore  made  governed  by  then  existing  laws,  1206. 

recordation  of  governed  by  then  existing  laws,  1206. 
highway,  boundary  by,  passes  to,  1112. 
homestead,  conveyed  how,  1242. 
incidents  of  thing  transferred  follow  to,  10S4. 
infant's  conveyance.     See  tit.  Minor. 
inheritance,  words  of  in,  not  necessary,  1072. 
interest  subsequently  acquired  passes  to  purchaser,  1106. 
interpretation 

against  grantor  most  strongly,  1069. 

in   general,    1066. 

of  "heirs"  and  "issue,"   1071. 
irreconcilable  provisions   in,   1070. 

of  limitations,  1067. 

recitals  construed,  when,  1068. 
irreconcilable   provisions   in,   interpretation    of,   1070. 
"issue"  and  "heirs,"  interpretation  of,  1071. 
judgment  proving  execution  of  instrument,  1203. 
lien 

of  vendee,   3051. 

of  vendor,  3036-3049. 
limitation  in,  as  to,  1067. 

married  woman's.     See  tit.  Married  AVoinen. 
mortgage,  absolute  deed  transfer  deemed  a,  when,  2924. 
name  changed,   by  person   with,   1096. 
operation  of  Ia>v 

after-acquired  title  passes  by,  1106. 

conveyance   by,    1091. 
owner   for   life,   conveyance   by,   1108. 
owner  for  years,  conveyance  by,   1108. 
power   of   attorney    to,    1094. 

1763 


INDE3X. 
[References  are  to  sections.] 

CONVEYANCE    (continued). 

proof   of   execution,   certificate   of,    1200. 

proof  on  action  for,  and  effect,   1204. 

recitals  in,   rseorted   to,   when,   1068. 

reconveyance,    surrendering    or    canceling    instrument    not    a, 

1058. 
record  as  notice.     See   tits.   Constructive  Xotice;  Notice, 
recording.     See  tit.  Recording^. 
remainders,    conveyance    of,    1111. 
rents,    conveyance    of,    1111. 
requisites   of,    1091. 

reserving  power  to  revoke,  effect  of,  1229. 
statute  of  frauds,  effect  of  on,   1091,   1624. 
stranger,   inures  to,   when,  1085. 
subscribing  witness,  proof  of  by,  1195,  1197. 
title,   what  passes  under,   1083. 
iiurecorded 

valid   between   parties,    1216. 

void  as   to   whom,    1214. 
warranty 

covenants   for,    1463. 

liability    for,    1115. 

lineal   and  collateral,  abolished,   1115. 
what  law  governs,    1205,   1206.  , 

will,  effect  of  on,  1302-1304. 
words  of  inheritance  not  necessary  in,  1072. 
CO-OPERATION 

of  co-operative  agricultural,  etc.,  associations  with  other  cor- 
porations,  653q. 
CO-OPERATIVE  AGRICULTURAL,,  ETC.,  ASSOCIATIONS 
agents,  appointment   of,    653q. 
amendment   of   articles    of   incorporation 

as  to  generally,   653a. 

debts  at  time   of,   653r. 
articles    of    incorporation 

amendment   of,    653r. 
debts   at   time    of,    653r. 

what   to   contain,    653o. 
by-lavFS 

as  to  what  to  contain,   653p. 

conditions   of  membership,   653p. 

membership    fee,    653p. 

number   of   directors,    653p. 

proxies,    653p. 

qualifications   of   members,    653p. 

removal    of   directors,    6o3p. 
code  of  by-laws.     See  By-LaTt-s,  this  title. 

as   to,  what  to  contain,    653p. 
1764 


INDEX. 
[References  are  to  sections.] 

CO-OPERATIVE  AGRICULTURAL,  ETC.,  ASSOCIATIONS   (con.) 
conditions  of  membership,  653p. 
co-operation    with    other   corporations,    653q. 

debts  at  time  of  amendment  of  articles  of  incorporation,  653r. 
directors 

number  of,   653p. 

removal  of,   653p. 
dissolution    of,    653q. 
fee,    membership,    653p. 
formation    of,    653m. 
ineniber.sliip   of 

as   to   generally,    653m. 

conditions   of,   653p. 

fee,    653p. 

qualifications    of,    653p. 

transfer   of,   653n. 
number  of  directors,   653p. 
po^ver.s   of   association 

as   to   generally,    653m,    653q. 

dissolution,    653q. 

to  appoint  ag'ents,  653q. 

to  co-operate  with   other  corporations,   653q. 

to  purchase  property,   653q. 
proxies,    653p. 

purchase   of   property   by,    653q. 
qualifications   of  membership,    653p. 
quo   warranto,   653s. 
removal  of  directors,  653p. 
transfer   of   membership    of,    653n. 
CO-OPERATIVE     BUSINESS     ASSOCIATIONS.       See     tit.     C..-0|i- 
erative    Business    Coriiorations. 
alteration  of  purpose  of  association,   653g. 
articles   of  association,    653d. 

acknowledgment  of,   653d. 

filing    of.    653d. 

subscription  and  acknowledgment  of,  653d. 
by-laws,    653e. 

division    of    profits,    653e. 

expulsion,    653e. 

fees  for  membership,  dues,  etc.,  653e. 

majority    of  association    necessary   to   adopt,    653e. 

manner  of   conducting   elections,    653e. 

qualification    and    succession,    653e. 

recording   and   filing   by-laws,   653e. 

what    by-laws    may    provide,    653e. 

withdrawal,   ascertainment   of   interest,    653e. 
certificate    of   membership,    653b. 

1765 


1 


INDEX. 
[References  are  to  sections.] 

CO-OPERATIVE  BUSINESS  ASSOCIATIONS    (continued), 
consolidation   of  association,  653i. 

fee  for  filing-,    653i. 

filing  of  agreement,   653i. 

what  agreement  must  state,   653i. 
dissolution  and  winding  up  of  association,  653j. 
execution  against  the  association  or  its  members,  653f. 
formation   and  purpose  of,   653b. 
interest"  of   members,    653c. 
members,   liability   of,   653c. 

who  are  eligible  as  members,   653c. 
powers   of  the  association,   653h. 
profits    of,    division    of,    653e. 
purpose  of  association,  how  altered,   653g. 
purposes  of,  altered  how,  653g. 

quo  warranto  to  inquiry  into  rights  to  do  business,  653k. 
rights,  interest,  and  liability  of  members,  653c. 
succession,   653h. 
transfer  of,   653b. 

what  corporations  not  affected  by  title,  6531. 
winding  up   of  association,    653j. 
CO-OPERATIVE    BUSINESS    CORPORATIONS.      See    tit.    Co-Op- 
erative    Business    Associutiuns. 
purpose  for  which  may  be  formed,  653a. 
CO-OPERATIVE    CORPORATIONS 
as    to,    how    formed,    653t. 
agents,  appointment  of,   653x. 
articles    of    incorporation 

amendment   of,    653y. 

what    to    contain,    653v. 
by-Ia\%'s   of 

as   to,   what   to   contain,    653w. 

expulsion    of   members,    653w. 

how  adopted,   653w. 

mentbersliip 
fee,  653w. 
to   cease   when,    653w. 

removal  of  directors  and  filling  vacancies,   653w. 

qualification    of   members,    653w. 
consolidation    with    other   corporations,    653x. 
*  dissolution    of,    653x. 
nienibersliip   of 

as    to   generally,    653n. 

conditions   and  terms   of,    653w. 

fee    of,    653w. 

number  of  and  qualifications  of,   653w. 

transfer   of,    653u,    653w. 
particular  corporations,  title  not  applicable  to,  653za. 

1766 


INDEX. 
[References  are  to  sections.] 

CO-OPERATIVE   CORPORATIONS    (continued). 
poTvers    o£ 

as  to  generally,  653x. 

to  consolidate  with  other  corporations,   653x. 
dissolution,    653x. 
to    hold   property,    653x. 
to    appoint   agents,    653x. 
property,    holding    of,    653x. 
qualifications    of   members,    653w. 
quo  warranto,  as  to,  653z. 
voting   by 

as    to    generally,    653zb. 
number  of  votes  required,  653zb. 
CO-OWNERS.     See   tits.   Mines;   Mining  Claims. 
delinquent    notice    to,    1426o. 
payment  by,  1426o. 
CORPORATE    POWERS 
as  to  generally,  354. 
banking  prohibited,   356. 
by-laws  of.     See  tit.  By-Laws. 
limitation   of,   355. 
CORPORATE   SEAL.     See   tit.   Corporations. 

how   affixed,    1628. 
CORPORATE    STOCK.      See    tit.    Stockbolders. 
CORPORATION  NAME.     See  tit.  Corporations. 

CORPORATION    SOLE.      See    tit.    Religions,    Social,   and   Benevo- 
lent Corporations. 
CORPORATIONS.     See   tit.   Corporate  Powers. 

acknowledgment  of  articles  of  incorporation,   292. 

acts   ultra   vires.      See   tit.    Ultra  Vires. 

affidavit    of    subscription    of   stock   and   payment    of   per   cent, 

295. 
agricultural  fair  corporations.     See  tit.  Agricultural  F^air  Cor- 
porations. 
amendments  of  articles  of  incorporation.     See  tit.   Articles  of 

Incorporation. 
amount  to  be  subscribed  to  be  fixed,  293. 
a    "person,"    14. 
articles  of  incorporation.     See  tit.  Articles  of  Incorporation. 

assessments 

action   to   recover,   349. 

directors  may  levy,  when,  and  for  what,  331. 
jurisdiction   acquired   by   publication   of   notice,    340. 
limitation    of,    332. 

not  invalidated,   by  what  irregularities,  346. 
not  to  be  levied  upon  stock  in  treasury,  343. 
not   to   be   levied   when  previous   unpaid,   when,   333. 
1767 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS 

as!!)e!48iiieut»<   (continued). 
notice  of 

contents    of,    338. 
delinquent,    337. 
form   of,   337. 
publication,   339. 
seryice  and  publication  of,   336. 
order  for  must  contain,  what,  334. 
proceedings  to  be  begun  anew,  when,  346. 
sale  of  stock  for  payment  of,  334-349. 
banking.      See   tit.    Banking   Corporations. 
banking  expressly  prohibited,  356. 
benefit   society.       See    tit.     Rellgrious,     Social,    and    Benevolent 

Corporations. 
benevolent    corporations.      See    tit.    Religlon.s,    Social.    an«l    Be- 
nevolent   Corporations. 
bequests  to,  restriction  on  power  to  make,  1313. 
board   of  directors.     See   tit.   Directors,  Board  of. 
boards   of   trade.      See   tit.   Chambers   of   Commerce,  Boards   of 

Trade. 
bonded    indebtedness,   359. 

creating  and  Increasing,   proceedings  for,   359. 
bonds,   restrictions  upon   issue   of,   359. 
books   of  stock   and  transfer,   how  kept,   378. 

of  directors  and  stockholders  open  for  inspection,  321. 
)">ooks  to  be  open  to  inspection,  321. 
bridge,    ferries,    wharf,    chute,    and    pier.      See    tit.    Bridges, 

Ferry,    \%'liarf,    Chnte,    and    Pier    Corporations. 
building  and  loan.     See  tits.   Building  and  Loan  Associations; 
Building   and   Land   Corporations. 
formation    of,    648a. 
reincorporation   of  existing,   648a. 
building  corporations.     See  tit.  Building  Corporations. 
burned  bonds  of,  procedure  to   obtain   duplicates,  329. 
business    associations.      See    tit.    Co-operative    Business    Asso- 
ciations. 
business   corporations.      See   tit.   Co-operative  Business   Corpo- 
rations. 
by-laws.      See   tit.   By-La«'s. 
capital   stock 

amount  of,  to  be  set  forth  by  articles,   290. 
increasing   and   diminisliing,    proceedings    for,    359. 

restrictions   on,   309. 
withdrawal,   restrictions   on,    309. 
capital  stock  of  banking  companies,  300. 
dividends   of,   300. 

1768 


i 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

cemetery.     See  tit.   Cemetery  Corporations. 
certain   corporations   to   state   further  facts,    291. 
certificate    not   to    issue,    when,    296. 
certificate   of.      See   tit.   Certificate  of  Stock. 
certificate  of  residence  to   be  filed,  when,   1163. 
certificate   of   stock.      See   tit.   Certificate  of  Stock. 

restoring-  lost.      See   tit.   Restoration   of  Lo-st   Records. 
chamber    of    commerce,    etc.,    corporations.      See    tit.    Chamber 
of  Commerce,  Boards  of  Trade,  etc. 

copy  of  decree   to  be  filed  with  secretary  of  state,  300a. 

filing-  decree   of  court,  300a. 

how  perfected,  300a. 
chang'e  of  place  of  business,  procedure  on,   321a. 
cliute.      See    tit.    Bridges,   Ferry,  Wharf,   Chute,   and   Pier   Cor- 
porations. 
classes  of.     See  "Kinds  of,"  tliis  title, 
collateral  attack,  358. 
colleg-es   and   seminaries.      See   tit.   Colleges   and   Seminaries   of 

Learning, 
consolidation 

of  adjoining   mine   companies,    361. 

of  co-operative  business  associations,  653i. 

of    societies,    652,    653. 
complaint  against,   315. 

notice   of   filing  petition,   315. 
consolidation   of  adjoining-  mining  companies,   361. 
continuance  in  business,  358. 

contract  to  relieve  directors  from  liability  void,  wlien,  327. 
co-operative   business  corporations  and  associations.     See   tit. 

Co-operative    Corporations    and    Associations. 
copy  of  articles  must  be  filed,  where,   299[a] 
corporations   to   discover   fires   and  save   human   life.      See   tit. 

Fire    Corporations. 
corporations   to   furnish    light  for   public    use.      See   tit.   Corpo- 
rations to  Furnish  Liglit  and  Heat. 
costs  of  suit  for  duplicate  of  lost  certificate  of  stock,   328. 
cruelty.      See    tit.    Societies    for    the    Prevention    of    Crueliy    to 

Cliildren    and    Animals. 
curing-   defects   in   articles,   cannot   be   by  amendment,   362. 
damages 

for  failure  to   file   copy   of  articles  as   required,    299[a]. 

for  false  entries,   316. 

recovery  of  by  purchaser  of  franchise  at  execution  sale,  391. 
debts  beyond  capital  stock,  liability  for,  309. 
definition    of,    283. 

1769 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS   (continued). 

delinquent  assessment,   sale  of  stock   of  unknown   owner  for, 

365. 
devise  to,  restrictions  of  power  to  make,  1313. 
directors 

are  trustees   of  creditors  and  stockholders,   400. 

contracts  relieving  from  liability  void,  327. 

inhibitions    on,    309. 

majority  a  quorum,   308. 

majority  must   be  citizens  of  state,   305. 

must  perform   duties,   308. 

number   of,    290,    305. 

organization  of  board  of,  308. 

personal   liability   of,   309. 

limitation   of  actions  on,    309. 
removal  from  office,  proceeding  for,  310. 
vacancies,    how    filled,    305. 
who  may  be,   305. 

election  of.     See  "Elections,"   this  title, 
notice   of  election  of,   302. 
of  new  on  removal  of  old,  310. 
time    of,    302. 
dissolution    of,    399-403. 

by  amendment   of  law,    404. 

judgment  cannot  be  rendered  against  after,  404. 
dividends  to  be  declared  from  surplus,  309. 
distribution   of  land  and  water,   309. 
penalty  for  violation  of  section,  309. 
dock,  528-531. 

elections.     See   "directors,"   this   title, 
adjournment  of,  314. 

by-laws  may   prescribe   rules  for,   303. 
complaints    respecting,    and    proceedings,    315. 
cumulative  voting  at,  307. 
eligibility  of  voters,   312. 
lunatic's   stock,   how   represented  at,   313. 
may    be    postponed,    314. 
minor's   stock,   how   represented   at,    313. 
not  held  at  appointed  time,  procedure,  315. 
votes    avoided,    how,    312. 
who   may    vote,    312. 
electric,  632. 

examination  of  affairs.     See  tit.  Examination  of  Corporations. 
examination    of   books   of.      See   tit.    Miuiu;!;   Coriioratlons. 
execution    sale 

corporation   retains  power,   391. 
purchaser  at  may  recover  penalties,   390. 
1770 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS 

execution    sale    (continued). 

purcliaser  at  to  transact  business  of,  389. 
where  to  be  held,  393. 
execution   of  articles  of  incorporation,    292. 
existence   of  corporation   not   affetced  by   code,    288. 
existence  of,   how  continued  under   code,  287. 
extension   and   dissolution    of,    399-403. 
false    certificate   of   stock,    316. 
false   entries,    316. 

fee  of  recorder  for  recording,  1163. 
ferry,    528-531. 
filing'   of   articles   of   incorporation,   erroneous,   corrected   how, 

363[a]. 
fire,  corporations  to   discover,  etc.     See  tit.  Fire  Corporations. 
fire,    marine,    and    title    insurance    corporations.      See    tit.    In- 
surance   Corporations. 
foreign   corporations.     See   tit.  Foreign  Corporations, 
formed 

complete,    when,    296. 
for  any  purpose,   286. 
how,   285. 
franchise 

for    constructing   road   for   bicycles   and    liorseless   vehicles, 

etc.,   524. 
of,  may  be  sold  under  execution,  388-393. 
redemption  of  from  execution  sale,  494. 
fraternal.     Se^  tit.  Religious,  Social,  and  Benevolent  Corpora- 
tions. 
societies   exempt  from   insurance   laws,    453k-453p. 
friendly   societies,  limitation   of  amount  of  land  that  may   be 

held   by,   596. 
gas.      See   tit.   Corporations  to  Fnrnlsta  Liiglit  and  Heat. 
homestead  corporations.     See  tit.   Homesteads. 
good   will.      See   tit.    Good   Will. 

increasing  and   diminishing   capital    stock,   methods   of,   359. 
consent   and    no    dissent,    359. 
consolidation   of  corporations,   359. 
infant's  stock,  how  represented  at  elections,   313. 
inspection,   books   to  be  open   to,   321. 

insurance   corporations.      See  tit.   Insurance  Corporations. 
irrigation.      See   tit.   Water  and  Canal  Corporations. 

as   to,    552. 
journal   of  proceedings,  how  to  be  kept,   377. 
justice  of  the  peace  may  order  meeting  of,  when,  311. 
kinds  of 

as  to  generally,  284. 
public   and   private,    284. 

1771 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS   (continued). 

land  and  building   corporations.      See   tit.    Land   and   Building 

Corporations. 
legislature  may  amend  corporate  law,  404. 
life,  health,  accident  and  annuity  insurance  corporations.    See 

tit.    Insurance    Cori)pration.s. 
limitation  of  actions 

in   favor  of  foreign   corporations,    406. 
to  enforce  directors'  personal  liability,  309. 
to   recover   stock   sold   for   delinquent  assessments,    347. 
limitation  of  powers  of,  355. 
lost   or   destroyed   certificate   of  stock.    .See   tit.   Certificate   of 

Stock. 
lunatic's  stock,  how  represented  at  elections,   313. 
majority  of  stockholders  must  be  represented  at  elections,  312. 
married    -woman 

dividends   may   be   paid   to,    325. 
transfer   of   stock   by,    325. 
may  acquire  real  property,  and  how  much,  360. 
may   transfer   foreign    concessions,    364. 

mechanics'  institutes,  etc.     See  tit.  Clianilter.s  of  Commerce,  etc. 
meeting 

adjournment  of,  312. 

application  to  justice  of  peace  to  call,  311. 
by   consent   valid,    317. 
by-laws  may  provide  for,  303. 
justice  of  peace  may  call,  w^hen,   311. 
special,   when  and  how  called,   320. 
where    to    be    held,    319. 
minimum  capital  to  be  required  to  be  paid  in  before  organi- 
zation,   290a. 
mining  corporations.      See   tit.   3Iiniugr  Corporations. 
misnomer  in  instrument  does   not  invalidate   contract,   357. 
mutual    benefit  and   life   associations.      See    tit.    Insurance   Cor- 
porations. 
mutual  life,  health,  and  accident  insurance  corporations.     S^e 

tit.    Insurance    Corporations. 
name  of  instrument  creating  corporations,   289. 
no   provision   in   by-laws,   regular   and   special    meetings,   how 

called,    320. 
nonprofit  co-operative  agricultural,  etc.,  associations.     See  tit. 

Co-operative    Agricultural,    etc.,    Associations. 
non-resident,  transfer  of  stock  by,  326. 
notice 

false,  liability  of  officers  for,  316. 

of    hearing   of   application    for    restoration    of    lost    records, 

certificates,   etc.,    365. 
to  be  published  in  what  newspapers,  303. 
1772 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 
notice    o£    assessment 

contents    of,    338. 
delinquent,    337. 
form    of,    335. 
publication    of,    339. 
service   of,    336. 
notice  of  directors'  and  stockholders'  meeting,  320. 
notice   of  election   of  directors,  302. 
notice  of  meeting 

to  create  or  increase  bonded  indebtedness,   359. 
to  increase  or  diminish  capital  stock,  359. 

to   remove    directors,    310.  ' 

notice  of  proposed  change  of  principal  place  of  business,  321a. 
notice  of  sale  of  stock  to  pay  assessment,  how  publication  of 

proved,   348. 
number  of  directors  may  be  increased  or  diminished,  290. 
oath    of    officer    to    subscribe    to    stock    and    payment    of    ten 

per  cent,   295. 
officers.     See  tit.   Officers  of  Corporations. 

false  certificates,  notices,  or  reports  by,  316. 
other  than   for  profit,   312 [a]. 

penalties,    recovery    of    by    purchaser    of    franchise    at    execu- 
tion sale,   390. 
pier.      See  tit.  Bridges,  Ferry,  Wliarf.  Cliute,  and  Pier  Corpo- 
rations. 
pioneer,  amount  of  land  to  be  held  by,  596. 
place  of   business,  proceedings  for  change  of,   321a. 
postponement  of  election,  314. 
powers   of.      See   tit.    Corporate   Powers. 

powers  of  and  business  exercised  by  board  of  directors,  305. 
prerequisite  to  filing  articles  of   incorporation   for  profit,   294. 
prerequisites  to   filing  articles,   293. 
private   corporations,    how   formed,   285. 
private  corporations  may  be  organized,   286. 
proceedings  at  meetings,   318. 

profit,  associations  formed  for  purposes  other  than,  593-605. 
public  and   private   distinguished,    284. 
publication  of  notice,  in  what  newspapers,  303. 
purposes  for  which  may  be  formed,   286. 
quorum 

of   board,   305. 

of  stockholders,  by-laws  may  provide  for,  303. 
quo   warranto   against,    358. 

quo   warranto,   proceedings    thereon    regarding   elections,    315. 
railroads.      See   tit.    Railroad   Corporations. 

real    property.       See    tits.     Hiiilding    and    L-oan    Corporations; 
Cemetery    Corporation.s,    et<f. 
1773 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS 

real  property   (continued). 

amount  corporations  may  acquire  and   hold,   360. 
how   acquired,    360. 
records 

restoration   of  lost.     See  tit.   Restoration  of  Lost  Records. 
stock  and   transfer  books,  how   kept,    378. 
tcrbe  open  for  inspection,  377,   378. 
what  to  be  kept,   377. 
records   of.     See   tit.   Articles  o£  Corporation. 
recovery  of  stock  sold  for  delinquent  assessments,  349. 
redemption 

of  franchise  from  execution  sale,  392. 
of   stock   sold   for  delinquent  assessments,    347. 
regular  meetings,  how  called  where  no  provision   in   by-laws, 

320. 
religious  corporations.      See  tit.  Reli;?ious,  Social,  and  Benevo- 
lent   Corporations. 
removal  from  office  of  directors.     See  tit.   Directors,  Board  of. 
reports,  false,  liability  of  officers  for,   316. 
representation    of    stock,    313. 
resemblance    in    name.    296. 

restoration   of  lost   records,  certiflcates  of  .stoclc,   etc. 
as    to    generally,    365. 

jurisdiction  of  court,  judgment  and  decree,  365. 
notice    of   hearing,    publication    of,    365. 

proof  required  of  publication  and   service  of,   365. 
service    of,    365. 
of  lost  original  articles  of  incorporation,  297a. 
petition  filed  with  court  for,  365. 

unknown     owners,    sale     of    stock     for     delinquent     assess- 
ments, 365. 
sale    of    stock 

to    pay   assessments,    348. 

action    to   recover    stock,    347. 

corporation  may  buy  in  default  of  bidders,  343. 

disposition   of   stock   bought,    344. 
extension    of    time    for,    345. 
jurisdiction,    how    acquired,    340. 
of   unknown    owners,   365. 
publication  of  notice,  how  made,   348. 
to  be  by  public  auction,  341. 
to  be   to  the   highest  bidder,  342. 
waiver  of,  and  of  suit  to  recover  same,  349. 
savings  and  loan  corporations.     See  tit.  Savings  and  Loan  Cor- 
porations. 
seal.     See  tit.   Corporate  Seal. 

1774 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

seminaries   of   learning-.      See   tit.    Colleges   and   Seminaries   of 
Learning. 

social  corporations.     See  tit.  Religious,  Social,  and  Benevolent 
Corporations. 

societies    for   prevention    of   cruelty   to   children   and   animals. 

See   tit.   Cruelty  to  Cliildren  and  Animals. 
sole.     See  tit.  Corporation  Sole. 

special   meeting's,   how  called   where  no  provision   in   by-laws, 

320. 
special   provisions  apply,   when,   403[a]. 

legislature  may  amend  corporate  law,  404. 
statute   under   which   organized   may   be   repealed,   384. 

how  represented,   313. 
stockholders.      See    tit.    Corporate    Stock. 

liability.     See  tit.   Stoclcliolders. 

meetings,  who  may  vote  at,  321b. 

maximum    period    of   proxies,    321b. 

proxies  void,  when,   321b. 

revocability  of  proxies,  321b. 

who    are,    298. 
street  railroad  corporations.     See  tit.  Street  Kailroad  Corpora- 
tions. 
subscription  of  articles  of  incorporation,  292. 

affidavit    of,    295. 

to   capital    stock,  amount   requisite   to   filing  articles,    293. 
surplus  profits,  what  are,  310. 
telegraph    corporations.       Si»e    tit.    Telegraph     and    Teleplione 

Corporations. 
term   of  existence,   290. 

time  within  which   must  be  organized,   358. 
to   organize  within  a  year,   358. 

transfer   of   franchise    of   corporation    valid,    when,    Sfila. 
transfer    of    sliares 

by   non-resident,   how  affected,    326. 
to    give    bond,    326. 

does  not  release  stockholder,  322. 

of  married  women,   325. 

of   water   or   irrigation    companies,    324. 

to  be   entered  on   books,   324. 

to   purchaser  on   sale   for  delinquent   assessment,   343. 
"trust"    and    "trustee,"    when    to    be    part    of   corporate    name, 

290%. 
unknown  owners,  sale  of  stock  of  for  delinciuent  assessments. 

365. 
vacancy  in  office  of  directors,  how  filled,  305. 
wagon  road  corporation.     See  tit.  W'agon  Road  Corporations. 

1775 


INDEX. 
[References  are  to  sections.] 

CORPORATIONS    (continued). 

water   and   canal    corporations.      See    tits.    Irrigation   Corpora- 
tions;  Water  and   Canal   Corporations.  t^ 

wharf.      See  tit.  Bridge,  Ferries,  VVliarf,  Cliute,  and  I'icr  Cor-  i 

porations. 
as  to,   528-531. 

wlien    formation    complete,    296.  ^ 

will,  may  take  under,   when,  1275.  ^ 

CORPORATIONS    TO    FURIVISH    LIGHT   AND    HEAT 

duty  to  furnish   gas  or  electricity,    629. 

may   refuse   electric   current   for   electric   light,    when,    630a. 

may   refuse  to  supply  gas,   when,   630. 

right  to  enter  buildings  for  inspection,  631. 

right  to  shut  off  supply  of  gas  or  electricity,   632. 
COSTS 

apprentice,  in  proceedings  against  for  misbehavior,   274. 

apprenticeship  proceedings  in,  268. 

divorce,  in   proceedings  for,   137. 

homestead 

in   appraisement   of,   1259. 

in   proceedings  to  subject  to   claims,   1259. 

indemnity    against,    2776. 

lost  certificate   of  stock,   in   suit  to   obtain   duplicate,   328. 
CORRECTION 

of   instrument  improperly  certified,   1202. 
CORRUPT  CONSENT.     See  tit.  Divorce. 
COTENANCY. 

between   devisees,   1350. 

between   husband  and  wife,   161. 

waste    by    cotenant,    1715. 
COTERMINOUS    OWNERS 

mutual   obligations  of,  841. 

right   to   lateral   support,    832. 

right  to  line  trees,  834. 
COUNSEL  PEES.     See  tit.  Attorney  Fees. 
COUNTY 

chattel  mortgage  to  be  recorded  in  what,  2959. 

marriage  settlements  recorded  in  what,   179. 

mortgaged  property   in   transit,  deemed  located  in   what,    2960. 

property   of   common   carrier,  deemed   in   what,   2961. 
COUNTY  CLERK.     See  tit.  Clerk. 
COUNTY   COM3IISSIONER 

acknowledgments  may  be   taken   by,   1181. 
COUNTY  RECORDER 

acknowledgment  may  be  taken  by,  1181. 
COURT 

statements  to.     See  tit.  Statement. 

1776 


INDEX. 
[References  are  to  sections.] 

COURTESY 

not  allowed,    173. 
COVENANT.      See    tits.    Covenants   Running   ivitli    Land;    Implied 
Covenants. 

agent's   authority   to   give.      See   tit.    Agent. 

agreement    to    give,    1733. 

apportionment   of,    1467. 

damages  for  breach  of.     See  tit.  Damages. 

as  to,  3304. 
form   of,    1732. 

implied,  effect  of  use  of  word  "grant,"   1113. 
of  quiet  possession,  in  liiring,  1927,  1955. 
running  with  land.     See  tit.  Covenants  Running  with  Land. 

who  is  and  who  not  bound  by,   1465. 
what  necessary  to  create,   1460-1468. 
COVENANT    AGAINST    ENCUMBRANCES 

damages   for   breach   of,   3305. 
COVENANT    OF    SEIZIN 

definition  of,  3304. 
COVENANTS   RUNNING   WITH    LAND.      See   tit.   Obligations. 
apportionment   of,    1467. 
as  to,  1460. 

covenant  to   pay   rent,   1463. 
covenants  for  benefit  of  property,  1462. 

covenants   run    with   land   where   assigns   are   named,   1464. 
transfer   of,    1468. 

what  covenants  run  with  land,  1461. 
who  are  bound  by,  1465. 
CREDIBLE  WITNESS.     See   tit.  Words  and  Phrases. 
CREDIT 

agent  accepting   liable   as   principal,    2243. 

given  to,   exonerates  principal,   2335. 
auctioneer,  when  to  and  when  not  to  give,  2362. 
factor  may  give,  exception,  2368. 
factor's,   sale  on,   2028 

ship-owners,   master  may   borrow   on.      See   tit.   Shipmasters. 
ship's  manager  cannot  borrow  on,  2389. 
CREDITOR.      See    tits.    Assignment     for     Benefit     of     Creditors; 
Credit;    Debtor   and   Creditor. 
acceptance  by,   necessary  to   satisfaction,   when,    1473. 
acceptance   of   accord,    1523. 

of   part    performance,    1524. 
application   of   performance    by,   1479. 

appraisement   of   homestead  on   petition    of,   when,   1245. 
avoid  act  of  debtor,  when,  3441. 
benefit  of  securities  held  by  sureties,  2854. 
contracts  of  debtor  are  valid  against,  when,  3431. 

1777 


INDEX. 
[References  are  to  sections.] 

CREDITOR    (continued), 
debtor's   preference,   3432. 

gift  causa  mortis  to  treated  as  legacy,  when,  1153. 
grantor  liable  to,   when,  2807. 

by  void  promise  of,  2820. 

indemnified,   when   not  exonerated,   2824. 

not  exonerated  by  mere  delay  of,   2823. 

wh^   exonerated,    2819. 

when    partially   exonerated,    2822. 
homestead,    expenses    of    appraisement    to    be    paid    by,    when, 

1259. 
may  be  witness   to  will,  1282. 

mortgage  of  personal   property   void  against,  when,   2957. 
novation.     See  tit.  Novation. 

how  created   by,   1532. 

may   rescind,    when,    1533. 
objections  to  offer  must  be  made,  when,  1501. 
obligations   of,  as   to   thing   offered,    1505. 
offer   of   performance   at  place   designated   by,    1489. 
offer  of   performance   to,    1488. 
offer  of  performance,  when  to  benefit,  1493. 
order  to  resort  to  funds,  when  made,  2899. 
partner  cannot  make  assignment  for,   2430. 

liability   after   dissolution,    2453. 

special,  may,  when,   2490. 

postponed  to  other  creditors,  2491. 
performance  by  one  of  several  joint,   1475. 
performance  excused,  when,  1511. 

in    manner   directed   by,    1476. 
performance   to  void,   when,   2496. 
prevention    of   performance    by,    1512. 
receipt    by,     1499. 

refusal    to   accept   performance,    1515. 
relative   rights   of,   3433. 
release   by,    effect   of,    1542. 
rights   of,    2854. 

special,  liable  as  general  partner,   when,   2502. 
surety  and  title  to  seeuritie.««  held  by,  wlien 

as  to  generally,   2849. 

exonerated  by  what  acts  or  omissions  of,  2840. 

may   enforce  remedies   of,  when,   2845. 

securities  held  by   sureties  for  benefit   of,   when,   2854. 
title  of  thing  offered  passes  to,  when,   1502. 
transfer  for   benefit   of,   recordation,    1164. 
transfer  of  debtor  void  as  against,   when,  3439,  3440. 
transfer  to,  without  value  not  void,   3442,   3449,   3465,   3473. 
trust  fund  liable  to,  when,  859. 

1778 


INDEX. 

[References  are  to  sections.] 

CREDITOR    (continued), 
trustees  for  benefit  of,  857. 
who   is,    3429. 

witness   to   will,  may   be,   1282. 
CROP 

mortgage   of.      See   tit.   Growing  Crops. 
tenant's  rig'ht  to  harvest,   819. 
CRUELTY 

apprenticeship   annulled   for,    275. 
divorce,  grounds  for,   92,    98,   147. 
of   spouse   defined,    94. 

to   children   and  animals.      See  tit.    Societie.s   for  Prevention  of 
Cruelty   to    Children    and    Animals. 
CUMULATIVE.      See    tit.    Corporations. 

voting,   307. 
CURRENT    MONEY 

borrower   to   pay   in,    1912. 
CUSTODY 

of    children.      See    tits.    Divoree;    Infant    and    Infancy;    3Iinors; 

Parent    and    Child. 
of  thing  offered  in  performance,  1503. 
DAM 

right  to   raise,    1412. 
DAMAGES.      See   tits.    Libel;    Railroad   Corporations. 

acceptance  of  principal   waives  claim  to   interest,   3290. 

acknowledgments,    1202. 

after   suit   brought,    3283. 

agent's  authority,   breach  of  warranty  for,  3318. 

allowed  by   the   code  exclusive  of  others,   3357. 

animals 

for  injuries  by.     See  tit.  Animals. 
for   injuries   to,    3340. 
certain,    must    be,    3301. 
contract  fixing,  as  to,   1670. 
detriment,  what  is,  3282. 
exemplary 

in   action    for   injuries   to   animals,    3340. 
infant's    liability    for,    41. 
in  what  cases  allowed,  3294. 
lunatic's    liability    for,    41. 
when  recoverable  generally,   3294. 
for   breach   of  agreement 
to    buy    personalty,    3311. 
to    buy    realty,    3307. 
to  convey  realty,   3306. 
to  pay   for  personalty  sold,    3310. 
to  sell  personal  property,   3308,   3309. 
1779 


INDEX.  >| 

[References  are  to  sections.]  ^ 

DAMAGES   (continued). 

for  breach   of  covenant.      See   tit.    Covenant.  . 

for  breach  of  promise  of  marriage,  3319.  '^ 

for  breach  of  warranty  of  quality  of  personalty,  3313. 

for  special   purposes,   3314. 

of   warranty   of   title   of,    3312. 
for  carrier's   delay.      See   tit.   Carrier. 

breach    of   obligation    to   deliver,    3316. 

breach  of  obligation  to  receive,  3315.  , 

for  conversion,   3336,   3337.  t 

for  detaining    or    overcharging    by    wagon    road    corporation, 

518. 
for  dishonor   of   foreign   bill,    3234,    3238. 
for  employing  materials  of  another,  1030. 
for  failure  by  tenant  to  quit  on  notice,  treble  rent,  3344. 
for  false    imprisonment.      See   tit.   False   Imprisonment. 
for  future    injuries,    3283. 
for  injuries   in    duel,    3347,    3348. 
for  injury  to   timber,   3346. 
for  injury    to    trees,    3346. 
for  killing   sheep   by   dogs,    3341. 
for  libelous    publications.      See    tit.    liibel. 
for  lienor's    conversion,    3338. 

for  malicious    prosecution.      See    tit.    Malicious    Prosecution. 
for  master's    breach    of    indenture.      See    tit.    Master    and    Ap- 
prentice. 
for  negligence    in    setting    fire,    3346a. 
for  refusal   to   carry,    482. 
for  seduction,    3339. 

for  treble   rent  against  tenant,   when,   3344. 
for  trustees    holding    over,    3335. 

for  violation  of  rights  of  citizens  in  places   of  public  accom- 
modation or  amusement,  52. 
for  wrongful  occupancy  of  realty,  3334. 
for  wrongs    generally,    3333. 
for  wrongs.      See   tit.    Damages    for   Wrongs. 
forfeiture,   relief   in   cases   of,    3122. 
holding  over,  damages  for  wilful,  336. 
in  action   other  than   contract,   3288. 
interest  as,  3287-3290. 

injuries  resulting  or  probable  after  suit  brought,  3283. 
interest,  acceptance  of  principal  waives,  3290. 
interest  as  damages,  as  to,   3287. 
limit  of  rate   of   compensation,   3289. 
limitation  of,   3358. 
limitation   of  damages,    3358. 
liquidated,    1670. 

1780 


< 


INDEX. 
[References  are  to  sections.] 

DAMAGES   (continued). 

liquidated  sum  for  breach   of  contract,  to  pay,   3302. 

market  value  as,  3353. 

may  be  recovered  by  whom,  3281. 

measure   of.      See   tit.    Measure  of  Damages. 

as  to,    3300-3319. 
must  be   certain,    3301. 
nominal,   3360. 
penal   damages,  as  to,  3344. 

failure  to  quit  after  notice,  3344. 
for   injuries   in   duel,   3347. 
in   firing  woods,   3346a. 
penal  damages,  for  injuries  to  trees,  etc.,  3346. 

wilfully    holding    over,    3345. 
property   of  peculiar   value,   3355. 
public   places,   for   denying  access   to,    54. 
reasonable,   must  be,    3359. 
relief  against  in  general,  2274,  2275. 
sheep-killing   dogs,    3341. 
specific   relief.      See  tit.   Specific  Relief. 
tenant,  when  liable  for  treble  rent,  3345. 
to   be   reasonable,    3359. 

value 

how  estimated  in  favor  of  buyer,   3354. 
how  estimated  in  favor  of  seller,  3353. 
of    property    of    peculiar,    3355. 
of    thing    in    action,    3356. 
who  entitled  to  in  general,  3281. 
wrong-doer  liable    in    uniting   materials,   1033. 
DAMAGING   TELEGRAPH    OR    TELEPHOE    PROPERTY.      See 

tit.  Telegraph  and  Telephone  Companies. 
DATE 

deed,  delivery  of,  presumption  as  to,   1054. 
in  negotiable  instruments  necessary,   3091. 
nominal   in   negotiable   instrument,    3094. 
DAYS 

business,    what    are,    9. 

counted  in  computing  time,  what  are,   10. 
fraction    of,    14. 
holidays,    what   are,    7. 
of  grace.     See  tit.   Days  of  Grace. 
DAYS    OF    GRACE 

not  allowed  on   bill  of  exchange,   3181. 
DEATH 

distribution  of  common   property 
on  death  of  husband,  1402. 
on  death  of  wife,   1401. 

1781 


INDEX. 
[References  are  to  sections.] 

DEATH    (continued). 

gift  in  view  of.     See  tit.  Gift. 

marriage    dissolved   by,    90. 

notice  of  dishonor  in  ignorance  of,  3146. 

of  devisee  before  testator,  1310,  1343,   1344. 

of  lieir   before    devisor,    1399. 

of  husband  and  wife,    effect  on  homestead,   1265. 

of   insurer,    effect   on   insurance,    2556. 

of  joint  guardian,  252. 

of  maker   of   instrument   bearing   nominal    date,    3094. 

of  minor,   representative  may   disaffirm  contract,   35. 

of  parent   leaving   children    unprovided  for,    205. 

of  seamen,  who  entitled  to  wages,  2062. 

without    heirs,    etc.,    definition,    1071. 
DEBT.      See  tits.  Creditor;   Debtor. 

agreement  to  answer  for,  etc.,  of  another,  1624. 

encumbrance  included  in   word  "debt,"   1114. 

extinguished    by    payment,    1500. 

homestead   liable    for,   when,    1241. 

husband  not  liable  for  antenuptial  of  wife,  170. 

legacy   charged   with,   how,    1360,    1361. 

liability  of  beneficiaries  for  testator's,   1377. 

officers  of  corporation  liable  for,   316. 

partner    liquidating   may    collect,    2461. 

partner  may  require  application   of  property   to,    2405. 

pledgee   cannot  sell   evidences  of,   3006. 

separate   property  of  -wife 

liable   for  her   own   debts,   171. 

not  liable  for  husband's  debts,  171. 

special  partner's  contribution,  liability  for,  2501. 

stockholder   liable   for,    when,    322. 

successor  liable   for   decedent's,    1408. 

testator's     property,     how     disposed     of     in     payment     of     his 
debts,    1359. 
DEBTOR.      See   tits.   Assignment   for  Benefit   of   Creditors;    Cred- 
itor;   Frandulent    Transfer. 

application  of  general  performance  by,  1479. 

contracts    of,    valid,    when,    3431. 

creditor  can  avoid  act  of,  when,   3441. 

definition    of,    3429. 

effect   of  directions  as   to   performance,   1476. 

fraudulent  misrepresentations   by,   to   pledgee,    2999. 

insolvent,    what   is,    3450. 

joint,   release  of  one,  effect,   131. 

offer  of  performance  by  or  for,  effect,  1488. 

performance 
by  joint,   1474. 

1782 


INDEX. 
[References  are  to  sections.] 

DEBTOR 

performance    (continued), 
must   be   by   or   for,    1473. 
preferences   by,    3432. 

receipt,   may  require   on   payment,   1499. 

relative   rights   of  creditors,   3433. 

release  of,  by  creditors,  effect,   1541. 

rights   of,    when    performance    prevented,    1512-1515. 
DEBTOR  AND  CREDITOR 

assignment   for   benefit   of   creditor.      See    tit.    AMNiiemiiient    for 
Benefit    of    Creditors. 

creditor's  right  must  be  judicially  ascertained,   3441. 

creditors,   relative   rights   of,    3433. 

debtors'   contracts  are  valid,   when,    3431. 
payments    in   preference,    3432. 

fraud,   how   determined,   3442. 

fraudulent  transfer.     See  tit.  Fraudulent  'I'ranNfer. 

transfer  presumed  to  be  fraudulent,  when,  3440. 

insolvency,  what  is,   3450. 

preference.     See  subd.   "payments   in   preference,"   tliis   title. 

relative   rights  of  creditors,  3433. 

who  is  a  creditor,   3430. 

who  is  a  debtor,   3429. 
DECEIT 

essential    elements   of   fraud,    1572. 

fraudulent,   liability    for,    1709. 

in   general,    1709-1711. 

renders   contract   voidable,    156C. 

upon    the    public,    1711. 

what  Is,    1710. 

when   actionable,    1709,    1710. 
DECK.     See    tit.    SIiIiih   nud    Slii|M>iiiK- 

freight  not  to  be  stowed  on,  2117. 
DECLARATION.      See   tits.    HoniOMteiul,   n<-<-liiriili<>ii   ..f:    W  IIIh. 
DECLARATION    OF    HOMESTE.VD 

as    to    generally,    1263. 

by  other  than   head  of  the  family,   IJijij. 
declaration  mu.^it  he  recorded,   1208. 
declaration    must    contain    what,    1267. 
effect  of  filing  declaration  for  record,   1269. 
mode  of  selection,  1266. 

contents   of   what,  ^263. 

declaration   must  be  recorded,  1264. 

tenure  by  which   homestead   held,    1265. 
DECREE   MSI.      See   tit.    Divorce. 
DEED.     See  tit.  Q,ultclnlni  DeedH. 

Interpretation    against    grantor.    1069. 

1783 


i 


INDEX, 
[References  are  to  sections.] 

DEED   (continued). 

interpretation  of  irreconcilable  provisions,   1070. 

interpretation  of,  recitals  resorted  to,  when,   1068. 

presumption  as  to   time   of   delivery,    1055. 

quitclaim.      See    tit.    Q,uitclniiu    Deeds. 
DEBD    ABSOLUTE 

in  fact  a  mortgage;  must  be  recorded  as  mortgage,   1172. 
DE   FACTO   CORPORATIONS.      See   tit.    CuriioriitiunN. 
DEFaSiATIO.X.      See    tits.    Libel;    Slauder. 

as  to   what  is,   44. 
DEFAULT.      See   tit.   Divorce. 

Decree  of  divoi'ce  not  allowed   on,    130. 

divorce  not  granted  by,   130. 
DEFEASANCE 

deed  absolute  made  on  is  mortgage,  2925.  ^ 

DEFECT  .i, 

certificate   of  acknowledgment,   action   to   remedy,   1201.  v' 

depositor  must  indemnify  depository  for,  1833. 

lender  must  indemnify  borrower  for,  1835. 

warranty  by  manufacturer  against  latent,  1769. 

will,    in    description    in,    141. 
DEFLECTIVE    ARTICLES    OP    MANUFACTURE.      See    tit.    NesII- 

Kcnee. 
DEFECTIVE  MACHINERY  FURNISHED  BY  MASTER.     See  tits. 

Master   and    Servant;    Ne^Iisenoe. 
DEFINITION.     Sec   tit.    ^Vord.s  and   Phrases. 

accord,    1521. 

adultery,    93. 

agency,    2295. 

bill    of   exchange,    3171. 

bottomry,    3294. 

charter   party,    1959. 

collusion,   114. 

condition    concurrent,    1437. 

condition    precedent,    1436. 

condition    subsequent,    1438. 

condonation,   115. 

connivance,   112. 

consignee,    2110. 

consignor,    2110. 

contract,    1549. 

corporation,    283. 

create   debts,    579. 

depose,    14. 

desertion,    95. 

detriment,   3282.  „ 

duress,    1569. 

1784 


INDEX. 
[References  are  to  sections.] 


DEFINITION    (continued), 
encumbrance,   1114. 
exchange,    1804. 
extreme   cruelty,    94. 
factor,     2026. 
fee,    762. 
freig-ht,    2110. 
freightage,   2110. 
general  average,  2148. 
gift,   1146. 
good   will,    992. 
grant,    1053. 
guaranty,     2787. 
guardian,    236. 
habitual   intemperance,    106. 
head    of    family,    1261. 
hiring,    1925. 
holographic    will,    1277. 
impossibility,  1597. 
income,    748. 
indemnity,    2772. 
insurance,   2527. 
interest,    1915. 
jettison,   2148. 
joint  interest,  683. 
letter  of  credit,   2858. 
libel,    45. 
lien,    2872. 
loan,    1884. 
month,   14. 
mortgage,    2920. 
negotiable    instruments,    3087. 
novation,    1530. 
nuisance,   3479. 
obligation,    1427. 
olographic  will,   1277. 
partnership,    2395. 
personal    property,    14. 
pledge,    2986. 
promissory   note,   3244. 
property,    14,    654. 
real  property,  14. 
recrimination,    122. 
respondentia,   3036. 
reversion,    768. 
satisfaction,   1523. 
section,    14. 

1785 


INDEX. 
[References  are  to  sections.] 

DEFINITION    (continued). 

ship,    960. 

slander,    46. 

succession,   1383. 

surety,   2831. 

testify,    14. 

transfer,  1039. 

undue    influence,    1575. 

ward,    237. 

warranty,    1763. 

wilful    neglect,    105. 
DEFINITION  OF  OLOGRAPHIC   [HOLOGRAPHIC]   WILLS.     See 

tit.   Wills. 
DEFINITION    OF  TERMS.      See   tit.   W^ords  and  Phrases. 

as  to  generally,   14. 

"month,"    14. 

"personal  property,"  14. 

"property,"   14. 

"real  property,"  14. 

"section,"   14. 

"will,"    14. 
DEGREE 

of   kindred,   how    computed,    1389. 
DELAY 

deemed   deviation,    when,    2694. 

how  excused,   1511. 

in  performance  of  obligation,  damages,  1492. 

in  presentment  of  bill  of  exchange,  effect,   3186. 
how  excused,   3219. 

in   presentment   of  check,   effect,   3255. 

in  presentment  of  notice  of  dishonor,   when  excused,   3156. 

in   protest,   how   excused,    3230. 

insurance,   notice   of   loss   to  be   given   without,   2633,   2637. 

of  carriers  for  hire,   2104. 

of  creditor  does  not  discharge  guarantor,   2825. 

reasonable   grounds   for   rebuts  presumption,    126. 
DELEGATION    OF    AGENCY.      See    tit.    Agent. 
DELEGATION    OF   POWER.      See    tit.   Agent. 

by   minor,   33. 
DELINQUENT   ASSESSMENT 

action  to  recover  stock  sold  for,  347. 

sale    of   stock    for,    341. 
DELINQUENT    NOTICE 

of   assessment   of   stock.      See   tit.    Of  As.sessnient   of   Stock. 
DELIVERY 

constructive,    1059. 

contract  of,  in  writing,  provisions  applicable,  1626. 

1786 


INDEX. 
[References  are  to  sections.] 

DELIVERY   (continued), 
in    escrow,     1057. 
of  deposit  by  joint  owners,    1827. 

demand   necessary,   1823. 

on  demand,   1822. 

where,   1824. 
of  freight 

to  holder  of  bill  of  lading-,  2130. 

to  whom,  2118. 

where,    2119. 
of  gift   necessary,    1147. 
of   goods   sold 

buyer's   directions,    1757. 

expense  of,  1755. 

notice  of  election  as  to  mode  of,  1756. 
of  goods  sold,  when  to  be  made,  1753-1758. 

where,  1754. 
of  grant  necessary,  1054. 
of  pledge  necessary,    2988. 
presumption   as   to   time   of,    1055. 
thing  bought,  payment  for  on,  1778. 
time  of  creation  of  interest  deemed  to  be  on,  749. 
to  grantee,  necessarily  absent,  1056. 
DELIVERY.     See  tits.  Gift;   Sale;  Transfer. 

as  to,  1754. 
DELIVERY  OF   STOCK.     See   tit.    Certificates  of   Stock. 

entry    in    books    of   corporation    of   stock    transf.iTfl.      .'^■■■'    tit. 
Certificates  of  Stock,  Transfer  of. 
DELUSION.     See   tit.   Wills   (In.<saue  Delusion). 
DEMAND 

agent  to  deliver  to  third  person  on,  wlien,  2344. 
deposit  to  be  delivered  on,  1822. 

need  not  be  delivered  without,  1823. 
employee 

not  bound  to  deliver  without,  1823. 

to  render  account  without,  1986. 
goods  sold  deliverable  upon,  1753. 
guarantor,  must  be  made  upon,  2807. 
lent  thing,  as  to   return   without,   1895. 

negotiable  instrument,  of  payment  to  bo  made,  when.  3130. 
of  performance,  how  waived,   3004. 

pledgee  must  demand  before   sale,   3001. 
restoration  of  thing  wrongfully  taken  upon.   1712. 
servant  to  deliver  without,  2014. 
servant  to  pay   over  without,    2014. 
thing  lent  to  be  returned  without,    wlien.    1895. 
waiver  of   for  performance.   Imw   made.   3004. 

1787 


INDEX. 
[References  are  to  sections.] 

DEPOSIT,     See  tit.  Depositary;  Warehouseman. 

animals,   deposit  of,   1834. 
by  borrower.     See  tit.  Loan. 
delivery  of  thing  owned  jointly,  1827. 
depositary  must  deliver  on  demand,  1822. 

no  obligation   to  deliver  without  demand,   when,    1823. 

place  of  delivery,  1824. 
for  exchange,  what  is,  1818. 
f orv  hire 

as  to  what  is,  1851. 

degree  of  care  required  of  depositary,  1852. 

lien  for  storage  charges,   1856. 

rate  of  compensation  for  fraction  of  week,  1853. 

stored  property  to  be  sold,  when,  1857. 

termination   of   deposit,    1854. 
for    safe-keeping 

extent  of  liability  for  negligence,  1840. 

indemnifying  depositary,   1833. 

injury  to  or  loss  of  thing  deposited,  1838. 

liability  for  damage  arising  from  wrongful  use,  1836. 

obligations  as  to  use  of  thing  deposited,   1835. 

obligations  of  depositary  of  animals,  1834. 

sale    of   thing   in    danger    of   perishing,    1837. 

service  rendered  by  depositary,  1839. 

what  is,   1817. 
estray  and  lost  property  book,  1865. 
finder,  duty  of  to,  1865. 

liability  of,   1871. 

obligations  of,  1864. 

publication   by   of   thing  found,   1871. 

surrender  of  thing  found  to,  1871. 

to  notify  owner,   1865. 

when  title  to  thing  vests  in,  1871. 
for  exchange,   relation   of  parties,  1878. 
found  property   claimant  to   show   ownership,   1866. 
gratuitous   deposit,    1844. 

as  to  what  is,  1844. 

degree  of  care  required  of  depositary,  1846. 

duties  cease,   when,    1847. 

involuntary  deposit,  1845. 
indemnity  to  be  given  by  depositor,  when,   1833. 
innkeeper  with  and  liability  of,   1859,   1860. 
involuntary  deposit,  how  made,  1815. 

duty  of  involuntary  depositary,  1816. 
joint,   by  two   or  more  persons,   1828. 
joint  delivery  of  to  depositaries,  1827. 
kinds  of  deposits,   1813. 

1788 


INDEX. 
[References  are  to  sections.] 

DEPOSIT    (continued), 
lien  for  storage,  1856. 
loan.      See   tit.   Loan. 
loss  or  injury  to,  liability  for,   1838. 
money   in   payment   of   debt,   1500. 
notice  to  owner  of  adverse   claim,   1825. 
obligations  of  depositary,  1822-1827. 
place    of   delivery,    1824. 
reward  to  finder,   1867. 
safe  keeping  for,  as  to,  1817. 
sale  of  thing  found,  when,  1869. 

of   perishable   property,    1837. 

of   storage   property,   1857. 
storage.     See  Deposit  for  Hire,  this  title, 
termination   of,   1854. 

thing  wrongfully  detained,  notice  by  depositary  to  owner,  1833. 
use  of  thing  loaned,  1890. 
voluntary  deposit,  how  made,   1814. 
warehousemen.     See  tit.  Warehousemen. 
DEPOSITARY.      See  tits.  Depcsit;  VVarehoiiMeinun. 
adverse  claim,  notice  by  to  owner,  1825. 
compensation    of,    1853. 
creditor   is,    when,   1505. 

duty    ceases,    when,    1847. 
delivery   by  notice   of  adverse  claim   to   owner,   1825. 

not  required  before  demand,    1823. 

of  thing  owned  jointly,  1827. 

on   demand,  and  when  accused,   1822. 

place   of,    1824. 
depositor  must  indemnify,  when,  1833. 
gratuitous  care  required  of,  1846. 
f«>r  hire 

compensation   of,   1853. 

degree   of  care  required  of,  1852. 

finder    is    not,    1864. 
insurable  interest  of.     See   tit.   Insurable   lutercHt. 

as   to,   generally,    2550. 
lien  for  storage,    1856. 

negligence  of,   limitation   of  liability  for,   1840. 
notice  by  to  owner  to  be  given,  when,   1826. 
of  animals,   duty  of   toward,   1834. 
opening  deposit,  obligation  of  as  to,  1835. 
pledge   for   reward,    when   Is  a,    3000. 
sale  by  of  storage  property,  1857. 

of  thing  in  danger  of  perishing,  1837. 
seller  of  personalty  is  until  delivery,  1749. 

thing  wrongfully  detained,  how  depositary  exonoratod,  1S27. 

1789 


INDEX. 
[References  are  to  sections.] 

DEPOSITARY   (continued). 

use  of  deposit,  obligation  as  to,  1835. 
liability  for  wrongful,  1836. 
DEPOTS.     See  tit.   Stations  and  Depots. 

desce:vdants 

of  a   person,   who  are,   1386. 
DESCENT.      See    tit.    Succession. 
DESCRIPTION 

agreement  to  compensate  for  errors  in,   1690. 
error  of  in  will,  how  rectified,   1340. 
DESERTION 

as    to    what   constitutes,    95. 
how    manifested,    96. 
DESTRUCTION 
of   will 

how  proved,  1293. 
is   a    revocation    of,    1292. 
of  written   contract,  effect   of,   1699. 
DETENTION 

of  person   or  property  avoids  contract,   when,    1569. 
of   property,    damages    for,    3335. 
DEVELOPMENT   WORK 

on   mining   claim,   effect   of   neglect   to   perform,   1426s. 
DEVIATION.      See    tit.    Common    Carriers. 
DEVIATION   FROM   ROUTE 

of  carrier  of  property,  2117. 
DEVISE.     See  tit.  Will. 

of  land,  how  construed,    1311. 
DEVISES   AND  BEQUESTS.     See   tit.   \Vills. 
advancement  and  ademptions,  1350. 
cannot  be  devested,   1342. 
conditional,    1345. 

condition  precedent,  what  is,  1346. 
effect  of,   1347. 

when  deemed  performed,   1348. 
death  of  devisee  or  legatee,  effect  of,  1343. 

interest  of  remainderman  not  affected  by,  1344. 
legacies,   nature   and   designation   of,   1357. 
annuities,    1357. 
demonstrative  legacies,   1357. 
general  legacy,   1357. 
residuary  legacy,  1357. 
specific    legacies,    1357. 
vest,  when,  1341. 
DILIGENCE.     See  tits.  Appropriation  of  W^aters;  Care. 
DIRECTION 

buyer's,  as  to  pleas  of  method  of  delivery,  1757. 

1790 


INDEX. 
[References  are  to  sections.] 

DIRECTION    (continued). 

carrier  to  follow   whose,   2115. 

employee   to  follow,    1979. 

factor  to  follow,  2027. 

trustee  to  follow,  2258. 
DIRECTORS.     See   tit.   Corporations. 

of  co-operative  agricultural,  etc.,  association,  653p. 
number  of,  653p. 
removal  of,  653p. 

of  insurance  corporations  liable  for  loss,  when,  418. 
DIRECTORS,  BOARD  OF.     See  tit.  Corporation.s. 

cumulative  voting,   307. 

election  of  directors,  how  conducted,   307. 

exercises  power  of  corporation,  305. 

org-anization  of  board,   308. 

quorum,   305. 

quorum  of  directors  necessary,   305. 

regular  meetings,  how  called,  320. 

removal   from  office   of  directors,  310. 
DISAFFIRMANCE 

of  infant's  contract  for  necessaries.     See  tit.  Necessaries. 
cannot  be,  when,  36. 
DISAFFIRMANCE  OF  CONTRACTS 

by  minor,  34. 

deed  of  infant  not  void.     See  tit.     Deeds  of  Infants. 

when  minor  may  disaffirm,   35. 
DISSOLUTION  OF  CORPORATION.     See  tit.  Corporations. 

impairing  obligation  of  contracts,   405. 

of  co-operative  agricultural,  etc.,  association,  653p. 

of  co-operative  corporations,  653x. 
DISSOLUTION  OF   MARRIAGE.     See   tit.   Divorce. 

effect   of,   90. 
DISTRIBUTION 

effect  of  advances  on,  1395-1399. 

of  capital  stock  on  dissolution  of  corporation,  312[a]. 

of  community  property.     See  tit.  Community  Property. 

of  property  of  intestate,  1384,  1386. 
DITCHES,  FLUMES,  ETC. 

liability  of  joint  owners  respecting,  842. 

neglect  to  pay  portion  of  expenses,  action  to  recover,  843. 
DIVERSION.     See  tit.  Appropriation. 

point  of  from  ditch,  1412. 
DIVIDEND.     See  tit.  Corporations. 

of  banking  corporations,  300. 

of  life  insurance  corporations,  how  made,  456. 

payment  to  married  women,  325. 

1791 


INDEX. 
[References  are  to  sections.] 

DIVORCE.     See  tit.  Marriage,  how  Dissolved. 

actions  for  divorce,  wiien  commenced,  83. 

plaintiff  must  be  resident,  128. 
presumptions  do  not  apply,  129. 
proof  of  actual  residence  required,  129. 
adultery,  92,  93. 

alimony.     See  tits.  Alimony;  Allovrance. 
allowance  for  support  withheld,  when,  142. 
annulment,  82-86. 

appeal,  revision  on  of  order  disposing  of  property,  148. 
by  default  not  g'ranted,  130. 
causes  for,  82. 

adultery,  92,  93. 

as  to,   generally,   92. 

desertion.     See   desertion,   this  title, 
as  to  generally,  95. 

extreme  cruelty,  94. 

habitual  intemperance  for  one  year,  107. 
children.     See  tit.  Parent  and  Child. 

community  and  separate  property  subject  to  support  of,  143. 

of  annulled  marriage,  84. 
collusion,  what  constitutes,  114. 

presumption  of  from  lapse  of  time,  125,  126. 
community  property 

disposed  of,  how,  146. 

subject  to  support,  etc.,  of  children,  143. 
condonation,  as  a  defense,  123. 

avoided  by  concealment,  120. 

cures  desertion,  102.  ' 

defined,  115. 

implies   what,    117. 

manifested,   how,   96. 

presumption   of  from  lapse  of  time,   125,   126. 

refusal  of  offer  of  is  desertion,  when,  100. 

requisite   to,   116. 

revoked,  how,  121. 

when   can  be  made,   119. 
connivance 

manifested,   how,    113. 

presumed  from  lapse  of  time,  125,  126. 
cruelty 

desertion    induced   by,    effect   of,    98. 

extreme,  what  amounts  to,  94. 
custody   of   children   on,   order  for,   138. 
decree  of 

by  default  not  granted,  130. 

restores  parties  to  unmarried  state,  90. 
1792 


INDEX. 
[References  are  to  sections.] 

DIVORCE  (continued). 
default 

decree  by  not  granted,   130. 
of  defendant,  proofs  to  be  made,  129. 
defense  to  action  for,  111. 
denied  on  sliowing  wliat,   111,  124. 
collusion,    114. 
condonation,   115. 

can  only  be  made,  wlien,   119. 

concealment  of  facts  in  certain  cases  makes  void,  120. 

evidence  of,  118. 

how  revoked,   121. 

implies  what,   116. 

requisites  of,   116. 

when   bar  to   defense,   123. 
connivance,   112. 
corrupt    consent,    113. 
lapse  of  time  establishes  certain  presumptions,   125. 

presumption  may  be  rebutted,  126. 
limitation    of  time,   127. 
recrimination,   122. 
denied  on  what  grounds,   111. 
desertion 

absence  becomes  desertion,  when,  100. 

consent  to   separation   voidable,   101. 

cured,  how,  102. 

defined,   95. 

failure   or  refusal   of  wife  to  live  in  home   of   husband,   103, 

104. 
how   cured,   102. 
how  manifested,   96. 

in  case  of  cruelty  where  one  party  leaves  the  other,  98. 
in  case  of  cruelty,  is  committed  by  whom,  98. 
in  case  of  fraud  or  strategem,  is  committed  by  whom,  97. 
induced  by  cruelty,  98. 
induced  by  fraud  or  strategem,  97. 
refusal  of  reconciliation  amounts  to,  when,   101. 
refusal    to     abide     by     husband's     selection     of     homestead 

amounts  to,   103. 
selection   of  home  is  desertion,   when,    103. 

if  place   is   unfit,  and   wife   refuses   to  conform,   desertion 
by   husband,   104. 
separation    becomes,    when,    100. 

by   consent   is   not,  99. 
what   amounts   to,    96. 
who  deserts,  98. 

Kerr's  C.   C. — 57  1793 


INDEX. 
[References  are  to  sections.] 

DIVORCE  (continued). 

disposition   of  community  property,    146. 

duty  of  court  to  dispose  of,  147. 

of  homestead  on,  146. 

order   of  disposition,   147. 
revision    of  on  appeal,   148. 
domicile 

fixed   by   husband,   103. 

refusal  of  wife  to  abide  by  is  desertion,  103. 
presumptions  none,  in  proof  of,  129. 

unfit,  husband's  selection  amounts  to  desertion,  105. 
effect   of   divorce,    91. 
effect  of  judgment  of  nullity,   86. 
expense   of  action   for,   137. 
extreme  cruelty,   94. 

grounds  for.     See  "causes  for,"  this  title, 
grounds   for   denying.    111. 
habitual   intemperance,   what  is,    106. 

for    one    year,    107. 
homestead,  how  disposed  of  on,  146. 
judgment   of 

final  judgment  after  one  year,   132. 

interlocutory    judgment,    131. 
lapse  of  time,  what  presumptions  establislied  by,  125,   126. 
legitimacy  of  Issue 

on  divorce  for  liusband's  adultery,  145. 

on  divorce  for  wife's  adultery,  145. 
limitation  of  actions  for,  125,  127. 

may  be  decreed  wliere  divorce  denied,  136. 
orders  respecting  custody  of  children,  138. 
presumptions  arising  from  lapse  of  time,   125,   126. 

resorted    to    in    executing    provisions    for    maintenance    and 
alimony,   141. 
recrimination 

condonation    as,    123. 

defined,     122. 
relief   where    separation    is    denied,    136. 
residence 

actual,    proof   of   necessary,    129. 

length    of   plaintiff's    residence,    128. 

presumptions   do    not   apply    to,    129. 
none  in  proof  of,   130. 
security   for   maintenance   and   alimony,    140. 
separation 

amounts   to   desertion,   when,    100. 

not   desertion,   when,    99. 

1794 


INDEX. 
[Refei'ences  are  to  sections.] 

DIVORCE  (continued). 

support  of  wife  and  cliildren  on  divorce  or  separation  granted 

wife,    139. 
wilful  neglect,  must  exist  for  one  year,  107. 
wilful    neglect,   what   is,    1C5. 
DOGS.      See    tit.    AniinaLs. 

killing    sheep,    liability    for,    3341. 
DOMICILE.      See    tit.    Divorce. 
guardian    to    select,    248. 
husband   may    select,    103,    155. 

unfit,    wife    not   bound   by,    104. 
in   divorce,   actual   must   be   proven,    129. 

requisites    for,    128. 
infant's,     214. 

unfit   selected   by   husband  amounts   to   desertion,    104. 
DOMINANT  TENEMENT.      See    tit.    Ea.senients. 
DOUBLE    INSURANCE.      See    tit.    Insurniioo. 
DOUBTFUL    ^VORDS 
in  contract,  1654. 
in     will,     1323. 
DOWER 

not    allowed,     173. 
DRUNKENNESS.      See    tits.    Contracts;    Divorce:    AVIlls. 

as   grounds   for   divorce,   107. 
DUEL 

damages   for   injuries   inflicted   in,   3347. 

liability   to   pay   debts   and   maintain    injured   party.    3348. 
DUPLICATE 

of  contract,  alteration  of  does  not  prejxidico.    1701. 
of    will,    is    revocation,    1295. 
DURESS.       See    tit.    Contract. 

as  cause  for  annulment  of  marriage,  S2. 
as    to    what    constitutes,    1569. 
contract    under    voidable,    1575,    1708. 
'  in   what  consists,   1569. 
rescission    because   of,    1689. 
will   procured   or   revoked   by,    1272. 
DUTY.      See    tit.    Obligations. 

to    inquire    into   tlie    treatment    of   minor   apprentice,    270. 
EARNINGS 

of   minor  child,   as   to,   generally,    169. 
illegitimate    and    unmarried,    200. 
legitimate    and    unmarried,    197. 
of  wife,  as  to,  generally,  168,  169. 
are   her  separate  property,    169,   170. 
not   liable    for   Imsband's    debts,    168. 
when    living    separate    and   apart   from    husband,    169. 
1795 


INDEX. 
[References  are  to  sections.] 

EARNINGS   OP  WIFE.     See   tit.   Earnings. 

not  liable  for  husband's  debts,   168. 

when   living  separate  and  apart  from   her  husband,   169. 
EASEMENT.      See  tits.   Easements  and   Sei-vitudes;   Liieense. 

apportionment    of,    807. 

as  to  what  pass  with  property,  1104. 

attaohed   to   land,    801. 

duininant   tenement 

action    by    owner    of,    809. 

definition   of,    809. 
enumeration   for,    801,    802. 
extent    of,    806. 

extinguishment,    how    made,    811. 
grantable,    by    whom,    804. 
held,  can  be,  by  whom,  805. 
irrigation,    552. 

lateral    and    subjacent    support,    832. 
not   attached   to   land,    801. 
partition    of,   apportionment    of,    807. 
servient    tenement 

action    by    owner   of,    810. 

as    to    what    is,    803. 
transfer   of   property    carries,    1104. 
way.      See    tit.    Public    Higli^vays. 
what  passes  by  conveyance  of  property,   1104. 
who    cannot    hold,    805. 
EASEMENTS    AND    SERVITUDES 

action   by   owner  and   occupant   of  dominant   tenement,    809. 

by  owner  of  servient  tenement,  810. 
apportioning    easements,    807. 
dominant  tenement,  what  is,  803. 
extent    of    servitude,    806. 
how    extinguished,    811. 

owner  of  future  estate,  right  as  to  easements,  808. 
servient    tenement,    what    is,    803. 
servitude  may  be  granted,   by  whom,   804. 

may    be    held,    by    whom,    805. 
servitudes  which  attach  to  the  land,  801. 
servitudes  which  do  not  attach  to  land,  802. 
EJECTION   FOR   NON-PAYMENT   OP   FARE.      See    tit.    Ejection 
of  Passengers. 
as  to,  and  when  wrongful,   2188. 
EJECTION    OP    PASSENGERS 
for   non-payment   of   fare,    2188. 
for  refusal  to  pay  fare  or  surrender  ticket,  487. 
ELECTION 

corporate.     See  tit.  Corporations. 

1796 


INDEX. 
[References  are  to  sections.] 

ELECTION   (continued), 
day,    a    holiday,    7. 

grant  to  street  railway  near  time  of,  unlawful,  497. 
notice  of  as  to  delivery  of  chattel,   1756. 
ELECTRIC    CORPOUATIOIV 

franchise    for,    proceedings,    497. 
ELECTRICITY 

railroad    may    use   as    motive    power,    465a. 
ELEVATED    RAILWAYS 

franchise  for,  how  procured,  492. 
supervisors  may  grant  franchise,  492. 
EMAMCIPATION 

of   children,   as   to,    211. 
EMINENT    DOMAIN 

crossing's   bj'   railroads,   condemnation    for,   472. 
in    g'eneral,    1001. 
EMPLOYEE.     See  tit.   Master  and   Servant. 
by    special    request,    1976. 
for  reward,  duties  of,    1978. 
gratuitous,  as   to   duties   of,    1975. 
under  written  power  of  attorney,  1977. 
EMPLOYMENT.     See   tits.   Ma.ster  and   Servant;   Serviee   Williout 
Employment. 
as    to    what    is,    1965. 

confidential    employment,    obligations    of,    1992. 
contract  for  services  limited  to  two  years,  1980. 
degree  of  skill   required  of  employee,   1983. 
duty  of  employee   for  his  own   benefit,   1979. 
for    reward,    1978. 
to   account,   1986. 
duty   of   gratuitous   employee,    1975. 
duty   of    railroad   companies.      See    tit.    llallrond.s. 
employee 

inu.st   obey   employer,    1981. 
must   use  what  skill   he  has,   1984. 
not  bound  to  deliver  witliout  demand,    19S7. 
resf)onsible    for    negligence,    1990. 
responsible    for   substitute,    1989. 
to    conform    to   usage,    1982. 
to  give  preference  to  employer,  1988. 
employer 

must   indemnify  emphiyee,  when,   1969. 
to  indemnify  for  his  own  negligence,   1971. 
fellow-servants.       See    tit.    Fello^-ServnntM. 
particular    empIoymentN 
agent.      See    tit.    Apfent. 
factors.       See    tit.    Factors. 

1797 


INDEX. 
[References  are  to  sections.] 

EMPLOYMENT 

particular    eiiipioyiiients    (continued). 

master   and   servant.      See   tit.   Master  and  Servant. 
mates  and  seamen.     See  tit.   Mate.s  and  Seamen. 
sliipmasters.     See  tit.  Shipmasters. 
ship's    manager.      See    tit.    Sliip'.s    Manager. 
surviving   employee,   riglits   of,    1991. 
termination  o£  employment 
as   to   how   terminated,    1997. 
by   death   of   employer,    1996. 
by    employee,    for   fault,    2000. 
by   employer,   for   fault,    2001. 
compensation   of   employee   dismissed  for   cause,   2002. 

of   employee   leaving  for   cause,   2003. 
continuance  of  service  in  certain  cases,  1998. 
terminated  at  will,   1999. 
things  acquired  by  employee  by  virtue  of  his  employment  be- 
long  to   his    employer,    1985. 
ENCUMBRANCE 

damages  for  breach  of  covenant  against,  measure  of,   3305. 
grant,  as  revocation  in  favor  of,  when,   1229. 

how  far  conclusive,  as  to,  1107. 
imposed  upon   devised  property,   1301. 
includes   what,   1114. 
instrument 

when    not   void    against,    1228. 
when    void    against,    1228. 
lien  not  valid  against,  when,   3048. 
mortgage   of    real    property   not    enforced   against    subsequent 

purchaser,   when,    3394. 
resulting  trust  does  not  prejudice,   856. 

rights  of  under  devise  not  impaired  by  conveyance,   1364. 
transfers  void  against,   3440. 
ENEMY,   PUBLIC.      See    tit.    War. 
cannot    be    insured    against,    2540. 
carrier  not  liable  for  damages,   etc.,  by,   2194. 
innkeeper,  not  liable  for  damages,  etc.,  done  by,  1859.  ' 
prevention    of   performance    by,    effect,    1511. 
ENFORCEMENT   OP   TRUSTS.      See   tit.   Uses   and   Trusts. 
ENTICING  AWAY  APPRENTICE.      See  tit.   Master  and  Appren- 
tice. 
liability     therefor,     275. 
ENTIRETIES 

interest    by    the,    683,    686. 
tenancy    by,    between    spouses,    161. 
EQUIPMENTS 

of   ships.      See   tit.   Ships  and   Shipping. 
EQUITABLE   REHEE.      See    tit.    Specific   Performance. 

1798 


INDEX. 
[References  are  to  sections.] 

EQ1TITABI.E  REMEDIES.      See   tit.   InJtinctlonM. 

EQ,UITY.      See    tit.    Homesteads. 
ESCHEAT 

intestate's   property   does,    when,    1386. 
proceedings    by    attorney-general,    1405. 
property   escheated   is   subject   to   charges,    1407. 
takes   place   to  state,   when,   1406. 
ESCROW 

as    to    delivery   in,    1057. 
definition    of,    1057. 
ESTATE.      See   tits.   EstatcN   in   Real   Proiicrly;   Vhom   niiil   Trust!. 
expectant,    qualities    of,    699. 
fixing-    time    of    enjoyment,    707. 
interest    in    real    estate,    701. 

classes   of   interest,   702. 
mere  possibility  of  an   interest,   700. 
notice    not   necessary   before   action,    when,    793. 
of  tenancy  at  will.     See  tit.  Tenancy  at  AVIII, 
of    trustee    to   express    trust,    863. 
re-entry,  when  and  how  to  be  made,  791. 
subsequently    acquired    passes   by    will,   when,    1312. 
summary   proceedings    in    certain    cases,    792. 
termination   of,  as   to,  generally,   789. 
time  of  creation    of,   749. 
what  future  interests  are  recognized,   703. 
ESTATE    FOR    LIFE 

limitation    of    successive,    774. 
ESTATE    FOR    MFE    OF   THIRD    PERSON 

wlien    a.    freehold,    766. 
ESTATES    IX    REAIi    PROI'EUTV.      See    tit.    IXnt.N. 
estates    in   general,    761-781. 
kinds    of   estates,   761. 

estates   at   will,    761. 

estates    for    life,    761. 

estates  for  life  of  a  third  inisnii,   w  i.  n  .i    i 

estates    for    years,    761. 

estates   in   fee  simple.     Si'o   tit.   For   simple, 
as   to   generally,    762. 

estates   in   remainder.     S^e   tit.   Rcinnlmlcrji. 

estates    of   freehold,   766. 

estates    of    inheritance,    761. 

future  estates,  what  are.  767. 
limitation   on    successlvp   estati-s   for  lir'\    771. 
reversions.      See    tit.    Ilevor.xlonn    nml    lli'mnlnilorn. 
servitudes,    801-Sll. 

suspended    ownership.    770. 

suspension    by    trust,    771. 
termination    of    estates,    789-793. 

1799 


INDEX. 
[References  are  to  sections.] 

ESTATE  OF  DECEDENT.     See  tits.  Executors  and  Administra- 
tors;   Succession;    Wills. 

beneficiaries'   property  liable  for   obligations,   when,   1377. 
chargeable   with   debts,   when,    1359. 
order  of  resort  to  property  for  payment  of,  1359. 
ESTRAY 

finder  of  property,  as  to  duty  of  in   general,    1864-1872. 
EV^IDEXCE.      See    tit.    Witnea.»ies. 
certificate    as 

of    restoration    of    lunatic,    presumption    from    as    to    capac- 
ity, 40. 
of  shipmaster,  to  exertions  of  seamen   to  save  vessel,   2058. 
certified  copies  of  articles  of  incorporation  as  evidence,  297. 
condonation    of,   .118. 

divorce,  not  granted  on   uncorroborated,  130. 
in   probate   of  will.      See   tit.   Wills. 
insurance,    of    loss,    2634. 
of  condonation   in   action   for  divorce,   118. 

how    revoked,    121. 
of  execution  of  instruments  not  acknowledged,   1195. 
of   handwriting,   how    proved,    57. 
of  invalid  or  insufficient  consideration,  1615. 
of   marriage,    how    proved,    57. 
oral     stipulations,     etc.,     superseded     by     written     instrument, 

1624. 
record 

certified   copies  of,   as   evidence,   1207. 

inventory  of  wife's  property  as,   166. 

of    location    of    mining    claim 

copies   of   as   evidence,    1426q. 

to  be  received  in  evidence,  1426q. 

register   of   partnership   names,   as,    2471. 

subscribing  witness,  liow   instrument   i)roved   by,    1196-1199. 
EVIDENCE   OF   CONSENT.      See   tit.   Marriage. 
EXAMINATION     OF     CORPORATION 
by  whom   to  be  made,   382. 
how   made,    383. 
EXCAVATION 

time  within  which  appropriator  of  waters  may  commence  on 
public    land,    1422. 
EXCHANGE 

bill    of.      See    tits.    Bill    of    Excliaug:e;    Deposit    for    Exciiauge; 

Loan    for    Exchange;    Negotiable    Instruments. 
form    of   contract,    1805. 
of  money,  1807. 

rights  and  obligations  of  parties,    1806. 
what  is,    1804. 

1800 


INDEX. 
[References  are  to  sections.] 

EXCHANGE,  LOAN  FOR.     See   tit.   Loan  for  Exchange. 
EXCLUSION   AND   INCLUSION.      See   tit.    Computation   o£   Time. 
EXECUTION 

against    liomestead.      See    tit.    Homestead. 

co-operative    association,    against,    653f. 

disaffirmance   of   infant's   contract,    35. 

executors   and   administrators.     See   tits.    Estate   of   Decedent; 
Wills. 

exemption  from  of  policy  of  life,  etc.,  insurance,  453k. 

exemption  of  estates  at  law  from,  766. 

franchise  of  corporation  inay  be  sold  under,  388. 

homestead   not   subject   to,   when,    1240. 
subject   to,    when,    1241. 

lien    of   officers   on,    3057. 

mortgaged   personalty,    issuing   against,    2968-2971. 

of   apprenticeship    of   minor.      See    tit.    Ma.ster   and  Apprentice.. 

redemption  of  franchises  from,  392. 
EXECUTOR    AND    ADMINISTRATOR.      See    tits.    Estate    of    De- 
cedent;    Will. 

according  to  the  tenor,  1371. 

expense    of   administration,    order   for   payment    of,    1359. 

foreign,   satisfaction   of  mortgage   by,   2941. 

not   to   act   until    qualified,    1373. 

power   to    appoint,    void,    when,    1372. 

power    to    appoint    invalid,    1372. 

qualified,   not   to   act   until,    1373. 

wages   of   deceased   seamen,   2062. 
EXECUTORY   AGREEMENT 

consideration   for,   1610. 
ascertained,    how,    1611. 
need  not   be   stated,    1610. 

covenants    when    required   by,    1733. 

defined,    1661. 

for    sale   of   real    property,    1731. 

grounds   on   condition   precedent,    1110. 

instrument,  implied   warranty   of  sale,    1774. 

of  marriage  to  be   in   writing,  when,  1624. 

transfers    title,    when,    1141. 
EXEMPLARY  DAMAGES.     See  tit.  Damages. 

for    infringement    of    trade-mark.      See    tit.    Trade-MarkM    and 
Signs. 
EXEMPTION.      See   tit.    Assignment    for   Ueneflt    of   Credltor.s. 

homestead.      See    tit.    Homestead    Exemption. 

mortgage,   from   operation   of,   2965. 

of   mutual  life   insurance   company,    453k. 

of  policy  of  life,   etc.,  insurance,  4o3k. 

property   exempt   does  not  pass   by  assignment   for  benefit   of 
creditors,    3470. 

1801 


INDEX. 
[References  are  to  sections.] 

EXERCISE    OF    VESTED    POWER 

as    to,    860. 
EXISTENCE    OF    CHILD    BEFORE    BIRTH.       See    tit.     Unborn 

Child. 
EXISTING  LAWS 

provision   similar  to,   liow   construed,   5. 
EXONERATION.     See  tit.   Guardian  and  Ward;  Securitysbip. 

of  caxrier,   on   delivery   of  bill   of  lading,  2131. 

of  finder,  from  liability,  when,   1865. 

of  gratuitous    pledge-holder,    2995. 

of  guarantors,   2819. 

of  inkeepers,    1860. 

of  lender,   from  liability,   1893. 

of  owner,    from    claim    of    finder,    1868. 

of  partner,   on   renunciation   of  future   rights,    2417. 

of  shipmaster,   on  abandonment  of  ship,   2040. 

of  surety,    2824,    2845. 
EXPECTANCIES 

are    insurable    interests,    2549. 
EXPECTANT    ESTATES 

quality    of,    699. 
EXPENSES 

of  action   for  divorce,   137. 
EXPERT    TESTIMONY.      See    tit.    Wills. 
EXTENSION    OP    TI3IE.      See    tit.    Negotiable    Instruments. 

for  sale   of   delinquent   stock,   345. 
notice    of,    345. 

of    existence    of    corporation,    401. 
EXTINCTION    OF   LIEN 

by   conversion,    2910. 
EXTINCTION     OP     OBLIGATIONS 

ability  and  willingness  essential   to,   1495. 

application   of   general   performance,    1479. 

by  accord  and   satisfaction.      See  tit.  Accord  aud   Satisfaction. 

by  acts  of  God.     See  tit.  Acts  of  God. 

by  conditional  ofEer,  not,  1494. 

by  novation.     See   tit.   Novation. 

by  offer  made   in   good   faith,    1493. 

by    offer   of   partial   performance,   not,    1486. 

by  offer    of    performance,    1485. 

requisites   of  valid   tender.      See  tit.   Tender. 

by  part    performance,    when,    1524. 

by    performance,    1473. 

effect  of  directions  by  creditors,    1476. 
partial   performance,   effect  of,   1477. 
payment,    what   is,    1478. 

performance  by   one   of  joint  creditors,    1475. 
performance  by  one  of  several  joint  debtors,   1474. 
1802 


INDEX. 
[References  are  to  sections.] 

EXTINCTION  OF  OBLIGATIONS   ^continued), 
by  prevention    of    performance,    1511. 
by  release.      See    tit.    Relea.se. 

by  satisfaction.     See  tit.   Accord  and  Satisfaction. 
by  whom   to    be   made,    1487. 

compensation  after  delay   in   performance,    1500. 
creditor's  retention   of  thing  which  he   refuses  to   accept,   ef- 
fect   of,    1505. 
custody   of   thing-   offered,    1503. 

effect  of  offer  upon  accessories  of  obligation,   1504. 
effect  of  preventing  performance,   1512. 

condition   precedent.     See  tit.   Condition  Precedent, 
effect  of  refusal   to  accept  performance   before  offer,    1515. 
extinction  of  pecuniary  obligations  by  deposit,   1500. 
objections  to  offer  to  be  made,  when,  1501. 
pecuniary   obligations,  extinction   by  deposit,    1500. 
performance  of  condition  precedent.     See  tit.  Condition  Prece- 
dent. 

as    to,     1498. 
prevention    of   performance.      See    tit.    Prevention   of   Perform- 
ance. 
production   of  thing   to   be   delivered  not   necessary,    1496. 
ratable   portion    of   consideration    not,   when,    1514. 
thing    offered   to   be   kept    separate,    1497. 
title    of    thing    offered,    1502. 
to  whom  to  be  made,   1488. 

when  debtor  induced  not  to  make  it  by  act  of  creditor,  1511. 
when  and  where  offer  to  be  made,  1489,  1490. 

when   prevented   or  delayed  by  act   of   creditor,    1511. 

when  prevented  or  delayed  by  irresistible,  etc.,  cause.  1511. 

where  obligation  does  not  fix  time,   1491. 

written  receipts  may  be  required  on,   1499. 
EXTI3VGITISHMENT 

of  easements  and  servitudes,  811. 
EXTREME    CRUELTY.      See    tit.    Divorce. 

what  is,  94. 
FACT 

actual   fraud   is  a   question   of,    1574. 
concealment   of  makes  condonation   void,   when,   120. 
fraudulent   intent,    is   a   question    of,    3442. 
mistake  as  to,  what  is,  1577. 

as   to   foreign    law,    1579. 
FACTORS.     See   tits.   Agent;   Employment:    lla«tcr   nnrt    Servant. 
actual    authority    of,     2368. 
barter   by,   2368. 

consignments   to.     See  tit.   Con.<<Igrnment. 
credit    by,    2028. 

power  to  sell  on,  2368. 

1803 


INDEX. 
[References  are  to  sections.] 

FACTORS   (continued). 

definition,    2026,    2367. 

delegation    of  authority   by,   2368. 

guaranty    by,    2794. 

guaranty    commission,    liability,    2029. 

insurance    by,    2368. 

liability  of  under  guaranty  commission,  2029. 
cannot   relieve   himself    of   liability,    2030. 

lien    of,    3053. 

mortgage   by,   2368. 

must  obey  orders,  2027. 

obedience    required    from,    2027. 

ostensible   authority    of,    2369. 

pledge   cannot   be   made    by,   2368. 

sale    by 

for   reimbursement,    2027. 
on  credit,  2028. 

what    is   a   factor,    2367. 
FAILURE    OF    CONSIDERATION.      See    tit.    Recovery    Back    of 

Money    Paid. 
FAIR.      See    tit.    Agricultural    Fair    Corporation.s. 

refusal    of   admission    to,    53. 
FAIR  CORPORATIONS.     See  tit.  Agricultursil  Fair  Corporation.s. 
FALSE  CERTIFICATES.     See  tits.   Certificates  of  Stock;  Corpo- 
rations. 
FALSE  PROSPECTUS.      See  tits.   Corporations;  Promotors. 
FARE.     See   tit.   Common  Carriers  of  Passengers. 

as    to    when    payable,    2187. 

ejectment    for    non-payment.      See    tit.    Ejection    for   Non-pay- 
ment   of   Fare. 

not  payable  after  ejection,   2190. 

rates  of  street  railroads,  501. 
FARM.      See    tit.    Homestead. 

FATHER.     See  tits.   Parent  and  Cliild;   Succession. 
FEE.     See   tit.  Vested  Fee. 
FEE  SIMPLE 

conditional   fees   abolished,    763. 

estates    tail    abolished,    763. 

title  presumed  to  pass,  when,   1105. 

what   is,    762. 

words  of  inheritance  unnecessary  to  create,   1072. 
FEE    TAIL 

abolished,   763. 
FEES 

recorder's,  1165. 
FELONY 

ground    of    divorce,    92. 

limitation   of  action   for  divorce  for  conviction  of,   124. 

1804 


INDEX. 
[References  are  to  sections.] 

FELLOW-SERVANTS.     See  tit.   Master  and   Servant. 
FEMALES 

attain   majority,    when,    25. 

of  fifteen  years  of  age,  may  marry,  56. 
FEME  COVERT.     See   tits.  Husband  and  Wife;  Married  Women. 
FENCES 

coterminous  owners  mutually  bound  to  equally  maintain,  841. 

division,    801,    841. 

easement,    801. 

on   boundary  is  common   property,    830. 

railroad,  as  to   duty  and  liability  respecting,   485. 

tenant  for  life,  to   repair,    840. 
FERRIES.       See    tit.    Bridges,    Ferry,    Wharf,    Clnite,    and    Pier 

Corporations. 
FICTITIOUS 

name    of    partnership,    2466,    2467. 

payee,  in  bill   or  negotiable  instrument,  3103. 
FILING.      See    tit.    Corporations. 

of   affidavit   of  sale   of   delinquent   stock,    347. 

of  articles    of   incorporation,    296. 
duty   of   secretary   of   state    on,    296. 
erroneous,    how   corrected,    363 [a]. 

of  inventory  of  wife's  separate  property,  165,  166. 
FINAL   JUDGMENT.      See    tit.    Divorce. 

when    granted    in    divorce,    132. 
FINDER 

abandoned    thing,    of,    1885. 

appraisement  of  property  found,  1864. 

claimant,    to   prove   title,    1866. 

duty    of,    1865. 

estray  and  lost  property  book,   1865. 

liability   of,    1871. 

may   put  property   found   on   storage,    1868. 

reward    for,    1867. 

sale   of  property  found,    1869. 

surrender  of  thing  found,  1869. 

title  to  thing  found,  vests  in,  when,  1871. 

to   notify   owner,   when,    1865. 
FINDING 

claimant  to  prove   ownership,   1866. 

duty   and    obligation    of    finder,    1865. 

may  put  thing  found   in   storage,    1868. 

may  sell  thing  found,  when,   1869. 
how  sale  to  be  made,   1870. 

property  vests  in  owner,  when,  1871. 

thing    abandoned,    1872. 

to  notify  owner,  when,  1865. 

1805 


INDEX. 
[References  are  to  sections.] 

FINE 

for  cruelty  to   children   and  animals,    607b. 
FINES,    PENALTIES,    AND    FORFEITURE 

in    proceedings    for   cruelty    to    animals,    etc.,    and    disposition 

of,  6076. 
laws   and   ordinances    relating   to    Are    department    to    govern. 

453b. 
not  to.  interfere  with  fire  department,   453a. 
powers    of,    453a. 

right  of  way  when  running  to  fires,   453b. 
yearly  meetings  of  such   corporations,   453c. 
assessments,    how    collected,    453c. 
fixing  expenses,   453c. 
notice   of  meeting,    453c. 

payment   of   employees,    etc.,   how   provided   for,    453c. 
power   of  majority  present,   453c. 
proceedings  at  such  meetings,   453c. 
who    may    vote    at,    453c. 
FIRE    INSURANCE 

acts   of   insured   subsequent   to   policy,    2755. 
alteration  increasing  risk,   2753. 

not  increasing   risk,   2754. 
investment    of    funds    of,    421,    421[a]. 
measure   of   indemnity,   2756. 
total    and    partial    loss,    2757. 
value  of  interest  in  policy,  how  fixed,   2757. 
FIRE,     LIFE,     HEALTH,     ACCIDENT,     AND     3IARINE     INSUR- 
ANCE   CORPORATIONS 
of   investment    of   funds    of,    421. 
FIRE,    MARINE,    AND    TITLE    INSURANCE.       See    tit.    Mutual 
Life,    Health,   and   Accident    Insurance   Corporations. 
accumulation    of   surplus   funds,    432. 
amount  of  risk  to  be  taken,   428. 
amount  to  be  reserved  by  corporations  with  less  than  $200,000 

capital,    430. 
capital  to  be  paid  in  twelve  months,  424. 
certificate  of  capital  stock  paid  up  to  be  filed,  425. 

within  what  time  to  be  filed,   425. 
dividends,  from  what  made,  reservations,   432. 
funds,    how    invested,    420,    421[a],    427. 
impairment  of  surplus  funds,  restoration,  432.  f 

payment    of    subscription,    424. 
property  which  may  be   insured,   426. 
reserve   before   dividend,    as   to,    429. 

amount    to    be    reserved    by    a    corporation    with    less    than 
$200,000  capital,   430. 
FIRING   WOODS 
damages  for,  3346a. 

1806 


INDEX. 
[References  are  to  sections.] 

FIXTURES.      See    tits.    ApinirtcntinoeH;    Landlord    nnd    Tenant. 

appurtenances.      See    tit.    Apiiiirteiianco.«i. 
attachment  to  mines,  are   fixtures  wlien,   661. 
definition    of,    660. 
fixtures   attaclied   to   mines,    661. 
in   general,    1013. 
mortgage    lien    on,    2926. 
ownersliip    of,    1013. 
what   are,    660. 

when    thing    deemed    affixed,    660. 
PLUMES.      See    tit.    Ditclie.s,   Flume:*,   Etc. 
FORCE.      See   tit.   Duress. 

right    to    use,    50. 
FORCIBLE     EXTRY     AND     DETENTION.       See     tils.     DanuiK'-M; 

Ejectment. 
FORECLOSURE.      See    tit.    Mortgage    Foreelo.surc. 
as   to,    2932-2967. 
of   mortgages,    2932. 
of   right   to    redeem   pledge,    3011. 
FOREIGN.      See    tit.    Alien. 
bills.     See  tit.  Foreign  BilLs. 
building  and  loan  associations,   645. 
corporations.      See    tit.    Foreign    Corpora* ionn. 
law,    mistake    of,    1579. 
navigation,    defined,    962. 
ship,    defined,    963. 
FOREIGN    BILLS 

damages    allowed    on    dishonor,    3234. 

how   estimated,    3234. 

rate    of    damages,    3235. 

where  expressed  in   foreign  money,   3238. 
declaration    before   payment   for   honor,   3233. 
definition   of,    3224. 
dishonor,    damages   allowed   on,    3234. 

how   estimated,    3237. 

rate   of,   3235. 

where    expressed    In    foreign    money,    3238. 
interest   on   amount  of  protested   bill,   3236. 
payment   for   honor,   declaration    before,    3233. 
protest    necessary,    3225. 

by   whom   to   be   made,    3226. 

how   made,    3227. 

notice    of,    how    given,    3231. 

waiver   of,    3232. 

when    excused,    3230. 

when  to  be  made,  3229. 

where   made,   3228. 

1807 


INDEX. 
[References  are  to  sections.] 

FORE5IG1V       CORPORATIONS.        See      tits.      Corporations;     Life, 
Health,    Accident,    and    Annuity,    Etc. 
articles    of    incorporation 

certified  copy  to   be   filed  witli  secretary  of  state,  408. 

fees   to   be  paid   on    filing   articles,    409. 

penalty  for   failure  to   file,   410. 
certified   copy  of  articles   of  incorporation  to   be  filed,   408. 
desig-nation   for   services,   revocation    of,    406. 
designation  of  person  on  whom  process  may  be  served,  405. 
fees  to  be  paid  by  on  filing  certified  copies  of  articles,  409. 
foreign    railroads,    rights   in   state,    407. 

penalty  for  failure  to  file  certified  copies  of  articles,   410. 
proof   of  foreign   corporation,    406. 
service  on  secretary  of  state,  when  valid,  405. 
statute   of  limitations   in  favor   of,   406. 
time  of  filing  articles,  408. 
FOREIGN    INSURANCE    CORPORATIONS 
to  have  capital  stock  of  $100,000,  when,  420. 

of     $200,000,     when,     419. 
valuations   of  policies  of,   447,   449. 
FOREIGN    LAWS 

mistake    of,    1579. 
FORFEITURE.       See    tits.    Appropriation;    Corporations;    Fran- 
cliise;    In.suranee    Corporations,   etc. 
as  applied  to  appropriated  waters,  1419. 
conditions   involving,   how   construed,    1442. 
contract  for,  of  property  subject  to  lien,   2889. 
conveyance   in    excess    of  title,    does   not   work   a,    1108. 
of  franchise    of   railroad   by   failure   to   operate,    468. 
of  policies    of    insurance,    2765. 

of  powers  of  corporation,  by   non-user,   468,   502. 
of  servitude,    by   non-user,   811. 
of  street    railroad.      See    tit.    Street    Railroad. 
of  wages    of    seamen,    2063. 
relief   in    case   of,    3275. 
FORGETFULNESS.      See    tit.    Wills. 
FORM 

of  certificate  of  acknowledgment,  1189. 

by   attorney    in    fact,    1192. 

by    corporation,    1190. 

by  married  women,  1191. 
of  covenant   in   executory   contract,    1734. 
of  grant,    1092. 

of  marriage    solemnization,    70. 
of  mortgage   of   personalty,    2956. 
of  mortgage    of   realty,    2948. 
of  notice    of    assessment,    335. 

1808 


INDEX. 
[References  are  to  sections.] 

FORM    (continued). 

of  notice   of  delinquency,   337. 
of  notice    of    dishonor,    3143. 
of  notice   to   quit,   to   tenant  at  will,    789. 
FRANCHISE.      See    tits.    Corporations:    Wagon    Road    Corpora- 
tions. 
execution    sale    of,    place    of,    393. 

duties    of    purchaser   at,    389. 
extension   of   corporate   existence,   401. 
filing-   certificate   or   certified   copy,    401. 
how  made,  401. 
for   construction   of   road   for   horseless   carriages,    etc.,    524. 
forfeiture    of    railroad,    468. 
is  property,   388. 

may   be   sold   under   execution,    388. 
of  railroad,  forfeiture  by  failure  to  operate,  468. 
of   street    railroad.      See    tit.    Street   Railroart   Co^poratl«n^!. 
of  telegraph  and  telephone  companies,  537. 
railroads   may   sell   to   other   railroads,   494. 
redemption   of,    392. 
redemption   of,   from   sale,    392. 
sale    of 

liability    under    same    as    before    sale,    391. 
purchaser   may   recover   penalties,    etc.,    390. 
purchaser    to   transact   business   of   corporation,    389. 
where   to  be  made,   393. 
FRATERNAL,     CO-OPERATIVE     SOCIETIES.       See     tit.     lliUnnl 
Benefit    and    Life    A.ssoeiation.«*. 
are   within    the    statute,    451. 
FRATERNAL    CORPORATIONS.      See    tits.    Frateriuil    So<-i<Mi«-.>«; 
Religious,    Social,    and    Benevolent     Coriior.it  Iohn. 
as    insurance   associations,    452a,    453. 
mutual    life,    etc.,    insurance    corporations,    437-452. 
FRATERNAL    SOCIETIES 

as    insurance    associations,    452a,    453. 
exempt  from  insurance  laws,  451. 
FRAUD.      See    tit.    Wills. 

actual  or  constructive,  1571. 
actual  fraud  is  what,  1572. 
constructive    fraud 

as  to   what  constitutes,    1573. 
agent   no   authority    to    defraud   principal,    2306. 
as    affecting    right    to    specific    performance,    3391. 
as  ground  for  annulment  of  marriage,  82. 
by-bidding,  as  a  species  of,  1797. 
constructive,    as    to,    1573. 
constructive   or  actual,   1571. 

1809 


INDEX. 
[References  are  to  sections.] 

FRAUD    (continued). 

contract   exempting   one   from   his    own,  void,    1668. 
obtained  by,  1568,  1569,  1572,  1573. 

prevented  from   being  put   in   writing  througli,   enforceable, 
when,    1623. 
deceit  as   an   element  of,    1709-1714. 
desertion    induced    by,    97. 

disregarding  erroneous   parts  of  written   instrument,   1640. 
on  oral  contract  required  to  be  in  writing,  1623. 
enforcement   against   fraudulent   party,   1623. 
exemplary   damages   in  case   of,   3294. 
in   apprenticeship,    ground   for   annulling,    275. 
in    marine   insurance.      See    tit.    Marine   Insurance. 

valuation    under,    2736. 
in   insurance,   as  to,   2629. 
instrument    procured    through 

avoided  by  judgment  creditor  only,  when,   3441. 
deemed   obtained  through,  when,   1568,   1572,    1573. 
power   to    revoke,   when,    1229. 
voidable,   1566. 

when   void   against   creditor,    3439. 
when   void   against   purchaser,    1227. 
insurance 

omission   to   commimicate   avoids,    2306,    2310. 
return  of  premium  for,  2619. 
insurer,   liable   for   loss   through,   when,    2629. 
intent,   a   question   of  fact,    3442. 
interest  as  damages  in  case  of,   3288. 
marriage    contract    procured    through,    58. 

ground  for  annulling,   82. 
pledge,  value   misrepresented,    2999. 
rescission   for,   1689. 

separation    produced    by,    desertion,    97. 
specific    performance,   rights   of   affected   by,    3391. 
trust  arising  from,  2224. 
trustee   guilty   of,   in   what   cases,    2234. 
will  procured  or  revoked  by,  effect  of,  1272. 
FRAUD   AND    MISTAKE.      See    tits.    Fraud;    Mistake. 
FRAUDS,   STATUTE    OF.      See   tit.    Statute   of   Frauds. 

as    to,    generally,    1623-1627. 
FRAUDULENT   CONVEYANCE.      See   tit.    Fraudulent   Transfers. 
FRAUDULENT  INSTRUMENTS.      See  tit.   Fraudulent  Transfers. 
FRAUDULENT    TRANSFERS.      See    tit.    Unlawful    Transfer. 
assignment  for   creditors.      See   tit.   Assignment   for  Benefit  of 
Creditors. 
when  void,  3457. 
avoidance  of,  by  creditors,   when,   3441. 

1810 


INDEX. 
[References  are  to  sections.] 

FRAUDULENT  TRANSFERS  (continued), 
bottomry,   delivery   is,   when,   3440. 
chattel    mortg-ag-e,    3440. 
as   a,    2957-2959. 
delivery    is,    Vi^hen,    3440. 
transfer   without   valid,    when,    3442. 
creditor's   right   to   be   judicially  ascertained,    3441. 
creditor  may  avoid,   when,    3441. 
debtor,   contract   of  valid,   when,    3431. 
definition   of,   3439. 

delivery,  necessary   of  personal  property,   3440. 
fraud,   a   question   of  fact  for  jury,    3442. 
judicial  proceedings,  is,  when,  3439. 
lien   is,    when,   3440. 
mutual  fraud,   effect  of,  1228. 
of  realty,  what  is  and  what  is  not,  1227,  1228. 
presumption    as    to,    1135. 

as  to  in  absence  of  delivery,  3440. 
purchaser   having-   notice,    rights    of,    1227. 
question    of   fraud,   how   determined,    3442. 
references,    valid,    when,    3422. 
reimbursement    of    purchaser,    3440. 

reservation    of    interest    in    assignment    for    creditors,    effect 
of,  3457. 
of  power   of   revocation,    effect   of,   1229. 
respondentia,   delivery   is,   when,   3440. 
ship  or  cargo,  delivery  not  necessary,  3440. 
special    partnership,   conveyance   by   is,   when,    2496. 
void,    when,    3439. 
voluntary   transfer 
is,   when,   3442. 
valid,   when,    3442. 
what   transfers   are   fraudulent,   3439. 
what  transfers   presumed  fraudulent,    3440. 
wines,   delivery   of  not   necessary,   3440. 
FREEHOLD     ESTATES 

estate  for  life  of  a  third  person   is,   when,   766. 
what  are,  765. 
FREIGHT.     See   tit.    Carriers   of   Property. 
delivery   of,   as   to,    generally,    2118-2122. 
FREIGHTAGE 

apportionment   of  by   contract,   2140. 
according   to    distance,    2142. 
no    objection    on    partial    delivery,    2141. 
carrier's   Hen   for,    2144. 
consignee   liable  for,   when,   2138. 
consignor  liable  for,  when,  2137. 

1811 


INDEX. 
[References  are  to  sections.] 

FREIGHTAGE    (continued). 

definition   of,    2661. 

on   natural   increase   of  freight,    2139. 

freight   carried   further    than   agreed,    2143. 

when   to   be   paid,   2136. 
FRIENDLY,   ETC.,   SOCIETIES.      See    tit.    Religious,    Social,   and 
Benevolent     Corporations. 

amownt  of  land  that  may  be  held  by,   596. 

as  insurance  associations,   452a,   453. 

limitation   of  amount  of  land,   596. 
FRUIT-TREES.       See    tit.    Trees. 
FURTHER   ASSURANCE.      See    tit.    Covenants. 
•   covenant    for,    1733. 
FUTURE    CONTINGENT    ESTATES 

how   created,   773. 
FUTURE   CROP.     See   tit.   Chattel  Mortgage. 
FUTURE    ESTATE 

contingent,    how    created,    773. 

rights   of   owner  of  easements,   808. 

what   is,    767. 
FUTURE    INTEREST 

as    to    what    is,    690. 

certain    future    interest    not   to    be    void,    697. 

classes    of,    693. 

contingent    interests,    695. 

how   defeated,    740. 

lien  on,  2883. 

perishable   property,   how   protected,    947. 

taking   effect  on   happening   of   contingency,    742. 

two   or  more   future    interests,    696. 

vested    interests,    694. 

void  when   suspends  power  of  alienation,   716. 

what   are    recognized,    703. 

what  is,  690. 

when   defeated,    739. 

when  not  defeated,  741. 
GAME 

as    to    right    to    take.    801,    802. 
GAMING 

insurance    of   void,    2558. 
GAS    CORPORATIONS.      See   tit.    Corporations   to  Furnish   Light 
and    Heat. 

application   for   gas   to    use,    629. 

deposit  as  condition  for  furnishing,   630. 

Inspection    of    meters 

agent   of   corporation    may    inspect,    631. 
refusing,  liability  for,  631. 

1812 


INDEX. 

[References  are  to  sections.] 

GAS  CORPORATIONS    (continued). 
refusal 

to  furnish  gas,  penalty  for,   629-630. 
to  pay  for  gas,  shutting  off,  630a. 
right  to  inspect,   631. 
GENDER 

of  words   in   code,   14. 
GENERAL,    AVERAGE.      See    tit.    Marine    Insurance. 
adjusted    how,    2152. 
application    of  rules,    2155. 
as    to,    2744. 
definition    of,    2148. 
goods  stowed  on   deck  of  ship,   2154. 
in    general,    2148-2155. 
insurance,   free   from.   2711. 
jettison.      See    tit.   Jettison. 
loss,    how   adjusted,    2152. 
how    borne,    2151. 
manager  may  adjust,   2388. 
marine  insurance,  liable  for.     See  tit.  Marine  Insurance. 

as     to,     generally,     2707,     2743. 
shipmaster    may    adjust,    when,    2388. 
things   stowed   on    deck,    2154. 
values,   how  ascertained,    2153. 
GIFT    IN    VIEW    OF    DEATH.      See    tit.    Gifts. 
GIFTS.      See    tit.    Wills. 

ademption    of    legacy,    when,    1357. 
causa    mortis 
defined,    1149. 
effect     of     will     on,     1152. 
is    legacy,    when,    1153. 
presumed,    1150. 
revocation    of,    1152. 
community  property  of,   172. 
definition    of,    1146. 
delivery    essential,    1147. 
effect   of   will   upon    gift,    1152. 
fraud  in,   what  is,   1149. 
how  made,    1147. 

in    view    of   death.      See    "Causa    Mortis,"    this    title, 
made    how,    1147. 
not  revocable,   when,   1148. 

presumed  to  be  in  view  of  death,  when,  1150. 
revocation 

as    to,    generally,    1151. 

bona    fide    purchaser,    effect    on,    1151. 

causa   mortis    gift,    1151. 

1813 


INDEX. 
[References  are  to  sections.] 

GIFTS 

revocation   (continued), 
how  made,   1147. 
in   view   of   death,    1150. 
not  revocable,   when,   1148. 

subscribing-  witness,  may  be  made  to,  1282,  1283. 

to   subscribing  witness   to   will,    1282. 

treated   as   leg-acy,    when,    1153. 

when  presumed  to  be  in  view  of  death,   1150. 
GIRLS.     See   tit.    FemaleM. 
GOOD    FAITH 

advance    made   in,    by   agent,    indemnification,    2344. 

agent  bound   to  act  in,   when,  2343. 

offer  of  performance  must  be  made  in,   1493. 

partner 

highest    required    of,    2411. 

when   bound  by  act  not  made  in,   2431. 

principal  bound  to  person  acting  in,  2334. 

trustee  must  act  in  highest,  2228. 

what    constitutes,    15. 
GOOD    WILL 

is    property,    655,    993. 

of  business,  992. 

partner    cannot   dispose    of,    2430. 

sale   of   in    restraint   of  trade,    1673,    1676. 

subject   of  ownership,   655. 

warranty    on    sale   of,    1776. 
GOOD    W^ILL    AND    NAME 

is   property,    993. 
GOOD    WILL    OF    BUSINESS 

transfer    of,    993. 
GRACE.     See   tit.   Days   of   Grace. 
GRANT.      See    tits.    Conveyance;    Transfer. 

mortgage    not   a,    1054. 
GRANT    OF    REAL    PROPERTY 

form    of,    1092. 
GRANTOR 

interest   remaining  in   grantor   of  express  trust,   866. 

name  of  changed,  how  to  execute,   1096. 

of  trust  property,   title   of,   865. 
GREATER 

contnins  less.    3536. 
GROWING  CROPS.     See   tit.   Mortgage  of  Personal   Property. 
GUARANTY 

acceptance    of,    2795. 

alteration  of  agreement,   2821. 

consideration   necessary  to  create,   2792. 

1814 


II 


INDEX. 
[References  are  to  sections.] 

GUARANTY    (continued), 
collectibility,  as  to,   2800. 
conditional,  as  to   liability  on,    2808. 
construction   of,  how  made,    2806. 
continuing    guaranty,     2814. 

as   to    what    is,    2814. 

revocation   of,    2815. 
deemed    original    undertaking,    when,    2792. 
definition   of,   2787. 

delay  of  creditor  does  not  discharge  guarantor,  when,  2823. 
disability  of  principal,  effect  on,   2810. 
discharge  of  prinicpal  by  operation  of  law  does  not  discharge 

guarantor,    2825. 
enumeration    of   original,   2794. 
exoneration    of    guarantors,    2819. 

what   dealings    will    exonerate,    2819. 

void    promise    does    not    alter    or    repair    remedy,    when, 
2820. 
factor    del    credere,    2794. 
guarantor   indemnified    not   exonerated,    2824. 

liability    of   does    not   exceed   that    of   principal,    2809. 
illegal   contract,    no   liability   on,   2810. 
incomplete   contract,   effect   of,    2799. 

indemnified    guarantor,    alteration    of    contract,    effect,    2824. 
indorser  has  rights  of  guarantor,  3120. 
interpretation    of,    2799. 

liability  upon   such   guaranty,   2802. 

of    complete    contract,    2794. 

recovery    upon    such    guaranty,    2801. 

that  obligation  is  good  or  collectible,  2800. 
knowledge    of   principal    not   necessary,    2788. 
letter   of   credit 

as   a,    2862,    2863. 

may   be   continuing,    2864. 
liability    of   guarantors,    generally,    2807. 

construction   of,   2806. 

upon  guaranty  of  conditional   obligation,   2808. 

upon    guaranty   of   payment   of  performance,    2807. 
must   be   in   writing,    2793. 
of  the  guarantor  cannot  exceed  that  of  principal,  2809. 

guarantor   not  liable   on    illegal   contract,    2810. 
original 

enumeration    of,    2794. 

when  deemed  an,   2794. 
part  performance,  2822. 
principal's  contract  void,  effect  on,  2810. 

disability,  no  effect  on  guaranty,  2810. 
1815 


INDEX. 
[References  are  to  sections.] 

GUARANTY   (continued). 
release   of 

as    to,    1543. 

by  altering   principal's   obligation,   2819. 

by    impairing    remedies   against   principal,    2819. 

delay  of  creditor  does  not  work,  when,  2823. 

discharge   of  principal   by  law  does  not  affect  a,   2825. 

effect  of  by  performance  as  a,   2822. 

void  promise  does  not  work  a,  2820. 
reduced  by  partial   performance,   2822. 
revocation  of  continuing,   2815. 
rescission  of  agreement,  2821. 
surety's   rights   those   of  guarantor,   2844. 
time   when  liability  accrues   on,   2807. 
unconditional,    as    to,    when    is,    2806. 
what  is,   2787. 
writing,   must  be   in,   when,    2793. 

need  not  be  in,  when,  2794. 
GUARDIAN    AND   WARD 
ad   litem   guardian,   42. 
appointment    by    court,    243. 
appointment  by   will,   241. 
apprenticing  ward,   265. 

confidential  relation  of     guardian  and  ward,  250. 
custody  of  ward's  person,  rules  for  awarding,  246. 
damages  for  holding  over,  3335. 
death   of  joint   guardian,   252. 
definition   of,    236. 

of    general    guardian,    239. 
discharge   of  guardian   of  minor,   257. 

when    entitled   to,   257. 
duties   of   guardians   of  the   person,    248. 
duty   of   guardian    of  the   estate,    249. 
general    guardian,    what,    239. 
guardian 

ad  litem,  42. 

under  direction  of  court,  251. 

appointed  by  parent,  how  superseded,  254. 
by   will    or   deed,    241. 

death    of    joint,    252. 

defined,    236. 

discharge,    entitled    to,    when,    257. 

dissolved,   by    what,    256. 

general,    defined,    239. 

rules   for  appointing,    246. 

of    estate,    242. 

of  insane  persons.  See  tit.  Insane  Persons. 
1816 


INDEX. 
[References  are  to  sections.] 

GUARDIAN  AND  WARD 
guardian    (continued). 

parental  authority  ceases  on  appointment  of,  204. 
removal    of,    grounds    for,    253. 
special    and    general,    238. 
special,    what   is,    240. 
under   direction    of    court,    251. 
what,  236. 
guardian    ad    litem,    42. 

under   direction    of   court,   251. 
guardianship,    dissolved    by    what,    256. 
joint   guardian 
as  to,   252. 
death   of,   252. 
jurisdiction,   245. 
kinds    of    guardians,    238. 

parental  authority  ceases  on  appointment  of  guardian,   204. 
power  of  guardian  appointed  by  court,  247. 
relation    confidential,    250. 
release  of  guardian  by  ward,    256. 
removal    of   guardian,   253. 
rules  for  awarding  custody,  246. 
special   guardian,   what,   240. 
special   or  general,   238. 
stockholder,    guardian   as,   322. 
superseded,,  how   guardian    is,   254. 
suspension  of  power  of  guardian,  255. 
testamentary   guardian,    241. 
Tvard 

definition    of,    237. 

may  own  stock  in  what  corporations,  561. 
release   by,    256. 
GUEST.      See    tit.    Innlteepers. 
HABITUAL    INTEMPERANCE.      See    tit.    Divorce. 

divorce   granted   for,    when,    92,    107. 
HALF-BLOOD 

relatives   of,   as   to,    1394. 
HANDWRITING 

evidence  of  must  prove  what,   1199. 
of   subscribing  witness  may   be   proved,    liow,   1198. 
HEAD    OF    FAMILY.      See    tit.    Homestead. 
defined,    1261. 
husband  as,    156. 
HEALTH   INSURANCE   CORPORATIONS.      See    til.    MiiOinl    Mfo, 

Healtii,   and   Accident    Innurnnce    Corporntlon.H. 
HEIR.      See    tits.    Succes-sion:    WordM   and    I*bra«e«. 

conveyance    of    good,    unless    will    proved    within    four    years, 
1364. 

1817 


INDEX. 
[References  are  to  sections.] 

HEIR   (continued). 

interpretation  of,  1071,  1329. 
legitimacy  of,  who  may  dispute,   195. 
of  minor,  may   disaffirm   contract,  35. 
of  tenant  for  life   take  as  purchasers,   when,    779. 
word   "heirs"   not   necessary  to   pass   fee  to   devisee,   1329. 
HIGHWAY.      See    tit.    Wagon   Road   Corporation.s. 
conveyance   bounded   by,   passes   wliat,    1112. 
owner's  title  presumed   to   extend  to   center  of,    831. 
railroad  crossing,   to  acquire   land,  how,    472. 
see    tit.    Public    Highivays. 

teleg'raph   and  telephone   companies  may  use,   536. 
water   company,    not   to    obstruct,    551. 
HIGHWAYS    AND    PUBLIC    ROADS 

no  tolls  to  be  charged  on,   515. 
HIRING.       See    tits.    Hiring;    of    Per.sonal    Property;    Hiring    of 
Real    Property. 
apportionment   of  hire,    1935. 
as   to   what    is,    1925. 
care    required    of    hirer,    1928. 
charter    party 

definition    of,    1959. 

master    may    enter    into,    2376. 
definition   of,  1925. 

degree  of  care  required   of  hirer,   1928. 
expenses 

extraordinary,     1957. 

ordinary,     1956. 

who  must   bear,    1956,   1957. 
hirer  may   terminate   hiring,    1932. 
hiring   terminates,    when,    1933. 
injuries  to  be  repaired  by  hirer,  1929. 
letter 

obligations   of,   1955. 

to  put  thing   in   fit  condition,   1955. 
lodgings   for   indefinite    period,    1944. 
particular    use,     1930. 
possession    of   thing   hired,    1927. 
products    of   thing   hired,    1926. 
quiet    enjoj'ment,    1955. 
quiet    possession,    1927. 
real    property.      See    tits.    Hiring   of   Real    Property;    Landlord 

and   Tenant. 
repairs,   letter  to  make,   1955. 
return    of   thing   hired,    1957. 

place   of   return,   1958. 
ships,    hiring    of,    1959. 

1818 


INDEX. 
[References  are  to  sections.] 

HIRING  (continued). 
terminated 

by   death,   etc.,   of  eitlier   party,    1934. 
by  destruction,   1933. 
by   letter,    1931. 
when,    1933. 

terminating  hiring  by  letter,  1931. 

thing  lent  for  a  particular  use,  1930. 
HIRING  OF  PERSONAL  PROPERTY.       See  tits.  Hiring;   Hiring 
of   Real   Property. 

charter   party,    what   is,    1959. 

extraordinary   expenses,    1957. 

obligations  of  letter,   1955. 

ordinary   expenses,    1956. 

return    of   thing   hired,    1958. 
HIRING  OF  REAL  PROPERTY.     See   tit.   Hiring. 

attornment.      See   tit.   Attornment. 
to  stranger,  1948. 

dwelling  to  be  made  fit  for  its  purpose  by  lessor,  1941. 

fixtures.      See    tit.    Fixture.s, 

fraud.     See  tit.  Fraud. 

lessee   may  make   repairs,   when,   1942. 

lessor  to  make  dwelling  fit  f-or   its  purpose,   1941. 

letting  parts  of  room  forbidden,  when,  1950. 

notice    to    quit,    3344. 

rent  is  payable,  when,  1947. 

of  lodgings  for  indefinite  term,   1944. 

renewal   of  lease  by  continued  possession,   1945. 

tenant  must  deliver  notice  served,  when,   1949. 

term  of  not  limited  or  fixed,  1943. 
HOLDING    OVER 

damages  for  wilful,  3335,   3345. 
HOLIDAYS 

certain   acts   not  permitted   on,    11. 

enumeration   of,    7. 

exclusion   and   inclusion    in    computation   time.      See   tit.    Com- 
putation   of   Time. 

falling  on  Sunday,    10. 

performance  on  following  day,   11. 

what  are  within  meaning  of  code,  7. 
HOLOGRAPHIC.      See   tits.    Olographic   Will;    AVills. 
HOME 

to   be   selected  by   husband,  103. 

unfit,   abandonment    of    wife    by    liusband,    when,    104. 
HOMESTEAD.     See  tit.  Homestead  Corporations. 

abandoned,    how,    1243. 

1819 


INDEX. 
[References  are  to  sections.] 

HOMESTEAD   (continued). 
abandonmeiit 

declaration    of,   1243. 

effectual   from   what  time,   1244. 
acknowledgment    on    conveyance    or    encumbrance    of    home- 
stead,   1242. 
alienation   of  lioniesitead 

of    insane    persons,    1269a. 

notice  of  application   for  order,   1269b. 
petition  for,   1269a. 

when  order  may  be  made  and  effect  of,   1269c. 
appraisement   of 

and    division   of,    1251. 

application   for,  how  made,   1246. 

filing  petition   for,    1247. 

hearing,   time  and  place  to  be  fixed  for,   1248. 

service  of  petition  and  order  to  show  cause,  1248. 

wlien  may  be  had,  1245. 
appraisers   of 

appointment  of,   1249. 

compensation   of,    1258. 

duties    of,    1251. 

oath  of,  1250. 

report   of,   1252. 

proceedings    on,    1252-1260. 

setting  off  homestead,   1253. 
as  to  what  consists   of,  1237. 
community   property  may   be   selected,    1238. 
complete,   when,    1265,    1269. 
consists   of   what,    1237. 
conveyance    of,    how    made,    1242. 
costs   of  proceedings  to  subject  to  debts,    1259. 
death   of  spouse,   descends  to  whom,   1265. 
debts 

for  what  liable,   1241. 

liability  of  for,  as  to,   1265. 
declaration    of.      See   tit.    Declaration   of   Homestead. 

as   to   contents   of,    1263. 

abandonment,   1243,  1244. 

recording,    1264,    1268. 
divorce,  disposition   of  on,  146. 
encumbered,   how,   1242. 
execution 

against  homestead,   1245. 

application   for,   how  made,    1246. 

application  of  proceeds  of  sale,  1256. 

appointment   of  appraisers,    1249. 
appraisers  to   be   sworn,    1250. 
1820 


I 


INDEX. 
[References  are  to  sections.] 

HOMESTEAD 

execution  (continued). 

compensation  of  appraisers,   1258. 

costs,  how  paid  and  collected,  1259. 

determining  value  and  divisibility,  1251. 

exemption   from,   1240,   1241. 

exemption  of  proceeds  of  sale,  1257. 

money    arising    from    sale    equal    to    homestead    exemption 
protected,   1257. 

notice  of  hearing  and  service  of,   1248. 

order   directing   sale,   when,    1254. 

petition   for,   where  filed,   1247. 

proceedings    on,    1245. 

report  of  appraisers  as  contents  of,  1252. 

setting   out   homestead   exemption,    1253. 

what  bid  may  be  received,   1255. 

when  not  subject  to,  1240. 

when  subject  to,   1241. 
exempt   from   forced   sale,    1240. 

execution  sale  of,  1241. 
from   what  homestead  may   be   selected,    1238,   1239. 
"head  of  family."     See  tit.  Head  of  Family. 

definition  of  term,  1261. 

may  select,   1262. 
mode   of  selection,   1262. 
liability  of,   in   general,   1265. 
liens   on,   for  what   liable,    1241. 
luuatie.s,   of,   proeeedings   to   enciiinlier   »»r   soil 

as    to    generally,    1269a. 

notice    of   application    for    order,    1269b. 

petition    for    sale    or   mortgage,    1269a. 

when  order  may  be  made  for,  and  effect  of,  1269c. 
mortgage  of,    1242. 

for  what   liable,    1241. 
other   persons,    selection    of    by,    1266. 
recording  declaration,    1264,   1268. 
recording    selection,    1262. 
sale  of.     See   "execution,"   this   title. 

bid  which  may  be   received   on,   1255. 

disposition    of   proceedings    on,    1256. 

exemption    of  proceedings   of,   when,    1257. 

on   execution,   when,    1241. 

what  bid  may  be  received,   1255. 

when    may   be   directed,    1254. 
selected  from   what  property,    1238. 
selection 

acknowledgment    of,    1266. 

1821 


INDEX. 
[References  are  to  sections.] 

HOMESTEAD 

t^election    (continued), 
by    other   persons,    1266. 
from  community  property.     See  tit.  Community  Property. 

from  what  property,   1238. 

from   wife's  property,   consent  necessary,   1239. 

mode   of,    1262. 
separate  property  may  he,  1238. 
tenure  by,  when  held,  1265. 
title,  perfected,  when,   1265. 
value  of  homestead  exemption,  1260. 

presumption  as  to  value  not  indulged,   1260. 
what    is,    1237. 
what   may    be    selected,    1238.  ; 

what   not,    1239.  ' 

when   complete,   1265.  j 

who  may  select  a  homestead,   1260.  \ 

HOMESTEAD   CORPORATIOIVS 

advertisement  and  sale  of  delinquent  and  forfeited  shares,  559. 
annual    report  to   be   published,    565. 

publication  to  be  made  where,   566. 
by-laws    must    specify    time    for    and    amount    of    payment    of 
instalments,   558. 

to  be   furnished  to  member  on   demand,   558. 
corporation  terminated,   when  and  how,   563. 
delinquent   shares,  advertisement  and  sale  of,   559. 
dividends   on   termination,   paid  when,   563. 
division   of  property   among  shareholders,   when,    563. 
forfeit    for    speculating    in    or    selling    lands    exceeding    what 
amount,    562. 

penalty  for  violation,  562.  |! 

forfeited  shares,   advertisement  and  sale  of,   559.  ,! 

married  women   may   own   stock   in,    561. 

may  borrow  and  loan  funds,  how  and  for  what  time,  560.  I 

minor   children,    wards,   and   married   women   may   own    stock, 

561. 
payment   of  premiums,   564. 
penalty  for  failure   to  pay   instalments,   558. 
premiums,   payment   of,    564. 
stock   of,   who  may   own,   561. 
time  of  corporate  existence,  557. 
wards  may  own  stock   in,   561. 
HOMESTEAD    EXEMPTION 

setting   off,    1253,    1254. 
HORSE 

degree   of   care    required   of   by   hirer,    1928. 
HORSELESS    VEHICLES 

franchise   to   construct  road  for,   524. 

1822 


INDEX. 
[References  are  to  sections.] 

HORTICULTURAL,  ASSOCIATIONS.     See  tit.  Co-operative  Agrrl- 

cultiiral,  etc.,  As.sociations. 
HOTEL.     See  tit.   Innkeeper.s. 

HUMANE   CORPORATIONS.      See    tit.    Societies    for   the    Preven- 
tion of  Cruelty  to  Cliildren  and  Animals. 
HUSBAND.     See  tit.  Husband  and  Wife. 
inlierits   from   wife,    1400. 
succeeds,  wlien.     See  tits.  Comnmnity  Property;   Husband  and 

Wife;    Succession. 
to    support,    when,    176. 
HUSBAND  AND  WIFE.      See   tit.  Married  Women. 
abduction   of   spouse,   49. 
children.     See  tit.  Parent  and  Child. 
community  property.     See  tit.  Community  Property. 
gift    by    husband,    172. 
includes    what,   164. 
power  of  husband  over,   172. 
testamentary  disposition   of  by  spouses,  172. 
when  not  liable  for  wife's  debts,   167. 
contracts   bet'ween 

and   others,   capacity  to  make,    158. 
by    husband,    158. 
by  wife,  158. 

not    impaired   by   their   legal    relations,    159. 
of  marriage  settlement,  how  executed,  178. 
minors   may   make,    181. 
to   be   acknowledged   and    recorded,    179. 
effect  of  recording,   180. 
of   separation,    159,    160. 
respecting   community  property,    167. 
courtesy  and   dower.      See  tits.   Courtesy;   Dower. 
custody   of  children.     See   tit.   Children. 
dividends,  on  stock,  payable  to  married  woman,  325. 
domicile 

husband  may  fix,   103. 

selecting  unfit   amounts   to    desertion,    104. 
dower.     See   tit.   Dovrer. 

dwelling,  neither  spouse  can   be  excluded  from,  157. 
earnings  of  wife  not  liable  for  husband's  debts,  168. 

when   living  separate  and  apart,   169. 
enticement   of   wife,    49. 
head  of  family,  husband   is,  156. 
homestead.      Se   tit.   Homestead. 
homestead    corporation,    wife    may    liold    stock    in.      See    tit. 

Homestead   Corporation, 
husband 

may   make   contracts,    158. 

1823 


INDEX. 
[References  are  to  sections.] 

HUSBAND  AND  WIFE 
husband   (continued). 

property  of,  not  liable  for  wife's  debts,  when,  170. 

rights  and  liabilities  of  in  relation  to  stepchildren,  209. 

rights  of  as  head  of  family,   156. 

separate  property  of,  includes  what,  163. 

wjfe  liable  for  support  of,  when,  176. 
inheritance   by.     See  tit.   Succession. 

inventory    of    separate    property    of    wife.      See    tit.    Separate 
Property  of  "Wife. 

filing  of  inventory,  166. 
joint  tenancy  between,   161. 

legitimacy  of  issue.     See  tits.  Bastards;  LegitimacT'. 
niarriag^e   settlement    contracts 

by    minor,    181. 

effect  of  recording,  180. 

how   executed,    179. 

to  be  acknowledged  and  recorded,  179. 
married   woman.      See    tit.    Married   Women. 
mutual    obligations    of,    155. 
property  interests  of  are  separate,   157. 
property  of,  how  held,  -161. 
property  rights  of,  in  general,   177. 
rig^Iit   of  Iiusband 

as  head  of  family,   156. 

may  select  home,  and  wife  must  acquiesce,  103,  104. 
rights  of  husband  and  wife  governed  by,  what,   177. 
savings  and  loan  stock  may  be  held  by  wife,  575. 
separate   property. 

of  husband.     See  tit.   Separate  Property  of  Husband. 

of  wife.     See  tit.  Separate  Property  of  Wife. 

liable  for  antenuptial  debts,  170. 
separation 

consideration   for,   160. 

contract  of  between,  159,  160. 
settlement.     See  "marriage  settlement  contracts,"  this  title, 
stepchildren,  husband's  duty  toward,  209. 
stock,  married  woman  may  transfer,  325. 
support  of  husband,   wife  liable  for,  when,  176. 

of   wife,   174. 

when    separated   from   her   husband,   175. 
tenants    in    common,    161. 
wife   may   make   contracts,   when,    158. 

to  support  husband,   when,   176. 
tvife's  earnings 

her  separate  property,   when,  169. 

not  liable  for  husband's  debts,  168. 
1824 


INDEX. 
[References  are  to  sections.] 

HUSBAND  AND  WIFE    (continued). 

wife's   estate.     See   tit.   Separate  Property. 
wliat   included    in,    162. 

wife's  property 

liable   for  her  debts,    171. 

not  liable  for  husband's  debts,   171. 

wife's  separate  property,   what  included  in,   162. 
HUSBAXD'S    DEBTS 

earnings   of   wife   not   liable   for,   168. 
HYDRAULIC    MINING 

as   to   generally,    1424,   1425. 

definition  of,  1425. 

when  may  be  carried  on,  1424. 
HYPOTHECATION 

of    property    by    wagon-road    corporation,    522. 
IDENTIFICATION 

of  contracting  parties,  1558. 
IDIOTS.     See  tits.  Insanity;  Personn  of  Unnonnd  Mind. 
IDLE  ACT 

law   does   not   require,    3532. 
ILLEGAL  CONTRACTS.     See  tit.   Specific  Perforiiinnce. 
ILLEGITIMATE   CHILD.      See   tits.   Bastard;   Legitimation. 

adoption    of,    230. 

custody   and   control    of,    200. 

succession   of.     See  tit.   Succession. 
IMPLIED   COVENANTS 

as   to,    1113. 

what    embraces,    1114. 
IMPOSSIBLE    OR    UNLAWFUL    CONDITIONS.      See    tit.    Condi- 
tions. 

are  void,  1441. 
IMPOSSIBILITY 

ascertaining   consideration    of,    1612. 

ascertaining  object  of  contract  of,   1595. 

condition  void  because  of.   1441. 

defined,    1597. 

law   does   not   require,   3531. 

of   performance   avoid   contract,    159S. 
I M POTENCY 

a.s  ground  of  aiinulmont  of  marriage.  S2. 
IMPROBABILITY 

of   contingoncy,   future    interest,   697. 
I.XC.VPACITY.      See    tits.    Insane    Persons:    l'«T«nin«i    >tt    I  nn<iiin<l 
Mind. 

physical,    ground   for   annulment    of   marriage,   82. 

terminates   agency,    2355. 

terminates  hiring,   1935. 

Kerr's   C.   C. — 58  1825 


INDEX. 
[References  are  to  sections.] 

INCAPACITY   (continued). 

to  consent,  ground  for  annulment  of  marriage,  82. 

to    contract,    39,    40. 
INCEST 

action   to  annul   marriage   for,    82. 

what  marriages  are  incestuous,   59. 
INCIDENTS.     See  tit.  Transfer. 

INCOME 

accumulation    of,    724,    733. 

allowance  out  of,  726. 

liequest    of,    1366. 

definition  of,   748. 

disposition    of.      See    tit.    Accumulations. 

of  property,   belongs   to   whom,   733. 

undi-sposed   of,    733. 
INCOMPETENCE 

of  parties  to  marriage.     See  tit.  Marriage. 
as    to    generally,    59. 
INCREASE    OF   PROPERTY.      See   tit.   Accession. 

belongs    to    owner,    732. 

freight  not  charged  on  natural   increase  of,  2139. 

of  hired,  belongs  to  hirer,  1926. 

of  lent,   belongs  to  lender,   1885. 

pledge,    of,    2989. 
INCUMBRANCE.      See   tit.   Encumbrance. 
INDEMNITY.     See  tits.   Guaranty;  Suretyship. 

actions  to  recover,  2777. 

agents,  acts  of  covered  by,  2775. 

agreement  to  indemnify,   interpretation   of,    2778. 

bail,  as  to  what  is,  2780. 

defenses   to  actions   for  recovery   of,    2778. 

definition  of,  2772. 

extends  to  acts   of  agents,   2775. 

for  future  wrongful  act,  void,  2773. 

for  past  wrongful  act,  valid,  2774. 

how   regulated,    2781. 

in   judgment   restoring   lost    or   burned   bonds    of   corporation, 
329. 

includes   costs   of   defense,    2778. 

interpretation  of,  rules  for,   2778. 

joint    and    several    liability    of    indemnifiers    with    indemnified, 
2777. 

judgment  for,   conclusiveness   of,   2778. 

person  indemnifying  as  a  surety,  when,  2779. 
jointly    liable,    2777. 

promissory    note.      See    tits.    Negotial>le    Instruments;    Promis- 
sory  Note. 

1826 


INDEX. 
[References  are  to  sections.] 

/ 

INDEMNITY    (continued). 

rules  for  interpretation   of  agreement  of  indemnity,  2778. 

several,    as    to,    2776. 

surety,    person    indemnifying-    is,    when,    2779. 

to  several  parties,  2776. 

unlawful   act,   against,    2773,   2774. 

wrongful  act,  against,  2773,  2774. 
IIXDENTURE.     See  tits.  Apprentice;  Master  and  A|M>rcii(i<-t'. 
INDICTMENT 

for   nuisance,   3491,   3492. 
INDORSEMENT.     See  tits.  Bills;  Negrntiahle  lu.struiiioiitN;   Prom- 
issory  Notes. 

agreement  to  indorse,  3109. 

apprenticeship,    of,    266. 

bill  of  lading,  2127. 

consideration,  effect  of  want  of,  3122. 

definition    of,    3108. 

effect   of   want   of   consideration,    3122. 

general    indorsement,    3112. 
how   made   special,   3113. 

implied   warranties  of   indorser,   3116. 

indorsee   in   due  course,   who  is,   3123. 
rights  of,  3124. 

indorsee   privy   to    contract,    3120. 

indorsement    without    recourse,    3118. 
effect   of,    3119. 

indorser  liable  to  payee,  when,  3117. 

marriage   certificate,   of,    73. 

may  be  made   on   separate   paper,    when,    3110. 

means   of  indorsement,    3111. 

of    non-negotiable     instrument.       See     tit.     \«'«:o(lnl»It'    Insfrii- 
inents. 

of  stock.     See  tit.   Certificate  of  Stock. 

rights  of  indorsers   in   due  course,   3124. 
cannot   destroy    negotiability,   3115. 

stock,  necessary  to   transfer,   324. 

surveyor-general's,   on   plat  of  right  of  w:iy,    4  7S. 
INEVITABLE    ACCIDENT.      See    tit.    Rules    of   NavlKndon. 
INFANT    AND    INFANCY,      See    tit.    Minor. 

abandonment    of,    246. 

abduction    of,   49. 

action   by,   guardian    must   conduct,   42. 

agency,    cannot    give,    33. 

apprenticing.     See  tit.  Mrnster  niul    \|ii>i<-iHl«'o. 

as    to    who   are,    25. 

building  and  loan  shares  may   be  owned  and  held  by,   643. 

children  who  may  be  arrested  and  brought  before  court,  etc., 
607g. 

1827 


INDEX. 

[References  are  to  sections.] 

INFANT  AND  INFANCY   (continued), 
contract,    competency    to,    1557. 

rights    of,    34. 

validity   of,   34. 
delegation   of  power  by,   34. 
disafRrmance   of  contracts,   35. 

by   personal    representatives   of,    35. 

cannot  disafRrm   for  necessaries,    36. 

limitations  on,  37. 

return    of   consideration    on,    35. 
en    ventre.      See    tits.    Posthumous    Child;    Unborn    Infant. 

as   to   rights    of,    29. 
exemplary  damages   against,    41. 
guardian    must    conduct   action    by,    42. 
head    of    family,    as    a,    1261. 

homestead  stock  may  be  owned  and  held  by,  561. 
land  and  building  shares  may  be  owned  by,  643. 
marriage   of,    57. 

annulment   of,    82. 

condition  restraining,  710. 
m.arriage  settlement  by,  may  be  made,  181. 
necessaries,   contract  for  by,   not  to  be  disaffirmed,   36. 
period   of  minority,   how  computed,   26. 
personalty  not  in  possession,  contract  as  to,  33. 
posthumous   child,  property  rights   of,    698. 
real  property  of,  contracts  by  respecting,  33. 
savings  and  loan  stock  may  be  owned  by,  576. 
stock  owned  by,  how  represented  at  corporate  elections,   313. 
torts   of,   liability  for,    41. 
unborn  child,  as  to  rights  of,   29. 
who  are,  25. 
I]\FORMATION.      See   tit.   Nuisance. 

as   to   for   nuisance,    3491,    3493. 
INFRINGEMENT,    of    trade-mark.       See    tit.    Trade-Marks    and 

Signs. 
INHERITANCE.      See   tit.    Succession. 
injury  done  to,  remedy  for,   826. 
of  husband  and  wife  from  each   other,   1400. 
words  of  not  necessary  to  pass  fee,    1072. 
INJUNCTION 

as    to    generally,    3368. 

allowed,    in    what   cases,    3366,    3422. 

not  allowed,  in  what  cases,  3423. 
allowed,    when,    3422. 

court  of  another  state,   proceedings   in,   not  stayed,   3423. 
federal   court,   proceedings   in,   not  restrained,    3423. 
final    or   provisional,    3420,    3421. 

1828 


INDEX. 
[References  are  to  sections.] 

INJUNCTION   (continued). 

forfeiture,    3369. 

grounds   for   granting-,    3422. 

how   granted,    3420. 

legislative  act   of   municipal   corporation,    not,   3423. 

multiplicity  of  suits  restrained  by,  3422. 

not  allowed,   when,   3423. 

office,  not  granted  respecting,   when,   3423. 

penal  law,  3369. 

penalty,  3369. 

provisional    injunction,   as    to,    3421. 
regulated   by   code,    3421. 

provisional   or   final,   3420. 

statute,  enforcement  of  not  restrained  by,   3423. 

trust,  in  cases  in  relation  to,  3422. 

when  allowed,   3422. 

when    not  allowed,    3423. 
INJURY.      See    tits.   DaninK'<'!^:    Employer   iiud    Eiiiployoo;    ^IhmIof 
and   Servant;    Negligence. 

contract  for  exemption  from,  1668. 

inflicted  in  duel.     See  tit.  Duel. 

obligation   to  abstain   from,    1708. 

right   to   defend   against,    50. 

right   to   protection    from,    43. 

threat  of,  renders  contract  void,  when,  1569,  1570. 
INN.     See  tit.  InnkeeperM. 
INNKEEPERS 

as   to    liability    of,    1859. 

how  exempted  from   liability,    1860. 

lien  for  charges  on  baggage,  1861. 

sale  of  unclaimed   baggage,   1871. 

to  post  rates  of  charges,  1871. 

unclaimed   baggage,    liow   disposed   of,    1871. 
INNUENDO.     See    tit.    Libel. 
INSANE   DELUSIONS.      See    tit.    Wills. 
INSANE   PERSONS.      See   tit.    PersoiiM   of    I  iisoinnl    >Ilii.l. 

agency  terminated  by   incapacity  of,   2355. 

as  to  sale  or  mortgage  of  homestead  of,  1269a,  1269c. 

contract,    competency    to    make,    1558. 

employment  terminated  by  incapacity  of,   1996,  1997. 

guardian  of,   1763. 

homestead   of,   alienation    or   encumbrance   of,    1269a.    1269c. 

liability    for    torts,    40. 

marriage  of,  annulment,  82. 

necessaries  of,  liability   for,   38. 

powers  of,  after  office   found,   40. 

proposal  to  contract  revoked  by  Insanity,  1587. 

1S29 


INDEX. 
[References  are  to  sections.] 

INSANE  PERSONS    (continued). 

rescission  of  contract  of,  39. 

restoration,  certificate  of,  evidence  of  legal  capacity,  40. 

stock   of,   how   represented  at   corporate   election,   313. 

torts   of,   liability   for,    41. 

trustee,   2282. 
INSOLVENCY.      See    tits.    AssisniHent    for    Benefit    of    Creditors; 

Fraudulent    Trausferts;    Stoppage    in    Transitu. 
INSTRUMENT 

cancelation  of,  in  general,  3412,  3414. 

judgment    proving,    1203. 

proof  of,  action  for,  and  effect  of  judgment,  1204. 
execution  of,  when  not  acknowledged,   1195. 
INSULT 

right  to  protection   from,   43. 
INSURABLE  INTEREST.     See  tit.  Insurance. 

as   to   what   is,    2546. 

carrier    has,    2548. 

change   of   interest  or  succession,   2552. 

cotenants,  transfer  between,  effect  of,  2557. 

death   of  insurer,   2556. 

depositary  has,  2548. 

exception  in  case  of  several  subjects  in  one  policy,  2555. 

expectancy,    2549. 

factor  has,  2367. 

in  life,  assignment  to  one  without,  effect  of,   2764. 

in  what  may  consist,   2547. 

insurance    without   interest    illegal,    2551. 

interest  for  life,  2763. 

interest  insured,  must  exist,  2552. 

interest  of  carrier  or  depositary,  2548. 

loss,  transfer  after,  effect  of,  2554. 

measure  of  interest  in  property,  2550. 

mere  expectancy,  2549. 

transfer,  after  loss,  2554. 
effect    of,    2553. 

transfer    between   cotenants,   effect   of,    2557. 

void  insurance  stipulations,   2558. 

when   must  exist,    2552. 
INSURANCE.     See  tits.  Insurable  Interest;  Insurance  Companies. 

accident   insurance.      See    tit.    Insurance   Corporation. 
insurance  by,  form  of  policy,  2587. 

assignment  of  life  insurance  policy,  effect  of,  2764. 

assignment  of  thing  insured  to  mortgagee,  effect,   2541. 
new  contract  between  insurer  and  assignee,  2542. 

carrier   has   insurable   interest,    2548. 

certificate   of  loss  dispensed  with,  when,   2637. 

1830 


I 


INDEX. 
[References  are  to  sections.] 

INSURANCE    (continued). 
change  of  interest 

after    loss,    2554. 

between  partners  or  joint  owners,  2557. 
by  death  of  insured,  2556. 
in   one   of   several    things,    2555. 
in  thing  insured,  2554,  2557. 
commissioner.      See    tit.    Insurance    Commissioner. 
concealment  and   representations,    2561. 
application   of  provisions   of  statute,    2582. 
effect  of  concealment,   2562. 
fraudulent  warranty,  2569. 

interest  of  insured.      See  tit.   Insurable  Interest. 
as  to,   2568. 

materiality   of  representation,    2581. 
materiality,    test    of,    2565. 
matters   each   is  bound  to  know,   2566. 
matters    of   opinion,    2570. 

matters  which  need  not  be  communicated,  2564. 
opinions,    matters    of,    2570. 
waiver   of   communication,    2567. 
what  may  be  insured,   2531. 
what  must  be  disclosed,   2563. 
contribution 

in   case   of  double  insurance,   2642. 
in   case   of   over-insurance,   2620. 
proportionate   contribution,   2622. 
definition    of,    2527. 
disclosed,  facts  which  must  be,  2563. 

facts  which  need  not  be,   2564. 
double    insurance,   as   to,    2641. 
contribution,   in    case   of,    2642. 
definition  of,  2641. 
events  that  may  be  insured  against,   2531. 
examination  of  premises  by  insured,  and  value  fixed,   2757. 
excepted    perils,    2628. 
exoneration  of  insurer,  2629. 
factor   may   insure,    2368. 
lire 

corporations  to  discover,  etc.,  453a,  453b. 
double  insurance,  contribution,   2642. 
examination  of  premises  and  fixing  value,  2757. 
insurance.      See    tit.    Fire    In.suranoc. 
measure   of   indemnity,    2756. 
partial  loss,   2757. 

property  which   may  be  insured,   426. 
valued   policy,   2757. 

1831 


INDEX. 
[References  are  to  sections.] 

INSURANCE   (continued). 

fire   and  marine   insurance,   428. 
fire   companies.      See   tit.   Insurance   Companies. 
fraternal   societies  exempt  from  laws  of,  451,   453p. 
fraud    in,    2629. 

fraudulent  omission   to   communicate  facts,   2569. 
fraudulent  warranty,    2569. 
guaranty  insurance,  2772-2778. 
increase  of  risk,  acts  not  affecting  policy,  2754. 
alterations  which  affect  on,   2753. 
alterations  which   do  not  affect  on,   2754. 
indemnity  insurance,  2527. 

insurable  interest.  See  tit.  Insurable  Interest. 
insurance  of  lottery  or  prize  unauthorized,  2532. 
insured,   who   is,    2539. 

who  may  be,   2540. 
insurer,   exoneration   of,   2629. 
who  is,  2539. 
who  may  be,  2540. 
interest  covered  by  policy,  2568. 

of  insured,  necessity  of  conamunicating,  2568. 
joint  owners,  transfer  of  interest  between,  2557. 
kinds   of,    2533. 

lapsing  of  policies,  prohibited,  when,   453m. 
life  and  health.     See  tit.  Life  and  Health  Insurance. 
loss,    2626,    2627. 

certificate  dispensed  with,  when,  2637. 
excepted   perils,   2628. 
incurred   in   rescue   from   peril,    2627. 
negligence    and   fraud,    2629. 
notice   of,  2633. 

perils  of  insurance,  proximate  and  remote,   2626. 
preliminary    proofs    of,    2634. 
waiver  of  defects  in   notice,   etc.,  2635. 
waiver   of   delay,    2636. 
lottery  not  insurable,    2532. 

marine  insurance.     See  tit.  Marine  Insurance. 
negligence,  2629. 
over-insurance,    as    to,    2620. 
parties  to  contract  of  insurance,   2538. 
designation   of  parties,   2538. 
who   may    be   insured,   2540. 
who  may  insure,  2539. 
perils,  remote  and  proximate,   2626. 
policy.      See    tit.    Insurance   Policy. 
premium,   2616. 

earned,  when,  2616. 

1832 


INDEX. 
[References  are  to  sections.] 

INSURANCE 

preiniuin   Ccontinued). 

over-insurance  by  several  companies,   2620. 
contribution,    2621. 
proportion    of   contribution,    2622. 
return  of,   2617. 
for  fraud,  2619. 
when  not  allowed,  2618. 
reinsurance,  as  to  what  is,   2646. 
disclosures   require,    2647. 
original  insured  has  no  interest,   2646. 
presumed  to  be  against  liabilitj%  2648. 
representation  as  to,  what  is,  2571. 
as  to  future,  2574. 
falsity    of,    2579. 
conflict    of,    2580. 
materiality    of,    2581. 
how  interpreted,  2573. 
how  may  affect  policy,   2575. 
representation,  information,  2578. 
rescission  of  insurance  contract,  2583. 
time  intended  by,  2577. 
when   may   be,   2572. 
when  may  be  withdrawn,  2576. 
rescue  from  peril,  loss  incurred  in,  2627. 
test  of  materiality,   2565. 

what  events  may  be  insured  against,   2531. 
who  may   insure,   2539. 
who  may  be   insured,   2540. 
HVSURAKCE  COMMISSIONER 

bills  for  certain  expenses,   453o. 
INSURANCE    CORPORATIONS.      See    tits.    Fire    Insiiraiu*-:    lAfe 
Insurance. 
capital   stock   of  $100,000,  when,  420. 
of    $200,000,    when,    419. 
subscription  to,  how  opened,  414. 
directors  liable  for  loss  on  insurance,  when,  418. 
dividend^) 

as  to  what  are,  417. 
when  to  be  declared,  417. 
investment  of  capital  and  accumulations,   421,  421[a]. 

life   insurance  corporations  may   loan   on   own  policies,   421, 

421[a]. 
purchase   of  or  loan   upon   interest-bearing  bonds,    421[a]. 
policies,  how  issued,  and  by  whom  signed,   416. 
purchase  and  conveyance  of  real  estate,  415. 
report  of  officers,  421. 

1833 


INDEX. 
[References  are  to  sections.] 

INSURANCE  CORPORATIONS  (continued). 

subscription  to  capital  stock,  how  opened,  414. 
what  property  may  be  held,  415. 
INTEiMPERANCK 

ground  for  divorce,  when,   92,    107. 
habitual,  what  is  in  divorce,  106. 
must   continue  for   one  year,   107. 
IXTEXTION.     See   tits.   Gifts;   Wills, 
nscvrtained 

by    language,    when,    1638. 

by  writing,  when,  1639. 
compliance   with,    substantial   sufficient,    1348. 
fraudulent,   a  question   for  the  jury,   3442. 
general  terms  restricted  by,   1648. 
hovr   ascertained 

as   to  generally,   1637. 

in  revision,   3401. 
inconsistent  with,  words   which   are,  to  be   rejected,   1653. 
interpretation  of  contract  governed  by,  1636. 
of  grantor,  where  grant  an>biguous,   1068. 
of  testator 

as  to  generally,  1317,  1370. 

to  be  ascertained  from  words  of  will,  1318. 
of  trustor,  necessary  to  creation  of  the  trust,  2221. 
overrules 

grammatical    construction,     1324. 

technical   meaning,    1327. 
particular  clause,  subordinate  to  general,  1650. 
revision   and   reformation   of  contract  to  conform   to,    3399. 
substantial  compliance  with,  sufficiency  of,  1348. 
superior    to    terms    of    expression    in    written    contract,    when, 

1640. 
to  be  ascertained  from  words  of  will,  1318. 
to  be  carried   out,   1317. 

to  deceive,   indispensable   element   in   fraud,   1572. 
to  desert,  simple  separation  does  not  show,  100. 
to  extinguish  obligation,    necessary   in   novation,    1531.  ' 

to  control  in   the   interpretation   of  contracts,   1636. 
to  make  ademption,  writing  necessary,  1351.  ^ 

-wheu  ascertained 

by  the  language,  1638. 

by  the  writing,  1639. 
words  which  are  inconsistent  with  are  to  be  rejected,   1653. 
INTEREST 

annual  rate,  1916. 
as  to  time 

as  to,  generally,   688. 

1834 


INDEX. 
[References  are  to  sections.] 

INTEREST 

as  to  time   (continued). 

future  interest,  what  is,  690. 

limited    interest,    what    is,    692. 

perpetual  interest,  what  is,  691. 

present  interest,  what  is,  689. 
bequest  of,   1366. 
bottomry  contract,  rate  in,  3022. 
building  and  loan  corporations,    633. 
cemetery    bonds,    on,    611. 
compound 

trustee's    liability    for,    2262. 

when  compounded,  1919. 
computation   of,    1917 
damages,   as,   3287,  3294. 
definition  of,  1915. 
guaranty  notes  of  mutual  life  insurance  companies,  as  to  on, 

441. 
illegal  rate,  1917. 
in  actions  ex  contractu,   3287. 

after  breach,   3338. 
in  actions  ex  delicto,   3288. 
judgment,    interest    on,    1917-1920. 
legacies,     interest    on,     1368. 

loan  and  building  corporation,  interest  chargeable  by,   634. 
offer  of  performance  stops  running  of,  1503. 
parties  may  agree  to,  1918. 
presumed  on   loan   of  money,   1914. 
protested   bill,   rate    of,    3236. 
railroad  bonds,   interest   on,   456. 
rate  of 

after   breach   of   contract,    3338. 

after  verdict,   3289. 

limit    of  by    contract,    3289. 

on  money  borrowed  by  homestead  corporation,   560. 
respondentia,    rate    on,    3039. 
special  partner  entitled  to,  when,   2492. 
trustee   liable  for,   when,   2262. 

liability  to  beneficiary,   2237. 
waiver  of,  by  accepting  principal  without,  3290. 
INTEREST  IN  COMMON 
as  to,  generally,  686. 

as  to  what  interests  are  in  common,  686. 
community  property.     See  tit.  Community  Property. 
what   is,   685. 
INTEREST  IN   PROPERTY 
as  to  time  of  enjoyment 

future  interest,   what  is,    690. 
1835 


INDEX. 
[References  are  to  sections.] 

INTEREST  PROPERTY 

a.s  to  time  of  enjoyment   (continued). 

limited  interest,  wliat  is,   692. 

perpetual  interest,  what  is,  691. 

perpetual    or    limited,    688. 

present  or  future,    689,   690. 
contingent  interest,  as  to  what  is,   695. 
expectant  estates.     See  tit.  Expectant  Estates. 
future- interest,  two  or  more  conflicting-,  696. 

not  to  be  void,  697. 
interest  in  real  property,  what  is,  701. 

future    interests   are    recognized,    703. 

kinds  of  future  interest,  690. 

mere  possibility  of  the  interest,  700. 

name   and    classification    of    interests,    702. 

posthumous    children.      See    tits.    Posthumous    Children;    Un- 
born   Child.  ^ 

vested  interest,  as  to  what  is,  694. 
INTERLOCUTORY  JUDGMENT 

in    action    for   divorce,    131. 
INTERPRETATION 

of  agent's  authority,  2322. 
INTERPRETATION    OP   CONTRACTS 
as  to  time  of  performance,  1657. 
control   by   circumstances,   1647. 

effect  to  be  given  to  every  part  of  instrument,  1641. 
general  rule  of  interpretation,   1635,   1636. 
how  to   be  interpreted,   1636. 
inconsistent  words  rejected,   1653. 
in  favor  of  contract,  1643. 

in  sense  in  which   promisor  believed  promisee  to  rely,   1649. 
intention  of  parties,  how  ascertained,  1637. 

language  used  to  govern,    1638. 
law    of   place   governs,    when,    1646. 
necessary  incidents  implied,  1656. 
of  written  contracts,  1639. 

writing,  when  disregarded,  1640. 

fraud  and  mistake.     See  tits.  Fraud;  Mistake. 
particular  clauses  subordinated  to  general  intent,   1650. 
partly  written  and  partly  printed,  1651. 
reasonable  stipulations   implied,   when,   1655. 
repugnance,   how   reconciled,    1652. 
restricted  to  its  evident  object,   1648. 
several  contracts  taken  together,  when,  1642. 
technical  words,  how  interpreted,  1645. 
words  taken  most  strongly  against  whom,    1654. 
words  to  be  understood  in  their  usual  sense,  1644. 

1836 


INDEX. 
[References  are  to  sections.] 

INTERPRETATION   OF   GRANT.     See  tit.   Transfer. 
INTERPRETER. 

may   be   employed  by   officer  taking   acknowledgment,    1201. 
INTESTATE.     See  tit.   Sueces.sion. 

estate  of  chargeable  with  debts,   1358. 
INTESTACY. 

to  be  avoided  in  construction  of  will,   1326. 
INTOXICATION.      See   tits.   Contracts;   Divorce;   Wills. 
INUNDATION 

deposit    by    an,    as    to,    1815. 
INVENTION 

as  to  property  in,  980-985. 
INVENTORY 

by  assignee  for  creditors,   3461-3464. 

by  specific  legatee,   1365. 

of  separate   property   of   wife.      See   tit.    Separate  Property   of 
Wife. 
IRRIGATION.     See  tit.  AVater  and  Canal  Corporations. 

ditch  or  flume,  liability  in  use  of  by  association,  842. 

easement,    552. 

flume  or  ditch,   liability  in   use   of,   842. 

right  of  purchaser  to  use  water  for.     See  tit.  Water  and  Canal 
Corporations. 
IRRIGATION   CORPORATION.     See  tit.   Irrigation. 

as  to,  generally,  552. 

stock  appurtenant  to  lands,  when,   324. 

transfer  of  stock  of,  324. 
IRRIGATION    STOCK 

appurtenant  to  certain  lands,  324. 
ISLANDS 

as    to,    generally,    1016-1018. 

belong  to  whom,  1016. 

formed  by  diversion  of  stream,   1018. 

in  navigable  streams,  1016. 

in  unnavigable  streams,   1017. 

sudden  removal  of  bank,  1015. 
ISSUE 

interpretation    of,    1071. 

meaning  of,  in  certain  remainders,  1071. 

unprovided  for  to  succeed,  when,  1307. 
JETTISON.     See  tit.  General  Average. 

definition    of,    2148. 

loss,  how   borne,   2151. 

order   of,   2149. 

by  whom  to  be  made,  2150. 
JOINT 

and  several  contract,  presumed,  when,  1659. 

1837 


INDEX. 
[References  are  to  sections.] 

JOINT    (continued). 

and  several  obligation,  what  is,  1430. 

authority,    12. 

authorship,  981. 

creditor 

directions  by  one  to  debtor,    1476. 
performance  by  one,   1475. 

debtor,  performance  by,  1474. 

delivery   of  thing-  by   depositary  which   is  owned  jointly,   1827. 

employees,  duty  of  survivor,   1991. 

g-uardian,    death    of,   effect,    252. 

interest 

change  in  does  not  affect  insurance,  when,  2557. 
defined,    683. 

liability  of  each,  2239. 

obligations,  as  to,  1430-1432. 

owner,  delivery,  how  made  to  by  depositary,  1827. 

ownership,   as   to,    682. 

promise,  presumed  to  be,  when,  1659,  1660. 

services  after  death  of  joint  employee,  1991. 

survivorship  between,   2288. 

trustee,   all   must  act,    2273. 
JOINT    AUTHORITY 

how  construed,   12. 
JOINT   DEPOSITS 

by  two  or  more  persons,  1828. 
JOINT   INTEREST 

what   is,    683. 
JOINT    OWNERSHIP 

to   products   of   tlie   mind,    981. 
JOINT  OR  SEVERAL,  OBLIGATIONS.      See  tit.   Obligations. 

contribution  between  parties,  1432. 

statute  of  limitations  as  to.     See  tit.  Statute  of  Limitations. 
JOINT   TENANCY   AND   JOINT   TENANTS 

husband  and  wife  may  be,   161. 
JOINT  AVILLiS.     See  tit.   Wills. 
JUDGMENT 

effect  of,  in  action  to  prove  instrument,  1203. 

effect   of   such   judgment,    1204. 

for  delivery.     See  tit.  Claim  and  Delivery. 

for   possession    of,    3375. 

interest,   1919. 

lien   of,    3058. 

marriage  annulled  by,  86. 

may  be  recorded  without  acknowledgment,  1159. 

partner  may  not  confess,  2430. 

proving   instrument,    1203. 

recording.     See  tit.  Recordations. 

1838 


INDEX. 
[References  are  to  sections.] 

JUDICIAL    SALE 

foreclosure  of  right  to  redeem  pledge  by,  3011. 

warranty  upon,  1777. 
JUNIOR  LIENOR 

right  of  to  redeem,  2904. 
JURISDICTION    ACQUIRED    BY    CORPORATION    o\     I' I  IU,IC.\- 
TION    OF   NOTICE 

as   to,    generally,    340. 
JUSTICE    OF    THE    PEACE 

acknowledgment,  may  certify,  1194. 
may  take,   1181. 

apprenticeship.     See  tit.   Master  and  Api»reutU-e. 

list  of  property  found  to  be  filed  with,  18G4. 

marriage  ceremony  naay  be  performed  by,  70. 

may  call  meeting  of  corporation,  when,  311. 
JUSTICES'   COURTS 

appeal    from,    undertaking    on,   978a. 
JUSTIFICATION.      See    tit.    Libel. 
KILLING  SHEEP 

by  dogs,  as  to  liability,  3341. 
KINDRED 

collateral  line,  direct  line  of,  1393. 

degrees  of  in  direct  line,   1392. 

direct  line,  1392. 

half-blood.     See  tit.  Half-blood. 
LABORER 

lien   of,   3052,   3061,   3065. 
LAND 

dettnition   of,  659. 
LAND  AND  BUILDING  CORPORATIONS 

annual  report,   644. 

forfeiture  for  failure  to  file,  644. 
report  to  be  publislied,  644. 

arrears  in  payment,  notice  and  forfeiture,  6;'.;t. 

capital  stock,  634. 

certificate  of  shares,  series  of,  634. 

defaulting  member  entitled  to  withdrawal.  639. 

withdrawal    value    to    be    credited    on    enforcement    of    for- 
feiture,  639. 

definition   of   term    "building  and   loan   association."   648. 

dues,  634. 

electing  to  continue  business,  procedure  on.  646. 
certificate,    646. 

entrance  and  transfer  fees,  634. 

fines.   634. 

1839 


INDEX, 
[References  are  to  sections.] 

LAND  AND  BUILDING  CORPORATIONS   (continued). 

foreign    building    and    loan    association,    deposit    required    of, 
645. 
agents  of  companies  not  complying  guilty  of  misdemeanor, 
645. 

effect  of  failure  to  comply,  645. 
instalments  to  be  uniform,   637. 
losses  of,  642. 

matured  stock,  amount  applicable  to  payment  of,  636. 
may  borrow  money,  641. 
may  buy  real  estate,  640. 
membership,   who  may   hold  shares,   643. 

exemption,  643. 
money  to  be  loaned,  637.         \ 
notice  of  withdrawal  or  surrender  of  stock,  63Sa. 

notice  of  arrears  and  forfeiture,  639. 
payment   in   advance,   634. 
profits  and  losses  of,  642. 

rate  of  interest  on  and  security  for  loans,  638. 
repayments,   638. 

retire  free  shares,  amount  annually,   635. 
shares,  634. 

subject  to  provisions  relating  to  bank  commissioners,  647. 
what  articles  of  incorporation  shall  set  forth,  633. 
withdrawal  or  surrender  of  stock,  63Sa. 

notice  of,  638a. 
LANDLORD  AND  TENANT.     See  tit.  Lease. 

adverse  proceedings,  notice  of  to  be  given  by  tenant,  1949. 

assignee  of  lease,  liability  of,   822. 

attornnieut 

by  tenant,  not  required,  when,  1111, 

of  tenant  to  stranger,  1948. 
dwelling-house,   to   be  put  in   fit  condition   by   lessor,   1941. 
ejectment 

notice  of  to  be  delivered  by  tenant,  1949. 

without   notice,    793. 
fixtures.     See  tit.  Fixtures, 
holding  over,  treble  rent  for  wilfully,  3345. 
lease 

dependent   on   life   of   person,   rent   recoverable  after   death, 
825. 

for  life,  rent  on,  824. 

statute  of  frauds,  1624. 

terms  of  may  be  changed  by  notice,  827. 
lessees  and  assignees,  rights  of,  823. 

assignee,    liability   of,    822. 
letting  parts  of  rooms,  regulations  regarding,  1950. 

1840 


INDEX. 
[References  are  to  sections.] 

LANDLORD  AND  TENANT   (continued), 
liability  of  assignee  of  lease,  822. 
lodgings  hired  for  an  indefinite  period,  1944. 
Quit  ' 

failure  to  after  notice,  treble  rent  as  damages,  3344. 

notice  to,   1946.- 
re-entry,  to  be  made,  when  and  how,  791. 
renewal  of  lease 

acceptance   of   rent  as,    1945. 

by   continued  possession,   1945. 
rent 

dependent  on  life,   825. 

effect  of  lessor's  failure  to  repair,  1942. 

life  lease,   824. 

payable,  when,  1947. 

tenant  released  from,  when,  1950. 
repairs 

lessee  to  make,  effect  of  failure  to,  1942. 

when  lessee  to  make,  1942. 

when  lessor  to  make,  1941. 
rooms,  letting  part  of  prohibited,  1950. 
tenant  at  will,  as  to  rights  of,  819. 

tenant  for  years,  as  to  rights  of,  819. 

tenant  must  deliver  to  landlord  notice  served  on   him,   1949. 
term 

hiring  lodging-house  for  indefinite  period,  1944. 

of  hiring,  when  no  limit  fixed,  1943. 
termination  of  tenancy  at  will,  789,  790. 

for  holding  over,  3345. 
treble  rent  on  failure  to  quit  after  notice,  3344. 
vacation  by  tenant,  for  failure  to  repair,  1942. 
LAPSE   OF  TIME.      See   tit.   Limitation  of  Action. 
bottomry  lien  extinguished  by,   3027. 
definition   of,  125. 

divorce  denied  because  of,  when.  111. 
extinguishes   bottomry  lien,    3027. 
lien,   not   extinguished    by,    2911. 
nuisance,   not  legalized  by,  3490. 
partnership  dissolved  by,  2450. 

presumptions  arising  from,  may  be  rebutted,  126. 
proposal  to  contract,  revoked  by.   1587. 
LAPSED 

devise,   1343,  1409. 

legacy,    1343,   1409. 

LATENT  DEFECTS 

warranty  of  manufacturer  against,  1769. 

1841 


INDEX. 
[References  are  to  sections.] 

LATERAL   SUPPORT 

easement  of,  801,  802. 
excavations  infringing  on,  832. 
LAUNDRY 

as  to  lien   on,  3051. 
LAW 

obligations   imposed   by,   1708-1715. 
LAWYER.     See  tit.   Attorney. 
LEASE.     See  tit.  Hiring. 

agricultural  lands,  for  more  than  ten  years,  void,  717. 

assignee  of,  remedies  of  lessor  against,  822. 

building  and  loan  associations  may  make,   640. 

change  of  terms  of,  827.   ^ 

city  lots,  for  over  fifty  years,  void,  718. 

for  life,  remedy  on,  824. 

notice  of  change  of  terms  of,  827. 

of  agricultural  lands  for  more  than  ten  years,  void,   717. 

of  city  lots  for  more  than   fifty  years,  void,  718. 

recording,   1214. 

rene-wal 

by  acceptance  of  rent,  1945. 
by  continued  possession,  1945. 
renewal   of  by   continued  possession,   1945. 
rights  of  lessees  and  their  assignees,   823. 
statute   of  frauds,    1624. 

telegraph  and  telephone  property,  lease  of,  540. 
trust,   express,  maj^   lease  realty,   857. 
LEASE   AND   PROFITS 

to    receive   and   accumulate,    857. 
trust  to  receive  and  pay,   857. 
LEGACY.     See  tits.  Devises  and  Bequests;  W^llls. 
abatement  of  legacy,   1362. 
as  to  nature  and  designation   of,  1357. 
annuities.      See    tit.    Annuities. 
demonstrative  legacy,   1357. 
general    legacy,    1357. 
residuary  legacy,  1357. 
specific  legacy,  1357. 
bequest  of  interest,   1366. 

satisfaction  of,  1367. 
construction  of  the  statutes  in  relation  to,  rules  for,   1370. 
estates    chargeable    with,    1358. 

order  of  resort  to  estates  for  debts,  1359. 
for   legacies,    1360. 
for  legacies  to  kindred,  1361. 
gift  treated  as,  when,  1153. 
interest  on,  from  what  time,   1369. 

1842 


INDEX. 
[References  are  to  sections.] 

LEGACY    (continued). 

liability   of  beneficiaries  for  testator's   obligations,    1377. 

possession  of  legatee,  1365. 

specific  legacies  and  devises,  1363. 

when  due,  1368. 
LEGAL,   AXD    MORAL.   OBLIG\TIONS.      See   tit.   Consideration. 

as  to  being  valid  consideration,  1606. 
LEGAL  RELATIONS 

of  husband  and  wife,  alteration  of,  159. 
LEGATEE 

death  of  before  testator,  effect  of,  1310. 
LEGISLATURE 

dissolution    of   corporation    by,    384. 
effects   of,    404. 

examination   of  affairs  of  corporation   by,   382. 

regulating  freights,   465. 
LEGITIMACY.     See   tit.   Btij^tards. 

of  children  born  after  divorce,  194. 
born  before  annulment,  84. 
in  wedlock,  193. 

who  may  dispute,   195. 
LENDER.     See  tit.   Loan   for  Use. 

liable  for  defects,  when,  1893. 

may  require  return  of  thing  lent,  1894. 
LESSOR  AND  LESSEE.     See  tit.  Landlord  and  Tenant. 
LETTER.      See   tit.   Le.ssor. 

hiring  terminated  by,  1931. 
LETTER   OP  ATTORNEY.     See  tit.  Power  of  Att«»rney. 
LETTER   OF    CREDIT 

addressed,    how,    2859. 

credit  given  on  must  agree  with  terms  of  letter,  2866. 

credit  under  must  agree  with  terms  of,  2866. 

definition    of,    2858,    2866. 

direction  of,   2866. 

either  general  or  special,  2861. 

seneral 

extent  of,  2863. 
nature  of,  2862. 
or  special,  2861.  * 

how  addressed,   2859. 

liability  of  writer,   2860. 

maj'  be  a  continuing  guaranty,  2864. 

notice  to  writer  necessary,  when,  2865. 
LETTERS 

containing  valuables,  liability  of  carrier,  2177. 

property  in,   985. 
LETTERS    PATENT 

recorded  without  acknowledgment,  1160. 

1843 


INDEX. 
[References  are  to  sections.] 

LIBEL 

as    to    what    constitutes,    45. 
defamation,  44. 

privileged  publication.     See  tit.  Privileged  Publication. 
LICENSE 

marriage,  as  to,   69,  79. 
of  ships,  966. 
of  street  railways,  505. 
to  take  tolls,  528. 
LICENSEE.      See    tits.    Marriage;    Negligence;    Obligation!*    Im- 
posed by  Laiiv. 
marriage  without,  79. 
LIEN  ^ 

accessory  to  thing  secured,  2909. 
agistor.     See  tit.  Agi-stors. 
apportionment  of,  2912. 
bankers.     See  tit.  Bankers. 
bolts  on.     See  tit.   Otber  Liens. 
bottomry.     See  tit.  Bottomry. 
bull,  of  owner  of.     See  tit.  Stallion. 
carriers.      See   tit.   Carrier. 

on  baggage.     See  tit.  Baggage. 

ship's  master  may  not  give  up,  2388. 
certain  contracts  void,  2889. 

compensation,  holder  of  not  entitled  to,  when,  2892. 
confined  to  what,   2891. 
contract 

created  by,   2881. 

may  be  created   by,    2884. 

respecting,  void,  when,  2889. 

subject  to,   2877. 
created  by  contract,   2884. 
creation   of  liens,   2881. 

by    contract,    2884. 

how   created,   2881. 

lien    on   future   interest,    2883. 

no  lien  for  claim  not  due,  2882. 
definition,    2872. 

of  gen<eral  lien,  2874. 

of  special  lien,  2875. 
does  not  imply  personal   obligation,   2890. 
effect  of,  2888. 

certain  contracts  void,  2898. 

does    not    imply    personal    obligation,    2890. 

extent  of  lien,  2891. 

holder  of  lien  not  entitled  to  compensation,  2892. 

transfers  no  title,   2888. 

1844 


INDEX. 
[References  are  to  sections.] 

LIEN    (continued), 
extent  of  lien,   2891. 
extinction   of 

by  apportionment,    2913. 

by  lapse  of  time  under  statute   of  limitations,   2911. 

by  limitation,   2911. 

by  partial  performance,  2912. 

by  performance,   2909. 

by  restoration,   2913. 

by  sale  of  property,   2910. 

how  made,  2909. 
factor's  lien,  as  to.     See  tit.  Factors. 
forfeitures  of  property,  contract  for,  void,  2889. 
fraudulent   conveyance.      See   tit.   Fraudulent   Transfer. 
for    storage   charges,    1856. 
future   interest   on,    2883. 
future  obligation,  security  for,  2884. 
general  lien  defined,   2874. 
general  or  special,  2873. 
holder  not  entitled  to  compensation,  2892. 
homestead,  liable  for,  when.     See  tit.  Homestead. 
innkeepers,  1860. 

jack,  of  owner  of.     See  tits.   Stallion;  Other  Lien.s, 
judgment,  of.     See  tit.  Jurtsuieut. 

laborers,  of.     See  tits.  Laborer's  Lien;  Otiier  Liens. 
lien  for  future   interest,   2883. 
live  stock,  for  agistor.     See  tit.  Agistor. 
livery   stable   keeper.      See   tit.   Livery   Stable   Keeper. 
logs.      See   tit.   Logger's   Lien. 
mortgage.     See  tit.  Mortgage. 
no  lien  for  claim  not  due,   2882. 
officer,   for  levying  writ   of,   3057. 
order  for  resort  to  different  funds,  when,  2899. 
other   liens.      See   tit.    Otiier  Liens. 
partners,  in  mining.     See  tit.  Mining  Partuersliip. 

on   shares   of  copartner,  for   firm   debts,   2405. 
pasturing  stock,  for.     See  tit.  Agistor. 
personal  obligation,  none  implied  by,  2890. 
personalty,    on,   for   repairs   of,    3052. 
pledge.     See  tit.  Pledge. 
prior    liens,    2876. 
priority  of  lien,   2876. 
'    order  of  resort  to  different  funds,  2899. 

priority  of  mortgage  for  price,  2876. 
redemption  from  lien 
as   to,   2903. 

contract  in  restraint  of  is  void,  2889. 
1845 


INDEX. 
[References  are  to  sections.] 

LIEN 

redemption  from  lien    (continued). 

how  redemption   made,   2905. 

right  of  on  foreclosure.     See  tit.  Foreclosure  of  Mortgages. 

right   to   redeem,   2903. 

rights  of,   3052. 

rights  of  inferior  lienor,  2904. 

subrogation,  2903. 
respondentia.     See  tit.  Respondentia. 
sale  of  property  to  enforce,  3052. 
seaman's,   for  wages,^  3055. 
service,  as  to  lien  for,  3051. 
sheriff  or  other  officers,  3057. 
shipmaster's,   for  advances,    etc.,   3055. 
special 

definition  of,  2875. 

mortgage   is,   when,    2923. 

right  of  holder  who  pays  prior  lien,  2876. 
special   partner,  lien   of,  void,   when,   2500. 
stallion.      See   tits.   Stallions;   Other  Liens. 
stoppage  in  transitu.     See  tit.  Stopiiage  In  Transitu. 
storage,  as  to  lien  for,  1856. 
subject  to  laws  of,   2877. 

subrogation   of  right   of   redemption,   2903,    2904. 
threshing    machines,    liens    of    workmen,    etc.      See    tit.    Other 

Liens. 
timber,  on.     See  tit.  Logger's  Liens. 
title  not  transferred  by,  2888. 
vendee's.     See  tit.  Vendee. 
vendor's.     See  tit.  Vendor. 
LIEIVOR 

damages  of,  as  to,  3338. 
LIFE   AND    HEALTH    INSURANCE.      See    tit.    Life,   Health,   and 
Accident   Insurance. 
insurable  interest,  2763. 

assignee  of  life   policy   need  have   no   interest,   2764. 
insurance  upon  life,  when  payable,  2762. 

as  to,  generally,   2762,  2763. 
measure  of  indemnity,  2766. 
notice  of  transfer,    2765. 
LIFE,  HEALTH,  ACCIDENT,  AND  ANNUITY,  OR  ENDOWMENT 
INSURANCE    ON   THE   ASSESSMENT   PLAN. 
contract  of  insurance,  453g. 

contents  and  effect  of,  453g. 
contract  which  may  be  made  by,  453d. 
construction  of  chapter,  453e. 
deposit  with  state  treasurer,  453e. 

1846 


INDEX. 
[References  are  to  sections.] 

LIFE,  HEALTH,  ACCIDENT.  AND  ANNUITY,  OR  ENDOWMENT 
INSURANCE  ON  THE  ASSESSMENT  PLAN   (con.), 
exemption  from  attachment  and  execution,  453k. 
expenses,    insurance    commissioner    to    present    bills    for    cer- 
tain,   453o. 
fees,   453n. 
foreign  corporations,  453i. 

conditions  precedent  to  do  business,  453i. 
license  fees,   taxes,  and  penalties,   453i. 
issuanpe,  renewal  and  revocation,   453i. 
forfeiture  of  right  to  do  business  by  failure  to  pay,  4.53g. 
formation  of  corporation,  453e. 

fraternal   societies,   exemption  from  this  chapter,  453p. 
insurance  commissioner  to  present  bills  for  certain  expenses, 

453o. 
investments  of,  453e. 
issuing   contracts,    453e. 

lapsing  of  policies,  when  forbidden,  453m. 
legal  existence  before  one  year,  when,  453e. 
limitation  upon  right  to  issue  insurance,  453j. 

contract  must  be  founded  upon  written  application,  453j. 
false  or  fraudulent  statements  by  solicitor,  453j. 
membership  before  contracts  issued,  453e. 
penalties,    453m. 

pre-existing  corporation's  right  to  reincorporate,  453f. 
reincorporation  of  pre-existing  company,  453f. 
reservation  and  emergency  fund,  453h. 

accumulation  of  reserve  or  emergency  fund.  453h. 
deposit  of  part  of  fund,  453h. 
fund  must  be  returned  to  corporation,  453h. 
investment  of  emergency  fund,  4531i. 
revoke  authority  to  do  business,  procedure,   4531. 

necessary   parties   to,   453m. 
secret  or  fraternal  society,  what  constitutes,  453p. 
statement  to  be  filed  with  insurance  commissioner,   4531. 
proceedings  to  be  taken  thereon,  4531. 
LIFE   INSURANCE 

investment  of  funds  of,  421,  421[a]. 
LIFE     INSURANCE     CORPORATIONS.       See     tit.     Mutual     Mfc 

Health,   and    Accident    Insurance    Corporations. 
LIGHT    FOR    PUBLIC    USE.      See    tit.    Corporations    t«.    Furnlsli 

Lij^lit   for   Public   Use. 
LIKES  AND  DISLIKES.     See  tit.  ^Vills. 
LIMITATION   OF  ACTION. 

action   to  establish  property,  community  property.   164. 
apprentice,  by,  for  breach  of  contract,  273. 

corporation   organization  to  be  effected  within   one   year.  358. 

1847 


INDEX. 
[References  are  to  sections.] 

LIMITATION  OF  ACTION   (continued), 
defects,  lender  liable  for,  1893. 
demand,  thing  returnable  without,   when,   1895. 
directors  of  corporation,  personal  liability,  309. 
divorce 

as  to  maintaining,  124-127. 

defeated  by.   111. 
exchange    for,    1905. 

defined,   1902. 

lender  cannot  modify  contract  of,  1905. 

title    to    property,    1904.  ^ 

expenses,  borrower  to  bear  when,  1892. 
for  annulment  of  marriage,   83. 
for  divorce,   124,   127. 
foreign  corporations  may  plead,  406. 
for  recovery  of  stock,  347. 
liiring.      See   tit.   Hiring;. 
in  general,  1007. 

injuries  to  thing  loaned,  borrower  to  repair,  when,  1889. 
interest   on,    1905-1920. 
lien.     See  tits.  Building  and  L.onn;  Contract;  Deposit;  Hiring; 

Savings   and   Loan. 
lien  extinguished  by,  2911. 
liquidated   damages.      See   tit.   Damages. 
livery  stable,  lien  on  animals,  3051. 
money  of 

defined,   1912. 

interest  on,  1905-1920. 

presumed  to  be  on  interest,   1913. 
money  to  be  repaid  in  current  coin,  1913. 
nuisance,  not  legalized  by  time,  3490. 
nuncupative  will,  for  proof  of,   1290. 
particular  use  as   to,   1930. 

recovery   of   stock   for,   sold    on    delinquent  assessment,   347. 
return  of  thing,  1958. 
indemnity  to  borrower,  1893. 
may  be  required  by  owner,  when,  1894. 
place  of,  1896. 

returnable  witliout  demand,  wlien,    1895. 
ship's  manager's  authority,  as  to,  2388. 
shipmaster's  authority,  as  to,  2373. 
skill,  what  required  of  borrower,  1888. 
LIMITED    INTEREST 

What  is,  692. 
LINEAL   AND    COLLATERAL    WARRANTIES 

abolislied,  1115. 
LIQUIDATED   SUM 

damages  for  breach  of  contract  to  pay,  3302. 


1848  ^ 


INDEX. 
[References  are  to  sections.] 

LIQUIDATION.     See  tit.  Partnership. 
LOAN.     See  tit.  Contract. 
as  to  what  is,  1884. 

borrower  to  bear  expenses,  when,  1892. 
borrower  to  repair  injuries,  when,  1889. 
care  required  of  borrower,  1886. 

of  animal  for  use,  1887. 
degree  of  skill  and  care  of  thing,  1888. 
lender  liable  for  defects,  when,   1893. 
lender  may  require  return  of  thing  lent,   1894. 

returnable    without   demand,    when,    1895. 
loan  for  ey.cliange 
as    to    what    is,    1902. 

contract  cannot  be  modified  by  lender,  1905. 
optional  loan,  1903. 
title  to  property  lent,   1904. 
loan    of   money 

as  to  what  is,   1912. 
interest  on.     See  tit.  Interest. 
amount    by    agreement,    1918. 
annual  rate,  1916. 
as  to,  1912. 

becomes  part  of  principal,  when,  1619. 
legal   interest,    1917. 
on  judgment,  1920. 
what  interest  allowed,  1915. 
money  to  be  repaid  in  current  coin,   1913. 
place  of  return,  1896. 

relending  by  borrower  forbidden,   1891. 
title  to  thing  lent,   1885. 
use  of  thing  lent,  1890. 
LOCATION 

notices  of,  1159. 
LODE   CLAIMS 

boundaries    of,    1426a. 
how  located,   1426. 
location  of,  what  to  contain,  1426. 
record   of,    1426b. 
LODGING-HOUSE.      See    tit.    Innkeepers. 
baggage,    lien    on,    1861. 
lien   on  baggage,  1861. 

posting  statement  of  charges  required  by,  1862. 
rent,  when  payable,  1947. 
sale  of  unclaimed   baggage  by,   1862. 
term,  what  presumed  hiring  for,   1943. 
LODGINGS 

hiring   for   indefinite   term,    1944. 

1849 


INDEX, 
[References  are  to  sections.] 

LOGGERS 

lien  of,  3065. 

ceases,    when,    3065. 
upon  what  Hen  subsists,  3065. 
LOSS 

occasioned  by   collision   of  vessels,   how  apportioned,   973. 
LOST  CERTIFICATES.     See  tit.  Certillcates  of  Stock. 
action   for  new  certificate,  328. 

issuing  of  new  certificates,  328.  ;^ 

judgment,  328.  ', 

parties  to  action,  328.  '■* 

proceedings  on  action  for,  328. 

summons  and  notice,  328.  } 

proceedings   on   answer,   328.  ,i 

LOTTERY  -r 

or  lottery  prize,  not  insurable,  2532.  V 

LUGGAGE.     See  tit.  BaKgng^e.  j, 

LUNATICS.     See   tit.  Persons  of  Unsound   Mind.  ■J 

MAGISTRATE 

to  aid  societies  for  prevention  of  cruelty  to  children,  etc.,  607c. 

MAINTENANCE.     See  tits.  Divorce;  Parent  and  Child. 

MAJORITY  ;, 

age  of,  25.  j 

joint,  words  giving,  12.  ^ 

mining  partnership,  control  by,   2520.  ^ 

partners,    of,    authority,    2428. 

MALES  J 

attain  majority,  when,  25.  i 

MALICE  f, 

exemplary  damages  for.     See  tit.  Damnscs. 

as  to   generally,   3294. 
interest  as  damages.     See  tit.  Interest. 

as   to  generally,   3288. 
not  inferred,  when,  48. 
MALICIOUSLY  INJURING 

telegraph  and  telephone  property,  537. 
3IANUFACTURE 

agreement  to  need  not  be  in  writing,  1741. 
implied  warranty  on  sale  of,  1769. 
MANUFACTURER 

warranty  against  latent  defects,   1769. 
MAP 

of  railroad,  to  be  filed,  466. 
of  wagon   road,   513. 
MAP  AND  PROFILE  OF  RAILROAD 
must  be  certified,  466. 
to  be   filed,   466. 

1850 


I 


INDEX. 
[References  are  to  sections.] 

MARINE  CARRIER.  See  tits.  Carrier-s  of  GuoiIm;  Carriers  of 
Passensers. 

MARINE  INSURANCE.  See  tit.  Fire,  Marine,  and  Title  Insur- 
ance. 

abandonment,    2716. 

acceptance  not  necessary,  2727. 

irrevocable,   2729. 

Is  conclusive,  2728. 
agents  of  insured  become  agents  of  insurer,  2726. 
as  to  what  constitutes,   2716. 
effect    of,    2724. 

freightage,  how   affected   by,   2730. 
how    made,    2721. 
may    be    defeated,    when,    2720. 
must  be  unqualified,  2718. 
abandonment,   notice   of,   requisites,    2722. 
omission  to  abandon,   2732. 
other  causes  cannot  be  relied  on,  2723. 
refusal    to    accept,    2731. 
requisite    of   notice   of,    2722. 
waiver   of  formal,    2725. 
when   insured  rfiay  abandon,   2717. 
when   may   be   made,    2719. 
concealment,   2669. 

concealment  which  only  affected  risk,  2672. 
information  must  be  communicated,  2669. 
material  information,  2670. 
presumption  of  knowledge  of  loss,  2671. 
definition    of,    2655. 
implied    warranties,    2681. 
of  neutral  papers,   2688. 
of   seaworthiness,   2681. 

as  to  what  is  seaworthiness,  2682. 

degrees  of  at  different   stages  of  voyage,  2685. 

seaworthiness  for  purposes  of  insurance  on  cargo,  2687. 

things   required   to   constitute   seaworthiness,   2684. 

unseaworthiness    during    voyage,    2686. 
when   complied   with,   2683. 
insurable  interest,   2659. 

expected  freightage,  2662. 
freightage,  what  is,  2661. 
in    ship,    2659. 

interest  in  excepting  freightage,  what  is,  2663. 
interest  in  profits,  what  may   be   insured,   2664. 
interest   of   charterer,    2665. 
interest   reduced    to   bottomry,   2660. 
1851 


INDEX. 
[References  are  to  sections.] 

MARINE   INSURANCE    (continued), 
loss,    2701. 

actual  and  constructive  loss,   2703. 

actual  total  loss,  what  constitutes,  2704. 
constructive    total    loss,    2705. 
presumed  actual  loss,   2706. 
average    loss,    2711. 

insurance  on  cargo  when  voyage  broken  up,  2707. 
cost   of  reshipment,   2708. 
when    insured   entitled  to   payment,    2709. 
partial    loss,    what   is,    2702. 
total    and    partial    loss,    2701. 
measure    of    indemnity,    2739. 

apportionment    of   valuation,    2739. 
arrival   of  thing  damaged,  2742. 
estimating  loss  under  open  policy,   2741. 
general  average.     See  tit.  General  Average. 

as   to   contribution   under,   2745. 
labor  and  expenses,   2743. 
one  third  new  for  old,  2746. 
partial    loss,    2737. 
profits  separately  insured,  2738. 
valuation  applied  to  profits,  2740. 
apportioned,    2739. 
when    conclusive,    2736. 
representations,    2677. 

effect  of  intentional  falsity,  2676. 
falsity,  intentional,  effect  of,  2676. 
representation    of   expectation,    2677. 
voyage  and  deviation,  2692. 

course  of  sailing,  how  determined,  2693. 
deviations,  as  to  what  constitutes,  2694. 
exonerates  insurer,  when,  2697. 
when    improper,    2695. 
when   proper,    2696. 
voyage    insured,    how  determined,    2692. 
MARINE  INSURANCE   CORPORATIONS 

investment  of  funds  of,  421,  421[a]. 
MARINE  LAW.     See  tit.   Ships  and  Sblpping. 
MARK.     See  tit.   Signature. 

as   signature,    14. 
MARRIAGE 
annulment,   83. 

conclusiveness  of  judgment  for,  86. 
custody  of  children  on,  85. 
does  not  affect  legitimacy  of  children,  84. 
grounds  for,  82. 

1852 


« 


INDEX. 
[References  are  to  sections.] 

MARRIAGE 

annulment    (continued). 

limitation  of  action  for,  83. 

time  when  action  to  be  brought,  83. 

who  may  sue  for,   83. 
birth  of  issue  revokes  will,  1298. 
breach    of   promise,   damages  for.      See   tit.   Breach   of  I'ronii.se 

of   Marriage. 
by  minors,   56. 
by  whom  marriage  may  be  celebrated,   or  solemnized,  70. 

form  of  celebration  or  solemnization,  71. 

requirements  of  persons  solemnizing,  72. 
causes  for  annulling  marriage.     See  tit.  Divorce. 
certificate  of,   73,   79. 

delivery  of  copy  to  parties,  73,  79. 

filing  with  recorder,  73,  79. 

marriage  without,  79. 

registry  of,   69a. 

requisites  of,  72. 
conditions  in  restifiction  of,  void,  710. 
conflict  of  laws  relating  to,   63. 
consent 

alone  does  not  constitute,   55. 

how   proved,   57. 

minors,  of,  when  valid,  57. 
contract  in  restraint  of,  void,  1676. 
contracted  without  the  state,  63. 
custody  of  children  where  marriage  annulled,  85. 
declaration  of 

by  action  of  court,  76. 

by  members  of  religious  denomination,  79a. 

how  made,   75. 

penalty  for  failure  to  record,  79a. 

recording,   79a. 

subscription  to  and  attestation  of,  76. 

to  be  acknowledged  and  certified,  77,  78. 
and  recorded,  77. 

to    contain    what,    76. 

when  may  be  made,  76. 

where  there  is  no  record,   76. 
definition  of,  55. 
dissolution  of.     See  tit.  Divorce. 

how  dissolved,  92. 
divorce.     See  tit.  Divorce. 

examination,    on   application   for   license,   72. 
how  dissolved,  90. 

1853 


INDEX.  '  I 

[References  are  to  sections.] 

MARRIAGE   (continued). 
incestuous 

as  to  what  is,  and  effect  of,  59. 
judicial  declaration   of,  80. 
incompetence  of  parties,  59. 
infants,  effect  on  parental  authority,  204. 
legitimacy  of  cliildren 

not  affected  by  annulment  of  marriage,   84. 
of  void  or  dissolved  marriage,   194. 
license 
as  to,  69. 

examination  of  applicant  for,  69. 
necessity  of,  69,  72,  79. 
requisites   of,    69. 
minors,  capable  of  marriage,  56. 
Mongolians  with  whites  void,  60. 
mulattoes  with  whites  void,  60. 
negroes  with  whites  void,  60. 
of  man,  effect  on  his  will,  1299. 
of  whites  and  negroes  or  mulattoes,  void,  60. 
of  woman,   effect  on   her  will,   1300. 
out  of  state,  valid,   when,   63. 

promise  of,  concealed  unchastity  releases  from,  62. 
proof  of,  how  made,  57. 
recording  declaration  of  marriage,   79a. 
release  from  contract,  when,  62. 
restraint  of  voids  contract,  1676. 
second 

during  life  of  spouse,   61. 
void  prior,  annulled,  61. 
settlement.     See  tit.   Marriage  Settlement, 
solemnization 

by  whom  may  be  made,  70. 
examination  of  applicant,  72. 
form   of,    71. 

how  made,  68.  _ 

members  of  particular  religious  denommation,  79a. 
non-compliance  with   statute  by   third  person,  effect   of.   68. 
substantial    requisites,    72. 
statute  of  frauds.     See  tit.   Statute  of  Frauds. 

subsequent  marriage,  when   illegal   and  void,   61. 
.     test,  validity  of  marriage,   either  party  may,   78.         _ 

unchastity,  concealed,  grounds  for  release  from  Promise  of,  62. 
validity  of,  to  be  determined  and  declared  by  court,  78. 
voidable  marriages,  as  to,  58. 
void  marriages,   80. 

to  be  determined  and  declared  by  court,  80. 
1854 


INDEX. 
[References  are  to  sections.] 

MARRIAGE    (continued), 
what  constitutes,   55. 

ward,   of,  supersedes  guardian,   when,   254. 
will,  effect  of  marriag-e  on  previous,  1298-1300. 
without   a   license,    79. 
MARRIAGE    SETTLEMENTS 
as   to,   generally,   176-181. 
contracts   of,   how  executed,  etc.,   176-181. 
effect  of  recording,  180. 
executed  how,  178. 
minors  may  make,    181. 

may  not  make,   181. 
to  be  acknowledged  and  recorded,   179. 
effect   of  recording,   180. 
MARRIED  WOMEN.     See  tits.  Ackno^vIedKment :  WIUn. 

building    and    loan    stock.      See    tit.    Land    and    nnilding    Cor- 
porations. 
conveyance    of,    effect,    1187. 
dividends  paid  to,  325. 
grant  and  conveyance  by 
as    to    generally,    1093. 
mortgage    by.      See    tit.    Mortgrage    of   Separate   Property    by 

Married  Woman. 
power   of  attorney   of.      See   tit.   Power  of  Attorney  of  Mar- 
ried  Woman. 
homestead   stock,   may   be  owned  by,   561. 
may  hold  stock   in   savings   bank,   575. 
may  make,  alter,  or  revoke  will,  1273. 
may    transfer   stock,   325. 
power   of  attorney   by,    1094. 
proxy  of,   325. 

remedies  against.     See  tit.  Remedies  A^ainNt  Married  Women. 
savings  and  loan  stock  may  be  owned  by.     See  tit.   Land  and 

Building    Corporations. 
transfer   of   stock    by,    325. 

will,  disposition   of   separate  property   by,    1272. 
how  executed  and  proved,   1273. 
MARSHALING   ASSETS 

as  to  order  of,   2899,  3433. 
MASCULINE    GENDER 

includes   feminine    and    neuter,    14. 
MASTER   AND   APPRENTICE 

apprentice,  poor  and   homeless   minor,    268. 
approval  of  superior  court  necessary,   when,  265. 
duty  to  inquire  into  the  treatment  of  minor  apprentices,   270. 
enticing  away  apprentice,  liability  for,   275. 
hearing   of   complaint   of  apprentices,    271. 

1855 


INDEX. 
[References  are  to  sections.] 

MASTER  AND  APPRENTICE   (continued), 
homeless  minor,  apprenticing  of,   268. 
illegitimate   child  may   be  bound   by  mother,    265. 
incapacity  of  parent,  trial  of  by  jury,  267. 

what  to  contain,   266. 
jury   trial    of   incapacity    of   parent,    267. 
liability   of  apprentices   for   misbehavior,    etc.,   274. 

of  master  for  breach  of  covenant,  273. 
master  to  deliver  apprentice's  money  and  other  property,  269. 
master  to  keep  apprentice  in  state,   269. 
minors  may  be  bound,  when  and  to  whom,   264. 
misbehavior  of  apprentice,  etc.,  liability  for,   274. 
persons  who  may  bind  minor  with  his  consent,   265. 

an  executor,  when,  265. 

his  father,   265. 

his  legal  guardian,  265. 

his    mother,    265. 
poor   minor,  apprenticing   of,    268. 

power  of  court  to  discharge  from  apprenticeship,  272. 
quitting   business,   master   released   from   contract   of   appren- 
ticeship, 276. 
release  of  master  moving  out  of  state  or  quitting  business,  276. 
MASTER    A>"D    SERVANT.       See    tits.     Damages;    Einpluynient; 
Neg:llg:eiice. 
abduction   of  servant,  49. 
account,  employee  to,   1946. 
accounting    by    servant,    2014. 

apprenticeship.      See  tit.   Ma.iter  anti  Apprentice. 
assumption   of  risk   by  servant,    1970. 
compensation 

for  service  without  employment,  2078. 

from   successor  of  employer,   1998. 

of  employee  dismissed  for  cause,   2002. 
leaving  for  cause,   2003. 
confidential  employment.     See  tit.  TrustN. 
continuance  of  service  after  death,  etc.,   of  employer,   1998. 
contract 

of  employment  defined,    1965. 

of  services  limited  to  what  time,  19S0. 
damages  against  master.     See  tit.  Duuiases. 

for  breach   of   indenture,  273. 
death 

of    employee,    1997. 

of   employer,   1996,   1997. 

of  joint   employee,    1991. 
definition   of   servant,    2009. 

delivery  by  employee,  without  demand,  as  to,  1987. 

1856 


II 


INDEX. 
[References  are  to  sections.] 

MASTER  AND  SERVANT   (continued), 
discliarge  of  servant,  when,  2015. 

grounds  for,  2015. 
dismissal 

for   cause,   compensation,    2002. 
grounds    for,    2002,    2015. 
duties 

of  employee  for  his  own   benefit,   1979. 

for  reward,  1978. 
of  gratuitous  employee,   1975. 
employee 

not  bound  to  deliver  without  demand,   1987. 
to   follow  directions,    1981. 
to    obey   employer,    1981. 
employment,  definition  of  contract  of,    1965. 
enticement   of   servant,   49. 

fellow  servant,  liability  of  master  for  acts  of,   1970. 
gratuitous  employee,  duties  of,  1975. 
hiring 

renewal   of,   2012. 
term   of,   2010.. 
incapacity 

of   employee,    discharge   for,    2000. 

of  employer,   relation  not  determined  by,   when,    1997. 
of  master  terminates  relation,    1996. 
indemnifying  employee 

employer  not  required  to,  when,   1970. 
required  to,   when,   1969. 
indemnity  against  acts  of  servant,  contract  of,  2775. 
injury  to   servant 
by   third   person,    49. 
forbidden,    49. 
joint  employees,  survivor's  duty,  1991. 
master,  liability  to  servant,   1969. 
mutual  rights  to  protection,   49,   50. 
negligence  of  employee 
discharge  for,   1990. 
liability  of  master  for,   1990. 
negligence  of  master,  liability  for,   1971. 
obey,   employee   required   to,    1981. 
power  of  attorney,    1977. 

preference  to  be  given   employer's   interest,    1988. 
presumed  to  be  monthly,  when,  2011. 
renewal   of  hiring,    2012. 
renewal   of   term   of   employment,   2012. 
servant 

definition   of,   2009. 
to  pay  over  without  demand,  2014. 
Kerr's  C.   C— 59  1857 


INDEX. 
[References  are  to  sections.] 

MASTER  AND  SERVANT    (continued), 
service  without  employment,  as  to,  2078. 
skill 

degree  employee  required  to  use,   1984. 

degree    required    of    employees,    2071. 
substitute,    employee    liable    for,    1989. 
surviving  employee,   as  to  duty  of,   1991. 
term    of   employment,   2010,    2011. 
term    of    liiring,    2010. 
termination   of   relation 

at    will,    1999. 

by  death  or  incapacity  of  employer,   1996. 

by    employee    for    fault,    2001. 

by  employer  for  fault,   2000. 

death  of  employer  does  not,  when,  1996,   1997. 

what   works   a,    1999. 
term    of    service,    2013. 

time  of  employee  belongs  to  master,  2013. 
title  to  things  acquired  by  employee,   1985. 
usage,   employee   to   conform    to,    1982. 
MASTER,  SHIP'S.    See   tit.   Sliip.s  and  Shipping. 
MATES   AlVD  SEAMEN.     See  tit.    Seamen. 

certificate  by  master  in  favor  of  seamen   on   loss  of  ship,   2059. 
death  during  voyage,   2062. 
definition  of  mate,  2048. 

of  seamen,   2049. 
desertion   of  ship   without  cause,  forfeits   wages,    2063. 
disabled   seamen   entitled   to   wages,    when,    2060. 
how   engaged  and  discharged,   2050. 
law  governing  seamen,    2066. 

maintenance   of  seamen   during  sickness,    2061. 
not   bound   to   go   to   sea   in   unseaworthy   vessel,    2051. 
not  to  lose  wages  or  lien   by  agreement,  2052. 
seamen  cannot  ship  goods,  2064. 
special   agreement  with   seamen,   2053. 
theft  by  forfeits  wages,  2063. 
wages,  forfeiture  of,  how,  2063. 

not  lost  by   wreck,   when,    2058. 

of  seamen  depending  on  freightage,   2054. 

where   voyage   is   broken   up    before  departure,   2056. 
when   wages  of  mate  and  seamen  to   begin,    2055. 
wrongful   discharge   of,   2057. 
MAXIMS 

of   jurisprudence.   3509-3543. 
MAYOK 

marriages   may   be   solemnized   by,    70. 
may  take  acknowledgments.   1180.  | 

1858 


INDEX. 
[References  are  to  sections.] 

MEAXDER.S.     See  tit.  >Vaters,  ItoiiiMlsiries   Ry. 
MEASURE   OF   DAMAGES 

for  bread!   of  contract,   3300. 

breach  of  agreement  to  buy  personal  property,  3311. 
to    buy   real   property,    3307. 
to  convey  real  property,  3306. 
to  pay  for  personal   property  sold,   3310. 
to  sell  personal   property,   3310. 
where   not   paid   for,    3311. 
where    paid    for,    3311. 
breacli  of  carrier's  obligation   to  deliver,   3315. 

to   receive  goods,   3315. 
breach   of  contract  to  pay  liquidated  sum,  3302. 
of  covenant  against  encumbrances,  3305. 
of  covenant  of  seizin,   3304.  , 

of  promise  of  marriage,  3319. 
of  warranty  of  authority,   3318. 

of  warranty  of  quality  of  personal  property,  3313. 
for   special    purpose,    3314. 
carrier's   delay,    3317. 

dishonor  of  foreign   bill   of  exchange,   3303. 
must  be   certain,   3301. 
f«»r  \vrong.>4 

breach  of  obligations  other  than  contract,  3333. 

as  to,  generally,   3333,   3334. 
conversion   of  personal   property,   3336. 

application  for  benefit  of  owner,  3337. 
damages    for    lienor,    3338. 

for   seduction,   3339. 
injuries    to   animals,    3340. 
wrongful    holding    over,    3335. 
wrongful   occupancy  of  real  property,  3334. 
MECHAMC'S    MEX 
assessments   by,   592d. 
by-laws   of,    592c. 
capital  stock  of,  592. 
certificates    of,    592. 
formation  and  powers.   591. 
organization,    591. 
powers 

to  acquire,   use  and    si-11    prop,  riy,    392b. 
which  may  be  conferred  on  trustees,  etc..  592a. 
pre-existing  corporations  may  come  in  under.   .Mt2i>. 
stockholders'    rights   and    liabilities,    592. 
MECHAMCS'   MEN 

as  to  regulation   of,   3059. 
homestead  liable  to,  1241. 

1859 


INDEX. 
[References  are  to  sections.] 

3IEETING  STEAMERS.      See   tit.  KiileN  of  Navisation. 
"MEMBERS"  AND  "STOCKHOLDERS."     See  tit.  Corporatiuns. 
MEMBERSHIP 

in    co-operative   corporations,    653u. 
of   co-operative   aKTicuItiiral.   etc.,   :i.s.soeiaUonN 
as   to   generally,   6.")3n. 
conditions   of,   653p. 
fee  of,  653q. 
qualifications  of,  653p. 
transfer  of,  653n. 
MEMORANDUM.     See  tits.   Auetioiieer.s;   Statute  of  Frauds. 
binds  parties,  when,   1798. 

to  contain   what,    1798. 
declaring  a  trust,   2254. 
of  sales  by  auctioneer,   1798. 
4»ii  eoutraet  «tf  nale 

of  personal  property,  1739. 
of  real   property,   1741. 
MENACE.     See  tit.  Contract. 
as  to  what  constitutes,   1.570. 
consists   in    what,    1570. 

merchandise,  warranty  implied  as  to,  when,   1768-1771. 
rescission  for,  1688. 
MENTAL   CAPACITY.      See   tit.    AVIIIn. 
MENTAL  DISEASE.     See  tit.  Wills. 
MERCHANDISE 

not  in  existence,  warranty  as  to,  1768. 
MEKtiER 
of  interest 

destroys    hiring,    when,    1932. 
destroys  servitude,  810. 
METER 

right   to   inspect  gas,    631. 
MILL-SITE 

location  of,  1426j. 
record   of   location,    1426k. 
MINE.      See    tits.    Mines;    Mining   Corporations. 
claims.      See  tit.   Mining  Claim. 

affidavits   of  work  upon   and   recording,   1159. 
hydraulic.     See  tit.  Hydraulic  Mining. 
recording  notice  of  location   of,   1159. 
affidavit  of  work  upon,  1159. 
fixtures  attached  to,  661. 
mortgage  of  machinery  in,  2955. 
notices  of  location,  1159. 
partnership   in,    2511,    2518. 
3IINING.     See  tits.  Lode  Claims;  Placer  Clainin. 

1860 


I 


INDEX. 
[References  are  to  sections.] 

MINIMUM   CAPITAL.      See   tit.    Corporations. 

required  to  be  paid  in   before  incorporation,   290a. 
MINING  CLAIM.     See  tits.  Location  Notice;  Lode  r!aim.s;  Placer 
CIaini»i;   Tunnel  Right. 

affidavit  of  work,  1159. 

recorder's  fee  for,  1426n. 
amendment  of  notice  of  location,  1426h. 
certificate  of,  recorder's  fee,  1426n. 
delinquent  co-o-»vners 

notice   to,   1426o. 

payment  by,  1426o. 
development  work,  neglect  to  perform,  1426s. 
location  of 

notice  of,  amendment  to,  1426h. 

recorded  without  acknowledgment,   1159. 
mill-site.     See  tit.   Mill-Site. 
mining  district,  effect  of  statute  on,  1426r. 
neglect  to  perform  yearly  work,  1426s. 
record  of  location  of 

copies  of  as  eyidence,   1426q. 

to  be  received  in  evidence,  1426p. 
record  of  yearly  work,   1426m. 
recorder's   fee,    1426n. 
recording  notice  of  location,  1159. 
surveyed   claims,    1426i. 
yearly  -work  required 

as  to  generally,   14261. 

neglect  to  perform,  effect,  1426s. 
MINING  CORPORATIONS 

balance  sheet  to  be  kept  and  posted,  588. 

books  and  balance  sheets  to  be  kept  l^y  secretary,  588. 

liooks  and  papers,  right  of  stockholders  to  inspprf.  .'>88. 

stockholder's  right  to   inspect,   588. 
consolidation 

certificate  of  consolidation,  filed  where,  587a. 
to  be   signed   by  whom,   587a. 

consent  of  stockholders  in  writing,  587a. 

effect    of,    587a. 

election  of  trustees  on,  587a. 

limitations  on,   587a. 

notice  must  be  given,   587a. 

proceedings  on,  587a. 
discovery  of  ore,  superintendent  to  report,  588. 
examination   of  mine 

as   to   right  of,    589,    590. 

effect  of  refusing  stockholder  right  to  make,  589,   590. 

liability  for  refusal  of  right  of,  to  stocknolders,  590. 
1861 


INDEX. 
[References  are  to  sections.] 

MINING  CORPORATIONS 

exniniiintion   of   mine    (continued). 
.stofkhoiders'   ri^lit 

to    inspect    l)oulis,    588. 
to  make   examination,   589,  590. 
failure  of  superintendent  to  obey   orders,   removal,    589. 
liability  of  officers  and  directors,  590. 
montl>ly  account  to  be   filed  by   superintendent,    588. 
report  attached  to  account  open  to  inspection,  588. 
what  must  show,  588. 
monthly  balance  sheet  to  be  verified  by  oath  of  whom,  588. 
receipts  and  disbursements,  account  of  to  be  kept,  588. 
removal   of  superintendent  in  failing  to  obey  orders,   589. 
reports  and  accounts   by   superintendent,   588. 
right  to  examine  books,  589. 

stockholder's  right  to  visit  mine  with  expert,  589. 
duty  of  superintendent,   589. 
liability   of  officers  and   directors,   590. 
refusal  to  permit  examination,  damages,  590. 
removal  of  directors  for  refusal,  590. 
stock   issued   at   transfer  agencies,    587. 
superintendent,  capacity  in  which  acts,  591. 
surrender  of  certificate  on  transfer,   587. 
transfer   agencies   of,   586. 

may   establish   in   other  states,   586.  | 

MIIVING   DISTRICTS 

effect  of  statute  of  1909  on,   1426r. 
MINING  PARTNERSHIP 

contract   in   writing   binding,    when,    2519. 

exists,  when,  2511. 

express  agreement  not  necessary  to  constitute,  2512. 

governed  by  owners  of  majority  of  shares,  2520. 

lien   of  partners,   2514. 

mine  partnership   property,   2515. 

owners  of  majority  of  shares  govern,  2520. 

partnership  not  dissolved  by  sale  of  interest,   2516. 

profits  and  losses,  how  shared,  2513. 

purchaser  takes  subject  to  liens,  when,   2517. 

takes  with  notice  of  lien,  when,  2518. 
sale  of  interest  does  not  dissolve  partnership,  251G. 
MINOR.     See  tit.  lufnnt. 

cannot    disaffirm   certain    obligations,    37. 
cannot  disaffirm  contract  for  necessaries,  36. 
cannot   give  a   delegation    of  power,   33. 
contracts  by,  disaffirmance.     See  tit.  Disafflnnauoe. 

as  to  generally,  34. 
custody  of,  32. 

1862 


INDEX. 
[References  are  to  sections.] 

MINOR    (continued). 

liability  for  wrongs,   41. 
may  hold  stock  in  savings  bank,  575. 
not  liable  for  exemplary  damages,  41. 
period  of  minority,  how  calculated,  26. 
personal   rights,  generally,  43. 
status  of,  how  changed,  28. 
who  are,    25. 
MISDEMEANOR,    to    entice    away    apprentices.      See    tit.    Mnsior 
and   Apprentice. 
foreign  building,  etc.,  agent  not  complying  with  statute  com- 
mits, 645. 
savings  corporation,  president  of,   guiltv  of    when    581 
MISNOMER 

does  not  invalidate   corporate   instruments,   when,   357. 
MISREPRESENTATION.      See   tit.   Fraud. 
MISTAKE 

as  affecting  right-to  enforcement  of  specific  performance,  3391. 
disregarding  erroneous  parts  of  instrument,  1610. 
either  of  law  or  fact,  1576. 
in  wills,   1340.' 
of  fact 

as  to  what  constitutes,   1577. 
of  foreign  laws,  as   to,   1579. 

effect  of,  1579. 
of   law 

as  to  what  constitutes,  1578. 
property  acquired  by,   1713. 

of  contract  for,  1689,  3407. 
specific  performance,   prevents,   wlien.   3391. 
trust  arising  from,   2224. 
will,   in,  effect  of,  1340. 
MISTAKE  OF  FACT.     See  tit.  Recovery  Rack  of  Money   I'lil.l. 
MOH  VIOLENCE.     See  tit.   Strikes.  Mol»  Violence.    E<e. 
MOCK  AUCTION.     See   tit.   Auction. 
MONEY.      See   tit.    Loan. 

coterminous  owners  bound  to  maintain,  841. 
duty  of  coterminous  owners  in  relation  to,   841. 
MORAL,  OHLIGATION.     See  tit.  Oliligation. 

as  a  consideration,   1606. 
MORTGAGE.      See    tits.    Lien;    >lort«:iKe    of    IVrsoii:il    l'r<iiHri>: 
Mortsase  of  Real  Property. 
adversely   held,  'property  may   be,   2921. 
as  to  what  property  may  be  mortgaged.   2921. 
as.sigrnuieut   of  debt 

by  acknowledgment  and   recording.   2936. 
effect  of  to  pass  security,  2936. 
1863 


INDEX. 
[References  are  to  sections.] 

MORTGAGE 

a.ssi^ument   of  debt    (continued). 

record   of  is  notice,   2934. 

secured,  passes  mortgage,  2936. 
assignment  of,  recording,  2934. 
benevolent  association,  given  by,  598. 
bottomry  and  respondentia  not  affected  by  chapter  on   mort- 

.  .    gages,  2942. 
building  and  loan  association  may  make,   640. 
certificate  of  discharge,  2939. 

by  foreign  executors  and  administrators,   2939%. 

discharge   of   mortgage   by   foreign   executors   and   adminis- 
trators, 2939%. 

satisfaction   of  mortgage,    2941. 
deed  absolute  is,  when,  2924,  292.^. 
defeasance,   transfer  made  subject  to,   2925. 
definition,   2920. 
discbarg:e  of 

by  foreign  executors  and  administrators,  2939%. 

certificate   of,    2939. 

form  of,  2938. 

how  made,  2938. 

liability  for  refusal  to  execute  certificate,  2932. 

of  record,  how,    2937,   2940. 

recording  discharge,  2940. 
does  not  entitle  mortgagee  to  possession,  2927. 
duty  of  mortgagee  on  satisfaction,   2941. 
encumbrance  included  in  term,   1114. 
execution  by  attorney  under  power,    2933. 
execution,  formalities  of,   2922. 

executors  and  administrators,  foreign,  discharged  by,  2939%. 
extends  to  and  includes  what,  2926. 
factor  may  not  make,  2368. 
foreclosure.     See  tit.  Mortgage  Foreclosure. 

as  to,  2931. 
foreign  executors  and  administrators,  discharge  of  by,  2939%. 
form  of,  2948. 

of  discharge,  2938. 
homestead 

liable  for,  when,  1241. 

mortgaged  how,  1242. 

of  lunatics.     See  tit.  Honie.stead. 
how  discharged,  2938. 
insurance  on  property  that  is,  2541. 
is  subject  to  the  general  law  of  liens,  2877. 
lien  of  special,   when,    2923. 
lien  on  what,  292S. 

1864 


INDEX. 
[References  are  to  sections.] 

MORTGAGE   (continued), 
must  be  in  writing-,   2922. 
not  a  personal  obligation,   2928. 

notice  to  mortgager  not  given  by  recording  assignment,  2935. 
of  chattels.     See  tit.  Mortgage  of  Personal  Property. 
of  property  by  wagon  road  corporaticjn,  r)22. 
on  what  a  lien,  2926. 

passes  by  assignment  of  deTit  secured,  2936. 
personal  obligation,  is  not  a,   2928. 
possession,  mortgager  entitled  to,  exception,  2927. 
power  of  attorney  to  execute,  2933. 
power  of  sale  conferred  upon   mortgagee,   2932. 

when   deemed  part  of  the  security,  858. 
priority  of  given  for  purchase  money,   2897. 
property  adversely  held  may  be  mortgaged,  2921. 
property  that  may  be  mortgaged,  2947. 
railroad,  mortgage  by,   456. 
recording,   as   to,    1163. 

in   general,   295*. 

of  assignment  of,  2934. 
not  notice  to  mortgager,  2935. 

of  certificate  of  discharge,  2939. 

of  defeasance,  2950. 
redemption   from   sale   under   foreclosure   of,    2903-29O.". 

right  of,  2931. 
religious  association,  execution  by,  598. 
respondentia,  is  not  subject  to  the  law,  2942. 
satisfaction,  duty  of  mortgagee  on,  2941. 

as  to,  generally,  2942. 
shipmaster's  power  to  hypothecate,  2377. 
ships,   mortgage   of,   2971. 

recording  of  necessary,  2958. 
statute  of  frauds  as  affecting,  2922. 
subsequently  acquired  title,  covered  by,  2930. 
title,  subsequently  acquired,  covered  by,  2930. 
transfer  made   subject  to   defeasance   is,    2925. 
transfer,    wheri    mortgage    and    when    pledge,    2924. 
trust,  an  express,  to  mortgage  real  property,  857. 
wagon  road  corporation,  executed   by,  522. 
waste,   not  permitted.   2929. 
writing,  must  be   in,   2922. 
MORTGAGE   FORECLOSURE 

right  of  redemption,  2931. 
MORTGAGE      OF      PEItSOXAL      PROPERTY.       Soc     tit.     Clinttel 
Mortgage. 
as   to   what  property  may  be   mortgaged.    2955. 
certain   sections   not  applicable   to   certain   ships,    2971. 

1865 


INDEX. 
[References  are  to  sections.] 

MORTGAGE  OF  PERSONAL  PROPERTY   (continued), 
continuance   of  lien   of  mortgage  on   crop,   2972. 
distribution   of  proceeds   of  sale   under  process,    2970. 
foreclosure,   distribution  of  proceeds   of  sale   under,   2970. 
foreclosure   of,    how   made,    2967. 
form    of,    2956. 
levy   upon    mortgaged   property,    2968. 

limitations   on    right    of   levy,    2969. 
may   la^e.  recorded,   2963. 

may  be  taken  by  mortgagee  as  a  pledge,  when,   2966. 
mortgage   of  ships,  void  as  to   third  persons,   when,    2958. 
mortgaged    property    may    be    levied    upon,    2968. 
property   exempt  from   mortgage,   when,    2965. 
recordation 

certified  copy  may  be  recorded  when,  2964. 

in   different  places,   2962. 

of  common  carrier,   2961. 

personal   mortgage  may  be  recorded,  2963. 

where  property  in   transit,   2960. 

where  to  be  made,  2959. 
ships,  certain  sections  not  applicable  to,  2971. 
validity  of,  certain,   2973. 
void  as  to  third  persons,  when,  2957. 
where  recorded,  2959. 

in  different  places,  2962. 

of  common   carrier,   2961. 

where  property  in  transit,   2960. 
MORTGAGE   OF  REAL  PROPERTY 

as  to  what  interest  may  be  mortgaged,  2947. 
defeasance,  must  be  recorded,  2950. 
form  of  mortgage,  2948. 
may  be  recorded,  2952. 
MORTGAGE  OF  SEPARATE  ESTATE  OF   MARRIED  ^VOMAN 

acknowledgment  of.     See  tit.  Grant  by  Married  ^Vonlan, 
MORTGAGED   PROPERTY.      See  tit.  Homestead. 
MORTGAGEE 

assignment  of  to  thing  insured,  effect  of,  2541. 
MOTHER.     See  tit.  Parent  and  Cliild. 

apprenticeship,  consent  to.     See  tit.  Ma.ster  and  Apprentice. 
custody  of  child,  consent  of  necessary  to  transfer  of,  197. 
illegitimate   cliild 

consent  to  adoption  of,  224. 

entitled  to   custody  of,   200. 

succeeds  to  property  of,  1388. 
MOTORCYCLES 

franchise    to   construct   road    for,    524. 
MOTIVE  PO^VER  OF  STREET  RAILROADS.     See  tit.  Propelling: 
Po'»ver. 

1866 


« 


INDEX. 
[References  are  to  sections.] 

HIULTIPLICITY  OF   SUITS 

prevented  by  injunction,  3422. 
MUNICIPAL,   CONTRACTS.      See    tits.    Contracts:    Miiiii.ipnl    Cor- 
poration. 
MUNICIPAL,  CORPORATION 

distinction  between  public  and  private  corporations,  284. 

Injunction  to  prevent  legislative  act  of,  3423. 

water  company,  contract  with,   548-552. 

will,  may  take  under,  when,- 1275. 
MUNICIPAL,    ORDINANCE.      See    tit.     IVIojirjiidi    ami    Teleplione 

Corporation.s. 
MURDERER 

of  decedent  cannot  succeed,   1409. 
MUTUAL,  BENEFIT  AND  LIFE  ASSOCIATIONS 

assessments,  right  to  levy,  453. 

filing  articles  of  incorporation,  452a. 

formation   of,  452a. 

levying  of  assessment,  453. 

by-laws   which   may   be   made   regarding,   453. 

loaning  funds  and  purchasing  real  estate,   453. 

what  articles  must  show,  452a. 
MUTUAL    BENEFIT    SOCIETY.      See    tit.    ReIiKiou.s.    Social.    aii«l 

Benevolent    Coriior:i(iou. 
(MUTUAL  BUILDING   AND   LOA.X    ASSOCIATION.      See   tit.    Land 

and  Building  CorporsitionN. 
MUTUALITY 

of  consent  in  contract,  1580. 

of  intent,  must  be  given   in   interpretation.    1635. 
MUTUAL   LIFE,   HEALTH,  AND   ACCIDENT   1NSUR.\NCE   COR- 
PORATIONS 

alteration  of  number  of  directors,   443. 

associations  and  secret  orders  not  insurance  corporations.  451. 

benevolent  or  fraternal  co-operative  societies  are.  451. 

by-laws  may  prescribe  limitation   of  stock   held.   445. 
fixed,  deficiencies  in,  439. 

commission  allowed,   441. 

commission  and   interest  allowed,  441. 

declaration  of  fi.xed  capital  stock  to  be  tiled.  4 411. 

directors,  number  of,   how  altered,  443. 

dividends,   how  made,  456. 

filing  of  declaration  of  fixed  cajiital   stock.  440. 

guarantee  fund  of,   437. 

guaranty  notes  and   interest,   441. 

insured  entitled  to  vote,*  when,  442. 

interest  allowed,  441. 

investment  of  capital  stock,   421,   421  [a],   444. 

1867 


INDEX. 

[References  are  to  sections.] 

MUTUAL  LIFE,  HEALTH,  AND  ACCIDENT  INSURANCE  COR- 
PORATIONS   (continued), 
issued  within  the  state,  450. 

penalty  for  failure  to  comply  with  statute,  450. 
proof  of  death  within  a  year,  450. 
limitations  as  to  holding  of  stock,  etc.,  445. 
preniiiini.s 

agreements  in  policies  as  to,  446. 
how  payable,  446. 
subscription  may  be  rejected,  437. 
to  furnish  data  to  insurance  commissioner,  447. 

retaliatory  clause,  449. 
vote,  insured  entitled  to,  when,  442. 
NAME 

certificate  of,  of  partnership,  2469. 
change  of,  conveyance  made,  how,  1096. 
child  adopted,  taken  by,  228. 
error  in,  of  corporation,  357. 
fictitious,  of  partnership,  2466-2471. 
of  corporation,  to  be  stated  in  amended  articles,  289. 
of  partnership,  as  notice  of  dissolution,  2454. 
partnership  under  fictitious,  2466-2471. 
NAVIGATION 

rules  of.     See  tit.  Rules  of  Navigation. 
NE3CESS ARIES.     See  tits.  Husband  and  AVife;  Infant;  Necessaries 
for  Infants. 
husband's   liability   for,    174. 
infant,  contract  for  by,  not  disaffirmable,  36. 
lunatic's  liability  for,  38. 

parent  not  liable  for,  furnished  child,  when,  208. 
promise  by  child  to  paj'  for  those  furnished  parent,   206. 
third  person  may  furnish  to  child,  when,   208. 
NECESSARIES   FOR  INFANT 

contract  for  by  infant,  cannot  disaffirm,  36. 
NEGLIGENCE.     See  tit.  Obligations  Imposed  by  L.aw. 
agent's,  principal   liable   for,  when,   2338. 

apprenticeship   annulled  for.      See   tit.   Master  and  Apprentice. 
borrower  to  repair  injuries,  when  caused  by,  1889. 
carrier,  not  exonerated  from,  2175. 
degrees  of,  16,  17. 
depositary,  liability  of  for,   1840. 
divorce  for  neglect.     See  tit.  Divorce. 
employee,  liability  for,  1990. 
hirer  liable  to  repair  injuries  caused  by,  1929. 
in  insurance,  as  to,  2629.  * 

insurer,  not  exonerated  by,   2629. 
liability  of  depositary  for,  1840. 
pilot's,  shipmaster  liable  for,  2384. 

1868 


INDEX. 
[References  are  to  sections.] 

NEGLIGENCE    (continued). 

raises  an  involuntary  trust,  wlien,  2224. 
shipmaster,  liability  for,  2383. 
wilful,  1714. 
NEGOTIABLE  CO\'TRACT.     See  tits.   Contracts;   Negotiable  In- 
struments. 
NEGOTIABLE   INSTRUMENTS 

absolute,  must  be  to  be  valid,  3088. 
acceptance 

admissions  by,   3199. 

allonge,  3110. 

bill  of,  3194. 

by  refusal  to  return,  3195. 

by  separate  instrument,  3196. 

concealment  of  acceptance,  3198. 

for  honor,  3205-3207. 

does  not  excusfe  notice,  3207. 
how  made  and  enforced,  3205,  3206. 
holder  entitled  to  on  face  of  bill,  when,  3194. 
how  made,  3193. 
of  bill,  3194. 

promise  to  accept  equivalent  to  acceptance,  when,  3197. 
qualified,  effect  of,  3195. 

sufficiency  of,  when  with  another's  consent,  3195. 
what  is  admitted  by,  3199. 

what  sufficient  with  consent  of  holder,  3195. 
acceptance  or  payment  of  bill  for  honor,  3205. 
holder  bound  to,  when,   3204. 
how  enforced,  3206. 
how  made,  3205. 

notice  of  dishonor  not  excused  by  acceptance  for  honor,  3207. 
when  may  be,  3203. 
allonge,  3110. 

alternative  instrument,  3090. 
bank  notes,  3261. 

bearer,  instrument  payable  to,  construction,  3101. 
bills,  acceptance  of,   3193. 
attorney  fees  and  costs  may  bo  provided  for  in,  3088. 
bank  notes.     See  tit.  Bank  Notes. 

as  to,  3261. 
bill 

days  of  grace  on  note  allowed,  3181. 
deemed  a  note,  when,  3246. 
defined,  3171. 
in  parts  of  a  set,  3173. 
of  lading,  as  to,  generally,   2127. 
of  exchange.     See  tit.  Bills  of  Exchange. 
as  to,  generally,  3171-3177. 
1869 


INDEX. 
[References  are  to  sections.]  ,'' 

NEGOTIABLE    INSTRUMENTS 
bill    (continued). 

set,  to  be  in  a,  3174. 

must  be  in  a,  when,  3174. 
blank  indorser's  liability,  3125. 
bonds.     See   tit.   Bonds. 
are  negotiable,  3095. 
cancelation  of  acceptance,  3198. 
carrier' 

liability  for  loss  of,  2177. 
liability  toward,  2201. 
classes  of,  enumerated,  3095.  ^ 

collection  agent's  duties,  as  to,  2021.  ^ 

consideration,   effect  of  want  of,   3131.  y 

contents   of,   as   to,   3093. 

damages  for  dishonor.     See  tit.  '"dishonor  of." 
certificate  of  stock.     See  tit.  Certificate  of  Stock. 
certificates  of  deposit.     See  tit.  Certilicji«e.s  of  IJcposlt. 
as  to,   3261. 

is  a,  3095.  ,, 

checks.      See   tit.   Cheeks.  J- 

definition   of,   3254. 
consitleration 

presumption  of,  3104. 
days  of  grace  are  not  allowed,   3181. 
definition   of,   3087. 

demand,  effect  of  want  of   on   principal   debtor,   3130. 
different  classes  of,  3095. 
disbonor  of 

additional  time  for  by  indorsee,  3150. 
after  indorser's  death,   3145. 
definition,    3141. 

effect  of  notice   of  dishonor,   3151. 
execution  or  prevention  of  notice,  3155. 

delay,  when  excused,  3158.  v 

waiver  of  presentment  and  notice,  3159. 
waiver  of  protest 

when  excused,  3155,  3156. 
form  of  notice,  3143. 
how  given  by  agent,  3149. 
how  served,   3144. 

given  in  ignorance  of  death,  valid  when,  3146. 
notice  of,  3142. 

by  whom  to  be  given,   3142. 
to  be  given,  when,  3147. 
when  to  be  mailed,  3148. 

1870 


INDEX. 
[References  are  to  sections.] 

NEGOTIABLE   INSTRUMENTS    (continued). 
date 

any  may  be  inserted,   3094. 

may  be  inserted  by  maker,  3094. 

nominal,  as  to,  3094. 

not  essential,  3091. 
days  of  grace.     See  tit.   Days  of  Grace. 
death  of  maker  on  nominal  date,  effect  of,  3094. 
destruction   of,  effect  of  by  indorser,   3115. 
dishonoi* 

of  bill  payable  after  sight,  presumption  of,  when,  3133. 

of  foreig-n  bill,   damages  for,  as  to,   3234-3238. 

what   is,   3141. 
drawee,  in  case  of  need,  3172. 
drawer,  rights  and  obligations  of,  3177. 
effect  of  want  of  demand  on  principal   debtor,   3130. 
excuse  of  presentment  and  notice  in  bill.     See  tits.  Blll.s;  F'or- 

eign  Bills. 
extinction  of.     See  tit.  Extinction  of  Oblisation.<4. 

by  payment,  3164. 

when  extinguished,  3164. 
fictitious   payee,   3103. 

foreign  bills.     See  tits.  Bills;  Foreign  Bill.s. 
guaranty 

as   to   collectibility   of,   2800-2802. 

original,  what  is,  2794. 
incapacity  of  maker  at  time  of  nominal  date,  effect  of,  3094. 
indorse.     See  tit.  Indorsement. 

as  to  agreement  of,  3112. 
indorsee 

in  due  course,  who  is,   3122. 
rights   of,    3124. 

of  check,  after  maturity,  3255. 

privy  to  contract,   3120. 

rights  of  those  of  guarantor,  3120. 
indorsement.     See  tit.  Indorsement. 

as  to,  3108. 
indorser 

destruction  by,  3115. 

implied  warranty  by,  3116. 

liability   of,  generally,  3116. 

liability  of  payee,  when,  3117. 
inland  bill,  definition  of,  3238. 

interest,  to  be  on  amount  of  protested  bill.  3236. 
kinds  of,  enumerated,  3095. 

1871 


INDEX. 
[References  are  to  sections.] 

NEGOTIABLE   INSTRUMENTS    (continued). 
maturity 

apparent,  as  to,  3132. 

of  bill   payable  at  sight,   3134. 
of  note,  3135,  3136. 
may  be  an  alternative,  3090. 
may  contain  a  pledge,  etc.,  3092. 
money,  payment  in   must  be  provided   for,  3088. 
must  be  for  unconditional  payment  of  money,  3088. 
must  be  payable  in  money,   3088. 
must  contain,  what,  3093. 
must  not  contain  any  contract,  3093. 
nominal  date  of,  3094. 
note 

applicability   of  code   provisions   to,   3247. 
definition  of,  3244. 
notice 

delay  in   presenting,   3248. 
effect  of  giving,  3151. 
notice  excused,  when,  3155,  3156,  3220. 
as  to  generally,   3155,   3156,  3220. 
given   in  ignorance   of  di-ath   of  indorser,   3146. 
how  served,  3144. 

after  death  of  Indorser,  3145. 
inures  to  benefit  of  others,  3151. 
not  excused  by  acceptance  for  honor,  3207. 
of  diHlionor  of 

additional  time  for,  3150. 
by  agent,  3149. 
by  subagent,  3149. 
delay  excused,  when,   3150. 
served,  how,   3144. 
time  of  mailing,   3148. 
time  of  serving,   3147. 
waived,   how,   3155. 
waiver  of,  as  to,  3159. 
who  may  give,  3142. 
how  construed,  3155. 
parties  may  waive  provisions  of  code,  3268. 
partner,  liquidating  firm,  powers  as  to,  2461. 
parties,  waiver  of  code  provision  by,  3268. 
to  order,  how  construed,  3101. 
where  bill  is,  3176. 
payee 

fictitious,   3103. 

must  be  ascertainable,  3089. 

who  is,  3089. 

1872 


INDEX. 

[References  are  to  sections.] 

NEGOTIABLE   INSTRUMENTS    (continued). 
payment 

extinguishes  obligation,  3164. 

for  honor,  3203. 

declaration  of,  3233. 

instrument  to  be  surrendered,  exception,  3137. 

of  part  of  bill  in  sets,  3173. 

place  of,  not  specified,  3100. 

surrender  of  instrument  may  be  made  condition  of,  3137. 

time  of,  not  specified,  3099. 

time  or  place  of,  designation  not  necessary,  3091. 

to  excuse  or  order,  how  construed,  3101. 
place  of  payment,  3099. 

not  specified,  3100. 
pledge  of 

as   to   collateral,   3092. 

of  collateral,  may  be  contained  in,  3092. 
presentation  for  payment,  3130,  3131. 

apparent  maturity,  3132. 

of  bill  payable  at  sight,  3133. 
of  note,  3135. 

dishonor  of  bill,  presumptive,   3133. 

how  made,  3131. 

indorsement  after  maturity,  demand  of  payment,   3135. 
after   sight  or  demand,   3136. 

surrender  of  instrument  as  condition  of  payment,  3137. 

maturity  apparent,  3132. 

maturity  of  bill  payable  at  sight,  3134. 
presentment  of  bill  for  acceptance,  3185. 

how  made,  3186. 

to  joint  drawers,  3187. 

when  must  be  made,  3189. 

when  to  be  made  to  drawee  in  case  of  need.  3188. 
presentment  of  bill  for  payment.     See  tit.  Bills. 

of  bill  payable  at  a  particular  company's,  3212. 

of  delay  in,  in  certain  cases,  3213. 
in  other  cases,  3214. 

when  not  accepted,  where  to  be  made,  3211. 

presumptive  dishonor  of  bill  payable  after  sight,  3133. 
promissory  notes.     See  tit.  Promissory  Xote. 

definition    of,    3244. 
protest 

bill,  form  necessary,  3225. 

by  whom  to  be  made,  3226. 

how  made,  3227. 

notice  to  be  given,  how,  3231. 

time  of  making,  3229. 

1873 


INDEX. 
[References  are  to  sections.] 

NEGOTIABLE  INSTRUMENTS 
protest    (continued), 
waiver  of,  3159,   3232. 
when  excused,  3230. 
where  made,  3228. 
surrender  of  instrument  a  condition  of  payment,  3137. 
time  of  payment,  3099. 
to  what  title  is  applicable,   3086. 
uncon4itional,  instrument  must  be,  3088. 
unindorsed  note,   when   negotiable,   3102. 
waiver   of   code   provisions,    3268. 
wareli.ouse  receipt,  is,  when,  1858f. 
what  instrument  must  contain,  3093. 
NEGROKS   OR   MILATTOBS 

marriage  with   whites  void.     See  tit.  MMrrisige. 
as   to   generally,    60. 
NEUTER  GENDER 

included  in  masculine,  14. 
NEUTRAL   PAPERS 

in  marine  insurance,  implied  warranty  of,   2688. 
NEWSPAPER  PUBLICATIONS.     See   tit.   Privileged  Publication. 
NIECES.     See  tit.  Nephews. 
NOMINAL  DAMAGES.     See  tit.  Damages. 
NON-NEGOTIABLE  INSTRUMENT 

transferability,  1459. 
NON-PROFIT   CO-OPERATIVE.   ETC.,   ASSOCIATIONS.      See    tit. 

Co-operative  Agricultural,  etc.,   AsHOciatiouN. 
NON-PROFIT    CO-OPERATIVE    CORPORATIONS.      See    tit.    Co- 
operative   Corporations. 
NON-RESIDENT 

adoption  proceedings  by,  224,   226. 

alien  inheriting,  claim  of  to  be  made,  when,  672. 

assignment   for   creditors.      See   tit.   Assignment   for  Benefit   of 

Creditors. 
transfer  of  stock  by.     See  tit.  Stock,  Transfer  of. 
as  to,  generally,   326. 
"NORTH."     See  tit.  Deeds. 
NOTARY   PUBLIC 

acknowledgment  may  be  taken  by,  1181,  1182. 
in   the  state,  1181. 
out  of  the  state,  1182. 
out  of  the  United  States,  1183. 
bill  of  exchange,  payable  at  office  of,  when,  3176. 
presented  by,  when,  3226. 
presented  to,  when,  3188. 
making  protest,  must  give  notice,  how,  3229. 
offer  of  performance  to,  1487. 
protest  by,  how  made,  3226. 

1874 


i 


INDEX. 
[References  are  to  sections.] 

NOTE.     See  tit.  Negotiable  Instrument. 

NOTICE.     See  tits.  Actual  Notice;  Constructive  Notice. 

abandonment  of  ship  to  insurer,  2730. 
abatement  of  nuisance  for,   3503. 

action,  not  necessary  before  but  actual,  what  is,  18. 
actual  or  constructive.  IS. 
adverse  claim,  to  deposit,  1825. 
agent  to,  is  notice  to  principal,  when.  2332. 
appropriation,  of  water,  as  to,  1415,  1416. 
assessment,  of  stock,  335-341. 

by    carrier    where    freight    not    delivered.      See    tit.    Carrier    of 
Property. 

as  to,  2120. 
carrier,   necessary  to  in   stoppage  in  transitu,  3079. 
change  of  name,  as  to,  and  sufficiency  of,  2454. 
change  of  place  of  business  by  corporation,  notice  on,  321a. 
consolidation,  of  mining  corporations,   as  to.  587a. 
constructive.     See  tit.  Con.structive  Notice. 
delay  in,  waived  how,  2636. 

delinquent  co-owners   of  mining  claim,    to,    1426o. 
depositary,  must  be  given  by,  to  real  owner,  when,  1826,  3079. 
directors  and  stockholders  to  post,  320. 
dishonor  of.     See  tit.  Neg-otial»le  In.struuients. 
duty  of  gratuitous  depositary,  termination  by,   1835. 
either  actual  or  constructive,  18. 
ejectment  without,  793. 
election  of  directors,  302. 

filing  of  inventory  of  wife's  property,  as  a,  166. 
form  of,  3143. 
freight,  of  arrival  to  be  given  to  consignee.  2120. 

of  storage  of,  to  be  given  to  consignee,  2121. 
hirer 

of  personal  property,  repair  by  after.  1957. 

of  real  property,  repair  by  after,   1942. 
hiring,  may  be  terminated  by,  1946. 
innkeeper  exempted  from,  how.     See  tit.  Innkeeper. 
inquiry,    what   sufficient   to   put   one   on.      See   tit.    Con.sirin'iU  o 

Notice. 
in  quo  warranto  proceedings  against  corporation,  315. 
instruments,  purchaser  with,  effect,   1228. 
insurance,  of  loss  under,  2633. 

defects  in  may  be  waived,  2635. 
lease,  change   of  term   of  by,   827. 

letter  of  credit,  to  writer  of  to  be  given,  when.  2866. 
life  insurance  policy,  to  be  given  on  transfer  of,  2765. 
not  necessary,  when,  793. 
of  appropriation  of  waters,   1415,   1416. 

1875 


i 


m 

INDEX.  .-^ 

[References  are  to  sections.] 

NOTICE  (continued). 

of  assessment  of  stock.     See  tit.  A»«sessiueiit  of  Stock. 

of  dislionor   of  negotiable   instrument,  by  whom  to  be  given, 

3142. 
of  hearing  of  petition  to  sell  homestead,  1247. 
of  meeting  of  board  of  directors.     See  tit.  Directors,  Board  of. 
of  meeting  of  corporation,  302.  a^ 

to  .remove  directors,  310.  5 

of  partnership  dissolution,  2453,  2454,  2509. 
of  renunciation  of  profits,  effect  of,  2417. 
of  thing  found,  1865. 
pledge,  as  to  sale  of,  3002. 

principal,  notice  to  agent  is  notice  to,  when,  2332. 
purchaser  for  value  without,  rights  of,  856,  869. 
record  of  conveyance  as,  1206. 

of  assignment  of  mortgage.     See  tit.  ^iortgage. 

of  instrument  as,  1213. 

of  intention  of  re-entry,  791. 

of  place  of  delivery,  1756. 
record  of  sale,  to  depositor,  when,  1838. 

of  selection  of  alternatives,  1449. 
served  on  tenant  to  be  delivered  to  landlord,  1949. 
stockholder.     See  tit.  Corporations. 
tenancy  at  will.     See  tit.  Tenancy  at  Will. 
tenant  to  give  landlord,  when,  1949. 
terminates  employment,   when,   1996,   1997. 
to  delinquent  co-owner,  1426o. 
to  tenant  at  will,  to  quit,  790. 
trustee  by,  of  adverse  interests,  2233. 

unrecorded  instrument,  not  notice  to  public  but  void  between 
parties,  1217. 
NOTICE  OF  LOSS.     See  tits.  Fire  InMiirauep;  Insurance;  Life  and 

Health  Insurance;   Aliiriue   Insurance. 
NOTICE  TO  aUIT.      See  tit.   Ejectment. 

as  to,  1946. 
NOVATION 

a  contract,  1532. 
as  to  what  is,  1530. 
definition  of,  1530. 
is  a  contract,  1532. 
modes  of,  1531. 
rescission  of,  1533. 
NUISANCE 
abatement 

action  not  precluded  by,  3484. 

does  not  preclude  action  for  damages  for,   3484. 

not  to  affect  right  to  damages,  3484. 
1876 


INDEX. 
[References  are  to  sections.] 

NUISANCE 

abatement   (continued). 

of  private,  notice,  3501. 
when   allowed,   3502. 

of  public,   3491-3494. 
by  whom,  3494. 
how,  3495. 
action  for  public  nuisance,  3494. 
definition  of,  3479. 
indictment  for  a,   3491,   3492. 
information  for  a, ^3491,  3492. 

lapse  of  time  does  not  legalize  public  nuisance,  3490. 
notice 

to  abate,  3503. 
roots  projecting-  into  soil,  834. 
private 

abatement  of,  when  allowed,   3502. 
notice  required,  when,  3503. 

action,  to  abate  public,  3494. 

definition  of,  3484. 

remedies  for,  3501. 

what   is,   3481. 
public 

abated  how,  3495. 

action  for,  3494. 

definition  of,  3480,  3493. 

how  abated,  3495. 

how  regulated,   3492. 

lapse  of  time  does  not  legalize,  3490. 

private  action  for,  3493. 

regulated  how,  3492. 

remedies  against,   3491,  3493. 

time  does  not  legalize,  3490. 

what  is,  3480. 
remedies 

for  private  nuisance,  3501. 

for  public  nuisance,   3493. 
successiv^e  owners  liable  for,  3483. 
time  of  existence  does  not  legalize  public,  3490. 
what  not  deemed  a  nuisance,  3482. 
NUNCUPATIVE  WILL.     See  tit.  VVilLs. 
how  executed,  1288. 
probate  of,  1291. 
proof  of,  1290. 

requisites  to  validity  of,   1289. 
OATH 

definition  of,  14. 

1877 


INDEX. 
[References  are  to  sections.] 

OATH  (continued). 

of  liomestead  appraisers,  1250. 

of  person  solemnizing  marriage,  administering  by,  72. 
person  taking  acknowledgment,  administering  by,  1201. 
OBI^IGATIOIVS.     See  tits.  (oiitrsM-t.s;   Extinction  of  Obligation.s. 
accord  of.      See  tit.  Accord  sunl  Satisfaction. 
act  of  God,  effect  of  on.     See  tit.  Act  of  Goil. 
alteration  of,  effect.     See  tit.  Contracts, 
alternatives 

as  to,   1448. 

indivisibility  of,   1450. 

nvillity  of  one  or  more,  1451. 

right  of  selection,  1448. 
lost  how,  1449. 
application  of  payment.     See  tit.  .\|»i»llcation  of  I'aymcnt. 
apportionment  of  covenants,  1467. 
ariNc 

by  operation  of  law,  when,  1428. 

how,  1428. 
as.sumption  of,  acceptance  of  benefits  implies,  1589. 
conditional 

as  to,  generally,  1434. 

conditions  concurrent,   1437. 

conditions  precedent,  1436. 

performance  of  conditions  when  essential,  1439. 
what  are,  1438. 

kinds   of,    1435. 

performance  of  concurrent  conditions,  1437,  1438. 

conditions  involving  forfeiture,  how  construed,  1442. 

covenants.     See  tit.  Covenants  Itiinniiif;  with  I.and. 

created   how,    142S. 

definition    of,    1427. 

enforcement    of,    1428. 

how  incurred  and  enforced,   1428. 

impossible  or  unlawful   conditions  void,   1441. 

interpretation   of,   general   rules  as  to,   1429. 

joint  and   several,   1430. 
apportionment  of,   1467. 
contribution  between  joint  parties,  1432. 
when   joint,    1431. 

when  joint,  1431. 

apportionment  of,  1467. 
extingrolMlinient  of 

by  offer  of  performance,  when,  1485-1492. 

by  performance,  1473-1479. 
forfeiture,  how  construed,  1442. 
imposed  by  law.     See  tit.  Obliie;ations  Im|)o.sed  l)y  Law. 

as  to,  generally,  1708. 

1878 


INDEX. 
[References  are  to  sections.] 

OBLIGATIONS    (continued). 

infant  cannot  disaffirm,  wlien,   37. 
interest,   stopped  by  offer  to  perform,   1503. 
joint  aud  several 

effect  of  release  of  one,  1543. 
joint,  when,  1431. 
presumption  in  favor  of,  1431. 
several,  when,  1431. 
law.      See  tit.  Oblija^atioiiM  Imposed  by  La^v. 
imposes  what,  1708-1717. 

operation  of,  crec^ted  and  enforced  by,  1428. 
mistake.     See  tit.  Mtstake. 

non-negotiable   instrument  may  be  transferred,  1459. 
covenants   running  with   land,    1461. 
for  benefit  of  property,  1462. 
to  pay  rent,  1463. 
what  are  not,   1466. 

what  constitutes  lease  running  with  land,   1464. 
novation.     See  tit.  Novation. 
offer  of  performance  and  effect  of,  1485. 
payment.     See  tit.  Payment. 

pecuniary  extinguislied  by  tender,  when,  1500. 
performance    of.      See    tit.    Extinction    of    Obligatlon.s    by    Per- 
formance. 
property  as  to,  1458. 

receipt,  right  to  require  on  performance  of,  1511. 
refusal    to    accept    performance.      See    tit.    £}xtiug-iiiNhnient    «»f 

Obligation   by   Performance. 
release  extinguishes,  1541. 
satisfaction,  definition  of,  1523. 

part  performance  in,  effect  of,  1524. 
statute  of  frauds  in  relation  to,   1624. 
substitution  of  new.     See  tit.  Novation. 

as  to  effect  of,  1531. 
substitution  of  parties,  1531. 
transfer 

as  to,  generally,  1458. 

covenants   running   with    land.      See    tit.   Co^enant.s    ItiiiiiiinK 
v«-ith  Land. 
as  to  generally,   1468. 
of  burden  of,  1457. 
of  non-negotiable  instrument,  1459. 
of  obligations,  rights  of,   1457,  1458. 
of  rights  arising  out  of,  1458. 
offer  of  performance,  waiver  of  obligations  of,  1501. 
unlawful  conditions,  effect  of,  1441. 
when  performance   excused,   1440. 
waiver  of  obligations  on  offer  of  performance,  1501. 

1879 


INDEX. 
[References  are  to  sections.] 

OBLIGATIONS   ARISING  FROM  PARTICULAR  TRANSACTIONS 

agency.     See  tit.  Ageney. 

carriage.     See  tit.  Carrlase.  ■      i 

deposit.     See  tit.  DepoMlt.  I 

exchange.     See  tit.  ExolianKi'- 

guaranty.     See  tit.  Giiarant.v. 

liiring.     See  tit.  Hiring;. 

indemnity.     See  lit.  Indemnity. 

insurance.     See  tit.  Insurnnoc. 

lien.     See  tit.  Lien. 

loan.     See  tit.  Loan. 

negotiable  instruments.     St-e  tit.   NcKotinblo  In,Htriinn'ii<M, 

partnership.     See  tit.  ParlntT.slilp. 

sales.     See  tit.  SalcM. 

service.     See  tit.  Service. 

trust.     See  tit.  Trust. 
OBLIGATIONS  IMPOSED  BV   LAW 

deceit  on  the  public,  1711. 

deceit,   what  is,  1710. 

fraudulent  deceit,  1709. 

other  obligations,   1715. 

responsibility   for   wilful   acts,   negligence,  etc.,  1714. 

restoration  of  thing  wrongly  acquired,  1712. 
demand,  necessary  when,  1713. 

to  abstain  from  injury,  1708. 
OCCIPANCV 

as  to  title  by,  1000,  1006. 
OFFER 

absolute  terms  necessary,  1585. 

acceptance  of,  how  made,  1582. 

of  guaranty,   2795. 

revoked  how,  1587. 
when,  1586.     • 

thing  to  be  kept  separate,  1497. 

what  deemed  an,  1584. 
OFFER  OF  PEUFORMANCE.     See  tit.  ExtlgruislniuMit  «>f  Oblisa- 

tiou. 
OFFICER 

lien  of,  3057. 

of  corporations.     See  tits.  Corporate  Powers;   Cor|»oration.H. 

OFFICERS 

joint  authority  of,  constructive,   12. 
OLOGK.\PHIC  WILL.     See  tits.  Holoi?rapiile  Will:  Wills. 

definition  of,  1277. 
OMISSION  ■* 

in  wills,  1340. 

1880 


INDEX. 
[References  are  to  sections.] 

OPERA-HOUSE.     See  tit.  Theater. 

damages  for  wrong-fully  excluding  from,  53. 
OPINION  EVIDENCE.     See  tit.  Wills. 
OPPRESSION 

avoids  contract,  1567-1569. 

exemplary  damages  for,  3294. 
interest  allowed  as  damages  in  case  of,  3288. 
OPTION 

as  to  delivery,  notice  to  be  given  of  election,  1756. 
as  to  place  of  performance,  1489. 
how  waived,  1756. i 

injunction  to  prevent  exercise  of,  not  granted,  3423. 
of  beneficiary,  in  breach  of  trust,  2237. 

of  owner,  on  confusion  of  goods,  to  take  value  or  thing,  1032. 
of  payee,  as  to  payment,  3090. 
of  selection  between  alternatives,  1448-1476. 
waived,  how,  1756. 
OPTIONAL  CONTRACTS.     See  tit.  Contract.s. 
ORAL  OBLIGATION.     See  tit.  Statute  of  Frauds. 
ORAL  TRANSFER.     See  tit.  Transfer. 
ORDER 

directing  sale  of  homestead,  when  made,  1254. 
permitting  sale  of  homestead  of  insane  person,  1269c. 
respecting  custody  and  support  of  children  in  divorce,  138. 
ORPHAN 

adoption   of.     See  tit.  Adoption. 
apprenticing.     See  tit.  Master  and  Apprentice. 
ORPHAN  ASYLUM 

committing  children  to,   607g. 
establishment   of  by   corporation,    595. 
OSTENSIBLE  AGENCY.     See  tit.  Agency. 

as  to,  2300. 
OSTENSIBLE  AUTHORITY.     See  tit.  Agent. 
OTHER  LIENS 

of  banker.     See  tit.  Banker. 

as  to,  3054. 
of  factor.     See  tit.  Factor. 

as  to,  3053. 
of  judgment.     See  tit.  Judgment. 

as  to,  3058. 
of  loggers,  3065. 

lien  ceases,  when,  3065. 
upon  what  lien  subsists,  3065. 
of  mechanic.     See  tit.  Mechanic's  Lien. 

as  to,  3059. 
of  officer.     See  tit.  Officer. 
as  to,  3057. 

1881 


INDEX. 
[References  are  to  sections.] 

OTHER  LIENS    (continued). 

of  person  in  charge  of  stallion,  3062. 

action  to  enforce  lien,  3064. 

claimant  must  file  verified  claim,  3063. 
of  purchaser  of  real   property,   3050. 
of  seamen.     See  tit.  Senmen. 

as  to,  3056. 
of  seller  of  personal  property.     See  tit.  Personal  Property. 

agio,   3049. 
of  seller  of  real  property.     See  tit.  Vendor's  Lien. 

as  to,  3046. 

contract  transferred,  lien  waived,  when,  3047. 

extent  of  lien,  3048. 

transfer  of  contract  waives  lien,  when,  3047. 
of  workingmen,  etc.,   3061. 

on  personal  property  for  alteration  and  repairs,  3052. 
on  personal  property  for  services  performed,   3051. 
on  ships.     See  tit.  Ships. 

as  to,  3060. 
on  threshing  machine,  etc.,  3061. 
OVER-INSURANCE.     See  tit.  Insurance. 
OWNER.     See  tit.  Sliips  anrt  Sliippin^. 
OWNERSHIP.      See  tit.  Products  of  tlie  Mind. 
accumulations.     See  tit.  Accumulations. 
alien  inheriting  must  claim  witliin  what  time,  672. 
as  to,  980. 

as   to   who   is  owner.   669. 
conditions,  707. 

precedent    or    subsequent.      See    tits.    Conditions    Precedent; 
Conditions  Subsequent. 
conditions  fixing  time  of  enjoyment,  707. 
future  interest,  when  defeated,   739. 

how  defeated,  740. 

takes  effect  on  future  happenings,   when,   742. 

when  not  defeated,  741. 
joint  interest,  what  is,   683. 
modification  of  ownership,   678. 

absolute  or  qualified,  678. 

absolute  when,    679. 
of  several  persons,   682. 

what  is,   684. 
property  of  the  state,  670. 
qvialified  ownership,   680. 

rights  of  owners.  *  See  tit.  Ri^lits  of  Owners. 
several  ownership,  what  is,  681. 
suspension  of  restricted,  770. 
termination   of,   739-749. 
who  may  own  property,  671. 

1882 


i 


INDEX. 
[References  are  to  sections.] 

(»w.m:k.ship  in  sKVKn.\i/rv 

absolute,  what  is,  fi79. 
qualified,  what  is,  680. 
what  is,  generally,  681. 
PAHEXT  AMJ  CHILD 

abandonment    of    child    by    parent,    forfeiture    of    guardiansliip 

by,   246. 
abduction  of  child,  49. 

abuse  of  child  by  parent,  remedy  for,  203. 
action  for  exclusive  control  of  children,  199. 
adoption.     See  tit.  Adoption. 

adult  children,  compensation  for  support  of,   210. 
allowance    to    parent    out    of    child's    prnpiTty    for    its    main- 
tenance, 201. 
apprenticeship  of  child.     See  tit.  Ma.ster  aiiil  AiMireiitiee. 
authority  of  parent  over  child  ceases,  wiien,  204. 
child  born  before  wedlock  becomes  legitimate,   when.  21.'). 
child's  property,  parent  cannot  control,  202. 
children,  action  for  exclusive  control  of,  199. 

born  after  dissolution  of  marriage,  194. 

support  and  maintenance  of.  See  tit.  Divorce. 
compensation  for  support  of  adult  children,  210. 
custody  of  child 

exclusive,  when  husband  or  wife  may  claim,  214. 

in  general,  194. 

of  annulled  marriage,  84. 

of  illegitimate  child.  200. 

of  legitimate  child,  197." 

relinquishment   of,   211. 

when  parents  are  living  apart,  198. 

wife  may  obtain,  when,  214. 
decree  in  action  for  exclusive  control  of  children,  199. 
domicile  of  child,  determined  by  parent,  213. 
education  of  children,  obligations  of  parents,  196. 
emancipation  of  child,  211. 

guardian   for  minor  children,  appointmriU.  effect   of,   20  1. 
guardianship.     See  tit.  Giiardiau  iiud  Wnrd. 

husband  not  bound  to  support  eliiUlren  i.>f  wife  by  former  mar- 
riage,  209. 
legitimacy  of  cliiid 

born  after  dissolution  of  marriage,  19  1. 

born  in  wedlock,   193. 

born  of  void  or  dissolved  marriage.  194. 

marriage  works,  wlien,  215. 

who  may  dispute,  195. 
legitimatized,   child   born    out   of   wedlock    is,    by    marriagre   of 
parents,  215. 

1883 


INDEX. 
[References  are  to  sections.] 

PARENT  AND  CHILD   (continued). 

liability  for  necessaries  supplied  to  child,  207. 

when  not  liable,  208. 
marriage  by  infant,  terminates  parental  authority,  204. 
neeessarieM 

furnished  by  parent,  child's  agreement  to  pay,  206. 
liability  for  supplied  to  child,  207. 
parent  not  liable  for,  when,  208. 
third  person  may  furnish  child  with,  when,  207. 
necessaries,  liability  for,  supplied  to  child,  207. 
parent  cannot  control  property  of  child,  202. 
parental  abuse,   remedies  for,  203. 
parental  authority,  ceases  when,  204. 
posthumous  children.     See  tit.  Po.«*tluimoiiN  Children. 
reciprocal  duties  of  parent  and  children   in   maintaining  each 

other,  206. 
reciprocal  duty  to  support,  206. 

relinquishment  of  custody  and  services  of  child,  211. 
remedy   where   parent   dies   without   providing   for   support   of 

child,  205. 
residence  of  minor  child,  parent  may  determine,  213. 
services  of  child,  relinquisliment  of,  211. 
stepfather,  rights  and  liabilities  as  to,  209. 
support  furnished  child,  wlien  parent  not  liable,  208. 
Niiitport  of  child 

enforced,  when,  203. 

obligations  for,  196. 

support,  obligations  of  parents,  196.  -«S 

parent  not  liable  for  of  children,  when,  208.  4 

where  parent  dies  witliout  providing  for,  205.  i 

wages  of  minor  child,  who  entitled  to,  212.  [ 

ward,  marriage  of,  effect,  20.  "j 

wife  may  obtain  custody  of  minor  children,  when,  214. 

TAKOL  CONTRACT.     See  tit.  !!»tntiite  o£  Frauds. 

PAIIOL.  EVIDENCE.     See  tit.   Evidence. 

PAROL  OHL.1GATION.     See  tit.  .Statute  of  Frauds. 

PART  PAYMENT.     See  tits.  Joint  Obligors;  Payment. 

PART  PERFORMANCE 

by  grantor,  acceptance  by  principal,  effect  of,  2822. 
effect  of,  1477. 

extinguishment  of  obligation  by,   1524. 
lien  not  extinguished  by,  when,  2912. 

makes  oral  contract  for  sale  of  land  valid,  when,  1741. 
offer  of,  effect,  1486. 

parties,   in  suit  for  duplicate  of  lost,  etc.,  certificate  of  stock. 
328. 
PARTIAL  INSANITY.     See  tit.  Wills. 

1884 


INDEX. 
[References  are  to  sections.] 

PARTITIOX 

of  easements,  807. 
PARTNERSHIP 

accounting   by   partners,   2412. 

application  of  partnersliip  property  to  payment  of  debts,  2405. 

as  to  what  constitutes,  2395. 

certificate  of  partnership,  executing-  and  filing,  2468. 

new,  to  be  filed  on  change  of  partnership,  2469. 
change  of  membership,  filing  new  certificate,  2469. 
compensation  for  services  of  partner  not  allowed,  2413. 
debts  of,  application  of  property  to,  2405. 
duration  of  partnership,  2449. 
foreign  partnership,  style  of,  2467. 
formation  of  partnership,  2397. 
general  partneriihip 

as  to  what  is,  2424. 

authority  of  individual  partner,   2429. 

general  partner  may  sue  and  be  sued,  2492. 

in  what   business  partner  may  not  engage,   2436. 

partner's  acts  in  bad  faith,  ineffectual,  when,  2431. 

power  of  majority  of  partners,  2428. 

profits  of  individual  partner  belong  to  firm,   when,  2435. 

what  authority  partner  has  not,  2430. 
good  faith  to  be  observed  between  partners,  2411. 
in  what  business  partner  may  engage,  2437. 
liability  of  partners  to  third  persons,   2442. 

for  each  other's  acts  as  agents,  2443. 

no  liability  unless  held  out  as  partner,  2445. 

of  one  held  out  as  partner,  2444. 
liquidation 

power  of  partners  after  dissolution,  2458. 

power  of  partners  in  liquidation,  2461. 

what  partners  may  do  in  liquidation,  2462. 

who  may  act  in  liquidation,  24'59. 

who  may  not  act  in  liquidation,  2460. 
losses,  division  of  implied,  when,  2404. 
mining  partnership.     See  tit.  Mining  PartnerMlilp. 
mutual  liability  of  partners  to  account,  2412. 
mutual  obligation  of  partners,  2410. 
notice  of  change  of  name,  2454. 
notice  of  termination  of  partnership,  2453. 
partial  dissolution,  2451. 

partner  entitled  to  dissolution,  when,  2452. 

partner  transacting  business  must  account  to  firm,  when,  2438. 
partner's  share  in  profits  and  losses,  2403. 
partners  trustees  for  each  other,  2410. 
profits  and  losses,  partners  share  in,  2403. 

1885 


INDEX. 
[References  are  to  sections.] 

PARTNERSHIP   (continued), 
property  of,  2401. 

partner  may  require  application   to  debts,   2405. 
partner's  interest  in,  2402. 
ship-owners  as  partners,  when,  2396. 
what  property   is  by  presumption,   2406. 
special  partnership,  2477. 

acknowledgment  and  record,  2480. 
aflfiSavit  as  to  sums  contributed,  2481. 
alteration  and  dissolution,  2509. 

dissolution  of  and  notice  required,   2509. 
name  of  special  partner  used,  when,  2510. 
new  special  partner  may  be  admitted,  how,  2508. 
special   partner  becomes  general,  when,  2507. 
certificate    to    be    publisiied,    2483. 

affidavit  of  publication  to  be  filed,  2484. 
certified  statement.  2479. 

false   statements    in    acknowledgment,    2480. 
formation   of,   2477. 
liability   of   partners,   2500. 
of    special    partner,    2501. 

of  special  partner  for  unintentional  act,  2502. 
who  may  question  existence  of  special  partnership,  2503. 
of    what    consists,    2478. 
partnership   completed,  when,   2482. 
powers,   rights,  and  duties  of  partners,   2489-2491. 
business    to    be   done,    by   whom,    2489. 
interest   to   special   partner,    2494. 
preferential    transfer    void,    2496.  -^ 

profits    of,    2494.  ' 

special  partner  may  advise,  2490. 
may    loan    money    to,    2491. 
position    in    case    of    insolvency,    2491. 
transfer    void    where    pveferential,    2496. 
withdrawal    of    capital,    2493. 
results  of,  2495. 
renewal    of,    2485. 
style    of    foreign    partnership,    2467. 
total    dissolution    of    partnership,    2450. 
use  of  fictitious  names,   2466. 
duties  of  those  using,   2466. 
what   is,   684. 

what  property   is  partnership  property  by   presumption,   2406. 
PARTNERSHIP    INTEREST 

what    is,    684. 
PARTNERSHIP  PROPERTV.     See   tit.  Partnership,  Property  of. 
PARTY    WALLS 

right  to  use  wall  as,  801. 

1886 


INDEX. 
[References  are  to  sections.] 

PASSENGERS.      See    tit.    Cominun   Carriers   of   PerHons. 

damages   for  refusal   to   carry.      See  tit.   Dainageo. 

as    to,    482. 
duty  of  carrier  to  accommodate  and  transport,   481. 
duty  of  carrier  towards,  g-enerally,   2100-2104. 
ejection   for  refusal    to  pay   fare.      See   tit.   Ejection   for   \oii- 
payinent    of   Fare. 
on    construction 'trains,    483. 
on   freig-ht   trains,    483. 
inside    room    for,    483. 
payment   of  fare.      See   tit.   Pare. 
power  of  shipmaster  over,   2038. 
printed  rules  and  regulations  governing,   484. 
refusal    to    pay    fare,    ejection,    487. 
ship,  power  of  master  over  passengers  on,  2038. 
tiel£et.s 

conditions    in   limiting   liability    of    carrier.    2176. 
good    for    six    months,    490. 
how    issued,    490. 
to   be   provided    with    seats,    2185. 
treatment  of  by  carrier  for  hire,   2103. 
PASTURE 

lien    for,    3051. 
right    to,    801,    802. 

use    of    homestead    as    for    neighbor's    stock,    effect.      See    tit. 
Homestead. 
PATENT 

effect  of  recording  without  acknowledgment,    11  GO. 
PAWN.      See    tit.    Pledse. 

PAYMENT.      See   tit.    Extinctlnn   of   Obliu^ation. 
admissions    of    party,    1473. 
agent,    to,   effect   of,   2335. 
application   of,    1479. 
by  one  of  joint  creditors.   1475. 
by   one    of   several   joint   debtors,    1474. 
defined,  1478. 

direction   of  creditor   is,   when,   1476. 
effect  on  accessory  of  obligation  of  offer  of,  1504. 
for    lionor 

how  made,  3205. 
when    made,     3203. 
indemnity    necessary    to    claim,    when.    277S. 
liquidating  debt   by,  of  less   than   due.    I.'i24. 
negotiable   instrument.      See   tit.   Nej;"Halile    lii.«<riiiiM'iit. 
made    to    whom,    3089,    3164. 
payable    to    fictitious    person,    3103. 
obligation    hoM'   oxtinguislied    by    offc^r   of.      See   tit.    rCxtiiu-iion 
of    Obligatiou. 

1S87 


INDEX. 
[References  are  to  sections.] 

PAYMENT    (continued). 

of   rent.     See   tit.   Rents,  Issues   and  Profits. 

partial  payment,  effect  of,  1477. 

payee,  option  as  to  class  of,  3090. 

surrender  of  instrument,  "when  a  condition  of,   3137. 

tender   and    deposit,    extinguish    obligation,    when,    1500. 

stops    running    of    interest,    1504. 
to  agents,   2335. 
what- is  payment,    1478. 

tender  is,  when.     See  tit.  Tender. 
PENAL   DAMAGES.      See   tit.   Damages. 
PENALTY. 

carrier's    liability    for    where    not    starting    on    schedule    time, 

2172. 
contract  with  a,   specific  enforcement,  3390. 

cruelty    to    animals    and    children    for.      See    tit.    Societies    for 
Prevention    of   Cruelty   to    Animals   and    Cliildren. 
as  to,   607e. 
damages,   penal,   3344-3348. 
injunction,     3369. 

liquidated  damages  on,  1670,  1671. 
not  to  be  specifically  enforced,  when,   3369. 
overcharging  by  street  railway,   for,   501,   504. 
penal   damages.      See   tit.    Damages. 
public  places,  denying  admission  to,  53. 
recovery,  action  by  purchase  of  franchise  for,  390. 
specific  enforcement  of  contract  with,  3390. 
specific  relief,   enforcement  by,   not  granted,   3369. 
street  railway,  for  toll-charging,  501,  505. 
ticket,   liability   for   not  furnishing,   505. 
surety   not   liable   beyond  amount   of,    2836. 
telegraph  and  telephone  property,  for  injuring,  538. 
tolls,   unauthorized,   for,   514. 
treble  rent  on  forcible  detention,  3345. 
trespass    on    wagon    road    corporation's   property,    520. 
warehousemen,  liable  for.  when,  1858f. 
PENALTY    FOR    A'V^OIDING    TOLLS 
as   to   generally,   519. 
for  trespass  on   wagon   road,   520. 
PERFORMANCE 

application    of.      See    tit.    Application. 

condition   precedent.      See   tit.   Coiiditions  Precedent. 

when    necessary    of,    1439. 
conditions    of   proposal,   acceptance    by,    1584. 
excused 

how,    1511. 
When,   1440,   1473. 

1888 


INDEX. 
[References  are  to  sections.] 

PERFORMANCE  (continued). 

holiday,    falling   on,    effect,    11. 

in   mode   directed,  as   to   sufficiency,    1476. 

joint  creditors 
by  one,  1474. 
to  one,   1475. 

made  as   directors,   sufficient,    1476. 

partial.      See    tit.    Partial    Performance. 

payment,   when  to  be  made,  1478. 

pledgee,  performance  on   demand,   3001. 

precedent   conditions.      See   tit.   Conditions   Precedent. 

prevented,  as  to  effect  of,   1512,   1515. 

refusal   of  acceptance  before  offer,  effect  of,   1515. 

surety,   compelling  by,  2846. 

time    for,    1657. 
PERILS 

in   insurance.      See   tit.   Insurance. 
as   to,   2626. 
PERILS    OF   THE    SEA.      See    tit.    Marine    Insurance. 
PERISHABLE 

as   to,    2199. 

sale   of   deposits   that  are,    1837. 
PERPETUAL    INTEREST 

What  is,   691. 
PERPETUITIES 

as   to,  715,   716. 
PERSON.      See    tit.    Evidence. 
PERSONAL    OBLIGATION 

mortgage    not,    2928. 
PERSONAL    PROPERTY 

accession   to,   as  to,    1025,  1031. 

acquisition,  different  modes  of,   1001. 

action,    thing    in,    is,    953,    954. 

agent's  authority   to   sell   includes  what,    2323. 

chattel    interest    is,    when,    765. 
defined,   953. 
transfer   and   survivorship    of,    954. 

definition    of,   663. 

dividends  made  paj^able   to   married   woman,    325. 

estate  at   will,   is,   765. 

estate   in,  as   to,   702. 

gifts.     See   tit.   Gifts. 

good  will  is.     See  tit.  Good  Will. 

includes    what,     14. 

interest    in.      See    tit.    Property. 
as  to,  generally,  702. 
how   protected,    947. 
Kerr's  C.  C— 60  1889 


INDEX. 

[References  are  to  sections.] 

PERSONAL  PROPERTY   (continued), 
inventions   are,    980-985. 
kinds    of   personal    property,    953. 
law   governing,    946. 
letters,  personal,  are,   980,   985. 
lien  of  one  who  makes,  alters,   etc.,   3052. 

of    vendor    of,    3051. 
limitation  of  actions  as  to.     See  tit.  Statute  o£  Limitations. 

as  to,  1007. 
minor,  contract  of  respecting,  of  which  he  has  not  possession, 

33. 
occupancy  of  by   title,   1006. 
ownership   of.      See   tit.    O^-nerslilp. 
private  letters  and  writings,  to  whom  belong,  985. 
productions  of  the  mind  are,  980,  984. 

recovery   of.      See   tits.    Claim   and  Delivery;   Replevin. 
survivorship,  succession  to,  954. 
thing  in  action  is,  953,  954. 
title  deeds  are,  994. 
tort,  goods,  right  of  action,  954. 
transfer  of 

liuypr  acquires  better  title  than  seller,  as  when,  1142. 
by   sale,   1136. 
mode   of,    1135. 
must  be  in  writing,  1135. 
trade-mark    is.      See   tit.   Trade->Iark. 
transfer  of  title  under  sale,   1140. 
what    Is,    663. 

what    operate   as   transfer,    1136. 
writings,  private,  belong  to  whom,   980,  985. 
PERSOIVAL  REL.ATI01VS 

protection   of,    49. 
PERSOXAIi    SERVICE.      See    tits.    Agents;    Employer    and    Em- 
ployee;   >Jaster    and    Servant. 
must  be  performed  by  joint  obligors,   1475. 
PERSON    OF   UNSOUND   MIND.      See   tit.    Coitraet   by   Person  of 
Unsound    Mind. 
contract  by  persons  without  understanding,  39-42. 
powers  of  persons  whose  incapacity  has  been  adjudged,  40. 
PEW 

is  a  servitude,   801,   802. 
PHRASE 

construction    of,    13. 
PILOT.     See  tit.   Sliip.s  and  Shipping. 

PIER.     See   tit.   Uridge.s,  Ferry,  Wharf,  Chute,  and   Pier  Corpo- 
rations. 

1890 


INDEX. 
[References  are  to  sections.] 

PIONEER    SOCIETY 

land   that   may    be   held   by,    596. 
PLACE   OF   BUSINESS 

change  of   by  corporation,   321a. 
procedure  on  change  of  location,  321a. 
resolution    of    change,    321a. 
PLACER   CLAIMS.      See   tit.    Mines. 
location    of,    1426c. 
record    of   location    of,    1426d. 
PLAT.      See    tits.    Instrument    in    Writing;    Map. 
PLEADING    AND    PRACTICE.      See    tit.    Libel. 
PLEDGE 

apparent  owner  by  one  who  is,  2991. 

contract  is  to  be  deemed  a  pledge,  when,  2987. 

definition   of,   2986. 

delivery  essential  to  validity,  2988. 

debtor,   misrepresentation   as   to   value   of  thing  pledged.    2999. 

demand,  waiver  of,  3004. 

factor,    may    not,    2368. 

foreclosure   of  right  to   redeem,   3011. 

further  pledge,   2999. 

gratuitoiis    pledge-holder,    2998. 

as   to   liability,   generally,   2998. 

exonerated,   how,   2995. 
in  case  of  thing  pledged,  effect  of,   2990. 
increase  of  thing  pledged,  ownership  of,   2989. 
lien,  acceptance  of  possession   of  thing,   2991. 
lienor  may  pledge  property,  to  what  extent,  2990. 
misrepresentation   by  debtor  of  value   of  thing  pledged,   2999. 
must   enforce   rights   of  pledgee,    2996. 

obligation    of    for    reward,    2997. 
negotiable    instrument,    pledge-holder    not    exonerated,    when, 

2995. 
notice  of  sale  to   pledgeor,   3002. 

waiver  of  notice,   3003. 
obligation   of  pledgee  and  pledge-holder  for   rownr.l.    'JOOT. 
owner   cannot  defeat   pledge,  when,   2991. 
pledge-liolder 

as  to   who   is,    2993. 

gratuitous,    2998. 

must   enforce   pledgee's   right,   when,    2996.    2997. 

obligations   of,    2995. 
pledge-lender,    what    is,    2992. 

when  may  withdraw  property,  2994. 
pledgee 

may  foreclose,  right  of  redemption,  3011. 

may  purchase,  when,  3010. 

1891 


INDEX. 
[References  are  to  sections.] 

PLEDGE 

pledgee    (continued), 
may  sell,  when,  3000. 

must   demand   performance,    when,    3001. 
obligations    of,    for   reward,    2997. 
sale    of   securities   by,    3006. 
real    owner,    pledge    by    apparent    owner    cannot    be    defeated 

by,   2991. 
sale 

auction   at,    3005. 

before   claim    is   due,    3009. 

demand,   prior,    necessary,   3001. 

must    be    by    auction,    3005. 

notice  of  must  be  given  to  pledgeor,  3002. 

of  securities  by  pledgee,  3006. 

on   demand   of  pledgeor,   3007. 

pledgee  may  purchase,  3010. 

may  retain  proceeds,  when,  3009. 
surplus  payable  to  pledgeor,  3008. 
waiver    of    demand,     3004. 

of    notice,    3003. 
when  pledgee  may  have,  3000. 
surplus  to  be  paid  to  pledgeor,  3008. 
transfer  is,  when,  and  when  a  mortgage,  2924. 
\Ysii\er 

of  demand,   3004. 
of   notice   of   sale,    3003. 
when    pledgee    may    sell,    3000. 
when   pledgee  must   demand   performance,    3001. 
PLEDGEE.      See   tit.   Pledge. 
PLURAL 

includes  singular,  14. 
POLICE 

members    and    officers    of    society    for    prevention    of    cruelty, 

etc.,   to  act  as,   607f. 
to  aid  societies  for  prevention   of  cruelty,  etc.,   607c. 
POLICE    COURTS 

appeal    from,    undertaking    on,    978a. 
POLICY 

acts  avoiding  policy,    2610. 

policy  may  provide  for  avoidance,  2611. 
agreement   not   to   transfer,    2599. 
breach    witliout    fraud,    2612. 
definition    of,    2586. 
effect   of    receipt,   2598. 
evideuee  of 

policy  inay  provide  for,    2611. 
what   acts    avoid,    2610. 

1892 


INDEX. 
[References  are  to  sections.] 

POLICY    (continued). 

general    terms    of,    2591. 
insurance  by  agent  or  trustee,  2589. 
insurance   by  part   owner,    2590. 
open  and  valued  policy,   2594. 

open    policy,    what    is,    2595. 

valued  policy,  what  is,   2596. 
receipt,  effect  of,   2598. 
running   policy,   what   is,    2597. 
successive   owners,    2592. 
transfer,    agreement    not    to,    2599. 
transfer  of  thing  insured,   2593. 
warranties,   2603. 

express  or  implied,   2603. 

future,   as   to,    2608. 

must    be    in    policy,    2605. 

no   particular   word   necessary,    2604. 

past  or  present,  as   to,   2606. 

performance  excused,  when,  2609. 
what  must  be  specified  in,  2587. 
whose   interest  is   covered,    2588. 
POLICY   OF   INSURANCE,      See    tit.    Iiisiiranoe. 
POS.SESSION.      See    tits.    Constructive   Notioe:   Notice. 
adverse    owner,    transfer   by,    1047. 
banker's  lien,  is  dependent  on,   3054. 
bottomry   lien,    independent   of,    3027. 
covenant  as  to,   implied  in  letting,   1927,    1950. 
damages  for  unlawful,  as  to,  3334. 
factor's  lien,  dependent  upon,    3053. 
gift,    of    necessarj-,    1147. 
lease,   renewal    of    by    continued,    1945. 
legacies   as   to   obtaining,    1363. 
lien  for  service,  dependent  upon,  3051. 

of  purchaser,  is  independent  of,  3051. 

of  vendor,   is  dependent  on,   3049. 
niort^agrec 

not   entitled   to    usually,    2927. 

when   entitled  to   personal  property,    2906. 
officer's  lien   is  dependent  on,   3057. 
pledge.      See    tit.    Pledge. 

not  necessary  there  should  be  change  of,   2988. 
proceedings   to   secure,    792. 
seamen,   lien    of    independent   of,   3056. 
shipmaster,   lien    of   independent  of,    3055. 
summary    proceedings    to    obtain,    792. 
transfer  as  security,  deemed  a  pledge,  when,  2987. 
vendor's   lien,   independent  of,    3046. 

1893 


INDEX. 
[References  are  to  sections.] 

POSSIBLE 

contract  must  be,   1596. 

■what  is  deemed  to  be,   1596. 
POSSIBILITY 

as  to   transfer   of,    1045. 
POSTHUMOUS   CHILD.     See  tit.   Unborn   Child. 

as  to,  698. 

birtli   of,   future  interests   defeated  by,   when,    739. 

deemed  living-  at  time  of  death  of  parent,   1403. 

entitled    to    take,    when,    698. 

property    rights    of,    698,    739. 

succession  by,   698,   1403. 

unprovided   for   to    succeed,    1306. 
POWEIt 

delegation    of   by   minor,    33. 

execution   of,   860. 
POWER    OF    APPOINTMENT 

effect  of  on  future  estate,   781. 

execution   of   instruments   under,    1095. 

knowledge   of   by  married   woman,    1094. 
POWER    OF   ATTORNEY 

of    married    woman.      See    tit.    Power   of    Attorney    of    Married 
Woman. 

revocation    of,    1216. 

to  convey  realty,   1094,    1096. 

to   execute   mortgage,    2935. 

to    gratuitous    employee,    1094. 
POWER   OF  ATTORNEY   OF  MARRIED  WOMAN 

acknowledged,  how,   1094. 

as  to,  1094. 

husband  may   be  attorney   in  fact,   1094. 
POWER    OF    SAI^ 

when    mortgag-ed,    2932. 
POWER   TO    DEVISE.      See    tit.    Wills. 

how  executed  by  terms  of  will,   1330. 
POWERS.      See    tit.    Corporations. 

of    co-operative    agrictiltural,    etc.,    associations.      See    tit.    Co- 
operative Agricultural,  etc.,  Association. 

of  co-operative  corporations,   653x. 
PRECATORY   TRUSTS.      See   tits.    Trusts;    Wills. 
PRECATORY    WORDS.      See    tit.    Wills. 
PREFERENCE.     See  tit.   Debtor  and  Creditor. 

in   assignment  for  benefit   of  creditors,   3451-3457. 

of    creditors    in    general,    3432. 
of  messages,   2209. 

payment    in,    3432. 
PREMIUM.     See   tits.   Homestead  Corporations;   Insurance. 

1894 


I 


INDEX. 
[References  are  to  sections.] 

PRESCRIPTION 

adverse   possession.      See    tit.    Adverse   PossesHlon. 
as  to  islands,  1016. 
as   to   title   by,    1007. 
PRESENT    INTEREST 

what    is,    689. 
PRESIDING   ELDER.      See    tit.    Religrlons    Corporations. 

as    to    generally,    602. 
title    acquired    by,    1001,    1007. 
PRESUMPTION 

as   to   adequacy  of  damages  as   relief  for  breach   of   contract 

to   convey,    3387. 
as  to   bill   dishonored,    3135. 

as  to  extinction   of  contract  from   cancellation,   1699. 
child,   relinquishment  of  control   over,   211. 
collision,   on  violation   of  rules  of  navigation,  970. 
community  property,  164. 

consideration    for  negotiable   instrument.     See   tit.   Negotiable 
Instrnnient.s. 

as  to,    3104. 

in     written     instrument,     1614. 
contract,    uncertainty    of,    1649,    1654. 
conversion,  damages  for,   3336. 
creditor,   retaining  part  performance,   1477. 
damages 

adequacy  of  relief  by,  2933. 

for  conversion,  3336. 
date  of  delivery.     See  tit.  Date. 
depositary,  as  to  fault  of,  1836. 
divorce.      See    tit.    Divorce. 

as  to   residence,    129. 

from   lapse   of   time,    125,    126. 
fee   simple,   as   to   passing   of,    1105. 
fraud   repels  all,   3441. 
gift  causa  mortis,   in   a,   1150. 
grant,   as   to   the   time   of   delivery,    105G. 
hiring,  as  to.      Sec  tits.  Hiring:;   Hiring:  of  I'or.soiml:    Ilirlim   *>t 

Real   Property. 
in  certain  cases  in  action  for  divorce,  125. 
in    joint    obligations,    1422. 
insurance.      See    tit.    Insurance. 

as  to  knowledge  of  prior  loss,  2671. 

as  to  representations,  2574. 
lease 

as   to   renewal   of,    1945. 

as   to   term    of,    1943. 
legitimacj^   of  child,   as   to,    193. 

1895 


INDEX. 
[References  are  to  sections.] 

PRESUMPTION   (continued). 

obligation  being  joint,  as  to,  1430. 

on  certificate  of  s}iipmaster  favor  of  seamen,   2059. 

origin  of  ambiguity  in  contract,  as  to,  1649,  1654. 

partnership   property,  as   to,    2406. 

real  property,  as  to  term  for  whicli  hired,  1943. 

rebuttal   of,    126. 

reforniation   of  contract,  in,  3400. 

servant,  as  to  term   of  hiring,  2010,  2011. 

ship 

as  to  actual   loss  of,   2706. 

as  to  managing  owner's  compensation.  2072. 

transfer  without  delivery   of  personal   property,   as   to  fraud- 
ulency,   3440. 

undue   influeiice 

as   to   of   husband.      See    tit.   Husband  and   W'Ife. 
as   to   of   trustee,    2235. 
PREVEXTION 

by   in  junction.      See   tit.   Injunction. 

of  performance,  as   to   effect   of,    1511-1515. 

of  reducing  contract  to  writing,   enforcement,   1623. 

preventive   relief,  as  to   when  granted,   3274,    3366. 
PREVENTIVE   KEI^IEF.      See   tit.   Injunction. 

as    to    generally,    3420-3423. 

how  given,  3366. 

how    granted,    3420. 

not   allowed   to   enforce   penalty,    3369. 
PRICE.      See   tit.    Sale. 
PRIEST.      See  tit.    Religious   Corporation. 

as  to,   602. 
PRINCIPAL 

bound   by   instrument   intended   to    bind   him,   when,    2337. 

for  acts  done  under  merely  ostensible  authority,   2334. 

how    affected    by    acts    of    agent    within    scope    of    authority, 
2330. 

liability.      See   Responsibility,   this   tit. 

where  exclusive  credit  given  to  agent,  2335,   2336. 

notice   to   agent   is   notice   to,   when,    2332. 

obligation  where  agent  exceeds  authority,   2333. 

responsibility  for  negligence  or  omission  of  agent,  2338. 
for  wrongs  wilfully  committed  by  agent,  2339. 

when  bond  by  incomplete  execution  of  authority,  2331. 

When   notice   to   agent   is  notice   to,    2332. 
PRINCIPAL,  AND  AGENT.     See  tits.   Agent;  Principal. 
PRINTING 

the  word   "writing"  includes,   14. 
PRIOR  GRANT.     See  tit.  Appropriation. 

1896 


INDEX. 
[References  are  to  sections.] 

PRIORITY 

of    bottomry    liens,    3028. 

of   different   employments,   1988. 

of  liens 

according-  to  their  date,  2897. 

upon   sing-Ie  and  several  funds,  as  to,   2899. 

of  mortgage  for  purchase  price  of  land,   2898. 

of  record,  priority  as  to  right,   1214. 

of  surety's  property  over  principal's,  2850. 
PRIVILEGED  CO>I3irxiCATION.     See   tits.  Privileged   l^iihliin- 
tion;    Slander. 

enumeration   of,    47. 
PRIVILEGED    PUBLICATION.      See    tit.    Lll.ol. 

as  to  what  is,  47. 
PROBATE.      See    tit.    Will. 
PROCESS 

on    foreign    corporation,    service    of,    404. 

property   in,  980-985. 
PRODUCTS 

of  thing  hired,   1926. 
PRODUCTS    OP    THE    3IIXD 

effect  of  publication   of,    983. 

how  far  subject  to   ownership,   980. 

joint    authorship,    981. 

subsequent  authorship  or  invention,  984. 

transfer   of,    982. 
PROFESSIONAL   MEN.      See   tit.    Libel. 
PROFILE  AND   MAP  OF  RAlLltOAD.     See   lit.   Map. 
PROFITS.      See    tit.    Marine    In.siirance. 

insurable    interest    in,    2664. 
PROFITS   AND   LOSSES.      See   tit.   Part ner.Hliip. 

partner's    sliare    in,    2403. 
PROMISE  TO   MARRY,  CONTR.VCT,  BREACH   OP 

lireach    of,   damages  for,    3319. 
PROMISSORY  NOTE.     See   tit.   Negotial>Ie   In.strumentH. 

bill  of  exchange  converted   into,  when,  3246. 

certain  instruments  promissory  notes,  3245. 

certain  sections  of  code  applicable  to,  3247. 

definition    of,    3244. 

delay  in  presentment,  effect  of.  3248. 

effect  of  delay  in  presentment.  3248. 
PROMOTER.     See   tit.   Corporations. 
PROOF   OF   EXECUTION 

certificate  of  officer  must  show,   what,  1200. 

evidence   of   handwriting  must  prove,   what,    1199. 

handwriting   may   be   proved,    when,    1198. 

how   instrument   improperly   certified   may  be   corrected,    1202. 

1897 


INDEX. 
[References  are  to  sections.] 

PROOF   OF   EXECUTION    (continued), 
judgment   proving   instrument,    1203. 

effect   of,    1204. 
subscribing    witness    must    be    personally    known    to    officers, 

1196. 
when    instrument    not    acknowledged,    how    made,    1196. 
•  witness  must  prove,  what  1197. 
PROOF   OF   IXSTRUMENT.     See   tit.   Ackoowledgments. 
PROPELLING   POWER 

of  street  railroads,  497,  510. 
PROPERTY 

absolute  ownership  of,  679. 
accession   to.      See   tit.   Accession. 
accumulation    of,   724-726. 
acquisition   of,   modes   of,   1001. 
alien's  right  to  take.     See   tit.   Aliens. 
alienation   of.     See  tit.   Alienation. 

restraints  on,  void,  711. 
alimony,  liability  for,  141. 
alternative    future    interests,    696. 
appurtenances.      See    tit.    Appurtenances. 
as  to  what  is,   654. 
chattel   interests,    what  are,    765. 
classes   of,   657. 
common 

definition   of,  685. 
interests *in,    682. 
what  interests  are,  686. 
community.      See  tit.   Community  Property. 

conditions.     See  tits.  Conditions  Concurrent;  Conditions  Prece- 
dent;   Conditions    Sulisequent. 
confusion  of  goods,  as  to  effect  of,   1025,  1030. 
contingent   interest   in,  what  is,  695. 
corporation,  as  to  right  of  to  acquire,  360. 
definition  of,  14,   654. 

division  of  by  husband  and  wife  on  separation.     See  tit.  Hus- 
band  and   ^Vife. 
divorce.     See  tit.  Divorce. 

disposition    of    property,    146,    147. 
enjoyment,  as  to  fixing  time  of,  707. 
entireties,   tenants   by,   husband   and   wife   are,   683. 
fixtures.      See   tit.   Fixtures. 

found  property,  claimant  of  must  prove  title,  1871. 
future   estates   in,    quality    of,    699. 
future   interests    in 
defeated   how,   740. 
defined,    690. 

1898 


INDEX. 

[References  are  to  sections.] 

PROPERTY 

future  interest.s  in   (continued). 
in   the  alternative,   696. 

not  void,   when,   697. 

two  or  more,  696. 

vested  or  contingent,  693. 

what  recognized  as,  703. 
g-oo^   will.     See   tit.   Good  Will. 
holding   by   co-operative   corporations,    653x. 
husband 

debts  of,   not  liable  for,  171. 

property  of,  not  liable  for  wife's  debts,   170. 

support  of,  when  liable  for,   170. 
husband    and    wife.      See    tit.    Husband   and   Wife, 
income 

as   to  accumulation   of,    722-733. 

defined,    748. 
increase  of,  as  to  ownership,  732. 
interest,   as    to    time    of    creating,    688-742. 
inventions,  as  to  right  in,  980,  984. 
in  what  property  may  exist,  655. 
islands,   as  to  ownership  of,   1016. 
joint    interest    in 

as   to,   683. 

defined,    683. 
kinds    of   property,    657. 
land.      See    tit.    Land. 

letters,    private,    to    whom    belong,    985. 
limited    interest,    what   is,    692. 
modes    of    acquisition,    1000. 

by  accession,   1000.     See  tit.   Aeees.sion. 

by  exercise  of  the  power  of  eminent   domain,   1001. 

by  occupation,    1000.      See    tit.    Occupancy. 

by  prescription,  1007.     See  tit.  Prescription. 

by  succession,    1000.      See    tit.    Succession. 

by  transfer,  1000.     See  tit.  Transfer. 

by  will,    1000.      See    tit.    Will. 
occupancy,   as  to  title  by,    1006. 
owner,   all   property   has,   669. 
oirnershlp 

absolute  or  qualified,  678. 

absolute,    when,    679. 

classes    of,    682. 

definition  of,  654. 

of  interest,  as  to  time  of  creation,   688. 

several   interest,   what   is,    681. 

termination  of,  739-742. 

time    of    creating,    749. 

1899 


INDEX. 
[References  are  to  sections.] 

PROPERTY    (continued). 

parent's   support,    when   liable   for,    201. 

partnership   interest  in,   what   is,   684. 

perpetual    interest    in,    what    is,    691. 

personal   property.      See   tit.   Per.sonal   Property. 

posthumous   children.      See    tit.    Postliiinious   Children, 

right'  in    property,    698. 
prescription,   title   by,   1007. 
present  interest  in,   what  is,   689. 
private  writings,  as  to  ownership  of,  985. 
products  of  the  mind,  ownership  of,   980-985. 
purchase    of    by    co-operative    agricultural,    etc.,    associations, 

653q. 
qiialifled 

interest,   as   to,    678. 

ownership,   as  to,   680. 
real  property.      See  tit.   Real   Property. 
right   arising    out    of    obligation,    is    property,    1458. 
separate.      See    tit.    Separate   Property. 

of   spouses,    162,   163. 
several    ownership    of 

as  to,   681. 

definition    of,    681. 

kinds   of,   682. 
state        *■ 

owns,   what,  670. 

right  to  hold  as  private  proprietor,    669. 
termination 

of    ownership    of,    739-742. 

of  tenancy  at  will,  notice  necessary,   789,   790, 
time 

interest  as  to,  688. 

of    creating    ownership    of,    749. 
title  deeds,   as  to,   994. 
trade-mark.      See   tit.   Trade-Mark. 
vested   future    interest,   what   is,    694. 
what  may  exist  in,  as  to,  655. 
who   may   own,    671. 
wife,  right  to  dispose  of,  162. 
writings,  private,  as  to  propertj^  in,  980-985. 
PROPERTY  RIGHTS.      See   tit.  Husband  and  Wife. 
PROPOSAL.      See    tit.    Contract. 
acceptance.      See    tit.    Acceptance. 

by    performance    of    conditions,    1584. 
communication    deemed    coinpleted,    when,    1583. 
communication   of  acceptance,    1582, 

1900 


4 


INDEX. 
[References  are  to  sections.] 

PROPOSAIi    (continiud). 

notice  of  acceptance,  an  to  necessity 
revocation   of,    1586. 
liow   made,    1587. 

qualified  acceptance  of,  1585. 

to  contract,   acceptance,   effect   of,    1582,   1585. 

what   amounts    to   an    acceptance,    1582. 
PROTECTION 

against   restraint  and   injury,    43. 

of  personal   relations.     See   tit.  Personnl    l{cl:itioiis. 
as    to    generally,     49. 

right  to  use  force  for,   50. 
PROTEST.     See  tits.   Bills;  NeRotiable   Instrnments. 
PltOVLSIOXS 

for  domestic  use,  implied  warranty  in  sale  of,   1775. 
PROVISIONS    SIMILAR    TO    EXISTING    LAWS 

how  construed,   5. 
PROXY 

as    to,    321b. 

essential    to    validity    of,    3211). 

maximum    period    of,    321b. 

of   a   married    woman,    321b. 
•     revocability   of.    321b. 

void.    when.    321b. 

voting  by 

as  to  generally,   212. 

in    co-operative    agricultural,    etc.,   associations,    653p. 
PFDMC 

contracts,   interpretation   of,   against    private  party,    1069,   1652. 

deceit   upon,  as   to,    1711. 

grant.   Interpretation   of,   against   grantee,   1069. 

nuisance.      Sec    tit.    Nuisance. 
PrnLIC    ACCOM MOIJATIOX 

rights   of   citizens    in    places   of,   .'il. 
PI  ni.IC   AMi;SEME\T 

rights  of  citizens  in   places  of.   5.1. 
PI  BMC   AUCTION 

in  default  of  bidder  corporation   may  be  piinlias.  r.   ^' '  ■  "     " '- ■ 

sale  at,  highest   l>idder  entitled  to  purchase.  342. 
IM  BMC    HIGHWAYS 

lioundary   by.   what   passes.    1112. 
I'lBLIC    PL.tCES 

as    to   rights    of   citizens    in.    53. 
PUBLICATION 

assessment    notice,    as    to,    335. 
delinquent  notice  of,  339. 

1901 


INDEX. 
[References  are  to  sections.] 

PUBLICATION   (continued). 

of  products  of  the  mind,  effect  on   ownership,    983. 

partners,   names   of,    2466. 

partnership 

of  certificate    of    special,    2482. 
of  c-ljange    of    name,    2469. 
of    notice    of    dissolution,    24.53. 
privilege,  definition  of,   47. 
productions  of  the  mind,  as  to,  980,  984. 
proof    on    sale    of    corporated    stock,    348. 
special    partnership 
of    affidavit    of,    2484. 
of  notice  of  dissolution  of,  2509. 
"PUPFING"   AT   AUCTION 

as  to,   1797. 
PUNITIVE    DAMAGES.      See    tit.    Damages. 
PURCHASE    MONEY 
lien    for,     3046. 

mortg-ag-e    for,    priority,    2898. 
PURCHASER.      See   tit.    U.ses    and   Trusts. 
for  value  and  without  notice,  when,   856. 
notice.      See  tits.   Notice;  Actual  anil   Constructive. 
of    property    by    co-operative    agricultural,    etc.,    associations^ 
»-653ci. 
QUALIFICATIONS 

of    members    of    co-operative    agricultural,    etc.,    associations, 
653p. 
QUALIFIED    OAVNERSHIP 

What   is,   680. 
QUALITY 

as  to   in   general,    1773. 

damages   for   breach    of   warranty    of,    3313. 

of    domestic   provisions,    1776. 

provisions,    1776. 

warranty    of 

by   manufacturer,   1768,    1769. 
of  goods   sold  by  sample,   1776. 
on   executory   sale,    1777. 
QUANTITY 

warranty   of,   implied,   1773. 
QUIET    ENJOYMENT 

as  to  covenant  for.      See  tit.   Covenants. 

as  to  generally,   1463. 
implied   in   hiring,  when.      See   tit.   Hiring:. 
in    executory    contract    of    sale,    1733. 
QUO    WARRANTO.  •    See    tits.    Co-operative    Business    Associa- 
tions; Corporations. 

1902 


INDEX. 
[Referenci'S  are  to  sections.] 

QUO  WARRANTO    (continued), 
as   to  generally,    358. 

against   co-operative   business  association,    54. 
in    relation     to    co-operative    agricultural,    etc.,    associations, 

653s. 
in   relation   to   co-operative   corporations,   653z. 
proceedings    thereon    and    respecting   corporations,    315. 
KACECOIKSE 

rigJit  to  admission  to,  damages  for  refusal,  54. 
KAIL 

quality   to  be  used   by  railroad,  491. 
KAII.HOAD    COIMIS.SIONERS  "~ 

to  establish   rates  and   charges,   489. 
HAILROAD    CORPORATIOXS 

accommodations    to    be    sufficient,    481. 

acquisition  of  other  lands  at  crossings.  472. 

alleys,  streets,  or  water  of  city  may  be  used,   when,  472. 

amount  of  bonds  or  promissory  notes  to  be   issued,   45G. 

annual    report   to   be   verified,   480. 

form   of  report,   480. 
assessment   and   transfer   of   stofk,    4.'.".. 
baggage   to  be  checked,    479. 

damages   for   failure,    479. 
bonds,  sinking  fund  to  pay,  457. 
business,  how  conducted,   479. 
capital   stock   to  be  fixed,   458. 

certificate    of   payment    of   capital    stock,    l.'.O. 
certificate  of  payment  of  fixed  capital   stuck,  459. 
checks  to  be   fixed   to  baggage.   479. 

damages  for  failure  to  so  affix,   479. 
condemnation.    46S. 

consolidation    witli   otiier    r.illroad   corporation;-.    ■  . ... 
articles   of    Incorporation    .and   consolidation,    473. 
proceedings    neces.sary    thereto,    473. 
articles   must    be   filed,    where,    473. 
memorandum   of   ratification,   473. 
method  of  signing  articles,  473. 
subrogation    of   new   corporation.    473. 
crossing    through    railroads    or    highways,    acquisition    of   ad- 
ditional   lands,    472. 
crossings    and    Intersections.    469. 
damages,  not   liable   for  any  certain   cases,  48S. 

not  liabli-  for  killing  stock,  wb">n.  485. 
dauutges  recov.-rable  by  foinpnny.  wIu'D.   l.S.l. 
damages    resulting    from    violation    «f    nibn.    4S4. 
directors  to  be  elected,   when,  464. 
duties  of  corporations,    481. 

1903 


INDEX. 
[References  are  to  sections.] 

RAILROAD    CORPORATIONS    (continued), 
earth  may  be  taken  from  state  lands,  476. 
ejectment.     See  tit.  Ejection  of  Passengers. 

elevated     or    underground     railroads,     franchise     granted     by 
whom,  492. 

petition,   by   whom   signed,    492. 
enumerated  powers,  465. 

grant   not  to   embrace   town   lots,    475. 

to  accept  real   estate,    465. 

to  acquire    real    estate,    465. 

to  carry  persons  and  freight,   465. 

to  consolidate    with    other    roads,    473. 

to  cross,  intersect,  etc.,  other  railroads,   465. 

to  enter  upon  lands  to  select  and  survey  route,  465. 

to  erect    buildings,    465. 

to  establish   rules   for  management   of  business,   465. 

to  lay  out  roads  and  width  of,  465. 

to  lease  or  use  another  road  in  common,  473a. 

to  purchase  lands,  timber,  stone,   etc.,   465. 

to  purchase  other  roads  not  in   competition,   465. 

to  regulate  time  and  tolls,  subject  to  legislation,  465. 

to  select  and  survey  route,  465. 

to  take  grant  of  state   lands,   474. 

to  take  wood,  stone,  and  earth  from  state  lands,  476. 

where   may   construct   road,    465. 
forfeiture   of   franchise,    as   to,    468. 

by   failure  to  operate,   468. 

exception,   468. 
franchise,  forfeiture  of  by   failure  to  operate,   468. 
highways,  crossing  of,  acquiring  additional  lands,   472. 
interest,   limitation  upon  amount   of,  456. 
lands  of  to  revert  to  state,  when,  477. 
leasing  and  using  another   road   in   common,   473a. 
map  and  profile  to  be  filed,  466. 

must  be   certified,   466. 
may    borrow    money,    456. 
may  change  line   of  road,   467. 

how  new   location   to  be   run,    467. 
may   issue   bonds,    456. 
may  sell   property  and  franchises  to   other  railroads,   494. 

competing  roads   shall   not   be   purchased,   494. 

debts   incurred,    not   relieved   from,    494. 

fares  and  tolls  shall  not  be  increased,  494. 

penalty   for  violation,   duty   of   attorney-general,    494. 

terms  and  conditions  of  sale,  494. 
motive  power,  what  may  be  used,  465a. 
new  location  of  road,  how  to  be  run,  467. 

1904 


INDEX. 
[References  are  to  sections.] 

RAILROAD    CORPORATIONS    (continued). 
officers   of,    454. 

to  wear  badges,   488. 
passenger  refusing  to  pay  fare   or  surrender  ticket.     See   tit. 
E}jeotion    of   I'a.sMengrerw. 

damages   for   refusal    to    carry,   482. 
penalty  for  failure  to  provide  tickets,  490. 
printed   regulations  must  be   posted,    484. 
profile  and  map  to  be   filed,   466. 

must  be  certified,  466. 
rail,  quality  to  be  used,   491. 

railroads,   crossing    of,   acquiring   additional    lands,    472. 
rate  of  charges  established  by  railroad  commissioners,   489. 

copies  of  rates  to  be  posted,  where  and  by  whom,  489. 

further   publication    to    be    made    by    the    board    of    railroad 
commissioners,  489. 

notice  of  to  be  served,  489. 
regulations  of  trains,  486. 

action    to   be   prosecuted   by   district   attorney,    486. 

bell    to   be   rung,    486. 

liability   In  damages  for  failure  to  observe  statute.  486. 

penalty  for  neglect  to  ring  bell  or  blow  whistle,  486. 

whistle  to  be  blown,   when,  486. 
room  Inside  passenger  cars  to  be  furnished,  483. 
selection   of  state  lands,   how  proved  and  certified  to,   478. 
sinking  fund  to  pay  bonds,   457. 
state   lands  may   be  granted  for  use  of  corporation,   474. 

grant  not  to  eml)race  town   lots,  475. 

selections  of,  how  may  be  proved  and  certified,   478. 
stone  may  be  taken  from  state  lands,  476. 
street   railroads.      See    tit.    .Street    KnIIronilN. 
subrogation   of  new   corporation   on   consolidation.   473. 
ticket 

entitles  purchaser  to  what.   490. 

penalty  for  failure  to  provide,  490. 
time  of  running  to  ho  fixed  by  public  notice,  481. 
transfer   of   stock.    45.'>. 

not    valid    except.    455. 
using  another   road   In   common,    473a. 

wood,  .stone,  and  earth   may   be  taken  frnm  state  lands,   476. 
K.\II.RO.%n   KE\fB.      See    tit.   FonceM. 
HATIKK  ATIOX 

of   agent's   act,    2310-2316. 
u(  eon t root 

void  for  want  of  consent,   1588. 

voidable.    1588.   2310. 
partial,   becomes   total    when,   2311. 

1905 


INDEX. 
[References  are  to  sections.] 

RATIFICATION    (continued). 

prejudice  of  third  person,  not  allowed,  2313. 
rescission   of,   2314. 
void  when,    2312. 
REAL   PROPERTY 

action   for  possession   of,   3375. 

agent's  autliority  to   sell  includes,   what,  2324. 

boundaries 

as   to,   generally,    830. 

by  waters,   830. 

by  ways,   831. 

right  to   surface   and   things  above  and   beneath,    829. 
effect   of  transfer 

conveyance  by  owner  for  life  or  for  years,  1108. 

easements.      See    tit.    Easements. 

fee  simple  title  passes,  when,  1105. 

grant,  how  far  conclusive  on  purchaser,   1107. 

grant    made    on    condition    subsequent.      See    tit.    Condition.s 
Subsequent. 
as  to,   generally,    1109. 

grant  of  rents,  reversions,  and  remainders,   1111. 

grant    on    condition.      See    tit.    Conditions. 
when    absolute,    1110. 

implied   covenants.      See   tit.   Implied  Covenants. 
a^   to,   generally,    1113. 

lineal   and   collateral    warranties  abolished,   1115. 

subsequently-acquired    title   passes,    when,    by    operation    of 
law,  1106. 

ways.     See   tits.   Public  Higbways;   Ways. 

what   easements   pass   with    property,    1104. 
easements.      See   tit.   Easements   and  Servitudes. 
ejectment.       See    tit.     Ejectment. 
estates  in.     See  tit.  Estates  in  Real  Property. 

as  to  generally,   818. 
general  provisions  as  to,   755. 
how  governed,   755. 
kinds    or    classes    of,    658. 
land.     See  tit.  Land. 

lateral  and  subjacent  support.     See  tit.  Lateral  Support. 
lime-trees,    834. 
obligations  of  o«-ners 

as    to,    generally,    840. 

ditches,    flumes,    etc.,    liability   as    to,    842. 
neglect  to  pay  expenses,   843. 

duty   of  tenant  for  life,   840. 

monuments   and   fences,    841. 
ownership.      See    tit.    Ownership. 

1906 


INDEX. 
[References  are  to  sections.] 

REAL,  PROPERTY   (continued). 
poiver.  Title  V,  following  §  871. 
execution   of,   860. 
of  appointment,  effect  of,  781. 
rights  and  obligations  of  owners 
as    to,    generally,    818-843. 
rights  and  remedies  on  lease  for  life,  823. 
rights  as   to  rent.     See  tit.  Rents. 

of  grantees  of  rents  and  reversions,   821. 
of  lessees  and  their  assignees,   823. 
of  lessor  against  lessee  and  assignee,  822. 
rights  of  tenant  for  life.     See  tit.  Tenant  for  Life. 
of  tenant  for  j-ears.     See  tit.   Tenant  for  Years. 
on    lease.      See    tit.    Lease. 
servitudes.      See   tit.   Easements  and   Servitudes. 
transfer  of.     See  tit.  Real  Proiierty,  Transfer  of. 
to  one  for  money  paid  by  another,  853. 
trust  presumed,    853. 
trees 

trunks  of  which  are  wholly  on  land,  833. 
uses  and  trusts.     See  tit.  TJ.ses  and  Trusts. 

as   to   generally,   847-871. 
writ  of  assistance.     See  tit.  Writ  of  Assi.stanee. 
writ  of  possession.     See  tit.  Writ  of  Possession. 
writ  of  restitution.     See  tit.  AVrit  of  Itestitiition. 
REAL    PROPERTY,    TRANSFER    OP 
as    to,    1091. 
modes  of,   1091. 
requisites  for  transfer  of  certain  estates,  1091. 

attorney  in  fact  must  execute  for  jirincipfi  I.     Sii-   tit,    Aiior- 
ney  in  Faet. 
as   to   generally,    1095. 
by  married  woman,  how  acknowledged.   1093. 

as  to,  generally,  see  tit.   Married   \Vomen. 
conveyance  where  name  of  person  has  been  changed,  1096. 
form   of  grant,   1092. 

power   of  attorney   of   married   woman,    liow   acknowledged. 
See  tit.   Po^ver  of  Attorney  €>f  >larrled   Woman. 
as  to  generally,  1094. 
RECITALS.      See    tit.    Deeds. 

in   deed   when    resorted   to,    1068. 
RECORD 

of  location  of  mining  claim 
copies   of   as    evidence,    1426q. 
to  be  received  in  evidence,   1426p. 
of  marriage 

as  to  generally.     See  tit.  Marriagre. 
of    certificate    of,    69a. 

1907 


INDEX. 

[References  are  to  sections.] 

RECORD    (continued). 

of  yearly   Tvork   on   mining   claims 

as   to   generally,    1426m. 
recorder's  fees,   1426m. 
RECORDATION.      See    tit.    Recording    Transfers. 

fees  for.     See  tit.  Recorder,  Fees  of. 
in.striHiient   deemed  recorded,  -^vlien 

fees   of,   non-payment   immaterial,   1171. 
what  instruments  to  be  acknowledged  before  entitled  to,  1162. 
RECORDER 
duties  of,  1172. 

fee  for  recording  certificate  of  residence  of  corporation,  1163. 
fees  to  be  indorsed  on  instrument  recorded,   1165. 
RECORDING  TRANSFERS.      See  tit.  Recordation. 

acknowledgment   of   proof   of   instruments.      See   tit.   AcknoDvl- 
edgment. 
as   to,   generally,    1173,    1213. 
as  to  what  may  be  recorded,   1158. 

acknowledginent     necessary     to     record,      when.        See      tit. 
Aclvnowledgment. 
as   to   generally,   1162. 
certificate  of  residence  of  corporation,  1163. 
certified  instrument  recorded,  when,  1162. 
:&ees  of  recorder  to  be  indorsed,  1165. 

judgment   may   be   recorded   without   acknowledgment,    1159. 
letters    patent    may    be    recorded    without    acknowledgment, 

1160. 
location    of    mining    claim    recorded    without    acknowledg- 
ment, 1159. 
mortgage  to  be  recorded,    1163. 
transfer  in   trust  to  be  recorded,   1164. 
conveyance  defined,   1215. 
conveyances  to  be  recorded,  or  are  void,  1214. 

constructive   notice,    1163. 
effect  of  want  of  record,   1163. 
mode    of    recording.      See    tit.    Record. 
books    of   record,    1171. 
deemed   recorded,    when,    1170. 
duties    of    recorder,    1172. 
in   what    oflfice,    1169. 
transfer   of   vessels,    1173. 
recording  certified   copy   of   recorded    instrument,    1218. 
unlawful  transfers.     See  tit.  Unla-wful  Transfers. 
unrecorded  instrument  valid  between   the  parties,  1217. 
RECORDS    OF    CORPORATION 
evidence   to   prove   what,   365. 
how  kept,  365. 

1908 


INDEX. 
[References  are  to  sections.] 

RECORDS   OF   CORPORATION    (continued). 

other  records  to  be  kept  by  certain   corporation,  36.5. 

restoration  of.     See  tit.  KeiMHunnce;  ReMtoratlon, 

to  contain  wliat,  365. 
REDEMPTION.      See   tits.    Mortftraee   Forci-IoNiircs:    T«\    Snlen. 

contract   in    restraint  to,   void,   28S!). 

fruni   foreeI<»Nure 
as  to,   2931,   2967. 
rislit  to   redeem   pledge,   2947. 

of   frsinoliiHe 

from   execution  sale  of,   392. 
from  lien,    2903-2905. 
RE-ENTRY 

rifflit    of    can    lie    transferred,    1046. 

transfer   of  right  to,   1046. 

when  and  how  to  be  made,  791. 
REFEREE 

in  action  for  divorce,   130. 
REFORM.VTION.      See   tits,   (out  rafts:    I) Is:    Miirrir.l    W  ..iii.-ii 

of  contract.     See  tit.  Contracts. 

presumption  as  to  intent,  3400. 

rules   for,   3401. 

specific   performance   of  afli  r.   3402. 
REPl'S.\I..      See   tits.   Dlvoroo;    liiiMltniKl   niwl    Wifr. 
REGISTRATION.      See   tit.    R(<-oriliitioii. 
REGISTRY.      See   tit.    SliipN   nnil    Sliiiiplnc 

of   marriage  certificate,   69:1. 

of   .slnp    for   voyage,    966. 
REIMIll  11SE>IENT.      See    tit.    FrniKliiU'iil    'rrjinsiiTs. 
REI.XSl  RANCE.      See    tit.    IiiNiirniup. 
REISSl   VNCE.      See   tit.    ReMtoriit ion. 

of  bonds  of  corporation,  329. 

of  lost  certificates  of  stock,   365. 

of  lost  private  document  or  Instrunnnl,  3405. 

of  lost  records  of  corporatiun.  365. 
REIiATION 

doctrine   of  as  tipplicd    to  ai>prnpriatlon  of   wat>rs.    1418. 
REI..\TIONSHII* 

degrees    of,    liow    computed.    1389-1393. 

half-J)lood.     See  tit.  Ilnlf-lilond. 
as  to  right  to  succeed.    139  1. 

husband  and  wife,  cannot  impair,   159. 

succession,   through   illegitlni.i '  •     '"*■'■ 
RELATIVES 

alien,    succession    by,    140  4. 

legacies  to,  wln-n   cliurgeable  with  debts.   1361. 

to  protect  child  from  personal  nbiiac  203. 

1909 


INDEX. 

[References  are  to  sections.] 

RELEASE 

claims  whicli  are  not  affected  by,  1542. 
creditor,   liow   made   by,   1541. 
debtor,  by  substitution  of,  1531. 
obligation  extinguished  by,  1541. 
of  future  intere-st 
as  to,   699. 

extent   of,   generally,    1542. 
of  guardian  by  ward,  256. 
of  join   debtors,    1543. 

extinguishes    obligation,    1541. 
of  one  of  several  joint  debtors,  effect  of,  1543. 
RELIEF.      See    tits.    Damage.s;    Divorce;    Equitable    Relief;    Nul- 
.sance. 
in   case   of  forfeiture,    3275. 
preventive.      See   tit.   Preventive  Relief. 
species   of   relief,    3274. 

specific    and    preventive.       See    tits.    Specific    Relief    and    Pre- 
ventive Relief. 
what  granted   in    divorce,   136. 
RELIGIOUS   BELIEF.     See   tit.   Wills. 

RELIGIOUS,     SOCIAL,     AND     BENEVOLENT     CORPORATIONS. 
*  See   tit.   Corporations. 

additional  facts,  articles  to  set  out,  594. 
amount  of  real  estate  that  may  be  owned  by,   595,  596. 

friendly,   etc.,   societies,    596. 
annual  report  to  be  made  and  verified  by  directors,  597. 
burial  plots  in  grounds  of  may  be  sold,  how,   598. 
by-laws.      See   tit.   By-lav»'s. 

as  to,  generally,  599. 
consolidation  of  debts,   605. 
new  articles  to  be  filed,   605. 
public  notice  given,  605. 
friendly,  etc.,  societies,  amount  of  land  may  hold,  596. 
may  bond  real  property,  598. 
may  mortgage  real  property,   598. 
may  provide,  what,  599. 
may   sell   real  property,   598. 

member  cannot  transfer  his  membership,   601. 
members   admitted  after   corporation,    600. 
notice  by  publication  for  leave  to  sell  mortgage,  etc.,  598. 
number  of  directors,   593. 

religious  society  may  become  corporation  sole,  602. 
articles  of  incorporation,  to  set  forth  what,   602. 
certain  limitations  do  not  apply,   602. 
continuation  of  corporation  sole,   602. 
powers  of,   602. 

1910 


INDEX. 
[References  are  to  sections.] 

RELIGIOUS.  SOCIAL,  AND  BENEV.  CORPORATIONS   (con.), 
religious  society  may  elect  directors  and  incorporate,  603. 
by-laws,  enactment,  repeal,  and  amendment,  604. 
certificate  of  incorporation  to  be  filed,  603. 
convention,   etc.,  to   elect   directors,   603. 
directors,   election   of,   604. 
limitations  which   do   not  apply   to,   604. 
name,  purpose,  and  term  of  corporation,  604. 
property  in  trust  for  the  society,   603. 
signature  by  secretary  and  president,  604. 
RELINaUISHMENT 

of  custody  and  services  of  child,  211. 
REMAINDER  - 

as  to  construction  of,  780. 
contingent,    778. 

on   prior   remainder   in    fee,    772. 
created,    when    is,    773. 

death  of  devisee  before  testator,  effect  of,  1344. 
definition  of,  769. 
for  life  upon  term,  777. 
on   term   of  years,   776. 

owner,  right  to   sue  for  injury   to   inlieritaiuo.    >s2C,. 
successive,  estate  upon,  for  life,  774. 
validity  of,  764. 
what   title   vests   under,    781. 
when    created,    773. 
REMAINDERMAN 

interest  of  not  affected   by  death   of  devisee  or  legatee   bif.>r.- 
testator,   1344. 
REMAINDERS     AND    REVERSIONS.       See    tit.     Hfv«T«loiiM    nii.l 
ReinnlndcrM. 
certain  remainders  are  valid,  764. 
construction   of  certain  remainders,   780. 
contingent  remainder  in  fee,  772. 
contingent  remainder  on  a  term  of  years,  776. 
effect  of  power  of  appointment,  781. 

heirs  of  tenant  for  life  take  as  purchasers,  wlion.   779. 
limitation   of  successive  estates  for  life,   774. 
remainder,  contingent  In  fee,   772. 

future  and  contingent  estates,  liow  created.   773. 
for   life,   777. 
upon  a  contingency,   778. 
upon  estates  for  life  of  third  person.s.  775. 
remedy  for  injury  done  to   the   Inliorltanco.   82f.. 
REMEDIES.      See   tit.*  Preventive   Relief. 
RENTS    AND    REVERSIONS 
riglits  of  grantees   of,  821. 

1911 


INDEX. 
[References  are  to  sertlons.l 

Ili:.\TS,    IS«il'BS,  A\n    PUOFITS 

aiceptance  of  rent,  r»Mu-wul  of  h';iM.\  wn.  n.    i.ii; 

us   to  when   payable,    1947. 

covenant  to  pay,   1462. 

dependent  on  life,  as  to  collection  of,  825. 

expr^s  trii.st  to  receive.  857. 

forfeiture,  by  lettingr  part  of  room,   1950. 

k'rant  of,   1111. 

rlK^lil   to   recover  for,  821. 
Itiiyiiient  of 

remedies  by  nsHlf^nees  of,  822,  823. 
for  recovery  of,  822. 
•  rvltude.     See  tit.  Srrvltudc. 
rin  of.  Indicated  !)y  rent.   UM."?. 
■   bi«   made,   when.    1947. 
'  .-hie  rent  for  holding  over.   3345. 
i  I  list   to   receive,   express,   8.'>7. 
under   lease   for   life.   824. 
when    payable.    1917. 

iii:nts,  HKVi:itsio\s,  .%m»  kkmmmiious 

jipportlonnient    ■■''     '  '  '  V 
as    to,    nil. 
KI2P.\IR 

borrower  to  make,  when,   1889. 

by  hirer  of  personal   property.     S<'o   tit     llirlnr. 

at  expense  of  letter,  1956. 

when   to  make,   1929. 
coterminous  owners  to  repair  fences,  841. 
landlord   to   n-palr,   when,    1941. 
letter  of  personal   property,   to   repair.  1955. 
owner 

coterminous,  to  repair  fences,  841. 

of  estate   for   life,   to  make,  840. 

of  ship  for  Voyage  to  make,   965. 
shipmaster   may,    2373. 
tenant 

.It  expense  of  landlord,  when.  1586. 

for   life  to  repair  f«'nces.   S  •<>. 
IIKI'AYME.NT 

of  loan,  In  current  money,  1913. 
HKVISAl, 

.■rr.Mt  of.  -JO. 

IH:iM,i:\  IN.       Sie    tit.    rlnliii    .•iinl     l>rll\ory. 
HKI'Mt  ATIO> 

evidence  of  payment.     See  tit.  rnymont. 
ItRI'ORT.     See   tit.    Libel. 

HKPl  IIMCATION.      See   tits,  fodlell:    Will. 

101" 


i 


mm 


INDEX. 
[References  are  to  sections.] 

REPUGNANCE.     See  tit.  Intemretation  of  Con<rnrtH. 

in  contract,  as  to,  1652. 
REPUGNANCE  BETWEEN  STATUTES.     See  tit.  SIiiIiii.n.  li.i.  r- 

pretation. 
RESCISSION.     See  tit.  Contract.s. 
by  buyer 

at  auction,  when,  1796. 

if  seller  refuses  inspection,  1785. 

on  breach  of  warranty,  1786. 
consent  not  free,  may  be  made,  1566. 
contract.     See  tit.  Rescission  of  Contracts. 

in  what  cases  allowed,  1684. 

when  adjudged,   3406. 

wliere  consent  not  free,  1566. 
equity   must   be  done  by  party,    3408. 
extinguislies  contract,   1682. 
grounds  for,  3406. 
how  effected,   1691. 
infant's  contract  of,  35. 
insurance 

for  concealment,   2562-2567. 

for  false   representations   in   material   m;tnii.r    i'.')SO. 

when    to   be    exercised,    2583. 
lunatic's   contract,    39. 
mistake  for,  when,  3407. 
novation.      See   tit.  Novation. 
obligations,   of  alteration   of,   effect,   2821. 
of  insurance   contract,   2583. 
of   ratification   of  agent's  act,   2314. 
of  sale,  for  non-payment  of  price,   1749. 
person   without  understanding,  39. 
ratification,  as  to,  2314. 
requirements  on  judgment  of,  3412. 
stoppage  in  transitu.     See  tit.  Stopi.ns*'  i"  TranM.u. 
valuation,  fraudulent  for,  2736. 
violation   of   warranty,    2608. 
RESCISSION    OP    CON-rRACT 

as  to  when  may  be  clianged,  3406.  ^ 

court  may  require  party  rescinding  to  do  equity,  ..l<s. 

for  mistake,   3407.  snvinu'H 

RESERVE    FUND.      See    tits.    Insurance    Cor„or:,n..n>:       nMnw 

Banlvs.  I 

RESIDENCE.      See  tits.   Hnsband  and  U  ife;   Minor.;   I  nr.n. 
Child. 

of  minor  child,  parent  may  determine,  -13. 
RESIDUARY  CLAUSE.     See  tit.  Wills. 


INDEX. 

[References  are  to  sections.] 

RESIDUE 

on  remainder,  776. 
bequest    of,    1280. 
devise  of,  1332. 
RES    JUDICATA 

judgment   of,    annulment   of   marriage    is,    84. 
RESOLUTION   TO   MACADAMIZE.     See   tit.   Constructive  Notice. 
RESPONDEAT     SUPERIOR.        See     tits.      Ma.ster     and     Servant; 

Negligence. 
RESPONDENTIA.     See  tits.  Bottomry;   Ships  and  Sliipping. 
by   master,   3038. 
by  owner,  3037. 
definition    of,    3036. 

fraudulent    conveyance,    delivery,    3440. 
interest,    rate   of   on,    3039. 
law  of  mortgages  does  not  affect,  2942. 
master's,   3038. 

obligation    of   sliip-owner,    3040. 
owner 
by,   3037. 

obligations   to   repay,    3040. 
rate  of  interest,   3039. 
subject  to  law  of  liens,   2877. 
RESTORATION.      See   tits.    Pledge;   Rei.ssuance. 
of  lost  original  articles   of  incorporation,   297a. 
of  lo.st  records,  etc.,  of  corporation 
as  to  proceedings  for,  365. 
judgment  and  decree  on,  365. 
jurisdiction    of    court,    365. 
notice   of   hearing 

proof   of  publication   and   service   of,    365. 
publication    of,    365. 
service    of,    365. 
petition  for,  365. 
of   property   pledged,   effect   of,    2913. 
RESTRAINT   OP    MARRIAGE 

void,    when,    710,    1676. 
RESTRAINT   OF   TRADE.      See   tit.   Contracts. 

contracts    not    void,    1673. 
RESTRAINT  ON  ALIENATION 
as   to,    711. 

future   interests,    suspending   power   of,    void,    716. 
leases  of  agricultural  lands  for  more  than  ten  years,  void,  717. 
of  city  lots  for  more   than   fifty  years,  void,   718. 
RESULTING   TRUSTS.      See   tit.    Uses  and   Trusts. 
RETROACTIVE.      See   tit.    Statutes. 
code  is  not,  3. 

1914 


INDEX. 
[References  are  to  sections.] 

REVERSIONS.     See   tit.   Rent*,,   Reversions,  and  Remainders. 
REVERSIONS    AND    REMAINDERS.      See    tit     RenuUnderTand 
Rever.sion.s. 

remainder,    what    is,    769. 
reversion,  what   is,    768. 
REVISION    OF   CONTRACTS 

as  to  when  may  be  revised,  3399. 

enforcement   of   revised    contract,    3402 

evidence    on    action    for,    declaration     of    grantor    admissible 

when,   3400. 
intention  of  parties,  presumption  as  to,  3400. 
presumption   as   to   intention   of  parties,   3400. 
principles    of   revision,    3401. 
REVOCATION.      See   tits.    Contract;   Wills. 
antecedent  will,  not  revived  by,   1297. 
by  subsequent  will,  1296. 
conveyance   not  a   revocation,    when,   1303. 
evidence    of,    1293. 
is   a   revocation,    when,    1304. 
mortgage  not  a,   1302. 
of  codicils.     See  tit.  Codicil. 

as  to  generally,  1305. 
of    condonation,    121. 
of  consent  to  separation,  101. 
of  continuing  guaranty,   2814. 
of  duplicate   will,    1295. 
of  gift  in  view  of  death,   1150. 
of   power   of  attorney,    1216. 
of  proposal  to  contract,  1586. 
of   trust,    2280. 
sale    not,    when,    1301. 
REWARD 

finder  of  property  entitled  to,  wliat,  1871 
RIDING  ON   PI.ATFOR:*!.     See  tit.s.   Neglige,.,.,.:   si  r.-.-.-Cr   IJnil- 

way  ft. 
RIGHT 

to   use  force,   50. 
RIGHT   OF   WAY 

fire  companies  running  to  fire  to   have,  453b. 
in  general,  801,   802. 
selection  of  by  railroad,  478. 

restrictions  on   street   railways,    498. 
telegraph   and   telephone   companies,  right   of,  5.T6. 
RIGHTS   OF   CITIZENS   IN    PLACES   OF   I>1  HMC   ACCOMMODV- 
TION    OR   AMLSE.MENT 
as  to,  51. 

damages  recoverable  for  violation  of,  52. 

1915 


INDEX. 

[References  are  to  sections.] 

RIGHTS  OF  CITIZENS  IN  PLACES  OF  PUBLIC   ACCOMMODA- 
TION OR  AMUSEMENT    (continued), 
wrongful   refusal   to  admit   to,    53. 
damages  recoverable  for,  54. 
RIGHTS    OF    OWNERS 

to  income  of  property,   733. 
to    increase    of    property,    732. 
RISK   OF  EMPLOYMEIVT.      See  tit.   Master  and   Servant. 
ROADS 

for  horseless  veliicles,  franchise  to  construct,   524. 
telegraph   and   telephone    companies   may   use,    536. 
ROOMERS   AND   LODGERS.      See  tit.  Homestead. 
ROOMS.      See  tit.  Landlord  and  Tenant. 

letting  parts   of   forbidden,    1950. 
RULES    OF    NAA^IGATION.      See   tit.    Sliip.s   and    Shipping. 
breach  of  rules,  effect  of  in  collision,  971. 
collisions,    970. 

from   breach    of   rules,    971. 
wilful  default,  972. 
loss,  how  apportioned,  973. 
SAFE   PLACE   TO   RIDE.      See   tits.    Railroads;    Street   Railroads. 
SALE 

agreement  of  sale,  as  to,  1726. 
agreement   to   sell   and   buy,    1729. 

what  may  be  the  subject  of  the  contract,  1730.     ■< 
agreement  to  sell  real  property,  1731. 

as   to,    generally,    1731-1734. 
as  to   sale,  generally,   1721. 
by  auction,  as  to,  1792. 

auctioneer's    memorandum    of    sale,    1798. 
by-bidding,   1797. 

common-law  covenants  required,   1733. 
contract   to   manufacture,    1740. 

to  sell  personal  property.     See  tit.  Per.sonal  Property. 
to  sell   real   property,   1741. 
rights  of  buyer  upon  sale  without  reserve,   1796. 
under   written   condition,    1795. 
when  complete,   1793. 
withdrawal  of  bid,  1794. 
form  of  covenants,   1734. 
of  provisions  for  domestic  use,   1775. 
on  sale  of  good-will,  1776. 
upon  judicial   sale,   1777. 
of  stock  in  trade,  recordation  of,  3440. 
riglits  and  obligations  o£  the  buyer 
price   to   be  paid,   when,    17S4. 
right  in  case  of  breach  of  warranty,  1786. 
right    to    inspect,    1785. 

1916 


INDEX. 
[References  are  to  sections.] 

SALE    (continued). 

rit;litH  uikI  obliKiitionN  itf  (lie  seller 

Id-fuFL-    delivery,     1748. 

when   seller   must  act  as   depositary,    1748. 
delivery   on   demand,   1753. 

buyer's    directions    as    to    manner    of    sendinLf    tiiini;    pnr- 

cliased,    1757. 
expense  of  transpcjrtatiun,  1755. 
notice  as  to  delivery,  1756. 
where  made,  1754. 
within  reasonable  hours,  1758. 
stock  in  trade,  of,  recordation,  3440. 
subject  of  sale,  what  is,   1722. 
transfer  by.     See  tit.  Trannfer. 
warranty.     See  tit.  Warranty. 
as  to,  generally,   1763. 

manufacturer's  warranty  against  latint  defects.  1  7G!). 
merchandise  not  in  existence,    1768. 
no   implied   warranty,   when,    1764. 
on    .sale    by    written    instrument,    1774. 
thing   bought  for  a  particular  purpose,    1770. 
warranty  on  sale  by  sample,  1766. 

where   seller  knows  buyer   relies  on   statements.    1767. 
wiiere  thing  cannot  be  examined  by   buyer,    1771. 
.SALVAGE 
as  to,   2079. 

priority  of  lien   for,   3029. 
who   entitled   to,    2079,    2725. 
.SATISFACTION.      See   tit.    Aooonl    ami    Salislnel  ion. 
of   judgment   against   corporations,   3S4. 

against  homestead,  1241. 
of  legacies  and  gifts,  1367. 
of   retMirded   mortgage,    2938,    2939. 

by    foreign    admlnistr;i  t  oi-s    and    iM-eiilors.       S.  •      \i\       ^Inri- 

penalty  for  refusing,  2941. 
what   operates  as,    1523. 
S.\VIN<;S    A\"n    I^UAN    .\SSO<l  \  riOVS.       S.e    tits.    <  Oriionilinno: 

llulliliiiK   and    Loan     \>t.soeiat Iohm. 
SAVI\<;s   AM)   I.OA\    roUI'Olt  ATIONS 
amount   «jf  capital   «ti>ek    re(|uired.   5St». 
to  be  paid   In,  580. 
to   be  subscrllied,   580. 
biennial    report    of    uncliilmed    depoalts.    5S3b. 
cannot  jiurchase,   hold,  or  «'onvey   bonds,  s*>rurttlrs.  etc..   574. 
cannot  purchase,  hold,  or  convey  real  estate  other  than   that 
specUlcally  allowed.   .'.74. 
1917 


INDEX. 
[References  are  to  sections.] 

SAVINGS  AND  LOAN  CORPORATIONS    (continued). 

cannot  purchase,   own,    or  sell   personal  property   except   that 

required  for   its  business,   574. 
capital   actually  paid   up  must   be   published,    583a. 
capital   stock,  rights  and  privileges   thereof,   572. 
certificate  of  deposit  transferable  may  be  issued  by,  576. 
"create   debts,"    definition   of,   579. 

directors  Wiay  not  contract  any  debt  or  liability  against  cor- 
poration,   573. 
dissolution,   disposition  of   reserve  fund  on,    577. 
dividends,  to  be  made  from  surplus  funds,  583. 
liability,  none  to  be  contracted  except  for  deposits,  573. 
may  loan  money,  on  what  terms  and  how,  571. 
for  how  long  a  time  a  loan  may  run,  571. 
to  whom  loan  miay  be  made,  571. 
prohibition  of  directors  and  officers,  578. 
property  which  may  be  owned  by,  574. 

lot  and  building  in  which  business  is  carried  on,  574. 

such    as    may    have    been    mortgaged,    pledged,    or    conveyed 

to   it  in  trust,   574. 
such   as   may    have    been    purchased   at   sales    under    pledge, 
etc.,    574. 
publication  of  paid-up  capital  stock,  583a. 
report  of  unclaimed  deposits,  583b. 

reserve  fund  for  payment  of  losses  to  be  provided,  577. 
corporations  without  capital,  as  to,  577. 
excess  of  reserve  fund,  disposition  on  dissolution,  577. 
restrictions   on,   581. 
stock  may  be  owned  and  held  by  married  women  and  minors, 

575. 
true  names  of  persons  engaged  in  must  be  shown,  582. 

penalty  for  violation,   582. 
unclaimed    deposits,    report   of,    583b. 
vacancy   in    office,   what  creates,   578. 

within   what  time   remaining  stock  to  be  paid  in,   580. 
SAVINGS  BANKS.     See  tit.  Savings  and  Loan  Corporations. 
SCHOOL  COMMITTEE.     See  tit.  Slander. 
SCIENTER.      See  tits.  Animals,  Vieioiis;  Negligence. 
SEAL 

abolished,   1629. 
affixed,  how,  1628. 

officer  must  affix  to  acknowledgment,  1193. 
provision  abolishing   effect   on   instruments,   1629. 
corporate  seal.     See  tit.  Corporate  Seal. 
SEALED    INSTRUMENT 

distinction  between  sealed  and  tinsealed  abolished,   1629. 

1918 


i 


INDEX. 
[References  are  to  sections.] 


SEAMEN.     See   tits.    Mates   and  Seamen;   Shipmaster. 

lien    of,    3056. 
SEAMEN'S   WAGES 

as  to,   2063. 
SEAT  IN   CHURCH 

right  to   is  a  servitude,   SOI. 
SEAWORTHINESS 

of   ship,   what   constitutes,    2681. 
SECRET   SOCIETY  OR  ORDER 

not   insurance   company,    451. 
SECRETARY   OP    STATE 

certificate  of  incorporation,  prerequisites  for,  294. 
when  must  issue,   296. 

continuance  of  corporation,   proceedings   for,   287. 
SECTION 

as  used  in  code  refers  to,  wliat,   14. 
SEDLCTION.     See  tit.  Damages. 

damages  for,  3339. 

in  general,  49. 
SEIZIN.     See  tits.  Covenant  of  Seizin;  Livery  of  Sezin. 
SELF-DEFENSE 

as    to    right    of,    43. 
SEMINARY.      See    tit.    Colleges   and    Seminaries. 
SEPARATE  PROPERTY.      See   tits.   Ilusliaud  and  Wife;   :»Iarried 

Women. 
SEPAR.4TE   PROPERTY    OF   HUSBAND.      See   tit.   Husband   and 
Wife. 

as  to,   163. 

in  general,   163. 

not  liable  for  debts  of  wife  ciintracted  before  marriage,   170. 
SEPARATE  PROPERTY  OF  WIFE.     See  tit.  Husband  and  \Vife. 

as   to,    162. 

filing   of,    166,    167. 

inventory   of,   165. 
SEPARATION.      See    tit.    Husband    and    Wife. 
SEHVANT.     See  tit.   Master  and  Servant. 
SERVICE 

child's,    relinquishment   of   by   parent,    211. 

contiact  of,  limited  to  two  years,  19S0. 

lien  for,  3051. 

limit  of  term  to  two  years,  1980. 

on  foreign   corporation,  as  to,  405. 
SERVICE    WITH    E>IPL.OYMENT.      See    tit.    Emiili»  inonl. 

compensation,    2072. 

salvage,   2079. 

voluntarily   Interfering  with   property,   duties,   2078. 
SERVITUDES.     See  tit.  Easements  and  Servitudes. 

1919 


INDEX. 
[References  are  to  sections.] 

SETTLiKMENT,  Marriage.     See  tit.  Marriage. 
SEVERAL.   OWNERSHIP 

what  is,   681. 
SEXUAL.  INTERCOURSE.     Sec  tits.  Divorce;  Hii.sbaud  and  Wife. 
"SLIAREHOI^IJER."     See  tit.  Corporations. 
SHEEP-KILLING   DOGS 

as   to,   3341. 
SHERIFJP 

lien  of  on  levy  of  writ,  3057. 
SHIPMASTER.     See  tit.  Ship's  Manager. 

abandonment  of  ship  terminates  master's  power,  2381. 
appointment  of,  2034. 
authority  of,   2044. 

on   behalf  of  owners   of  cargo,    2375. 

to   borrow,   2374. 

to   ransom   ship,    2380. 
cannot  trade  on  his  own  account,  when,   2042. 
care  and  diligence   required  of,   2043.  ^ 

impressing  private  stores,  2039. 
liability  for  acts  of  persons  employed  upon  the  ship,  2383. 

for   negligence   of  pilot,   2384. 
lien   of.   3055. 

master  as   general  agent  for  owner,   2373. 
may  abandon  ship,  when,   2040. 

duties  on  abandonment,  2041. 
must  be   on   board,    2035. 
must   take  pilot,  when,   2036. 

personal  liability  for  contracts  concerning  the  ship,  2382. 
power    over   passengers,    2038. 

over  seamen,  2037. 

to  hypothecate,   2377. 

to   make    contracts,    2376. 

to  sell  cargo,   2379. 

master's  liability  for  cargo,  when,   2385. 

to  sell   ship,  2378. 
SHIP-OWNER 

liability  for  cargo  sold  bs"-  master,   2385. 
SHIPS.     See  tit.  Sliips  and  Shipping. 

lien   on,    3060. 
SHIPS    AND    SHIPPING 

abandonment  of  ship,   2040. 

terminates  master's  authority,  2381. 
appurtenances,   961. 

average,  adjustment  of  by  master,   2388. 
bottomry.     See  tit.  Bottomry. 
capital  of  ship,  wages  of  seamen,  2063. 

1920 


INDEX. 
[References  are  to  sections.] 

SHIPS    AND   SHIPPING    (continued). 
cargo 

engagement  of  by  master,   2375. 

hypothecation  of  by  master,  2377,  3038. 

master's   power   to   sell,    2379. 

sacrifice  of  for  safety  of  vessel,  2148. 

sale  of  by  master,  owner's  rights  of,  2385. 

sale   of  perishable,   2377. 

ship's  manager,  purchase  of  by,   3388. 
certificate,  master's,  they  exerted  themselves  to  save,  etc.,  2059. 
charter  party.     See  tit.  Charter  Party. 

defined,  1959. 

manager  may  enter  into,  2388. 

master   may   enter   into,    2373. 
charterer  has   insurable  interest,   2665. 
collision  from  breach  of  rules.     See  tit.  Rules  of  Xavigatlon. 

loss  occasioned  by,  apportioned  how,  973. 

rules  for  avoiding,  970. 
ooiupeii.satioD 

of  manager,  2072. 

of  seamen.     See  tit.  Mates  and  Seamen. 
delivery  of  ship  not  necessary  to  validate  sale  of,  3440. 
deviation  from  voyage.     See  tit.  Deviation. 
domestic  ship,  definition  of,  963. 
equipments,  961. 

foreign  and  domestic  navigation,  962. 
foreign  and  domestic  ships,  how  distinguished,  963. 
foreign  ship,  what  is,  963. 
freightage.      See  tit.  Freiglitage. 
general  average.     See  tit.  General  Average. 
hiring  of  ship,  1957. 

hypothecating  ship,  master's  power  of,  2375,  2377. 
im.pressing  private  stores,  as  to,   2039. 
insurance.     See  tit.  Marine  Insurance. 
interest,  on  bottomry  contract,  3022. 
jettison.     See  tit.  Jettison. 

jurisdiction  where  ship  has  several  owners,  964. 
laws  governing  mate  and  seamen,   2066. 
license,  etc.,  of,  966. 
lien 

of  master,  3055. 

of  seamen,  3056. 

not  lost  by  grant,  2052. 

priority  of  on,  3029. 
loss  by  collision,  apportionment  of,  973. 
manager.     See  tit.  Ship's  Manager. 
master.     See  tit.  Ship's  Master. 
mate.     See  tit.  Mates  and  Seamen. 
Kerr's  C.   C. — 61  1921 


INDEX. 
[References  are  to  sections.] 

SHIPS    AND   SHIPPING    (continued). 

meeting  of  ships,  etc.     See  tit.  Rules  of  Navigation, 
mortgage   of 

as  to,   2955,   2971. 

recordation  necessary,   2959. 
navigation    of    domestic    and    foreign    defined,    965. 
negligence 

liability  of  master  for,  2043. 
of  employee,  2383. 
of  pilot,  2384. 
neutral  papers.     See  tit.  Insurance. 
nuncupative  will.     See  tit.  "Wills. 

of  seamen,  1289. 
OT*'ner 

for  voyage,  liability  of,  965. 

respondentia.     See  tit.  Respondentia, 
part  owners 

as  to  jurisdiction  in  controversies  between,  964. 

as  to  whether  partners,  2396. 
passengers.     See  tit.  Coinuion  Carriers  of  Passengers. 

master  may  engage,  2376. 

master's  power  over,  2037. 
perils  at  sea.     See  tit.  Perils  at  Sea. 

as  to   what  are,   2199. 

liability  for  loss  by,  2197. 
pilot,  liability  of  master  for  neglect  of,  2384. 

when  master  must  take  on,  2036. 
pilotage,  2036. 

ransom  of  ship,  master's  power  as  to,  2380. 
recordation  of  transfer  of  vessel,  1173. 
registry   of  vessel,   966. 

repairs  of  ship,  master  may  procure,   2376. 
rules  of  navigation.     See  tit.  Rules  of  Navigation. 
rules  for  passing.     See  tit.  Rules  of  Navigation. 
sale  of  ship,  when  master  may  make,  2378. 
salvage 

as  to  in  general,  2079. 

waiver  of  right  of  by  seamen  void,  2050. 
seamen.      See  tit.   Mates  and  Seamen. 

special  agreement  with,  as  to  validity  of,  2053. 
seaworthiness.      See    tit.    Insurance   and    Sea-%vortliiness. 
several  owners 

jurisdiction  of  court  in  disputes  between,  964. 

partners,  as  to  whether  are,  2396. 
ship 

definition   of,   960. 

domestic  and  foreign   distinguished,   963. 
unseaworthy,  seamen  not  bound  to  go  out  on,  2051. 
1922 


INDEX. 
[References  are  to  sections.] 

SHIF^;    AND   SHIPPING    (continued). 

shipping-,  definition  of,  960. 

shipwreck,  deposit  in  case  of.   1813. 

stowage,  as   to,    2117. 

supplies,  procuring  of  by  master,  2.376. 

surety,  rights  of  apparent  principal  to  show  he  is  a,  2832. 

telegraph  cable,  damaging  of  for,  537. 

trading  of  on  account,  master  prohibited  from.   2042. 

transfer  of  interest  in  ship,  statute  of  frauds  affecting,  1135. 

unseaworthy  ship,  seamen  not  required  to  go  out  on.   i'or.1. 

voyage  and  deviation.     See  tit.   >lariiio   liiNiirsiiice. 

wages  of  seamen.     See  tit.   MatoN  and   Soaiiieii. 

wharfinger.      See  tit.  WnrolioiiNoinan. 
.SHIP'S  3I.\IVAGER.     See  tit.  SliiiiiiiaNter. 

compensation   of,   2072. 

definition   of,   2070. 

duties  of,   2071. 

what  power  lie  has,   2388. 

what  power  he  has  not,  23S9. 
SIGNATl  UE.     See  tits.  CoiitruetN:   Mark;   Wills. 

as  to  what  constitutes,  1-1. 

in   indorsement,  3110. 

of  ofl^cer  talking  acknowledgment,    1193. 
SIGN.S.     Se.    lit.  Trade-.MarkN  and  .SIkun. 
.SI\Gl  I,.\R 

Includes    plural.    II. 
SINKIIVG    Fl'IVn 

establishment  to  pay  railroad  bonds,  457. 
SKIM..     See  tit.  Care. 
SI.WDKIt 

iiiallcc 

not  inferred,  when,  4S. 

privileged   communication.      Sei-   tit.    I*ri\  il<-u«-<l    I'lililleaii.m. 

what  is,  40. 
S<KI.\K   .ISSOt'IATION.      See    tits.    HoliuioiiM.   So.-inl.   niid    lleii.-\o- 
lent   Corporat Iohm. 

incorporatinti   of.   :,'.r.\. 
SOCIKTIKS    von     IHK    i>l<K>  K.XTION    «H'   4  Kl  Kl.l^      l<»    (III!.- 
nitK\    AM)    AMMALS 

agents   authorl/.eil    to    act    as    p..li tn.'.r-;.    iMTr. 

badge  to  be  worn,  607f. 
may  make  arrests,  607f. 

children   who  may   be  arrested   l>y.   607g. 
commitment  of,   607g. 

engaged  or  used   In   violation  of  law.   f)07g. 
found   begging  or  gathering  alms,   G(t7g. 
found   destitute,   fi07g. 

1923 


INDEX. 

[References  are  to  sections.] 

SOCIETIES  FOR  THE  PREVENTION  OF  CRUELTY   TO  CHIL- 
DREN  AND    ANIMALS 
children  ^vlio  may  be   arrested  by   (continued). 

frequenting  company  of  tliieves  and  prostitutes,   607^. 

order   of  court  upon   examination,   GOTg. 

power  to  institute  proceedings,  607g. 
compensation  from  city  or  county,  607e. 

amount  of,  607e. 
complaints  by  for  violation  of  law,  607b. 
fines,  penalties,  and  forfeitures,  607e. 

disposition  to  be  made  thereof,  607e. 
formation   of,   607. 

magistrate  to  aid  corporation  and  officers,  607c. 
members  authorized  to  act  as  police  officers,   607f. 
penalty  for  resisting,   607f. 
police  to  aid  corporation  and  officers,  607c. 
power  to  receive  and  dispose  of  property,  607a. 

amount  of  property  that  may  be  held,  607a. 
pre-existing  corporations  organized  for  like  purpose,  607d. 
SOLDIER.     See  tit.  Wills. 

nunctipative  will  of,  as  to,  1289. 
SOLEMNIZATION    OP   MARRIAGE.      See   tit.   Marriage. 
by  whom  made,   70.  • 

form  of,  71. 
SPECIFIC  PERFORMANCE.     See  tits.  Contract;  Deed. 
against  whom  relief  granted,  3395. 

agreement  to  sell   by  party  having  no  title,   not,   3394. 
cases  where  will  be  denied,  3390. 

contract  signed  by  one  party  enforceable  by  other,  3388. 
contracts  which  cannot  be  enforced  specifically,   3390. 
devisee  or  legatee,  against,  1301. 

distinction  between  real  and  personal  property,   3387. 
forfeiture,  3369. 
in  what  cases  compelled,  3384. 
liquidation  of  damages  not  a  bar  to,  3389. 
mutuality,  prerequisite,  3386. 
no  remedy  unless  mutual,  3386. 
of  revised  contract,  3402. 
penalty,  3389. 

real  estate,  of  contract  to  transfer,  1741. 
reformed  contract  of,   enforced  after,   3402. 

relief   against    parties    claiming    under    person    bound    to    per- 
form, 3395. 

as   to,   generally,   3395. 
what  cannot  be   specifically  enforced,   3390. 

as  to,  generally,   3390. 
what  parties  cannot  be  compelled  to  perform,  3391. 
what  parties   cannot  have   in   their  favor,   3392. 
when  enforced,  3384.  1924 


INDEX. 
[References  are  to  sections.] 

SPECIFIC   RELIEF 

as   to   generally,   3366,   3367. 

as  to,  when  allowed,  3366. 

for  cancelation   of  instrument.     See  tit.  Cancelation  <»£  InNlni- 
nient. 

forfeiture,   3369. 

for  possession   of  personal   property.     See  tits.   CInim  jind   I>e- 
liverj  ;   I*er«oiiaI   I'roporty   (possession   of). 

for    possession    of    real    property.       See    tits..    Ejectment;    Ucal 
Property. 

for  rescission   of  contracts.     See  tits.   Contract.^;  IlcHciNxlou   of 
Contracts. 

for  revision  of  contract.     See  tits.  ContraetM;  RevlHlon. 

for  specific   performance   of  obligations.     See  tit.   SiieolHc  Per- 
formance. 

how  granted,  3367. 

judgment  for  possession   of  real  property,  3375. 

judgment  for  possession  of  title,   3375. 

not  allowed  to  enforce  penalty,  3369. 

penalty  not  enforceable  by  judgment  for,   3369. 

preventive  relief,   3368. 

recovery  of  personal  property,  judgment  for,  3379,  3380. 

support,  right  to  conduct,  as  an  easement,  801. 

when   allowed,   3366. 
SPEKII.     See   tits.   Uailroailis;   Street    ItiiilroiiilN. 

of  carriers  for  hire,  2101. 
.SPIHITVAI.ISM.      See   tit.    Wills. 
SPitlNCi.      See    tit.    Appropriation    of    Water. 
STAtiE.      See   tit.   Common   CarrierM   of   Pas.H«'ii««TM, 

obligation    of   to   carr>'    baggMiC"'.    L'lso. 
STAI,I<ION.     See   tits.    IJenN;   Other    l.leuN. 

action   to  enforce   lien,   3064. 

lien   of  person  in  charge  of,  306:2. 

must    file   verified   claim.    3063. 
STATE 

i.sland.s   b«'long   to,    when.    1016. 

pnference  to  be  given   to  by  carrier,  when,  2171. 

property   may  be   held   by  as  private   proprietor,   669. 

wli.it   lands  are  properly  of.   670. 
STATE   LAM> 

grant    of   railroad   of.   47-i. 

wood  and  earth  may  be  taken   from,  by  railroad.  %\  lien.    176. 
STATEMENT.      See    tlt.«.    Mitel:    i>rivlleu:e<l    < -<Mniooiileii«loii :    Slan- 
der. 
STATION'S.      See   tit.    UallroatiH. 
.ST.ATtTE.      S«-e    tit.    Conitt  rn<-l  Ion    of    siinmo. 

code,  continuation  of,  .'.. 

1925 


INDEX. 
[References  are  to  sections.] 

STATUTE    (continued). 

construction  to  be  liberal,  when,  4. 

injunction    restraining    enforcement    not    granted,    3423. 

private,  effect  of  code  on.  20. 

repeal  of,  by  enactment  of  code,  20. 

retroactive,  code  not,   3. 

revival  of,  code  does  not  work  by  repealing  other  statutes,  20. 
STATUTE  OF  FRAUDS 

agency,  contract  of,  as  to,  2309. 

agent,  employment  of  within,  when,  1624. 

assignment  for  benefit  of  creditors,  effect  of  on,  3458. 

as  to,  in  general,  1624. 

as  to  what  instruments  are  required  to  be  in   writing,   1624. 

auctioneers'  memorandum.     See  tit.  Auctioneers. 

effect  of  written  contract,   1625. 

guaranty,  within,   2793,  2794. 

lease  within,  when,  1624. 

manufacturer,  contract  of.  witliin,   1740. 

marriage.      See  tit.   Marriag-e. 

mortgage  is  within,   2921.  ■» 

oral 

contract   within,    when,    1622. 
transfer  bj',  when,  1052. 

real   estate  broker  within,   1624. 

realty 

contract  for  sale  of  within.   1741. 
controlled  by,  1624. 

sales,  as  to  when  within,   1624,  1739. 

ship,  transfer  of  interest  is  within,   1135.     • 

specific  performance,   effect  of  on,   3338. 

suretyship,   when   within,    1624. 

trust,    transfer   on    within,    1135. 

wills,  as  to   requirements   of  writing,   1624. 

wine,  sale  of  not  witliin,  3440. 
STATUTE  OF  LIMITATIONS.      See  tit.   Limitations  of  Actions. 
STEAMERS   MEETING.      See   tit.   Rules   of  Navigation. 
STEPFATHER.      See  tits.   Adoption:   Husband  and   Wife. 

rights  and   liabilities   of   respecting  stepchildren,    209. 
STOCK.      See   tits.   Certilicates   of   Stock;   Stockiiolders. 

how  issued,   323. 

purchased  by  corporation,   disposition   of,   344. 
STOCK  IN  TRADE 

sale  of  to  be  recorded,   3440. 
STOCKHOLDER.     See  tit.   Stockholders'   Meetings. 

certificate  of  stock.      See  tit.   Certificate  of  Stock. 

corporation   liaving  no   capital   stock,   member   liable   individu- 
ally, 322. 

1926 


INDEX. 
[References  are  to  sections.] 

STOCKHOLDER    (continued). 

creditors  may  institute  joint  or  several  actions,  322. 

liability  determined   by  amount  of  stock,   322. 

liability   of,    322. 

how    determined,    322. 

of  foreign   corporation,  liability   of.   322. 

paying  proportion  of  debt  released,  322. 

released,   when,  322. 

stock    held    as    collateral    security    or    by    trusli-i-,    holder    not 
liable,  322. 

suit  against  may  be  joint  or  several.   322. 

term    "stockholders,"    definition    of,   322. 

trust  funds  in  hands  of  guardian  or  trustee  not  lialile,  322. 
ST(>f'KHOI,»KUS'    >1F:KTI.\(; 

proxies,   when   void,   321b. 

essentials  to  validity  of.  321b. 
maximum  period  of,  321b. 
revocable,  321b. 

who  may  vote  at.  321b. 
.sTOi,K\  <;<)<)ns.     See  tit.  Sale. 
.STOI»rA<;K    I\    TH.\XSITl 

as   to  generally,   3076. 

how  stoppage  effected.   307;i. 

in  general.  3076. 

insolvency    of   consignee,    what    constitutes.    3077. 

.seller  may  stop,  when,  3076. 

stoppage,  effect  of,  3080. 
how  effected,   3079. 

transit,   when  ended,  307S. 

when  consignor  may  stop.  3o7t;. 
.ST<)K.\r;R.      See    tits.    IlopoMitt    »  iir«-liuu«eiii<Mi. 

as  to  what  constitutes,    IS.'il. 

care,  degree  of  ret|ulred,  1S52. 

carrier,   placing   freight    on.   2120. 

compensation   for,   18,'>3. 

Under,   right   to  put   thing   in   .storage,    1S6S. 

how    to    be    terminated,    lN."i4. 

sale   of  unclaimed   baggage,   to  pay,    isr.j. 
STOWACiK.      See   tils     (iirrlrm   of   rr«i|t«T«v:   sliipx   iin'l    •«lil|>i>iiiK. 

as  to,  2117. 

on  deck,  21. '".•4. 
.oiTHANCiKlt.      See    tits.    <  ont  nieis:    t  tlill-iiil  Ioiih. 

attornrn.iit   to.    194S. 

grant    Mi:iy   Inure   for   llic   Ix-nellt    of,    \\  b>ii.    I'is.'i. 
STII.\TA(;K>I    ok   KHAI  ll.      See    tit.    DIvoroT'. 

separ.Mtlon   produced   by  desertion,    '.•7. 
STUEAM.      See   tit.    Untem. 

1927 


INDEX. 
[References  are  to  sections.] 

STKEET  RAILROAD.      See  tit.    Street   Railroad  Corporations. 

cars  of  to  be  modern  in   construction,   501. 

city's  riglit  to  improve  street,  etc.,  reserved,   507. 

code  sections  applying  to,  510. 

crossing's,  obstruction  of,  in  making,  500. 

elevated,  as  to,  498. 

grants  to  not  to  be  made  near  election,  497. 

license  tax  on,  508. 

municipality,  regulations  respecting,   503. 

owned  by  natural  person,  511. 

passengers    on.       See    tit.    Carriers    and    Coniiiion    Carriers    of 

Passenger!*. 
penalty  for  overcharging,   504. 
rates  of  fare.     See  tit.  Fare. 
right  of  way,   restrictions  on,   498. 

ticket.     See  tit.  Ticltet.  • 

time  within  which  to  be  completed,   502. 
tracli 

authority  to  lay,   how  obtained,  497. 

for  grading  purposes,   time  to  remain,  509. 

imposing  restrictions  on  laying,   497. 

to  be  laid,  how,  498. 

two  lines  may  use  same,  when,  499. 
STREET    RAILROAD    CORPORATIONS.       See    tit.     Street    Rail- 
roads. 
agency  of  person  collecting  fares,  proof  of,   506. 
cities  and  towns  may  make  regulations,   503. 
crossing    tracks   already   constructed,    500. 
franchise  of,   497. 
law  governing,  510. 
license  to  be  paid  municipality,  508. 
limitations  and  restrictions,  497,    498. 

obstructions   must  not   extend   more   than   one   block,    500. 
overcharging,   penalty  for,   504. 
propelling  power,   497. 
rates  of  fare,    501. 

penalty  for  violation,   501. 
reserved  rights,   507. 
tickets  must  be  furnished  by,   505. 

penalty  for  failure  to  comply,   505. 
time   allowed 

extension   of  time,  502. 

failure   to   comply,   forfeiture,   502. 
traek 

authority  to  lay,  how  obtained,   497. 

extent  to  which  may  be  used,   499. 

for  grading  purposes,   509. 

1928 


INDEX. 
[References  are  to  sections.] 

STREET    RAILROAD    CORPORATIONS 
truck    (continued). 

imposing   restrictions   on    laying,   497. 
manner  of  laying,  498. 
motive  power,  509. 
time  may  remain,  509. 

two  lines  of  street  railroad  may  use  same,  499. 
to  be  laid  how,  498. 
STRIKKS,    MOB    VIOI.EIVCE,    ETC.      See    tits.    C'oiiiiiioii    CarrierN; 

Kailroiid.s. 
SUBAGENT.     Sec  tit.s.  AKTont;  Ma.ster  ami  StTvaut. 
liability   of,   as   to,    2022. 
of  factor,  2367. 
represents  principal,   2351. 

rightfully   appointed   represents  principal,    23.")1. 
unnuthorized  employment  of,  2350. 
wIkii   may   be  appi)int<'(l,   23.")1. 
Sl'Il.MI.S.SION    TO   Jl  KISDK'TION    OF    COlIt'I'    IIV    >II\<»i{.      See 

tits.    Infant;    Minor. 
SUBPOENA 

nia>'   be   issued  by  officer   taking  acknowledgment,    1201. 
SI  Bitot; ATIOX 

of  creditor  of  securities   held    l)y  surety,   2S54. 
of  insurer.     See  tit.  Marine  In.siiranoe. 
of  lienor,   right   to,   of   inferior   lienor,   2904. 
of  new  corporation   on   consolidation   of  railroads.   473. 
of  redemptioner,  2903. 
of  security,  2848,  2849. 
SL'BSTITITE 

eiiiployt^e's  liability   for,   1989. 
SL'CfESSKJX.      See   tit.   Wordi*   ami    IMirns»-.s. 
advancements.      See   tit.    .\<i\aiu'eiiieii«s. 

constitute   part   of  dlslributivi:   share,    KiOfi. 
definition    of,    1397. 

to  heir  wlio  dies  before  decedent,  1399. 
value  of,  how  determined,   1398. 
when   too  much  or  not  enough,    139r.. 
aliens.      See   tit.   .Vllenn. 

may   Inherit,  when  and   how.    1404. 
ascending    line,    succi'Ssion    by,    1391. 
by    representation.    1403. 
children,  rights  vest  in,  when,    1403. 
collateral    line,  succession    by.    1390. 

community    i>niperty.      See    tits.    Coiniiiiiiiii  >     rr.ii(.Ti>:     lln-*- 
lianil  and  WIfr. 
distribution    on    d.ath    of   husband,    1402. 
on    death    of   wife.    1401. 

1929 


INDEX. 
[References  are  to  sections.] 

SUCCESSION    (continued). 

deceased  person,   succession   to,  and    distribution    of,   property, 
1386. 
cliildren  of,  1386. 
decedent  a   widow   or   widower  leaving   no   cliildren,    1386. 
leaving    no    husband,    wife,    or    kindred,    and    there    are    no 

heirs,  1386. 
leaving    a    surviving    husband    or    wife,    but    neither    issue, 

father,  mother,  brother,  sister,  nor  children,  1386. 
leaving  child  who  dies  under  age,  not  having  married,  1386. 
leaving  neither  issue,  husband,  wife,  father,  mother,  brother, 

nor  sister,  1386. 
leaving  several  children,  or  one  child  and  the  issue  of  one 
or  more,   1386. 
definition  of,  1383. 

degrees   of   kindreds.      See   tit.    Ivin«Ired    (degree   of,    how    com- 
puted), 
as  to,  1389. 

ascending  and   descending   line,    1391. 
collateral   line,   1390. 
direct  line,  1392. 
descending  line,  succession   by,   1391. 
escheat.     See   tit.   Escheat. 

subject  to  charges  as  other  property,   1407. 
estate   of   intestate,    to   whom   passes,    1384. 

illegitimate    child    to      inherit     in      certain      events.        See    tit. 
Illegitimate    Cliild. 
as   to   generally,    1387. 
illegitimate    children    inherit,    when,    1387. 
inheritance    by    representatives,    1403. 

of  husband  and  wife  from  each  other,   1400. 
murderer  of  decedent  not  to  succeed,  1409. 
not  claimed,   proceedings  where,   1405. 

person   convicted   of  murder  of  decedent   not  to   succeed,   1409. 
personal   representatives,   1385. 

property    and    estate    escheat    to    the    state,    when.       See    tit. 
Esclieat. 
as  to  generally,   1406. 

of  illegitimate  child,  succession  to,  when  and  how,  1388. 
relatives  of  half-blood,  1394. 

succession  and  distribution  of  decedent's  property,   1386. 
successor  liable  for  decedent's  debts  and  obligations,  1408. 
to  whom  estate  passes,   1384. 
SUCCESSIVE   OWNERS.     See  tit.   Nui.sauee. 
SUGGESTION 

nialice  as  to  fact  is,  when,  1572,  1710. 
SUIT.     See  tits.  Constructive  Notice;  Notice. 

1930 


INDEX. 

[References  are  to  sections.] 

SUMMARY   PROCEEDINGS.      See    tit.   Ejectment. 

as  to,  in  certain  cases,  792. 
SUMMONS 

in    action    against    corporation    to    secure    duplicate    of    lost 
certificate,  328. 

in   proceedings  to  restore   burned   bonds,    329. 
SUNDAY.     See  tits.  Holidays;  Negotiable  In.>4truinent.s. 

a  lioliday,   7. 
SUPERFLUITY 

does  not  vitiate,  when,  3537. 
SUPERHUMAN  CAUSE.     See  tit.   Aot  of  God. 

as  to  responsibility  for,  generally,   3526. 

carrier  not  responsible  for,   2194. 

excuse  of  performance  by,  1511. 

innkeeper  is  not  responsible  for  loss  by.  1859. 
SUPERIOR   COURT.     See  tits.  TriK>stee.s:  U.ses  and  TruMts. 

as  trustee,  2289. 
SUPERVISORS 

action  by  for  personal  abuse,  203. 

apprentices  may  be  bound  out  by,  268. 

consent  as  to  apprenticeship,   265. 

provision   for  orphans  of  intestate  parent   out   of   property   of 
decedent,  205. 

support  to   land.     See  tit.   Lateral  and   Suh.ineent    Siipporl. 
SIPPORT    AND    MAINTENANCE 

of  wife.      See  tits.   Husband  and   Wife:  Sii|M>ort   «»f  A\ife. 
SUl'PORT   OF  WIFE.      Sec    lit.    Hii.sband   and   \A  Ife. 

as  to,   174. 

wlicn   separate  from   licr  husband,   175. 
SI  RETY.      See   tit.   Siiret.vsbip. 

ai)parent  principal   may  slmw   he   i.s  .surety.   L'Slli'. 

detinition    of  surety,   2831. 
SI  HETVSHIP.      See    tits.    Gnaranl.v:    IndeinnK.v;    Surety. 

apparent   principal    mny   show    liimself    to    lie   simply   a    surety, 
2832. 

contribution  among.     See  tit.  Contributlou. 

creditor  entitled  to  securities  held  b.w  when,   2854. 

deflnition  of,  2831. 

has  right   to  guarantor,   2814. 

interpretation  an  to 

general   ruh'S  of.   2837. 
strict   rule,  as  t<\   2S3fi. 

judgment  against  surety  does  not  alter  relation.   2S38. 

letters  of  credit.   2858-2866. 

liability  of  surety,  2836. 

discharge  by  certain  acts  of  creditor.   2840. 
judgment   against   surety   does   not   alter   relation.    2838. 
1931 


INDEX. 
[References  are  to  sections.] 

SURETYSHIP 

liability  of  surety    (continued). 

limitation  of  surety's  obligation,   2836. 

interpretation,   rules  of,   2837. 
performance     or    offer    of    performance     exonerates     surety, 

2839. 
relation  not  altered  by  judgment,  2838. 
rules   of   interpretation,   2837. 

surety  exonerated   by  performance   or   offer  of  performance, 
2839. 
rights  of  sureties 

as   rights   of  guarantor,   2844. 

entitled  to  reimburseinent  from  principal,   2847.  * 

acquires  right   of  creditor,  2848. 
to  benefit  of  sureties  held  by  creditor,   2848. 
to  have  property  of  principal  taken  first,  2849. 
may  compel  principal  to  perform  obligation  when  dvie,   2846. 
may  require  guarantor  to  proceed  against  principal,  2845. 
rights  of  creditors,  2854. 

to  benefit  of  sureties  held  by  surety,  2854. 
surprise,     contract    made      under,      specific      enforcement      not 
granted,  3390. 
SURVEY 

of  wagon   road,  filing  of,   etc.,   513. 
SlTllVEYED  CLAIMS.     See  tit.  Mining  Claims. 
SURVEYOR-GENERAL 

right  of  way  selected  by  corporation  to  be  sent  to,  478. 
SURPLUS   PROFITS    OF   CORPORATION.      See   tit.   Corporations. 
SURPLUS  WATER.     See  tit.  Auuropriation, 

SURRENDER    OF    INSTRU3IENT.      See    tits.    Contracts;    Obliga- 
tions. 
M^hen  a  condition   of  payment,  3137. 
SURVIVORSHIP 

choses  in  action,   survival  of,   954. 
cotrustees,  between,  2288. 
SUSPENSION.      See   tit.    Suspension   of   the   Power   of   Alienation. 
SUSPENSION   OF  OWNERSHIP 
by  trust,  771. 
restriction  of,  770. 
SUSPICION.     See  tit.  Wills. 

SWAMP-LAND  DISTRICT.     See  tit.  Corporations. 
"TARE" 

on  baled  hops,  995. 
TAX 

encumbrance,  included  in  the  term,  1114. 
license  on  street  railways,  508. 
life  tenant  to  pay,  840. 

1932 


INDEX. 
[References  are  to  sections.] 

TAX    (continued). 

on  land  and  building  corixn-ations,  G48^. 
on   mortgage  premises,   2877. 
TAXES    AND   ASSESSMENTS 

embraced  in  term   "encumbrances,"    llll. 
TEACHER.     See  tits.  Mbel;   Slander. 
TECHMCAIi  \VORr>S.     See  tits.  Const  nut  ion  :  Wills. 
effect    of    in    wills,    1327. 
not   necessary  to  valid  will,  1328. 
TELEGRAMS.     See  tit.  Carriers  of  3IessaK:c.s. 
TELEGRAPH    AND    TELEPHONE    CORPORATIONS 
articles  of,  what  to  set  forth.     See  tit.  C4>r|>or:ilionN. 
as  to  generally,   291. 
prereciuisites   to    filing.    292. 
care  in   transmission   of  messages,  2101,   2161. 
conditions    on    which    damages    to    subaqueous    cable    may    be 

recovered,  539. 
franchise  of,   537. 
injury  to,  liability  for,  537. 
lialiility  for  damaging  telephone  or  telegraph  property,  537. 

for  delay  or  refusal  to  carry,  2209. 
malicious  injury  to  property  of,  penalty  for,  538. 
may  dispose  of  certain  rights,  540. 
nii'MMaeeM 

compi'iisation   for  delivi-ry   of.    2161. 
obligation   to  deliver,   2161. 
order  in  which  to  be  transmitted,  2207. 
penalty    for    wilful    or   malicious    injury    t<>    iclipliDin-    m-    ti'le- 

graph   company,  538. 
property   of,   lease  and   transfer  of,   .'ilO. 

penalty  for  malicious  injury  to,  538. 
rigiit   of   way   along  roads,    watercourses,   etc.,   536. 
riglils,   what  may  be  disposed  of,  540. 
subaqueous   cable.    Injury   to,    damages   for,   539. 
monument   to  show   location   of,  539. 
notice  of   location   of,  539. 
subscription  to.  amount  of  requisite  to  iHliiK  articles.  29.">. 
TEN.\NCV    AT   WILL 

may    be   terminated    by    notlci'.    7S0. 
notice   to  quit,   effect   of.   790. 

not  necessary,  when,  793. 
re-entry,   when  and   how   made,   791. 
summary  proceedings.   792. 

notice  not   necessary  before  action,  when.  793. 
TEN.\NCY   IN    COMMON 

devisees   taking  under  will  are,   1350. 
of  spouses,   161. 

1933 


INDEX. 

[References  are  to  sections.] 

TENANT.      See   tit.   Lauillortl   and   Tenant. 
TENANT  FOR   LIFE 

duties  of,  840. 

lieirs  of,  take  as  purchasers,  when,   779. 
rights   of,   818. 
TENANT   FOR    YEARS 
as   to   rights   of,   819. 
TENDER.    .See  tit.   Extinction  of   Obligation. 
and   deposit    distinguished,    1500. 
by  whoin  to  be  made,  1487. 
interest  stopped  by,  1504. 

of  performance  of  obligation,  effect  of,  1485-1505,   1511. 
place  where  to  be  made,  1489. 
to  whom  to  be  made,  1488. 
when  to  be  made,  1490. 
TENSE 

as  to  of   words  used  in  code,   14. 
TESTAMENTARY    CAPACITY.      See    tit.    AVills. 
TESTAMENTARY   DISPOSITION.      See   tit.    AVill.s. 
TESTIFY^ 

as  to  meaning  of,  14. 
THEATER 

right   to  admission   to,  and  penalty  for   refusal,  51. 
THF^FT.     See  tit.  Seamen. 

by   seamen   during  voyage   forfeits   wages,    2063. 
THINGS   IN   ACTION.      See  tit.  Clio.ses  in   Action. 

definition   of,   953. 
THIRD   PERSONS 

act  of  not  to  prejudice,  3520. 
agent 

responsibility   to,    2343. 
to   deliver   to,  when,    2344. 
consideration  paid  by,  effect  of  transfer,  853. 
contracts  for  benefit  of.     See  tit.  Contracts. 
delivery   to    in    escrow,    1057. 
estate  for  life  of,   766. 

grant  may   inure, to  benefit  of,   when,    10S5. 
information  or  belief  of,  in  marine  insurance,  2670. 
liability   of  partners  to,   2442. 
may  enforce  contract,  when,   1559. 

must   see  to   application   of   trust   property,    when,   2244. 
necessaries  furnished  by  for  infant,  207. 

furnished  by  to  wife,   174. 
not   to   be   prejudiced   by   ratification   of   agent's  act,    2313. 
not  to  be  prejudiced  by  reformation  of  contract,  3399. 
remained  on  estates  granted  for  the  life  of,   775. 
specific  performance   of   contract   enforced  by,    3390. 

1934 


I 


INDEX. 

[References  are  to  sections.] 

THIRD   PERSONS    (continued). 

tender  by.     See  tit.  Extinction  of  Obli)£!:nti<»uM. 

trust,  for  the  benefit  of,  2250. 

trustee,  voluntary,  2243. 

who  liable  to  as  partner,  2444. 

who  must   suffer   by   acts  of,   3543. 
THREAT 

consent  to  contract  obtained  by,  voidable,  1567,  168i 

divorce  for  desertion  caused  by,  98. 

menace,  definition  of,   1570. 

to  oi>t»in  advantage 
by    partner,   2410. 
by   trustee,   2228. 

will   procured  by  void,    1272. 
THRESHING  MACHINES.     See  tit.   l.ien.s. 

lien   of  workmen   on,   3061. 
TICKET.      See    tit.   Rnilroa«l.s. 

of  railroad  companies,    490. 

entitle  purchasers   to    what,   490. 

penalty  for  failure  to  provide,  490. 
TIDE  WATER 

damages  for  injuries  to,  3346. 

land  bounded  by,  riglits   of  owner,   830. 

lien    on.      See   tit.    IiOjSK,er*.H    liien. 
TIMBER.     See   til.  Trees. 

damages  for  neglig-iiitly  s.'tting   fire,   3346a. 
TIME.     See  tit.  Keeordiue. 

action  for  nullity,  of  commencing,   S3,   107. 

computation   of,  as  to,  10. 

divorce,  of  commencing  actions  for,   127. 

entire,  servant's  belonging  to  master,  2013. 

essence    of   contract,   not   unless   declared,    1492. 

grant,  presumption  as  to  of  delivery,  1056. 

of  taking  effect  of  code,   2. 

railroad   may   regulate,   465. 

representations  in  insurance,  refer  to  what.  2577. 

void  act   not  confirmed   by.  3539. 

words  in  will  relate  to  what,  1336. 
TIME   OF   CRE.VTION 

of   estate,    749. 
TITLE 

accession   by.     S<>e  tit.   Aeee.ssi«»ii. 

acquired   suVisequent    passes,    wlien,    1  l(t(!. 

buyer  acquires  better  than  seller  had,   when.    1142. 

by  devise.  1311. 

liy  occupancy.    10(M). 

in  fee  simple,  when  presumed  to  pass.   ^]lK>. 

1935 


INDEX. 
[References  are  to  sections.] 

TITLE    (continued). 

instrument  evidencing,  how  proved  for  record,  IICO,  1203. 

inventory  of  wife's  property,  notice  of,  166. 

judgment  for  possession   of,  as  to,   3375. 

lien  on  property  does  not  transfer,   2888. 

of  grantor  of  trust  property,  865. 

of  loaned.-property,  18S5,  1904. 

redelivery  of  thing  granted  does  not  re-invest,   1058.  a 

suliseqiieutly-acqiiired  . 

inures   to   benefit   of  mortgagee,   2930. 
passes   by   operation   of  law,   when,   1106. 
passes  by  will,   1312. 

to  freight,  passes  by  transfer  of  bill  of  lading,   2127,   2128. 

to  highway,  passes  by  transfer,  when,   1112. 

to  personal  property,  passes  by  transfer,   1136. 

transfer  of,  what  passes  by,   1083,   1105. 

trust  property,  what  vests  in  grantor,  865. 

warranty   of 

to  personal  property,   1765. 
by  agent,  2323. 

what  passes  by  transfer  of  property,   1083. 
TITLE   DEEDS 

as  to  what  are,  994. 
TITLE  INSURANCE.     See  tit.  Fire,  Marine,  and  Title  Insurance. 
TITLE  INSLKANCE   CORPORATION.     See  tit.   Corporations. 

investment  of  funds  of,   421,  421    [a]. 
TOLL.      See    tit.    Bridge.s,   Ferries,   Wliarf,    Chute,    aud   Pier   Cor- 
porations. 

avoiding,  penalty  for,  519. 

by  wagon-road   corporations,   514. 

detaining  persons  unnecessarily  for,  518. 

highways,   known    on   public,    515. 

penalty 

for  avoiding,   519. 

for  taking  unlawful,  514. 

rates  of,  to  be  posted  at  gate,  516. 

right  to  take,  as  a  servitude,  802. 

toll-gatherer,  may  detain  traveler,  when,i  517. 
TOLL-GATE 

avoiding,  penalty  for,  519. 
TORT 

damages  for,    3333,   3339,   3340. 

deceit,   1709-1714. 

indemnity  against,   2773. 

in   general,   1708. 

negligence,   etc.,   1714. 

of  agent,  principal  liable,  2338. 

1936 


INDEX. 
[References  are  to  sections.! 

TORT    (continued), 
of  infant,  41. 
of   lunatic,   41. 

tiling  wrongfully   taken,   restoration,   1714. 
wrongful   acts,    1714. 
TOVVX   LOTS 

not  to  be  granted  to  railroads,  475. 
TRADE.     See  tit.  Contracts. 

contracts  in   restraint  of,  1673,  1C74. 
TRADE-MARKS 

ownership,  subjects  of,  655. 
sale   of,   warranty  presumed,   1773. 
warranty  of  by  seller,  1774. 
what  may  be  appropriated  as,  991. 
TRADE-MARKS    AND    SIGNS 
ap7)ropriation  and  iise  of,  991. 
good   will   in,  transfer  of,   993. 
title  to,   991. 
TRANSFER 

as  to,  what  is,   1039. 
delivery 

cancellation  of  grant  does  not  constitute  redelivery,  1058. 

constructive  delivery,  1059. 

in  escrow.     See  tit.  Escrow. 

nature  and  necessity  for,  1054. 

necessary  to  procure,  1054. 

presumed  to  have  been  made  at  date,   1055. 

surrender  of  grant  does  not  constitute  redelivery.  1058. 

to  grantee  is  necessarily  absolute,   1056. 
effect  of  transfer,   1083. 

grant  may   inure  to   benefit   of   stranger,    1085. 

incidents  of  transfer,   1084. 

what   title   passes,    1083. 
how  interpreted,   1066. 
Interitretatlon 

against  grantor,   1069. 

irreconcilable   i)rovislons,    1070. 

limitations,   how  controlled,   1067. 

meaning  of  "heirs"  and  "issue"  in  certain  remainders.   1071. 

membersliip  In  co-operative  agricultural,  etc.,  association,  of, 
653u. 

recitals,  when   resorted   to,   lofis. 

words   of   inheritance   unnecessary.    l(i7"J. 
in    general,    1039. 
mode  of  transfer,  as  to,  1052. 

grant,  what  is,   1053. 

oral   transfer,   1052. 

written   transfer,    1053. 

1937 


INDEX. 
[References  are  to  sections.] 

TRANSFER    (continued). 

of   membership   of   co-operative   agricultural,    etc.,   association, 

653u. 
of  products  of  the  mind,  982. 

of   stock.      See   tit.   Certiflcate.s  o£  Stock,  Transfer. 
voluntary  transfer,   1040. 
what  may  be  transferred,   1044. 

choseain  action.     See  tit.  Clioi^esi  in  Action   (transfer  of), 
owner  out  of  possession  may  transfer,  1047. 

personal   property.      See  tit.   Personal   Property,   Transfer  of. 
possibility  coupled  with  an  interest,   1045. 
real  property.     See  tit.  Real  Property    (transfer  of), 
right  of   re-entry,  1046. 
TRANSFER,  FRAUDULENT.     See  tit.  Fraudulent  Transfer. 
presumed  to  be  fraudulent,   wlien,  3440. 
with   intent  to  defraud  creditors,   3439. 
TRANSIT 

property   in   mortgaged   where   located.   2966. 
stoppage  in.     See  tit.  Stoppagre  in  tran.situ. 
TREES 

damage  for  injuries  to,  3346. 
line-trees,   833. 

trunks  wholly-  on  land  of  one  belong  to  whom,   833. 
TRESPASS 

accession   of  property  by  wilful,    1031. 
cutting  or  injuring  timber  by,  3346. 
personal    property   acquired    by,    1031. 
wagon  road,  penalties  for  trespassing  on,  520. 
TRESPASSER.      See    tits.    Neg^ligence;    Oblig:ation.s    Imposed    by 

Law. 
TRIAL 

by    jury    in    apprenticeship    proceedings.      See    tit.    Master   and 
Apprentice. 
TRIFLE 

disregarded  by  law,   3533. 
TRUSTEES.      See   tit.    Uses   and  Trusts. 
all    must    act,    2268. 

appointed  by  court  for  benefit  of  third  person,  v/hen,  2252. 
appointment  of  new  trustees   by  court,    2287. 
breach  of  trust,  measure  of  liability  for,  2237. 
certain  transactions  by,  forbidden,   2230. 
cotrustees,  how  far  liable  for  each   other,   2239. 
discretionary  powers   of  trustees,   2269. 
duty  of  as  to  appointment  of  successor,  2260. 
guilty  of  fraud,  when,   2234. 

influence  not  to  be  used  for   his  own  advantage,   2231. 
investment  of  money  by,  2261. 

1938 


r 


INDEX. 
[References  are  to  sections.] 

TRUSTEES    (continued). 
involuntary  trii.stee 

must  see   to   application   of   trust   property,   wlien,    2244. 
tliird   person   liable  as,   when,   2244. 
who  is,   2223. 
liability  for  cotrustee,  as  to,  2239. 
liability  for  losses  only,  when,   2238. 
measure  of  liability  for  breach  of  trust,  2237. 
ming^ling  trust  property  with  his  own,  2236. 
must   obej^  declaration   of   trust,    2258. 

degree  of  care  and  diligence  in  executing  trust,  2259. 
not  to  assume  a  trust  adverse  to  interest  of  beneficiary,  2232. 
not  to  use  property  for  liis  own  profit,  2229. 
obligations  of,  as  to.  2228. 
ofllce   of,   how   vacated,   2281. 
discharge  of  trustee,   2282. 
removal   by  court,   2283. 
partners  are  for  each  other,  2410. 
powers  of  trustees,  2267. 

discretionary  powers,  2269. 
presumptions   against,   2235. 

purchase  by,  of  claim  against  trust  fund.  2263. 
rights  of  trustees,  as  to,  2273. 
compensation   of  trustee,  2274. 
indemnitication  of  trustee,  2273. 

involuntary    trustee    becoming    sucli    by    liis    own    fault    not 
within   provision,   2275. 
superior  court  as  trustee,  2289. 
survivorship   between  cotrustees,  2288. 
termination  of  trust.     See  tit.  TruMt. 
to  disclose  adverse  interest,  2233. 
what  constitutes  one  a,  2219. 
TUl  .STS.     See  tit.   I  NOM  anil  TruNtN. 

for    b«'ncfit    of    third    pi-rsons.      Si-i-    til.    'rriiMt.H.    for    lifiicllt    of 

I'liird   I'erwttnN. 
for  what  purposes  a   trust  may  be  created,  2220. 
how  created,  2221. 

involuntary  trust  resulting  from  negligence.  2224. 
involuntary  trust,  what  is,  2217. 
involuntary   trustee.     See   tit.  TruMteoM. 

who  Is,  2223. 
not  revocable,  2280. 

obligations  of  third   persons.     S<<'  tit.  TrnMlecM. 
to  see  to  application  of  property,   when,  2244. 
when   an    involuntary   trustee,    2243. 
obligations  of   trustees.      See   tit.  TrunteeH. 
as  to.  generally,  2228. 

1939 


INDEX. 
[References  are  to  sections.] 

TRUSTS    (continued). 

parties  to  the  contract,  2218. 

succession   or  appointment  of  new  trustees.     See  tit.  Trustee.s. 

suspension  of  ownershiip  by,  as  to,  771. 

termination   of  tru.st 

liow  extinguislied,  2279.  ^ 

as  to,  generally,  2279. 
transfer  of  property  held  in,  to  be  recorded,  1164. 
trustee's  office,  how  vacated.     See  tit.  Trustees. 

by  death  or  discharge,  2281. 
voluntary  trust 

how  created  as  to  trustee,   2222. 

how  created  a^  to  truster,  2221. 
what  constitutes  one  a  trustee.     See  tit.  Trustees. 

as  to,  generally,  2219. 
"TRUSTS"  AND  "TRUSTEES" 

when  to  be  part  of  corporate  name,  290%. 
TRUSTS   FOR  HENEFIT  OF  THIRD  PERSONS 

claim  against  trust  fund,  purchase  by  trustee,   2263. 

compensation  of  trustee,   2274. 

creation  of,  2251. 

declaration  of  trust,  2253. 

degree  of  care  and  diligence  in  executing  trust,  2259. 

discharge  of  trustee,  2282. 

duty  of  trustee  as  to  appointment  of  successor,  2260. 

how  extinguished,  2279. 

indemnification  of  trustees,  2273. 

investment  of  money  by  trustee,   2261. 

interest  charged  to  trustee  on  failure  to  invest,  2262. 
nature  and  creation  of,  2251. 

who  are  trustees  for,  2250. 
not  revocable,    2280. 
obligations  of  trustees,  2258. 
office  of  trustee,  how  vacated,   2281. 
powers  of  trustees,  2267. 

all  must  act  together,   2268. 

as  agent,  2267. 

discretionary   powers,   2269. 
purchase   of  claim  against  trust  fund   by  trustee,   2263. 
removal  of  trustee  by  court,  2283. 
rights  of  trustees,  2273. 
succession  or  appointment  of  new  trustee,  2287. 

superior  court  as  trustee,   2289. 

survivorship  between  cotrustees,  2288. 

vacant  trusteeship  filled  by  court,  2287. 
superior  court  as  trustee,  2289. 
survivorship  between  cotrustees,   2288. 

1940 


INDEX. 
[References  are  to  sections.] 

TRUSTS  FOR  BENEFIT  OF  THIRD  PERSONS   (contlnu.-d ). 
termination  of  trust.     See  tit.  Trust. 
trustee  appointed  by  court,  when.  2252. 
trustees  must  obey  declaration   of  trust,   2258. 
TI  NNEL   RIGHT 

boundaries  of,  1426f. 
location  of 

as  to  generally,  1426e. 
record  of,   ll2  6g. 
what  constitutes,   1426e. 
record   of  location,   1426g. 
INCLAIMKD    DEPO.SITS 

l)i('nnial    report   of.   by   .savings   banks.    5S3h. 
I'MJKUST.WniNG 

contracts    by    persons     without.       Si-i'     tit.     <°4>iitr:i<-l.s     hy     Ter- 
HonH   Without    L'nderNtnndinK. 
as   to   generally.   3S. 
IMHOiri'AKI.NC;.      See    tits.    Ciii:iriui«>:    liiiieniiiil  y ;    Siiret  vmIiIii. 
V.M>i<:itT\l\i.\(;   0>    AlM'KAl. 

from  justices'   or  police   courts,  must    l>e    liU-d,   wlu-n,    9T.Sa. 
LMJl  E  iXFl.l  E\CE.     See  tit.   WillM. 
as  to  what  constitutes,  l.'>75. 
confidential    relations  between   the  parti<s.  presumptitm   as   to. 

against   trustee,    223.'i. 
contracts  procured  by  voidable,    1507,   lt>89. 
definition   of,    1575. 
rescission   for,    16SS. 
thing  gained   by,  trust.   2224. 
trust  arising  through,    222."). 

wills   procured   by   or  revoked    tliroiiph,    1272. 
IM\<  i,0*ii:i>    I,A>n,      See    tit.    lioiiieMteiiil. 
IM\  lOICM'I'liOS.      See    tits.    Coll€-Kr«'«    iiiul    SiMiiiniiricn. 
IM.AWi'l  1.  «  OXTIIACTS.      See   tit.   CoiHrn«l«. 
as  to  what  are,  ir>f.7,  1668. 
contracts  fixing  damages  void,    167ii. 

exceptions  to  the  rule,   1671. 
contracts  In  restraint  of  marriage.   1676. 
contracts  In  restr.'iliit  of  trade.    167.1. 

exceptions   in   favor   of  sale   of   good    will.    MiTI. 
Interstate   commerce.      Sec    tit.    Intorxlntr   r«»innnT<T. 
monopolies.      See    tit.    >lonopolion. 
PXCf'ption.s   in   favor  of  partnership  arraiigi-menls.   1675. 
IM.AWFI  I.  oni.iGATiONS.     See  tit.  OltlliciitlonM. 
l\L.\UKl  i.  TilANSI-'Ell 

certain   Insfrvmients  void  as  against  purrh.T.sor.   1227. 
not  void  as  against   purchaser,   when,  122S. 
power  to  revoke,  wlien,  1229. 

1941 


INDEX. 
[References  are  to  sections.] 

U]VLIQ,UIDATED   DAMAGES.      See    tit.    Damages. 
ITA RECORDED  DEED.     See  tits.  Deed;  Notice. 
UNUECORDED   IN-STRUMEIVT 

valid  between  the  parties,  1217. 
UNSOUIVD    MIND.      See    tits.    Per.son.s    o£    Un.soimd    Miud;    Wills; 
Words  and  Plira.se.s. 

contracts    by    persons    of.      See    tit.     Contracts    by    Persons    of 
Unbound  3Iind. 

as    to   generally,    39. 
USAGE 

agent  to  conform  to,   2349. 
definition   of,  1644. 
employee   to   conform   to,   1982. 
meaning-  of  words,   determined  by,    1644. 
USES  AND  TRUSTS.     See  tits.  Trustees;  Trusts. 
author  of  may  devise,  etc.,  864. 
certain  sales,  etc.,   by  trustees,  void,   870. 
estate   of  trustee   ceases,   when,   871. 
exercise   of  vested  powers,    860. 

for  what  purpose  express  trust  may  be  created,   857. 
to  mortgage   or   lease   real    property,   857. 
to  receive  rents  and  profits  of  real  property  and  accumulate 

same,   857. 
to  receive  rents  and  profits  of  real  property  and  apply  same, 

857. 
to  sell   real  property,   857. 
grantor  of  trust  property,  title  of,  865. 
interest  remaining  in  grantor  of  express   trust,    866. 
must  be  in  writing,  852. 

omitting  trust  in  conveyance,  effect  of,  869. 
purchaser  for  value  without  notice  protected,   when,   856. 
restraining  disposition  of  trust,  867. 
sales,   etc.,  by   trustees   void,   when,   870. 
title  of  grantor  of  trust,  865.  < 

transfer  to  one  for  money  paid  by  another,  853. 
trust  presumed,  when,  853. 

trustees  in  lands  liable  to  creditors,  when,   859. 
vesting  of  power  to  sell  or  mortgage  real  property,  858. 
what  may  exist,  847. 
VAGRANT 

child  who  is  to  be  arrested  and  committed,   607g. 
VALIDATING 

defectively  executed  instruments,   1207. 
certified  copies  as  evidence,   1207. 
VALUABLE   CONSIDERATION.      See    tit.    Consideration. 
VARIANCE.     See  tit.  Acknowledgments. 

1942 


INDEX. 
[References  are  to  sections.] 

VEHICLES.     See  tit.  CarriaK*'  of  I'aNscimcrs  f<ir  Hire. 

common  carrier  of  persons,   to  prf)Viflt'  siitficient,   -^S4. 

not  to  be  overloaded,  2102. 
VENDEE 

lien    of,   3050. 
VENDOR'S  MEN 

as  to,  generally,  3046-3049. 

as  to  lien  of  seller  of  real  property,  3046. 

homestead   liable   for.   when.    1241. 
VESSELS.      See   tits.    Sliiii.s;   Sliii».s   ami   Sliipiiint;. 

transfer   of,   how   recorded,    117.3. 
VESTED  FEE.     See  tit.  Eee. 
VESTED   RIGHTS 

as  to   wliat  are,  30."). 

future  interests,   GIM. 
VESTING   OF  POWER   TO  SELL  IN    MORTGAGE,  ETC. 

as  to,  858. 

exercise  of  power,  860. 
VKIOl  S  ANIMALS.     See  tits.  Auiiiials;  XoKliKt'iiee. 
VIGII,ANT 

law  gives  preference  to  the.  3527. 
VISIT.4TION.      See   tit.   Cor|iorutiouN. 
VITK  I  l/ri  HAL   ASSO<  IATI<»\S.     Se.     tit.  Co-o|M>ral  ivt-    Xnrhiil- 

tiiral.   viv.,    A.s.sooialUtu.s. 
VOID  CO.MHriOV.      Set    tit.   (  ouditiou. 
VOLUNTARY    roNVEVANCP:.     See   til.   Transfer. 

definition   of,   1040. 

validity  of.  1040,  3442. 
VOTING.     See   tit.   CoritoraUoiis. 

l)y  co-operative  corpora tlun.s.  *;',:]■/.]>. 
VOTING   TIirST.      See    lit.    <  <ir|»ora(ionN. 
WAGERING 

contracts.     See   tit.   (ontrnefs. 

Insurance,  as  to,  255S. 
W.\€iES.     See   tits.    MnNtrr  and    .>«tr\aiit;    >lalfs   and    •«,.;, nuii. 

for  services  wliere   tliere   is  no  employment,    207s 

of  minor,  212. 

personal    representatives   entitled    to    receive.    wh<n.    2062. 

wife's   earnings,  as   to,    169. 
WAGON    ROAD   CORPORATIONS 

articles    of    inccrporati.in.      See    tit.    ( 'iir|i<>r:it  iiin>«. 
what  must   contain.   291. 

bridges    and    ferries.      See    tit.    Ilriiluei,    lerrv.    \\  liarf.    «  iim,.. 
nnd    Pier  CnrporatlonM. 

bridges  or  ferries  on  line.  .'>14. 

not    111   tw  charged  on   bigliways  or  i>uMie  ro.qrl.q.   .S1.">. 
1943 


INDEX. 
[References  are  to  sections.] 

WAGON  ROAD  CORPORATIONS   (continued), 
bridges  or  ferries,   rates  must  be   posted,   516. 
tolls,   as  to,   in   g'eueral 

limit  of,  514. 

penalty   for  violation,    514. 
commissioners  to  act  in  conjunction   with   surveyor,   512. 
crossings,  as  to,  513. 
forfeiture  of  franchise,  514. 
franchise  of,   524. 

horseless  vehicles,  franchise  to  construct  road  for,   524. 
how  to  be  laid  out,   511. 
hypothecation    of   property,    522. 
mortgage   or   hypothecation    of   property,    522. 
natural  person,   ownership  by,   523. 
opening  highway  taken  as,   513. 
penalty 

for  excessive  toll,   514. 

for  trespass  on  property  of,   520. 
Ito.sting; 

date   of  franchise,    516. 

rate  of  tolls,  516. 
reduction   of  tolls,  when,   521. 
revenue,    how    apportioned,    521. 
subscription 

amount   necessary    to    entitle   to   file   articles,    293. 

toll-gate,  as  to,   513. 

toll-gatherer,   right  to   detain   until    payment   made,    517. 
not  to   detain   unreasonably,    518. 
survey  and  map  to  be  filed  and  approved,  513. 
tolls.      See    "bridges    or   ferries    on    line,"    this    title. 

avoiding  tolls,  penalty  for,   519. 

persons   detained   until   toll   paid,    517. 

rates  to  be  posted  at  gate,   516.  ^ 

reduced,  when,  521. 

to    be    reduced,    when,    521. 

trespass  on  property  of,  penalty,  520. 

unnecessary   detention    or    overcharges,    damages   for,    518. 

what  may  be   charged,   514. 
WAIVER 

communication    of    in    insurance,    2569. 

lunatic's    rights    not   lost    by,    40. 

of  demand    by    pledgeor    or    debtor,    3004. 

of  notice  of  sale  of  pledged  property,   3003. 

of  objections   to   offer   of   perforinance,    1501. 

of  option   as   to   delivery   of   goods   purchased,    1756. 

of  presentment    and    notice,    3159. 

of  protest,   3160. 

1944 


INDEX. 

[References  are  to  sections.] 

WAIVER    (continued). 

of  provisions  of  the  code,  by  stipulation,   3268. 

of  sale   of    corporated    stock,    349. 
WAIVER  OF   CONDITION.      See   tit.    CniKlHion. 
AVAR 

di.ssolution    of  partnership   by,   2450. 
WARKHOITSF    RECKIPT 

classification    and    effect    of,    1858b. 

indorsement   of   negotiable   receipt,    1858c. 

negotiability,    1858d. 

not   to   be   issued,  when,   1858. 

not  to  issue  except,  1858. 

penalties,   1858d. 

requisites  of,  1858b. 

second  receipt,   1858. 

transfer  of  property   by   indorsement   of.    1858b. 
AVAilEHOUSR>lEN.     See  tit.  Warelioii.Nc   Itt'ooipt. 

liabilities,   generally,    1858f. 

liability    for   loss   by    fire.    1858f. 

non-negotiable  receipt  and  its  effect,   ]858d. 

j)enalties   and    liabilities,    1858f. 

property   not   to   be    removed    from    Avitliout    consent    in    writ- 
ing,   1858a. 

receipts  of.     See  tit.   WnrelnniMe  ReoeiptM. 

removal    of   property,    written    consent    necessary,    lS58a. 

ti-.insfer   of   proju^rty    in.    b>-    indorsement    of   receipt.    1858li. 
W  A  11  KANT  OF  A I  Til  OR  IT  V 

breach    of  by  agent,  damages   for,    3318. 
\VAItRA.\TV.      See    tit.    Sole. 

agent's  authority  witli  reference  to,  2323,  2342. 

breach   of,  riglits  of  party,  1786. 

by  Indorsement.  3116. 

cfivenants   for,    1463. 

delinition   of,   1763. 

implied  in  contract  of  sale-,  when.   17f,  1. 

in    excliange   of   money,    1807. 

in   Insurance.     See  tit.  InMiirntice. 

lineal  and   collateral   warranties  alxilisbed.    1 1 1  .i. 

of  money,   on   exchange,    1S04. 

of  quality   of  personal   property,   damages   fur   l>reacb    <>f    3312. 
for  special   purpose,  danuiges  for  breach   of.   331  I 

of  title,   1765. 

of  title  to  personal  property,  dam.-iges  for  breach  of.   :i;n;t. 

on   judicial   sale,    1777. 

i)n    sale    by    sample,    1766. 

where  buyer  relies  on  statement  of  seller.  1767. 

1945 


INDEX. 
[References  are  to  sections.] 

AVASTE 

grantee's   recovery   for,   2177. 
on   mortgraged   property,   2929. 
WA.STE  WATERS.     See  tits.  Appropriation  of  Winters;  \Vater. 

notice  of.     See  tit.  Notice. 
WATER.     See  tits.  Appropriation;  Water  and  Canal   Companies. 

abandonment    of   appropriation,    1411. 
alluvion    on.      See    tit.    Alluvion, 
appropriation  of  ii.se  of 

completion  of,  1417. 

diligence   in,   1416,    1420. 

first   in   time,    first   in    right,    1414. 

must  be  for  useful   purpose,   1411. 

rights  in  stream  acquired  liy,   1410. 
avulsion.      See    tit.   Avulsion. 

as   to,    1015. 

boundaries  by,  830. 

changing   use    of,    effect,    1412. 
completion  of  diversion,  what  constitutes,  1416. 
diligence  required  in  appropriating,  1416,  1420. 
ditch  or  flume.     See  tit.  Ditehe.s,  Flumes,  etc. 
diversion,  change   of  point   of,   1412. 
easement 

to   receive   and    discharge    on    land,    801. 

to  take,    801. 
flume  or  ditch.     See  tit.  Ditches,  Flumes,  etc. 
forfeiture  of  claim  of  appropriated,   1419,   1420. 
hydraulic  mining,  use   in,   1424. 
islands   in.      See   tit.    Islands. 

as  to   ownership  of,    1016. 
notice  of  appropriation  ^ 

recording   of,    1422. 

requisites  of,  1415. 
posting,    1415. 
priority  of  rights  in,   1414. 

reclaiming   after  turning   into   natural    channel,    1413. 
recording  notice  of  appropriation,  1421. 
relation 

doctrine  of  applied  to,  1418. 

of  claim  to  date  of  posting  notice,  1418. 

of  rights  of  present  claimants,  1420. 
servitudes  of,    801,   802. 

turning   into   natural   channel,  right   to   reclaim   after,    1413. 
^VATER  AND  CANAL  CORPORATIONS.     See   tit.  Appropriation. 
liridges,  duty  to  maintain  on   liighway,  551. 
construction   and   repair   of   bridges,    551. 
construction    of   canal,   etc.,    551. 

1946 


I 


INDEX. 
[References  are  to  sections.] 

WATER  AND  CANAL  CORPORATIONS  (continued), 
contract,  city  or  town  may  for  supply  of  water.  .".IS. 
contract    to    supply    city   or    town,    .548. 
dutieH  of 

in   furnishing  cities  with   water,   549. 
fire,  duty   in  case   of,   549. 
flumes.  ■    See   tit.   Dltoluvs,  FIiiiiu-h,   vtv. 

duty  as  to,  551. 
Iiiiorli^vny 

duty  to  maintain  bridges  on,  wlien,  551. 

not   to  be  obstructed  by,  551. 
irrigation  rights.     See  tit.  Irrigutinn. 

as    to,   generally,    551. 
must    furnish    water    for    family    use    upon    demand,    549. 

rules  may  be  prescribed,  549. 
person  furnished  water  entitled  to  continuance,  when,   552. 
rates 

cities  to  be  charged,  549. 

regulating  rates,   548. 
riglit  of  purchasers  to  use  water  for  irrigation,  552. 
stock  of  appurtenant  to  land,  when,   324. 
suinTvisorM 

duty   in   case   of   fire,    549. 

may  construct  bridges  and  recover  therefor,  551. 

may  prescribe   rules   for,    549. 
term   of  grant,   548. 
WATKIt   COMPANIES.      See    tit.    \\  :itor   niiil    <:ni:il    <->iiipaiiie!>4. 
Nt«>(>k  of 

ainturtenant   to   land,    when,   .324. 

tran.«ifer  of,   .324. 
WATKIl    K ATKS.     See  tits.   Water  Companies;   Itatos. 
WATKIt-ItKiHTS,  as  to.  See  tit.   Water  auil  Canal   <  orporni  iuii 
approi)riatii)ii   must   be   for   useful    purpose,    1411. 
completion    defined,    1417. 

diligi'nce  in  appropriation   of   water.    Illf.. 
doctrine  of  relation  applied,    1418. 
first    in    time,    first    in    riglit,    1414. 
forfeiture,  1419. 

may   be  acquired   by  appropriation,    IIH'. 
notice   of  appropriation,   as   to,    1415. 

contents  of  notice,   1415. 

record   of   notice,   1415. 
point  of  diversion  may   b<'  ehanged.    1412. 
recorder  to  keep   book   in   which   to  record  notices.   1421. 
time    within    which    to   commence   excavation    '•"    i.iii.iu     r..«.. 

vations,  1422. 
turning    water    into    natural    fbannel.    1413. 

1947 


INDEX. 

[References  are  to  sections.] 

WATERWAYS 

telephone   and   telegraph    lines   along,    536. 
WAY,      See   tit.   Right   of  Way. 

as  to  boundary   by.     See  tit.  Way.s,  Boundary  of. 
AVAY  OF  NECESSITY.     See  tits.  Easenieut.s;  Servitude. 
WAYS,   BOUNDARIES    BY.      See    tit.    Boundaries. 
as  to,  831. 

lateral  and  sub.iacent  support,  as   to,    832. 
WEIGHING   AND    MEASURING.      See   tit.    Identification. 
WHARF.      See  tit.   Bridges,  Ferry,   Wharf,   Chute,  and  Pier   Cor- 
porations. 
WHARFINGER.      See   tit.   Warehousemen. 
WIDOW 

inheritance    by.      See    tit.    Succession, 
legacy  to 

charged   with   debts   of   testator,   when,    1361. 
interest    on,    accrues,    when,    1369. 
succession    of.      See    tits.    Coniniuuity    Property;    Hushand    and 
Wife;    Succession. 
W^IFE.       See     tits.     Coniuiunity    Property;     Husband     and    Wife; 
Wills. 
inherits  from  husband,   1400. 

succeeds,  when.      See  tits.   Community  Property;   Husband  and 
Wife;    Succession. 
WIFE'S    DEBTS.      See    tits.    Community   Property;    Hu.sband   and 

Wife. 
WIFE'S    VOID    CONTRACT.      See    tits.    Contract;    Hu.sband    and 

Wife. 
WILFUL   MISCONDUCT.      See   tit.   Damages. 
WILLS 

advancements.      See    tit.    Advancements. 

are  ademptions,    when.     See   tit.   Ademptions. 
after-born   child  revokes,   when,    1306. 
annuity.      See    tit.    Annuity. 
as  to  who  may  make  a  will,   1270. 

bequest  of  interest  and   income,   accrues   from,  when,    1366. 
of  residue,  effect  of,  1333. 
vests,    when,    1341. 
certain  words,  effect  of  use  of,   1334. 

charitable    bequests.      See    tit.    Charitable    Uses    and    Bequests. 
charitable    uses    and    bequests.      See    tit.    Charitable    Uses    and 

Bequests. 
child   born   after   testator's   death.      See   tits.   After-born    Child; 
Posthumous    Child. 
takes   under  will,   when,    1339. 
codicil.      See    tit.    Codicil. 

probate  of.     See  tit.  Probate. 
1948 


I 


INDEX. 
[References  are  to  sections.] 

WILLS   (continued). 

competency   of  witness   to,    1280. 
condition  precedent,  what  is  in,  1348. 

effect  of,  1347. 

when   deemed  performed,    134S. 
condition   subsequent,   1349. 
conditional   devises  and  bequests.   1345. 
conditional  will,   1281. 

construction  of.     See  "Rules  of  Construction,"  this  till-  . 
construction    of    particular    words    in.      See    tit.    \Vor«l.H    mikI 

Phrases. 
conversion   takes   effect,    wlien,   133S;. 
deatli  of  devisee  or  legatee  before  testator,  effect  upon  interest 

in   remainder,  1344. 
devise   or  bequest   to  a  class,   1337. 

of  all  real  or  personal  property,   1331. 
devise  vests,   when,   1341. 
devisees  take  as  tenants  in  common,  1350. 
estates  devised  charj^^eable  with   debts,   135S,  1359. 
execution  according  to  tenor,    1371. 
execution  and  revocation  of  wills,  l:i70. 
gifts   to   subscribing  witnesses  void,   1282. 
harmonizing   various   parts   of  will,    1321. 
holographic,   definition   of,   J277. 
in  what  case  devise  not  affected,   132 J. 
intention  to  be  asce':ained  from  the  will,  1318. 
interpretation,   rues   of,    1319. 

law   governing  validity  ami   interpretation,    137('). 
mistakes  in   1340. 
niiitunl   ^vMl 

as    to  rfenerally,    1279. 

probite    of,    1291. 

proiW  of  nuncupative  wills,   1200. 

reoJisite  of  valid,   12S:). 
natire  and  designntion  of  legacies.     Seo  tit.  I.OKHolrn. 
,,ljgraphic.     See    "Holographic,"    this   title. 
,>(i\<<r   to   devise,   liow   ex.iuti'd    by    terms   of    will.    1330. 
rriMiltliciitiun    liy    codicil 

as    to   generally,    1287. 

nuncupative    will,    how    ixecnted.    12.'»8. 
residuary   clauses.      See   tit.    UeNi<tii:ir.>    <  hiuxeN. 
riilrM  of  ronntnirtitin 

as    to    geiier.illy.    1319. 

certalii  Wolds  not   neciss.iry  to  pa.ss  foe,  1329. 

harmonizing  various  parts  of,    1321. 

Intestacy   to   be  avoided.    132fi. 

several    Instruments   to    be   tak<ii    totr.ther.    132<i. 
1949 


INDEX. 
[References  are  to  sections.] 

WILLS 

riilt'N  «>f  c<»n.Htriioti«>u    ( citntinueil ). 
technical  words  not  necessaiv,  1328. 
i"chnical   words  used  in,  effict  of.  1327. 
where  am])iguou.s  or  doubtful,  1323. 
Tv-ot-.N   taken    in    ordinary   sense,    1324. 

♦o  receive-  operativi'  construction,   1325. 
II  .  ises  and  legacies.     See  tit.   Legrucien. 
'...-I.       i  s  in:.:»ntion  to  be  curried  out,  1317. 
to  I'e  pr«  vc<i   w'tliin  what  timt-.  1364. 
what  mil y   pasrf   'v  will,  11'74. 
wlui  may   taki    !>.    will,  1275. 
will  made  out  »t  state  not  valid,   whin.   12s."i. 
will   of  married   womaji      Sec   tit.   Married   Womon. 

may  make,  alter,  (.ir  revoke  will,  1273. 
witness  subscribing  will,  co'npetency  of.     See  tit.  W Hiion.s. 

us  to  generally,  1280. 
witness   to,   creditor  competent,    1282. 
witni'ss    to  adil    i  ■-'..!.  ii   ••     i.TS. 
witne».s   to   \' 
words  of  doi. 

to  what  time   wuius   ipit-r.  laStt. 
words  of  to  he  tak»Mi  in  orditmry  sense,   1.124. 
written    will 

as  to,    how   executed,   127t). 
after-born    child,    unpro\  i-led    ^or,  tits.     Af 

born  Cliild;  PoNtliunifiUM  Cli  >    • 
as  to  generally.  130!). 
contract  of  sale  not  revocation,  1301. 
conveyance,   when  not  a  r-fvocatfo--     '    (•' 
elVect   of   ninrringre 

of  man   on  his  will,   1299. 
of  woman   on  her  will,   1300. 
evidence    of    revocation,    1293. 
mortgage   not   a   revocation,   1302. 
revocation 

by  codicil,   1305. 

by  marriage,  and  birth  of  issue,  1298. 

by    subsequent    will,    1296. 

antecedent  not  revived  by,   1297. 
of  duplicate,    1295. 

^VI^E 

Male  of 

delivery    necessary    to    validity,    3440. 

recording,    3440. 

to  be  in  writing,  3440. 

1950 


INDEX. 
[References  are  to  sections.] 

AVITNESS.      See    tit.    Wills. 
acknowledgment  of,  1185. 
creditor  may  be  to  will,  1282. 
"depose,"  definition  of,  14. 

to   nuncupative  will,   1197. 

to  prove   handwriting,   1199. 
not   necessarj'   to   holographic   will,    1277. 
oath  to  in  taking  acknowledgment,   1185. 
privileged,  testimony  of,  is,  47. 

recorded   instrument,   may   be  proved   otherwise   than   by   sub- 
scribing,   1197. 
subscribius 

instrument  may  be  proved  otherwise  than  by,  1197. 

manner  of  proving  instrument  by,   1196,    1197. 

to  be  known  to  officer  taking  proof,   1196,   1197. 

to    prove    what,    1197. 
subscription    of,    definition    of,    14. 
testify,  definition  of,    14. 

to   prove   execution    of   instrument   must   be   personally  known 
to  officer,  1202. 

witness   must   prove   what,    1197. 
to  will 

as   to,   1276,    1279. 

cannot  take  under  as  by  succession.   1283. 

gift    to.    1282. 

who   is  a   devisee,   rights   of.    1283. 
WOOD 

right  to  take,  802. 
WOODS 

damages   for  firing,   3346a. 
"WORDS" 

meaning  of   in    certain    remainders,   1071. 
W'ORDS    AND    PHRASES 

"agent,"    includes    what,    2295. 

"create   debts,"   meaning   of,    579. 

"descendants,"    in   will,    1334. 

"family,"  meaning  of  in   will.   1334. 

"for  whom   it  may  concern,"  in  policy  of  insurance.  2592. 

"heirs,"    in    will,    1334. 

iiow  construed,  13. 

''i.ssue" 

in   will,   1334. 

meaning  of  in  certain   remainders,   ]i)71. 
"legal   representatives,"  in  will,   1334. 
"near  relations,"    in   will,    1334. 
"nearest    of   kin,"    in    will,    1334. 
"next  of  kin,"  in  will,  1334. 

1951 


INDEX. 
[References  are  to  sections.] 

WORDS  AND  PHRASES    (continued). 

"personal   representatives,"   in   will,    1334. 

"relations,"  in  will,  1334. 

"relatives,"  in  will,  1334. 

"representatives,"   in   will,   1334. 
WORDS    OF   INHERITANCE 

unnecessary   to    transfer   fee,    1072. 
WORKMAN 

lien   on  threshing-  machine,  etc.,   3061. 
WORKMANSHIP 

combined    with     property    of    another,    ownership    of    article 
produced,   1214. 
WRECKS    AND  W^RECKED   PROPERTY 

deposit  in   case   of  shipwreck,   1815. 

duty  of  depositary,   1816. 

Kag-es  of  seamen  not  lost  by,   2058. 
WRITING.      See   tit.    Statute   of   Fraiid.s. 

contract   in 

how  altered,  1698. 

prevented  by  fraud  from  being-  in,  specific  enforcement,  1623. 

printed  part  controlled  by,   1651. 

erroneous  disregarded,  how  far,  1640. 

fraud,    prevent    putting   contract    in,    enforcement,    1623. 

instrument  in 

consideration  presumed,  1614. 
negotiable,  transferable,  1459. 

intention    of   parties,    how   ascertained,    1637. 

private,  property   in,  985. 

productions  of  the  mind  in,  property  of,  980,  984. 

supersedes  prior  oral   negotiations,    625. 

transfer  must  be   in,   when,   1135. 
WRITTEN    INSTRUMENT 

consideration  presumed,  1614. 
WRITTEN    RECEIPT 

debtor  has  a  right  to  require,   1499. 
WRONG 

consent   to,  no   wrong   suffered,    3515. 

lunatics  liable  for,   41. 

minors  liable  for,  41. 

own,  advantage  cannot  be  taken  of,  3517. 

parties  equally   in   the,  courts  will   grant  no   relief,   3524. 

remedy  for  every,  3523. 
WRONGFUL   OCCUPANCY 

damages    for,    3334. 
YEARLY  WORK.     See   tits.  Development   Work;   Mining  Claims. 


1952 


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